Supreme Court hears ALCOA asbestos suit

Does a company have responsibility for people — other than its own employees — who are exposed to harmful agents from its facilities? That is the question the Tennessee Supreme Court tried to get its arms around Tuesday in Knoxville.
In late 2003, Maryville resident Amanda Satterfield, who was 23 years old at the time, filed a lawsuit against ALCOA Inc. and Breeding Insulation Co. in Blount County Circuit Court.

In her suit, Satterfield charged that she “was exposed to harmful asbestos dust and fibers from the day of her birth from her father’s use of asbestos products and inadvertent introduction of dust and fibers into their home and personal environments.” Satterfield had mesothelioma, a rare cancer directly associated with asbestos exposure.

On Jan. 1, 2005, at the age of 25, Satterfield lost her battle with cancer.
Doug Satterfield, Amanda’s father and the representative of her estate, continued with the suit after her death. With his 18-year-old daughter Amelia at his side, Doug Satterfield cried throughout the hearing in the Tennessee Supreme Court Building in downtown Knoxville.

Doug Satterfield hauled asbestos for ALCOA, starting his career with the company in 1973. He served in the military from 1975 to 1978 and then returned to work at ALCOA. His lawyers have maintained that Doug Satterfield was exposed to asbestos at ALCOA Tennessee Operations and that he brought home harmful dust and fibers on his clothes, resulting in Amanda contracting mesothelioma.

The lawsuit sought $10 million in compensatory and $10 million in punitive damages — although Satterfield has said the case is about justice and doing the right thing, not money.

ALCOA, represented by attorney John Lucas of Knoxville, argued that the ramifications of what the court is considering go far beyond this case, and could possibly create “an infinite universe of potential plaintiffs.”

Lucas referred to Satterfield’s allegations as the “conduit theory” — stating that, by assigning responsibility to companies for third-party contact with harmful agents, the court would define Doug Satterfield as the “vehicle” that transmitted asbestos into his home.

Tennessee Supreme Court Justice William Koch Jr. asked Lucas how that differed from an employee who drove an ALCOA truck into a neighborhood and exposed residents to asbestos.

“How is it negligent for ALCOA to let asbestos fly out of a truck and not negligent for ALCOA to allow employees to go home with asbestos dust on their clothing?” Koch asked.

ALCOA made a similar arguments during a coal tar pitch-related lawsuit in Knox County Chancery Court last year, charging that it would open the “floodgates of litigation” and that Tennessee would become a “plaintiff’s Mecca.” That case is now proceeding with a class action certification hearing following the conclusion of discovery depositions.

Knoxville attorney Greg Coleman, who represents Satterfield, said the real question was “what did ALCOA know, when did they know it, and what did they do about it?
“Public policy should at least extend to the home,” Coleman said. “ALCOA may not have known if an employee would stop at the Waffle House on his way home from work — but they did know that the employee would eventually end up at his home.”
Satterfield’s case has been in the legal system for more than four years. Originally heard — and dismissed — in Blount County Circuit Court Judge W. Dale Young’s court, the Tennessee Court of Appeals reversed Young’s decision, reinstated the lawsuit and charged ALCOA with the cost of the appeal in April 2007.

The Tennessee Supreme Court Justices are expected to issue a written opinion on the case within three months. They can either return the case to Blount County Circuit Court, where it will proceed, or dismiss it entirely.

After the hearing, Doug Satterfield told The Daily Times, “It seems like ALCOA is trying to change the law to protect itself.

“It’s unthinkable that public policy shouldn’t protect the children of workers.”

Amelia Satterfield, Amanda’s younger sister, said she believed the hearing went well, but said her family was nervous about the court appearance.

Coleman said: “ALCOA is trying to reverse what the law should be. They’re saying the greater the magnitude of the harm and the higher the mortality rate, the less responsibility they should have. Where I come from in Ducktown, Tennessee, that’s called bologna.”

The Tennessee Supreme Court should issue its written opinion by early April.

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Mesothelioma drug listed on PBS

SUFFERERS of the asbestos-linked disease mesothelioma will have access to cheap treatment from today, after a long campaign to secure federal government subsidy paid off.

The government says the chemotherapy agent Alimta - the only treatment available specifically for the killer cancer of the lung or stomach lining - will be listed on the Pharmaceutical Benefits Scheme (PBS) from today.

