Tag Archives: asbestos

Times of India exposes Dow’s double standards on Bhopal

Here is something for legal eagles of the government of India to chew on: while Dow Chemical Company denies any responsibility for damages caused by Union Carbide in Bhopal, it has taken over all liability of Carbide for fighting out over 75,000 asbestos related law suits in the US. Dow/Carbide expects to incur liability costs of $839 million in the coming years. They have already spent a whopping $687 million in litigation costs, besides paying out $1,480 million to an unspecified number of claimants till date. Carbide became a subsidiary of Dow through a merger in 2001.

These facts, gleaned from the mandatory annual filing (Form 10-k) for 2009 submitted by Dow to the Securities and Exchange Commission (SEC) of the US on February 19, 2010, clearly establish that Dow has taken over Union Carbide liabilities for bodily damages caused by the latter’s commercial activities. In the case of Bhopal, Dow has consistently claimed that it had nothing to do with the massive gas leak disaster of December 3, 1984 in the pesticide plant run by Union Carbide.

In 1994, Union Carbide (USA) sold off its interest of 50.9% in Union Carbide (India) to Macleod Russel (India) which renamed it as Eveready Industries India. According to Dow, its connection with UCIL doesn’t exist because it took over the parent company only in 2001. But, according to N D Jaiprakash, one of the petitioners in the lawsuits on Bhopal, Union Carbide (USA) had already been declared an absconder in 1992 and it is named in the chargesheet filed by the Union government. “All criminal liability, as also liability for clean up of contamination caused by Carbide prior to disaster naturally passes to Dow,” he explains.

In the US asbestosis cases, Dow is defending or settling the suits on behalf of Union Carbide as well as Carbide’s subsidiary Amchem Products Limited, which Carbide took over in 1977. In India, Dow is distancing itself from Union Carbide (USA), which in turn is washing its hands off its own subsidiary Union Carbide India Limited.

According to the latest Form 10-k filing by Dow, there were 75,030 unresolved asbestosis related claims at the end of 2009, including 24,146 claims against both Union Carbide and Amchem. There are over 50,000 individual claimants. Dow/Carbide settled 9,131 claims in 2009.

Of the $839 million estimated future liability reported in the 10-k filing, about 23% is for existing pending claims and 77% is for future claims. Asbestosis claims have arisen from thousands of people who were exposed to asbestos used by companies in the 1940s and 50s. Inhalation of asbestos fibres causes four categories of compensable diseases: mesothelioma; lung cancer; certain other cancers (colon-rectal, throat, intestines and stomach); and non-malignant conditions like lung damage. Claimants are seeking compensation for a variety of causes including negligent failure to warn, strict liability, breach of express and implied warranty, negligent infliction of emotional distress, enhanced risk of disease, medical monitoring, and civil conspiracy. A Supreme Court appointed committee said in 1991 that by 2015, about 265,000 people would have suffered damage from asbestos.

The 10-k filing of Dow also states that it is seeking recovery of $84 million from insurers for its asbestos liability, and $448 million as costs of defence and resolution of law suits in courts.

The similarities between the Bhopal disaster and asbestosis cases in US are striking in that both have led to
long term and severe bodily harm to people because of actions of the companies. But the attitude of Dow is strikingly different between US and India. In the US, Dow is responsible for what its subsidiaries (and their subsidiaries) did years ago. Hence, it is in the thick of litigation and forced to pay affected persons because of immense pressure from public opinion and judiciary. So much so that Dow admits that asbestos related claims, including future defence costs could have a material adverse impact on its consolidated financial position.

In India, Dow is denying any responsibility for what its subsidiary Union Carbide (USA) and its then subsidiary Union Carbide India did in the Bhopal tragedy in 1984.

