Asbestos

The holidays can be a time of contrasts: chaos and contemplation, stress and relaxation, consumption and giving, excess for some and scarcity for others.

In the spirit of balance, we at Shepard O’Donnell want to wish you the happiest of holidays and also warn you of some of the hidden dangers that can be lurking where you least expect them. 

You might not be surprised that we urge caution when taking decorations out of your great-grandmother’s attic: older attics may still contain asbestos insulation and rustling around up there can disturb fibers and dust that you might then bring down into your living space. 

But you may be quite surprised to learn that asbestos might be hiding in some of the vintage wine you are saving for a special occasion! While it’s now illegal, asbestos was used in wine filtration systems across the industry up to the 1970s. Experts say that asbestos fibers are less likely to be found in finer, more expensive wines and that it is relatively rare that you still find wine contaminated with asbestos today. 

Although many of the following items no longer pose an imminent threat, we wanted to share a few holiday-related products in which you might find lingering asbestos:  

Fake Snow

The ideal of a “white Christmas” has been around for decades, popularized by countless movies and songs, and many people wanted to bring that beauty inside. White asbestos, or chrysotile, has a fluffy texture and was once sold as fake snow. People could buy packs of chrysotile, marketed under names like Snow Drift and Pure White, to create festive snowy scenes at home! Unbelievably, the company that made these products advertised them as “safe snow for holiday decorations,” and many people used it to create wintery scenes or flock the Christmas tree. 

Sadly, even Hollywood fell for this misguided advice: The classic film, The Wizard of Oz, used 100% asbestos for the snow that rained down on Dorothy and her friends, and others like Holiday Inn and It’s a Wonderful Life also used it for their snow scenes. 

Vintage Ornaments

Vintage ornaments and other decorations that have a look of frost or snow were probably also made from asbestos. If you’ve inherited decorations from older relatives or purchased them at an antique store, check closely for that telltale dusting of white. 

Model Train Sets

The “snow” was also commonly thrown around toy train sets that circled the Christmas tree or even in the elaborate model railway layouts that may have been set up in your grandfather’s basement. Some modelers also used powdered asbestos, dyed green, as ground cover and it was also often found in plaster.

Old Holiday Lights

Because asbestos was prized for its fire-resistant qualities, old string lights and wires were often insulated with this material. Be very careful when handling these items, especially if you notice any damage.

Artificial Fireplace Ash

Artificial ash made out of asbestos was often used in private homes to create a fake glow in artificial fireplaces before it was banned in 1977. Needless to say, this ash was readily breathed in and posed a real danger to people looking to create a warm ambience during the cold winter months. 

Household Fabrics

Again, the fire-resistant properties of asbestos made it “ideal” for fabrics that might potentially catch fire during normal use, such as oven mitts, tablecloths, mats, and even Christmas tree skirts. Many such products manufactured in the early part of the 20th century were made with asbestos. 

Children’s Pajamas

In a misguided attempt to keep children safe, clothing manufacturers made kid’s pajamas with flame-retardant materials containing asbestos. These were not banned until the 1970s!

Older Household Appliances

Crock pots, toasters, ovens, irons, coffee pots, bottle warmers, popcorn poppers, hair dryers and more used asbestos as insulating material, either to keep their outsides cool, their contents warm, or to insulate their wires. Today, these products don’t pose too much exposure risk to users unless they have damage.

Curtains

Asbestos curtains first became popular in movie theaters, where the large stage curtain was at risk of catching fire due to the close proximity of hot stage lights. Asbestos curtains were also marketed to homeowners for their fire-resistance and sound insulation benefits and could be found in luxury homes built before 1980.

Books

The binding of some old books, even those bound as late as the mid 1900s, have been found to contain asbestos. Most famously, the first editions of Fahrenheit 451 by Ray Bradbury (a novel in which books were banned and any that were found were burned) were released with fire-proof asbestos binding.

Crayons 

As late as 2015, Disney- and Nickelodeon-branded crayons depicting Mickey Mouse, Teenage Mutant Ninja Turtles and Power Rangers, were found to contain traces of asbestos. Manufactured in China, these crayons were ultimately recalled and most were disposed of professionally.

