Secrecy Agreements Jeopardize Health and Safety

Turner Brothers tried to blame her death on tuberculosis. This represents the first documented effort by an asbestos manufacturer to deny compensation for an asbestos-related illness by blaming it on some other disease. The coroner, however, holds a full inquest with a jury to determine the cause of death. Kershaw’s widower-husband and Turner Brothers are both represented by attorneys. The coroner jury disagrees with Turner Brothers and finds that Kershaw’s death was caused by asbestos. Id. This case is the first in history in which a jury rejects an asbestos company’s position and decides that the underlying claim has merit.

Unfortunately, a similar series of events will often be repeated throughout the history of asbestos litigation. News of Kershaw’s death travels fast in the asbestos industry and before long, Turner Brothers is corresponding with the other asbestos giant in the United States, Johns Manville, about the problem of workers dying from asbestos. Letter from Turner & Newall to Johns-Manville (August 1, 1932). Johns Manville has similar problems in its New Jersey factory and other facilities, as many of its workers are also getting sick.

In 1929, Samuel Greenstone of Newark files the first lawsuit against Johns Manville on behalf of Anna Pirskowski in Newark Federal Court. Greenstone files another 10 cases shortly thereafter.

A Code of Silence

As the number of cases of asbestosis diagnosed in America increases, the industry becomes alarmed. Members of the American asbestos industry meet to put in place a plan to minimize their financial exposure and keep the truth from the workers and the American public.

Johns Manville gets together with its neighbor, the Raybestos Manhattan asbestos company in nearby Passaic, New Jersey. Together, they agree upon a code of silence. The plan is memorialized in a letter from the president of Raybestos Manhattan to the attorney for Johns Manville, Vandiver Brown, stating: “I think the less said about asbestos the better off we are.”¹

The participants then prevail upon the asbestos industry trade journal, Asbestos, to publish nothing about workers getting sick from asbestos.

In June 1933, the Board of Directors of the Johns Manville Corporation meet in the Manville board room on Madison Avenue in New York City to discuss settling the eleven lawsuits filed by Greenstone. They ultimately decide to settle the cases. The condition for settlement, however, is that the settlement remain secret and that the plaintiffs’ attorney promises to go away quietly and institute no further litigation against Johns Manville.

The asbestos industry becomes increasingly concerned about cases like those Manville just secretly settled.²

For traumatic injuries caused by accidents like slip and falls, employers are immune from lawsuits. Workers’ compensation is the only remedy. With respect to occupational diseases such as asbestosis and silicosis, in most states, employers are not protected by workers’ compensation laws. A jury decides such cases. Id.; See also Cavelery, “Dust Diseases as a Legislative Problem,” Insurance Counsel Journal (January 1937) pp. 27-31; Farrel, “Silicosis in Certain of its Legal Aspects,” Industrial Medicine (October 1932), pp. 35-37.

As a result, the industry calls a meeting to discuss, among other things, the problem of lawsuits that will continue to be filed against industry members for asbestos- and silica-related diseases. The captains of industry meet at the University Club in Pittsburgh, Pennsylvania. The plan arrived at includes the establishment of an industry organization later to become known as the Air Hygiene Foundation. Publicly, the stated purpose of the Air Hygiene Foundation is to promote worker health and safety. The private agenda of the organizers, however, includes lobbying for legislation to take from the workers their right to a trial by jury and to assist in the defense of lawsuits and claims. Sworn testimony of Gerry Markowitz in In Re N.Y.C. Asbestos Litigation as it relates to Mario Maltes, July 15, 1993 pp. 2261-66.

Unfortunately, the powerful industry is successful in its national campaign of lobbying state legislators to enact laws that force all asbestos and silicosis claims by workers to be pursued through workers’ compensation, thereby eliminating the ability of workers to bring asbestos lawsuits before a jury. This provides little justice and inadequate compensation to those wrongfully injured.

Instead of putting workers’ health first, some companies actually estimate whether it is cheaper to pay workers’ compensation claims or institute the controls and steps to insure workers do not get sick. Workers’ compensation costs are forecasted and simply factored into the price of the products.

In 1958, Frederick LeGrande files the first modern-day product liability case against Johns Manville. LeGrande worked as an insulator for a company known as H.W. Porter, installing asbestos insulation. Unlike other workers before him, LeGrande does not sue his employer for workers’ compensation benefits, but for the first time sues Johns Manville, claiming that Johns Manville sold the asbestos products that he worked with and should be responsible for the serious lung injury he sustained. Wondie Russell memo Re: Frederick LeGrande v. JM Products Corp. (November 3, 1982).

Like the lawsuits secretly settled by Johns Manville more the 20 years earlier, LeGrande files his lawsuit in federal court in Newark. During the pretrial process, when LeGrande asks what Johns Manville knew about the dangers of its products, he is lied to and stonewalled.

Unfortunately, for Johns Manville, LeGrande is a very convincing witness and a sympathetic plaintiff. Soon after LeGrande testifies, an emergency meeting is held at Johns Manville headquarters. If LeGrande wins, and the verdict becomes known, it could be used as proof in all future cases that Manville was aware that people like LeGrande could get sick and die from asbestos. At the meeting, Johns Manville decides to settle LeGrande’s case rather than risk a verdict and have the truth exposed. The condition for settlement, however, is that it must remain secret and that when the settlement is put on the record, it will be put on the record for something other than asbestosis.

Throughout the 1960s, a few other cases are quietly settled as industry members rejoice in the public’s ignorance. Certain members of the insurance industry who are working hand in hand with the manufacturers are clearly aware of the public health time bomb that is being created.

In 1969, 10 years after settling LeGrande’s lawsuit, Johns Manville and its insurance carrier quietly settle the first environmental asbestos case.

In October of the same year, Ward Stevenson of Texas files a lawsuit on behalf of Clarence Borel. Borel is an insulator with asbestosis and mesothelioma. Unbeknownst to everyone at the time, this will become one of the most important product liability cases in American history.

In 1973, the asbestos industry commissions a survey to determine the level of the public’s awareness concerning the dangers of asbestos. Matthew Sweetonic, the director of the asbestos industry’s leading lobbying group, the Asbestos Information Association, reports the results of this survey at a meeting in Washington, D.C. He tells the crowd that he has good news and bad news. First, the bad news:

Our prediction is that approximately 25,000 past and present employees in the asbestos industry have died or will eventually die of asbestos related disease.

But do you want to hear the good news?

And the good news is that despite all the negative articles on asbestos-health that have appeared in the press over the past half dozen years, very few people have been paying attention . . .

These results should be reassuring to those industry customers who fear that the general public will stop buying their products because they contain asbestos.