ISSN 1470-8108 Issue 60 Autumn 2005

Contents:

1. Anniversary of T&N Administration
2. Mesothelioma Trends in Britain

1. Anniversary of T&N Administration

After four long years, during which time thousands of UK asbestos victims have died, some progress is finally being made in unravelling the complexities generated by the simultaneous administration of T&N in the UK and the Chapter 11 reorganization of its parent company, Federal Mogul Corporation (FM), in the U.S.1 A press release issued on September 27, 2005 by the court-appointed UK administrators of T&N, the Kroll Corporate Advisory & Restructuring Group, estimated that should the agreement reached on September 19, 2005 between FM, T&N Limited, the other Plan Proponents, High River Limited Partnership, the Administrators and the Pension Protection Fund overcome the “challenging hurdles” which remain:

“the Administrators will have approximately 375m (US$660m) to pay a dividend to the T&N pension scheme, UK asbestos claimants, certain other asbestos claimants of the UK companies and other creditors of the UK companies. The Administrators have recommended the agreement to the UK creditors. The terms of the agreement state that US asbestos claims will be settled by the US reorganisation process, which Federal Mogul and the US Creditor Committees continue to progress.”2

Thirty-three million pounds of this sum will be ring-fenced to pay T&N's UK claimants; it is predicted that these claimants will receive 24p on the pound. UK claimants will also be entitled to 7.5% of the recovery from the Hercules Reinsurance Cover and claimants with post-1969 exposure will receive a share of the 36m settlement made by T&N's former UK Employers' Liability (EL) insurers: the Royal Sun Alliance and the Brian Smith Syndicate at Lloyd's of London. Claimants from the U.S. and Canada will not be able to access any of these funds; however, claimants from Australia, South Africa and Zimbabwe (the Cape Claims) and possibly other areas will:

“A UK based UK controlled Asbestos Trust will be set up which will deal with the UK Asbestos PI Claims, Cape Claims and Australian Asbestos PI Claims against T&N.”3

Simon Freakley, Joint Administrator of FM's UK group of companies, believes that:

“The agreement reached in principle is a significant improvement on earlier proposals and has been secured following very robust negotiations with all parties. We are now much closer to being able to exit Administration and pay a dividend to all creditors, including the asbestos personal injury claimants. This settlement will provide 33m, primarily for T&N's UK claimants, but significantly not for US claimants who will be creditors in the ongoing process in the US. We hope this settlement is news that will be welcomed by everyone.

Alongside this 33m, the agreement also includes up to 22m for asbestos claims relating to Chester Street Insurance claims. These amounts could increase further depending upon the level of the dividend from the Hercules insurance policy and are in addition to an earlier settlement from Employers' Liability Insurers for 36m for T&N employees."

Two hundred and fifty million pounds of the sum being paid by the Americans to regain ownership of T&N's European businesses will go into the pension pot; this compares favourably to the top-up of 60m which was on the table earlier this year. Although it is an improvement, the 37,000 members of the T&N pension scheme will each lose about 25% of the net present value of their pension entitlement. Independent pension consultant John Ralfe believes that this agreement will cost the Pension Protection Fund (PPF) 125m, less than had been feared previously. More pessimistic observers estimate that the ultimate PPF bill for T&N could amount to 600m. Whoever is right, the final account will be paid by solvent British businesses which are required to contribute to this scheme. Two years ago, when this state aid plan was proposed, the Government said that already insolvent businesses were ineligible; T&N has managed to overcome this barrier by, some say, “a shabby trick.” An article entitled UK firms forced to cough up comments:

“Turner & Newall went into administration four years ago. But no matter. By a trick of insolvency law it can go bust again, thereby qualifying its 40,000 pension scheme members (for) much needed protection. It's a trick that saves the government, and scheme members, lots of cash… How resentful must British business feel as they watch this farce. Very.”