Modeling Clay

A Milton Bradley product called Fibro-Clay was a powdery substance used to make paper mache. This product was found to contain asbestos and wasn’t recalled by the Consumer Product Safety Commission until 1983. 

Toy “CSI” Crime Scene Kits

These popular toys, based on the ubiquitous TV shows of the same name and sold at Toys ‘R’ Us and other common retailers, were found to contain asbestos in the fingerprinting powder.  When dusting for prints and blowing the dust away, children could inhale enough asbestos to cause cancer later in life, according to an Environmental Working Group report in 2007. 

Children’s Makeup

Cosmetics and other personal products made with talc are gaining notoriety because talc is frequently contaminated with asbestos fibers. Especially troubling is that asbestos has been found in children’s makeup, including eye shadows and powders, sold by Claire’s and Justice stores as recently as 2020.

Model Airplane Heat Guns

T/F Monokote heat guns used by model airplane hobbyists contained asbestos in the heat shields, and asbestos fibers were released with each use. This product was recalled by the Consumer Product Safety Commission in 1980.  

At Shepard O’Donnell, we wish everyone to enjoy a safe and happy holiday season, free from hazards and harm.

What Is It and Why Does it Matter to Victims of Mesothelioma?

What is a Statute of Repose?

Similar to a statute of limitations, a statute of repose imposes a time limit on when injured parties can file a lawsuit to try to recover compensation after they have been injured. Unlike a typical statute of limitations, however, the statute of repose applies to claims against people or companies involved in the design, planning, construction, or renovation of construction projects. 

A statute of repose is intended to protect architects, engineers, and construction contractors from claims that arise due to mistakes or structural failures more than six years after construction work was completed. After six years, it is assumed that these parties no longer have control of the property, have no role in how it is maintained, and are not in a position to observe and fix any defects. The real-world effects of this legislation, however, are much more devastating.

The Fatal Flaw

The Massachusetts statute of repose includes not only a time limit on claims for construction-related issues, but also the manifestation of illnesses caused by the construction activity, including those that were not discovered until many years later. This is the statute’s fatal flaw. The current statute does not account for latent diseases (those with very long incubation periods before symptoms appear) that, by their very nature, won’t be discovered until long after the six-year repose period has expired. 

In the case of disease caused by asbestos exposure, the latency period  is 20-50 years after exposure occurred! Mesothelioma is a fatal cancer, the only known cause of which is asbestos exposure. This means that a person diagnosed with mesothelioma today has to look back at least 20 years to determine the cause of his or her disease, well past the six-year time limit of the statute of repose. 

The Massachusetts statute of repose was enacted in 1968 before the devastating effects of asbestos exposure were understood. Keeping the 1968 legislation in place today fails to consider what we’ve learned in the intervening years. It essentially gives companies blanket immunity for past—and current—misdeeds related to asbestos use and provides no recourse to victims of asbestos exposure. 

It’s time that changed.

A Devastating Legacy of Greed and Disease

The health hazards of asbestos have been known by asbestos manufacturers since the 1930s, but were covered up to continue profiting from its sale. It wasn’t until the 1960s that information about the dangers of asbestos began to spread. When OSHA was formed in 1970, the first emergency standard it passed was a ban on the use of asbestos insulation. 

But even as the dangers of asbestos were brought to the public’s attention throughout the 1970s and 80s, companies still used asbestos-containing products without warning workers or taking precautions to prevent workers from breathing in the deadly asbestos dust.

The legacy of asbestos use is an ugly story of corporate greed, negligent decision-making, and callous disregard for the health and safety of working men and women and their families. These families all have one thing in common: they were exposed to asbestos decades ago and are just now being diagnosed with disease, including mesothelioma and lung cancer. 

They include men and women that worked in the paper mills in Lee, the shipyards in Quincy, Boston, and Charlestown, mills in Lowell and the Blackstone Valley, factories in Fall River, and commercial office towers in downtown Springfield, Worcester, and Boston. Asbestos was also used in powerhouses, factories, shipyards, commercial office buildings, schools, churches, apartment buildings, and homes.

Asbestos-related diseases kill thousands of people every year, including present and former residents of the Commonwealth of Massachusetts. Victims suffering today want justice for their injuries, and so do we. 