SUBODH VARMA

Japan: Glacial help for asbestos victims

Masae Honma, Yomiuri Shimbun, October 14, 2006

Though six months have passed since legislation was passed to provide relief for sufferers of asbestos-related health problems, about 170 people have died while a decision on the validity of their condition was pending.
The law provides financial aid to victims of asbestos-linked diseases who are not covered by workers accident compensation, which provides aid to employees in plants producing or using asbestos only.
However, according to the Environmental Restoration and Conservation Agency, which accepts applications for the aid, as of the end of August screening of only 522 of 1,160 applicants had been completed.
The government recognized 242 of the 522 cases as mesothelioma or lung cancer caused by asbestos. But the figure is about one-fourth the annual death toll from mesothelioma alone.
In 271 of the cases in which the initial procedure was finished, final decisions were held up because of insufficient medical information. The government asked applicants to receive additional medical checks in which tissues of the affected organs were removed for examination.
In June, a 59-year-old man in Amagasaki, Hyogo Prefecture, asked, “Are they waiting for us to die?” on being advised that a decision on him remained outstanding three months after he made his application.
The house in which he lived until the age of 27 was located about 50 meters from a Kubota Corp. factory, which is believed to have caused asbestos-related diseases.
The man remembered seeing asbestos fibers floating and shimmering in the air when mud alongside a river running through the plant’s compound dried out.
Though he had been in good health, he started feeling constantly out of breath. In 2003, he was diagnosed with mesothelioma and had to have his left lung removed, forcing him to quit his job.
Due to the high cost of medical expenses, he applied for aid at the earliest opportunity but received a reserved judgment. He submitted the results of an additional medical checkup, but a final decision has yet to be made.
Another man in the city, aged 54, lost his left lung after being diagnosed with mesothelioma. He continued working as his child was in primary school.
His application was also given a reserved judgment, and the man died last month.
The number of applicants who died before their applications had been processed has reached about 170.
Prof. Takashi Nakano at Hyogo College of Medicine, which will establish in November a center for mesothelioma and other diseases caused by asbestos, said judgments are reserved in many cases because diagnosing a disease as being asbestos-linked is difficult.
“Lung cancer is caused by not only asbestos, but also smoking, air pollution and other factors. So it is difficult to pinpoint the cause of each patient’s disease. Concerning mesothelioma, nearly 70 percent of the patients have symptoms known as the epithelium type. The disease is very similar to that of lung cancer caused by factors other than asbestos,” he said.
In medical institutions, biopsies from affected organs in mesothelioma cases are often skipped because the process is not necessary for treatment, though the law requires that it be done.
However, many doctors said it was hard to perform such biopsies because many of the victims have deteriorating conditions.
In the coming five years, a total of 75.7 billion yen of relief funds are scheduled to be raised from not only budgets of the central and local governments but also donations by companies that have used asbestos in the past and other cooperative firms.
The amount was calculated based on the quantity of asbestos used in the nation and the estimated number of victims.
An estimated 10,000 people died from asbestos-related diseases before the law was enacted. Bereaved family members of a dead victim in this category will receive about 3 million yen in condolence money. There have been 1,514 applications for compensation.
It is also estimated that about 2,000 people will develop asbestos-related diseases every year. Each victim will receive about 100,000 yen a month for medical expenses, and about 200,000 yen will be provided for funeral expenses in the event of death.
Judging from the estimated figures, the current number of applications is too small.
Sufferers of asbestos-related diseases said the government puts too much emphasis on the formality of medical judgments and does not pay enough attention to the reality of the patients’ situation.
The victims and their family members are now suffering from heavy medical expenses and other burdens. Delay in recognizing them as victims makes the aid system itself meaningless.
Kazuko Furukawa, deputy president of the Japan Association of Mesothelioma and Asbestos Related Disease Victims and their Families, said, “We want the medical judgment process to be speeded up.”
“Also, patients of asbestos-related benign pleural effusion and lung asbestosis are not covered by the scheme, though these illnesses are also caused by asbestos. Relief should also be given to these patients,” she said.
It should be remembered that the law came into force only nine months after Kubota revealed that many ailments were caused by asbestos from the plant, and the government quickly began searching for victims.
But if the current situation remains unchanged, the relief process will become meaningless.
The government is still unable to settle disputes over recognizing victims of Minamata disease and itai-itai disease–poisoning from organic mercury and cadmium, respectively– as results of industrial pollution.
Will the government make the same mistake with the asbestos problem? It should manage the relief system more flexibly so that victims can reap the benefits to which they are entitled.