News reports which have appeared in the British media about the T&N/FM agreement focus on the pension issue and pay scant regard to the plight of T&N's asbestos victims. A spokesperson for the English Asbestos Victims Support Groups' Forum remains unimpressed by current developments:

“The Administrators' caution that we must 'temper our delight at today's news' will be greeted with incredulity and anger by T&N asbestos claimants, who will, at best, receive a 24p dividend, which may be entirely lost where claimants have received small Government lump-sum payments. Reports on today's news are wholly preoccupied with the likely support of the PPF and the resolution of the T&N Pension Fund crisis. No reference is made to the total absence of any protection fund for asbestos victims."

Furthermore, very few of T&N's current asbestos claimants will be eligible for compensation from the company's former EL insurers as most of them will have been exposed to asbestos prior to 1969. The result of this settlement will be that a mesothelioma sufferer with pre-1969 exposure who is entitled to 100,000 compensation will receive 24,000. Ian McFall, who as a member of T&N's UK Creditors' Committee has been a close observer of the administration process since February 2002, said:

“The timing of this proposal was such that we did not have a reasonable opportunity to consider it and no opportunity at all to consult with our clients and interested (Asbestos Victims') Groups about it. However, this agreement, which comes after four years of deadlock, will hopefully bring the end in sight for this Administration. No one should forget how many of our clients have not lived to see the outcome.”

Maureen Gunn, whose husband contracted asbestosis after working at T&N's Washington Chemical Company from 1964-66, told journalist Gayle Tomlinson that the settlement was good news:

“It is more than a year since he has been diagnosed and it looked like nothing was moving forward…This is a step in the right direction. They had just swept this under the carpet but there is a little bit of hope now.”4

2. Mesothelioma Trends in Britain

There has been an horrific escalation in the incidence of mesothelioma, a formerly rare disease, in Great Britain. According to a paper published in a recent issue of the Journal of Occupational Medicine, mortality from mesothelioma has increased twelve-fold from 153 in 1968 to 1848 in 2001.5 Over the period 1981-2000, the areas of West Dunbartonshire, Barrow-in-Furness, Plymouth and Portsmouth had the highest standardized mortality ratios; the occupations with the highest proportional mortality ratios were: metal plate workers, vehicle body builders, plumbers, gas fitters and carpenters. The authors of this paper state:

“The incidence of mesothelioma in Great Britain (70.9 per million in men) remains around the highest in the world…an examination of trends over time shows that the mesothelioma mortality due to specific high-risk industries of the past has fallen as other sources of exposure have developed over a wider range of occupation groups and geographical areas…This reflects our growing understanding of the changing balance of risk away from traditional asbestos exposure industries to those where one could describe the exposure as secondary, such as building maintenance trades.”

In 2003, the latest year for which government data are available, the number of mesothelioma fatalities in Great Britain was 1874;6 the number of mesothelioma deaths for males and females is increasing. The Health and Safety Executive (HSE) estimates that annual mesothelioma deaths in Great Britain will peak at around 1950 to 2450 by the year 2015.7 How reliable are these estimates? Not very, according to a paper entitled High Incidence of Mesothelioma in an English City without Heavy Industrial Use of Asbestos, which was published in 2004 in the Journal of Public Health. Analysing information obtained from the local cancer registry, seven computer systems serving the region's 21 primary care practices and primary care records, the authors calculated an incidence of mesothelioma of 12.1 per 100,000 males aged 40 or over.

“For comparison purposes, the rate for those aged 20 or more was 6.9 per 100,000 (95 per cent CI 4.0-11.0),8 and for the whole male population 5.2 per 100,000 (95 per cent CI 3.0-8.3)... The male incidence of mesothelioma of 12.1 per 100,000 males aged 40 or over is very high. Even when the incidence rate is recalculated to the same age groups it surpasses the figure from Australia and is similar to recent Scottish figures.”

The authors conclude that, notwithstanding the relatively small size of the cohort, “studies based on cancer registry data or death certification under-report incidence… The mesothelioma epidemic will affect areas without major industrial exposure to asbestos.”