Victims Can Not Get Justice

For an asbestos personal injury case, the statute of limitations begins when a person is diagnosed with a disease. But, the statute of repose sets a deadline based solely on the passage of time since a construction project was completed, irrespective of whether a person has been diagnosed with a disease or injury by that time. 

The statute of repose is inherently unfair to victims of latent diseases caused by exposure to toxic substances during a construction project. By the time these victims develop an injury that gives them a right to pursue a lawsuit for damages, they are already barred from pursuing it in the courts.

Asbestos exposure is like a stick of dynamite with a long fuse. For workers helping to construct a building, the fuse is lit when dust from asbestos products is breathed in during construction. The fuse burns for decades, only to explode into mesothelioma, lung cancer, or asbestosis during their retirement years. 

Responsible Parties Can Not Be Held Accountable

Companies that sell or install asbestos in a building are well aware that any harm caused  will not become apparent for 20-50 years. Under the current wording of the statute of repose, the contractors and designers of the building cannot be held responsible, even if they knowingly exposed the workers to asbestos. 

Today, instead of protecting an architect for a stairway or railing that collapses ten years after a building is turned over to its owner as was initially intended, the statute of repose is being used by large contractors to avoid liability for knowingly injuring workers. 

It also means that a school or apartment building being built right now could be using asbestos or other toxic materials, and the contractor would never be held liable for any injuries caused by those toxins.

We Don’t Think That’s Fair

In 2019, Shepard O’Donnell appeared before the Massachusetts Supreme Judicial Court on behalf of mesothelioma victim Wayne Oliver’s widow, June Stearns, in Stearns v. Metropolitan Life Ins. Co. Mr. Oliver worked on the construction site for the Pilgrim Nuclear Power Station in Plymouth, MA, where he was exposed to asbestos-containing products in the 1970s. He was not diagnosed with mesothelioma until 2015. 

June Stearns, testified: “Unfortunately, it’s kind of ironic: we would watch the ads on TV (mesothelioma lawsuits) and think how sad that these poor people have this awful disease, not knowing it was laying dormant in Wayne’s body probably right then and had lain there, dormant, for many many years without any kind of symptoms. Then, all of a sudden, he was diagnosed with mesothelioma.” 

“He was a healthy man, fit as fiddle, and young and vibrant. We worked together for many years and we were enjoying our life together until that awful disease reared its ugly head,” she went on. “He was in such pain and in a wheelchair and on oxygen – just not living the life he wanted to live, so he finally gave up. It was 16 months after diagnosis, and then he died July 25, 2016.”

The court denied Mr. Oliver’s family compensation citing the statute of repose, which effectively barred him and his family from bringing suit against the parties responsible for his injuries. We don’t think that’s fair.

The Court Agrees

Fortunately, the Supreme Judicial Court of Massachusetts agrees, recognizing the inherent unfairness of the current statute of repose. The court recognized the “regrettable” effects of the current statute of repose, and wrote that the appropriate recourse to change the law is not in the courts, but in the legislature. It further encouraged the legislature to look to the example of other states that have exempted asbestos-related illnesses from their own statutes of repose. Some have done away with the construction statute of repose altogether, while others have carved out exceptions for latent diseases to protect victim’s rights. 

House Bill 1746 is currently before the Massachusetts legislature and would change the Massachusetts Statute of Repose, exempting latent diseases such as those caused by exposure to asbestos.

The Way Forward

Shepard O’Donnell is proud to be at the forefront of this push to change the law in Massachusetts. On behalf of the Massachusetts men and women that we represent, who are suffering and dying from asbestos-related diseases, we are actively urging the Legislature to follow the suggestion of the Supreme Judicial Court and support House Bill 1746, to protect the rights of victims of exposure to toxic substances, including asbestos. This Bill would not only protect workers’ rights but also serves as a deterrent to companies that might otherwise use dangerous toxic products in the construction of buildings in the Commonwealth.

If you or someone you know has been exposed to asbestos or has been diagnosed with mesothelioma, lung cancer, or asbestosis, we want to help. Contact us here or call us anytime at 617-451-9191.

Watch a segment of Attorney Michael Shepard testifying in front of the Massachusetts State Legislature about the Statute of Repose.