Health Minister Nicola Roxon said the listing of Alimta was an important announcement that followed the "tireless campaigning" of Bernie Banton, who died, aged 61, in November from the disease.

"Bernie was a great Australian hero and it is due to his efforts that many people will understand the significance of this decision," she said.

About 600 Australians are diagnosed annually with mesothelioma, but the long lag time between exposure to asbestos and the onset of symptoms means its prevalence is tipped to rise in the future.

Medical studies have estimated 18,000 people will have become victims of the disease by 2020.

Alimta, which can increase survival time and improve a sufferer's quality of life, has been out of reach for many patients at $20,000 or more for six treatments.

From today, sufferers will pay a maximum of $31.30 for each prescription. Eligible concession-patients will pay $5 for each prescription.

The subsidy will cost the government about $26 million annually and is expected to benefit about 300 people a year.

The listing of the drug became an election issue after Mr Banton criticised then health minister Tony Abbott for failing to personally receive a 17,000-signature petition brought to his Sydney electoral office in October.

Mr Abbott was forced into an embarrassing apology after questioning whether the dying campaigner's motives for speaking out were "pure of heart".

A week later, a government-appointed board recommended the drug be added to the PBS after three times rejecting its listing since 2004.

Mr Abbott bypassed the normal process of cabinet approval by immediately announcing the drug's listing.

Until now, only about half of Australians suffering mesothelioma were getting easy access to the palliative care drug through state government subsidy and workplace compensation schemes.

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Qld cancer patient welcomes drug subsidy

A Maryborough cancer sufferer has welcomed the placing of a chemotherapy drug onto the Pharmaceutical Benefits Scheme (PBS) this week.

In 1995, 65-year-old Gary Morse was diagnosed with an incurable lung cancer.

He says the chemotherapy and asbestos cancer drug, Alimta, helped him greatly last year.

But he say it would have cost him about $20,000 if his oncologist had not persuaded a private health insurer to pay the cost.

"We have private insurance and he [the oncologist] got in contact with them and got them to agree to pay for the first three treatments and the results were great," he said.

"Then he talked them into paying for the next one and of course now it's come onto the free list, which is better still.

"If we hadn't had private insurance we would have had to take it out of our superannuation retirement fund.

"I know of another one person who's on it, and it's increased his life span, and of course it's also going to increase mine too.

"This year 22 of our family were all together for Christmas, the first time ever, and I thought it was going to be the 'last supper', actually, until this new drug come on the scene.

"Now we can look forward to the future. I'm really pleased with it."

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New year price hikes, as if on cue

ANYONE with an air conditioner should cherish the relief today because the cost of running it is going to rise substantially in the new year.

Like the fireworks at midnight, we could set our watches by the price rises that herald the new year, and along with electricity, the cost of public transport, toll booths and health care will rise.

Energy bills will be the most significant of the new year price rises for Victorian consumers.

On January 1, Victoria's three biggest energy retailers — Origin Energy, AGL and TRUenergy — will charge up to 17% more for power, after the drought, increased demand and renewable energy targets pushed the cost of generating electricity to record highs.

An average household paying $945 annually for its power bill is likely to pay $1106 for consuming 6500 kilowatt hours of peak and off-peak electricity. A larger family could face a rise of about $220 annually.

Riding trams, trains and buses will be more expensive in January, with the the cost of public transport in Melbourne rising by about 20 cents per trip, with a zone 1, two-hour full fare going from $3.30 to $3.50, and a zone 1-and-2, two-hour ticket rising from $5.30 to $5.50.

And you will not escape the price rises by taking the car, with Citylink passes set to rise by 4.5%, with an e-tag day pass going up to $5.97 and a 24-hour pass rising to $11.45.

Health too, will get more expensive.

The amount you have to spend to be eligible for the Medicare Safety Net — under which the Government picks up 80% of medical costs after you've spent a certain amount in a year — will rise by $9.80 to $529.30 for concession card holders and $19.70 to $1058.70 for general patients.

It will also be harder to qualify for the Pharmaceutical Benefits Scheme safety net. The threshold for general patients will rise $82.80 to $1141.80 and for concession card holders it will go up $15.60 to $290.