Treatment Options and Research

In August 2005, the Scottish Medicines Consortium (SMC) ruled that Pemetrexed (Alimta) was acceptable, in combination with Cisplatin, for the treatment of advanced cases of malignant pleural mesothelioma (MPM) in patients who have received no previous cancer treatment. Pemetrexed is the first licensed agent for the treatment of MPM in the UK. The SMC's decision was based on the results of trials conducted at Beatson Oncology Center in Glasgow. Consultant Medical Oncologist Dr. David Dunlop from Beatson welcomed this ruling:

“Having SMC approval for Alimta will allow me to treat more people who may benefit…those who do find less chest pain, breathlessness and coughing. It has also been suggested the drug could prolong life, although the main aim is to improve patients' quality of life.”9

In England a decision on the acceptability of Alimta is part of the remit of the National Institute for Health and Clinical Excellence (NICE). Unfortunately, as can be seen from the appraisal process for Alimta listed on the NICE website, the bureaucratic process takes precedence over patients' needs. The time lapse between the publication of the topic summary – Pemetrexed disodium for treatment of mesothelioma – and the expected date of the NICE decision is over two years, with no final decision being expected until October 2006.10 Feedback from London and Norwich confirms that Pemetrexed is not being offered to all suitable mesothelioma patients. At a meeting held at the British Lung Foundation headquarters on September 6, 2005, Dr. Jeremy Steele from St. Bartholomew's Hospital, reported ongoing problems in prescribing Alimta for symptom control to his patients. In Norfolk, the drug has never been prescribed according to health chiefs and “no proposal has been put forward for funding in the current financial year and we are not aware that a proposal is likely to be put forward in 2006/07.” A spokeswoman for the Norfolk and Norwich University Hospital said that Alimta “was not being prescribed because it had not been requested by any of its consultants.”11 Perhaps there are no mesothelioma sufferers in Norfolk? Of course there are. Norwich resident Thomas Withers died of mesothelioma in 2003 age 61. His daughter Julie Dixon said:

“I think there is a lot of secrecy about this disease… It is a very debilitating condition and many people only live for a few months. Any drugs that can improve the quality of their lives and prolong their lives should be available to everyone no matter what the cost.”

In 2004-2005, Tony Whitston, spokesperson for the Greater Manchester Asbestos Victims' Support Group, briefed meetings of the Parliamentary Asbestos Sub-Committee on the continuing difficulty experienced by mesothelioma patients in obtaining Alimta from Primary Care Trusts in the Greater Manchester area. Fortunately, in Manchester a way around the impasse was found through the use of an interim recommendation in advance of any NICE guidelines that stated:

  1. Where the option is available patients should be entered into currently recruiting clinical trails.

  2. Where that option is not available, funding for the additional drug costs should be made available for those patients who would have met the criteria for entry into the already reported trial.12

As there are no “currently recruiting trials” in Greater Manchester, patients are receiving Alimta under the “already reported trial” option. Whitston says that “all patients who are recommended treatment with Alimta in Greater Manchester have received Alimta and continue to receive it.”

Clinical trials currently being run in Britain include: MSO1, a randomized control trial of mesothelioma treatment protocols,13 Cambridge MesoVATS Trial,14 a study of the efficacy of cytoreduction and lung mobilization of pleural effusions in mesothelioma and the Mesothelioma and Radical Surgery Study.15 The commercial launch of Mesomark, a blood sampling procedure for early diagnosis of mesothelioma, has received a guarded reception in the UK. Concerned about problems with false positive results produced by the new blood test, Dr. Robin Rudd, of St. Bartholomew's Hospital, wrote:

“A false positive rate of this order (4/37 i.e. 10.8%) means that an attempt to use the test as a means of screening for mesothelioma will inevitably lead to many false positive results for every case of mesothelioma detected early. What will be the consequences of a false positive results for the individual? Unnecessary investigations, lifelong surveillance, living under the sword of Damocles for the purpose of early diagnosis of an as yet incurable diseases. Given the shorter life expectancy for a person with mesothelioma than for a person who is HIV positive, at least the same degree of counselling as for an HIV test should be required before a screening Mesomark test.

