Mesothelioma

On March 17, 2020, the U.S. Department of Health and Human Services (“HHS”) published an administrative Declaration providing broad legal immunity for manufacturers, suppliers, and administrators of certain countermeasures used against COVID-19¹. Negligence cases regarding covered countermeasures will be barred, limiting an injured party’s possible redress to the Countermeasures Injury Compensation Program (“CICP”).

The authority to issue such declaration arises out of the Public Readiness and Emergency Preparedness Act (the “PREP Act”).² Congress enacted the PREP Act in 2005 as a response to fears about an avian influenza (H5N1) pandemic.³ Through the issuance of such PREP Act declaration, the Secretary makes a determination that a disease, condition, or other threat to health constitutes a public health emergency and specifies, among others, the category of diseases, health conditions, or threats to health for which the Secretary recommends the administration or use of the covered countermeasure, and the period during which the liability protections are in effect.⁴

The PREP Act defines “covered countermeasure” by outlining three categories.⁵ The first consists of “qualified pandemic or epidemic products” and includes products (drugs, biological products, and devices) manufactured, used, designed, developed, modified, licensed, or procured to diagnose, mitigate, prevent, treat, or cure a pandemic or epidemic or to limit the harm such pandemic or epidemic might otherwise cause.⁶ The second category describes “security countermeasures,” and the final category consists of products subject to emergency use authorizations.⁷ The PREP Act’s liability protections are extremely broad, essentially covering most manufacture, testing, development, distribution, dispensing, administration, or use of designated covered countermeasures absent willful misconduct.

The PREP Act authorizes the Secretary to establish a program to provide compensation to individuals who have suffered serious physical injuries or death as the direct result of the administration or use of a covered countermeasure, called the Countermeasures Injury Compensation Program (“CICP”).⁸ Eligible requesters include injured countermeasure recipients, survivors of deceased injured countermeasure recipients who died as a direct result of the administration or use of a covered countermeasure, and executors or administrators on behalf of the estates of deceased injured countermeasure recipients (regardless of their cause of death).⁹ Requesters will need to prove causation pursuant to CICP’s standard: proof that is based on “compelling, reliable, valid, medical, and scientific evidence.”¹⁰ A temporal association between receipt of the countermeasure and onset of the injury is insufficient.

Requesters who successfully demonstrate causation can recover reimbursement for reasonable and necessary medical services and items to diagnose or treat a covered injury or its health complications; lost wages; and death benefit for certain survivors.¹¹ Benefits under CICP will only be paid after the requester has in good faith attempted to obtain available coverage from all third-party payers with an obligation to pay for or provide such benefits, and the requester must provide the information of such payers.¹² If a request is denied, the requester can motion the Secretary of HHS to review the determination, but there is a broad statutory prohibition against any further review.¹³

It is too early to predict the effectiveness of CICP as a route toward remedy for parties injured by covered countermeasures of COVID-19, but compared to traditional tort procedure, it is seemingly unfriendly to requesters. The lack of judicial oversight is cause for concern, with no further appeals available beyond internal review. While traditional tort procedure allows an injured party his day in court, decisions under the CICP are made on an administrative basis. The process for attorneys evaluating a potential case will be to determine the presence of a covered countermeasure and whether the individual or entity that administered it is shielded from tort liability under the Declaration, and to meet the Declaration’s standard for showing causation.

There is a clear need for the development and distribution of life-saving measures to combat the COVID-19 pandemic, and the Declaration helps encourage such innovation. In the pursuit of this goal, is important to consider potential risks and employ reasonable care in the production of such countermeasures.

Washington, DC—The Asbestos Disease Awareness Organization (ADAO), an independent nonprofit dedicated to preventing asbestos exposure, released new research confirming the increase in raw asbestos imports.

The report detailed that according to the U.S. International Trade Commission, from January to April 2018, the chemical industry brought in nearly 260 tons of asbestos from Russia and Brazil. This represents an increase of nearly 400% of the January–April 2017 imports of 67 tons. The president’s administration and the Environmental Protection Agency, who have close ties to the chemical industry, have defended the ongoing imports and use of this deadly substance.

Asbestos is a known carcinogen and there is no safe or controlled use of asbestos. According to the new “Global Asbestos Disaster” paper, asbestos-related diseases account for nearly 40,000 American deaths each year. This year alone, asbestos has been found in children’s makeup, in schools in Pennsylvania, and in a prison hospital in Georgia.

We believe that asbestos use should be eliminated to protect the public and this trend of increasing the importation of asbestos may possibly expose more individuals to health risks. If you or a close family member have developed mesothelioma or other asbestos-related illnesses, please do not hesitate to contact us for a free consultation.

It was recently announced that the L Street power plant in South Boston was being put up for sale by its current owner, Exelon Corp. This news likely has developers around Boston ready to pounce on the property, due to its proximity to the booming commercial real estate market of the Seaport District and the ever-increasing property values in South Boston. It is likely that the property will eventually be re-developed as a mixed-use property, featuring office space, residential condominiums and apartments, as well as commercial space. However, the fact that this property served as an active power plant for over a century may lead to a number of obstacles for potential re-development projects.

The former Boston Edison power plant first went into operation in 1892 as a coal-fired power plant. The plant was later transitioned to an oil-fired and later a natural gas plant, until it was retired in 2007. The property occupies 18 acres off of L Street at the border of South Boston and the burgeoning Seaport District. While the Environmental Protection Agency has been monitoring the property in recent years due to issues including contaminated soil and other environmental hazards, any proposed redevelopment projects are likely to be closely scrutinized by state and federal agencies.

Workers at power plants such as the Boston Edison L Street plant were exposed to a great variety of asbestos-containing products, including:

• Boiler insulation and firebrick
• Turbine insulation
• Gaskets and packing used in industrial pumps and valves
• Steam pipe insulation

As a result of these exposures, a large number of former workers at the L Street plant developed mesothelioma, asbestosis, and other asbestos-related conditions. While power plant workers up until the 1980’s were exposed to these products though directly installing or maintaining equipment in the plant, a new wave of exposures is likely to occur when old power plants and industrial spaces are re-developed or demolished. As urban renewal and gentrification takes place in cities across the country, developers and city officials will need to identify and deal with the issue of in-place asbestos being disturbed as former industrial buildings and power plants are renovated into commercial and residential property. Due to the significant amount of asbestos-containing products used in power plants and other industrial buildings through the 1980’s, the expense of remediation could be significant.

The danger of asbestos fibers being released during any demolition of existing structures on the L Street property may limit the options potential developers have in planning the re-development of the property. If existing buildings are to be renovated to become loft-style housing or office space, asbestos remediation contractors will have to make sure existing asbestos insulation on the property is properly encapsulated and secured. Simply demolishing the existing structures on the property may risk releasing airborne asbestos fibers into a heavily populated area. Regardless of what happens with the former L Street Power Plant, it is clear that the next wave of asbestos-related diseases will be caused by asbestos that is currently in place, and is disturbed and release during the course of renovation and demolition of old buildings.

If you or a loved one is an undergoing treatment for lung cancer or mesothelioma and would like to learn more about your rights please call us for free, confidential consultation (617) 451-9191.

For further information regarding the L Street Power Plant click here.