The amount patients will have to contribute to the cost of subsidised medicines will go up 60 cents to $31.30 for general patients and 10 cents to $5 for concession card holders.

But it is not all bad news.

Several new drugs will attract subsidies from tomorrow, including Champix for those quitting smoking and Alimta for the asbestos-related cancer mesothelioma.

And it will be easier to get eye treatment, with optometrists given the right to prescribe certain subsidised medications for the first time.

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State funeral for Bernie Banton

Bernie Banton, the public face of the campaign against asbestos company James Hardie, has died, but his efforts have been hailed as a decades-long legacy for asbestos disease sufferers.

Mr Banton, 61, died at his Sydney home about 1am (AEDT) on Tuesday with his family by his side.

His wife Karen, brother Bruce, sister Grace and five children have accepted the NSW government's offer of a state funeral.

Mr Banton was diagnosed in August with peritoneal mesothelioma, an abdominal cancer caused by his exposure to asbestos when he worked for a subsidiary of James Hardie from 1968 to 1974.

He had already been suffering for years from asbestosis, a lung disease also caused by exposure to asbestos.

Despite this, he led the campaign to force James Hardie to establish a fund that would provide adequate compensation for all its employees suffering from diseases caused by their exposure to asbestos at its factories.

He was, NSW Premier Morris Iemma said, "a truly great Australian, a man who fought for others at a time when he should have been worrying about his own health".

"In November 2006, on the day we signed the final agreement to secure compensation for Hardie victims (workers in James Hardie factories who contracted diseases caused by asbestos), Bernie knew he'd achieved something special.

"That deal was worth $1.5 billion over the next 40 years for those who suffered and continue to suffer this dreadful disease.

"It would not have been possible without Bernie Banton."

Prime Minister-elect Kevin Rudd said he was "a fighter" who was "a symbol, a living symbol of what is right and decent and proper in the workplace relations of this country".

"Australia is going to be poorer for Bernie's passing - our whole nation will be poorer for Bernie's passing," Mr Rudd said.

Mr Banton was diagnosed in 1999 with asbestosis and ARPD (asbestos-related pleural disease), which reduced his lung capacity to 40 per cent.

He began to rely on an oxygen bottle, but he refused to let it slow him down, taking it with him everywhere he went as he campaigned for fair compensation from James Hardie for all its affected workers.

Estimates of future claims continued to rise, and the company was eventually forced in December 2004 to sign Australia's largest ever compensation settlement, worth up to $4.5 billion over 40 years.

In a statement, James Hardie expressed its condolences to the family of Mr Banton, acknowledging his work in raising public awareness of asbestos-related disease.

"The company acknowledges the significant contribution Mr Banton made to raising the awareness of asbestos-related diseases in Australia, and his role in the eventual implementation of the final funding agreement to compensate Australians with asbestos-related personal injury claims," the company said.

NSW parliament rose for a moment's silence and both sides of politics delivered statements praising him.

"Bernie courageously pursued justice for sufferers of asbestos-related diseases and their families, we all owe him a debt of gratitude," NSW Industrial Relations Minister John Della Bosca said.

Former ACTU secretary Greg Combet said Mr Banton had been a fighter for other people and a fighter for justice.

"I hope that people properly appreciate the importance of the settlement that was reached with James Hardie a few years back, because it was a very hard fight and Bernie contributed a lot," Mr Combet said.

"That's how he should be recognised."

Last Thursday, Mr Banton won a confidential payout as compensation for his terminal mesothelioma, including exemplary damages for what his lawyers called James Hardie's "contumelious" disregard for the health of its workers when they knew of the dangers of asbestos.

In 2000, he had been awarded $800,000 compensation for asbestosis.

And last month he succeeded in getting the palliative drug Alimta subsidised by the federal government for mesothelioma sufferers.

His brother Bruce said Mr Banton's funeral would probably be held on Saturday but details were still being discussed.

"One thing we will be asking is for instead of flowers at the service is donations for asbestos research and treatments," he said.

In a further tribute, the Asbestos Diseases Research Institute at Sydney's Concord hospital will also be named the Bernie Banton Centre.

In Melbourne, he was honoured at a commemorative service, part of Asbestos Awareness Week, to remember people who have died from asbestos-related diseases.

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