A potentially more appropriate use of this test than screening is in monitoring the response to treatment, given that there is some correlation between levels and tumour bulk. This merits further research.”16

The Individuals Behind the Statistics

While the British mesothelioma register records the number of mesothelioma deaths, there is no register with details of individual patients. The patient's right to privacy is, of course sacrosanct but it is hard to get a feel for the human tragedies which these terrifying statistics represent in the absence of any information. A survey of recent media reports identifies the following individuals as mesothelioma sufferers:

  • Robert Brown, a plasterer, died aged 57; compensation of 140,000 was paid to his widow by Corby Borough Council;

  • Trade unionist Gerald Read, an 80 year old retired scaffolder was exposed to asbestos lagging materials at the Esso oil refinery in Fowley; he was awarded 90,000 in compensation;

  • Father of three, Charles McSherry, had worked at a weaving plant where asbestos was used; he died at 74, after being ill for 23 months;

  • John Costello, a maintenance worker at Buckingham Palace from 1970-1992, died aged 58; his wife was awarded 177,901;

  • Christopher Panting, who had worked as a British Rail coach finisher at the Swindon rail works from 1954-1963, died in 2002; in an out-of-court settlement, his widow received 157,000;

  • Trade unionist Victor Evans was occupationally exposed to asbestos at the Rolls Royce factory in Sunderland; he has received 116,000;

  • Barry Welch, died on April 27, 2005 at 32 years old; it is alleged that he was exposed to asbestos brought home on the clothes of his stepfather, a scaffolder who worked at Kingsworth Power Station;

  • John Dawson, who died aged 54, was exposed to asbestos brought home on the overalls of his father who, from the 1950s-1970s, worked at the York Carriageworks; in a ground-breaking judgement, the British Railways Board was ordered to pay compensation to John's widow;

  • Kenneth Simpson dismantled old boilers and pipe work lagged with asbestos; after he died in 2002, his employers, Skanska Construction UK Ltd., agreed to settle a claim brought by his sister for 82,000;17

  • Forty year old John Kay is suing the Kelda Group PLC, formerly Yorkshire Water, which had employed him as a civil engineer.

Other mesothelioma deaths which have recently been reported in the media include: John Little (59), Derek Wharton (61), Michael Hogg (60), Melvin Raymond (63), Derek Trelfa (66), Sylvie Tapley (59), Janet Watson (59), joiner Ian Lunn (61), shipyard worker Ian Cruikshank (52), electrician Raymond Gould (60), company boss Mike Brien (53), plumber's mate Dick Cook (56), retired senior Royal Navy Officer Peter Luce (63), former plumber Geoffrey Clarke (63), retired plumber Graham Buswell (69), plasterer Robert Martin (63).18

Although the average age of the mesothelioma victims listed above is 59, individual cases range from 32 to 80 years old with many of those affected being people of working age. While information has been included about legal actions brought by some of the injured, we do not know how many of the affected individuals have initiated personal injury lawsuits. In 1988, The Comparative Study of the US and UK Asbestos Litigation Systems found that British asbestos litigation was “much less effective at mobilizing possible cases and there are indications of a significant pool of uncompensated victims.”19 Nothing much had changed by 1994, when Tom Durkin published his doctoral dissertation: Constructing Law: Comparing Legal Action in the United States and the United Kingdom. Durkin reported:

“In the U.S., legal action was the result of trusted information flow through positive gatekeeping networks, in the U.K., legal inaction was the result of blocked information flow through negative gatekeeping organizations and networks…The major difference was that there were far fewer U.K. victims at the end of the claiming process.”

Table 1 of Durkin's thesis illustrated the huge gap which existed between the U.S. and UK situations:

Disease and legal claim rates per million population

U.S.

U.K.

Mesothelioma

3.45

13.1 (3.8 times U.S. rate)

ARD Legal claims
(1988 cases)

221
 

166 (800 expected if rates were constant)

 
Traditionally, British workers were not inclined to sue their employers; fearful of involvement with the judicial process, marginalized by ill-health and disadvantaged by financial deprivation, potential UK asbestos litigants did not bring claims. Social changes which have occurred over recent years combined with the increasing number of mesothelioma victims have, according to anecdotal evidence, led to a rise in personal injury claims. Having gotten away with so much for so long, negligent defendants and their insurers are appalled that they may, finally, be brought to account. To minimize future claims, they have embarked upon a public relations campaign warning of the dire consequences of the country's growing “Compensation Culture.”

Whether the concept of “Compensation Britain” is a myth or a reality was the subject of an article by Johann Hari in The Independent. Hari was enraged by the fact that every year more than one thousand mesothelioma victims die without receiving any compensation. He wrote:

“Whenever I hear somebody saying 'you get thousands just for stubbing a toe these days,' I want to drag them to Barry Welch's grave. He died last month of asbestos-related cancer just after his 32nd birthday. It's some stubbed toe, but his wife and three children have received no compensation - none - from the company which exposed him to asbestos as a young man…

Last year, it was proven beyond doubt that a Scottish shipworker, Ian Cruickshank, had died in agony at the age of 52 because he was exposed to carcinogens as he tried to earn a living… The Fairfields, Upper Clyde Shipbuilders and Govan Shipyards offered his family 3,000 in return for his life…The only problem with compensation in this country is that there is not enough of it being paid out by negligent corporations to the workers they harm.”20

How easy is it in “Compensation Britain” to bring a claim for mesothelioma? According to one victim support group with more than ten years of experience, asbestos claims are “very complex:”

“The nature of asbestos civil claims makes it very difficult for victims to claim; in 95% of the cases they are referring to asbestos exposure some 30 or 40 years ago. However, a case cannot proceed without proof of employment at a place of work where the claimant was exposed to asbestos. The claimant also has to produce witnesses to that exposure. This may mean a 60 year old building worker who may have worked with asbestos in the 1950s on a small maintenance job, will have to produce eye witness accounts to his asbestos exposure from as long as 30 or 40 years ago. This makes it extremely difficult for claims to proceed.”21

Another obstacle which can prevent a mesothelioma claim from being brought is a coroner's verdict of death by natural causes as opposed to death by industrial disease. In 1999, we reported that findings issued by the Environment Lung Disease Research Group (ELDRG), the most frequently used UK service for electron microscopy fiber counts on lung samples, were often problematic in mesothelioma cases. An inquest, held in September 2005, into the 2004 death of mesothelioma victim Michael Brown, heard that the deceased, who was 69 years old at the time of death, had worked in the boiler room at Tioxide where he was likely to have experienced exposure to asbestos. Whilst the North Lincolnshire Coroner, Stewart Atkinson, accepted that this was in fact the case, he would not rule that this was an industrial disease, basing his decision on an analysis of tissue samples conducted by Dr. Alan Gibbs from ELDRG who found “no abnormally high levels of asbestos.”22 Findings issued by Dr. Gibbs have frequently been challenged by Dr. Nancy Tait of the Occupational and Environmental Diseases Association. In a 2002 publication, Dr. Tait described five case histories in which verdicts of death by industrial disease were achieved despite Dr. Gibbs' findings. Case 1 was brought on behalf of a man who had maintained furnaces and other asbestos lagged machinery for 34 years in South Wales:

"Dr. Alan Gibbs of ELDRG confirmed that he had died of mesothelioma, could find no asbestos bodies but found chrysotile (white) and crocidolite (blue) asbestos fibres. However, Dr. Gibbs advised the Coroner that there were 0.95 million fibres a gram of dried lung tissue, too few to support a finding of Death from Industrial Disease. So Death was from Natural Causes.

The inquest was adjourned to allow OEDA to report. We found asbestos bodies with core fibres of amosite, and amosite and anthophyllite fibres. A witness who had worked with the deceased described conditions and established that no precautions were taken and no protection provided between 1964 and 1975. Questioned closely by the Coroner, Dr. Gibbs accepted that his results could give a three fold error and that because fibres leave the lung during employment in 1959 to 1960, the number of fibres would have been within the levels associated with mesothelioma.

A detailed report of the 1998 Inquest shows that informed questioning by a Coroner and a solicitor acting for the widow led Dr. Gibbs to accept that mesothelioma should be accepted as associated with occupation and Death was from Industrial Disease."23

More examples of Gibbs' testimonies which were successfully contested by Dr. Tait are given in the subsequent twenty pages of this informative booklet.

Following the Mesothelioma Summit held in London in March, 2005,24 the British Lung Foundation (BLF) is coordinating a Mesothelioma Action Day in February 2006. Details of the Mesothelioma Charter, which was drafted at the Summit, are being finalized and an on-line petition will be appearing on the BLF website.25 The BLF's Mesothelioma Campaign was just one of many subjects discussed at the European Asbestos Conference which was held at the European Parliament on September 22 & 23, 2005. The one hundred and fifty delegates from more than twenty countries who met in Brussels examined the consequences of widespread asbestos use in Europe, with a particular emphasis on the impact in new EU Member States. Presentations made during the conference highlighted the failure of current EU policies to protect the public and the environment from hazardous exposures to asbestos. The lack of EU funding for medical research and treatment of asbestos-related diseases and the export of European ships riddled with asbestos to unregulated Asian ship-breakers were soundly criticized. Delegates at the conference resolved to join European labor groups, medical associations and international agencies which have issued calls for 2005-2006 to be made the Year of Action on Asbestos.26

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1 See British Asbestos Newsletter issues: 45, 46, 48, 51, 53, 55, 56 & 58.

2 Press Release: Federal-Mogul UK Group (In Administration). 27th September, 2005.

3 Federal-Mogul Group Settlement Agreement to Exit Restructuring Proceeding, Briefing Note, p. 4.

4 Tomlinson Gayle. Pittance for Dying Asbestos Victims. The Evening Chronicle. September 24, 2005.

5 McElvenny DM, Darnton AJ, Price MJ, Hodgson JT. Mesothelioma Mortality in Great Britain from 1968 to 2001. Occupational Medicine, 2005;55:79-87.

6 HSE Press Release: Latest Occupational Health Statistics. August 25, 2005.

7 http://www.hse.gov.uk/statistics/tables/meso01.htm

8 CI: Confidence Interval.

9 New Drug for Asbestos Victims, Evening Times Online. August 10, 2005. website: http://www.eveningtimes.co.uk/print/news/5042180.shtml

10 http://www.nice.org.uk/

11 Horton Lisa. Asbestos Victims Should Move to Get Drug. August 27, 2005. Norwich Evening News website: http://new.eveningnews24.co.uk/ [Accessed 28 August, 2005].

12 Email from Dr. Kevin Snee, Bolton Primary Care Trust April 20, 2005.

13 By July, 2005, 355 patients had been entered by 75 treatment centers; another 65 patients are needed to reach the target accrual.

14 The full name of this Papworth Hospital-based trial is: Prospective Randomised Controlled Trial of Video Assisted Thorascopic (VATS) Pleurectomy Compared to Talc Pleurodesis in Patients with Suspected or Proven Mesothelioma. For more information contact Helen Mundy or Paula Allen, Clinical research Nurses tel: 01480 830541.

15 For information on the MARS study contact: Dr. Simon Piggott tel: 0208 643 8901 x 4674 or email: Simon.Piggott@icr.ac.uk

16 National Macmillan Mesothelioma Resource Centre. Mesothelioma UK Bulletin. August 2005.

17 Skanska have been given the right to appeal pending the House of Lords decision, expected in March, 2006, in the case of Barker v. St. Gobain Pipelines plc. If they succeed, the claimant may have to repay some of the damages received.

18 Hazards. July/September 2005. Issue 91.

19 Felstiner WLF, Dingwall R, Asbestos Litigation in the United Kingdom. Centre for Socio-Legal Studies, Oxford, 1988.

20 Hari J. If Only we did have a Compensation Culture. The Independent. June 1, 2005. p.31.

21 Tombs S. Capitalism Makes You Sick. NERVE Magazine, Issue 7, September 2005.

22 For other mesothelioma rulings by Coroner Atkinson see: Mesothelioma Massacre. British Asbestos Newsletter. Issue 57, Winter 2005, article 2.

23 Tait N. Asbestos: To Challenge 'Fibre Counts'. November 2002. p. 5-6.

24 British Asbestos Newsletter. Issue 58, Spring 2005.

25 BLF website: http://www.lunguk.org/

26 For more information on the European Asbestos Conference see: http://www.ibas.btinternet.co.uk//Sections/content_current.htm#eac_05

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Compiled by Laurie Kazan-Allen
ÓJerome Consultants