Asbestos News Roundup: 9.18.14 – Fire Fighters and Asbestos Disease

September 18th, 2014. By LucyC

A roundup of recent asbestos-related news and information that you should be aware of. An ongoing list of reported asbestos hot spots in the US from the Asbestos News Roundup archive appears on our asbestos map.

Fire Fighters and Asbestos Disease

According to a study done by The National Fire Administration/NIOSH, published in the October 2013 issue of Occupational and Environmental Medicine, the rate of mesothelioma among firefighters studied was twice that of the general US population.

The study is one the largest of its kind done to date, and looked at mortality patterns and cancer incidence among career firefighters. The researchers evaluated a pool of approximately 30,000 firefighters employed in San Francisco, Chicago and Philadelphia between 1950 and 2009.

They found, as have previous studies, that firefighters, through the course of their work, are exposed to known and suspected carcinogens like formaldehyde and benzene. The study shows that such exposure is linked to an increased risk of developing certain cancers. Additionally, the results were consistent with previous studies which show that firefighters experience higher rates of respiratory, digestive and urinary cancers, compared to the general population.

What was new, however, was the nearly doubling of the incidence rate for asbestos mesothelioma among firefighters, compared with the general US population. This had not been previously reported. The study not only strengthens previous evidence for the health risks firefighters are exposed to, but also suggests an association between firefighters’ occupational exposure to asbestos and increased mesothelioma rates, as asbestos is “the only known causal agent of mesothelioma.”

Asbestos Lawsuits

Moundsville, WV:  Deborah Morgan has filed an asbestos lawsuit naming 72 companies she claims are responsible for her late husband’s lung cancer and death. She claims her husband’s condition was a direct and proximate result of the negligence of the defendants.

Ronald Morgan was diagnosed with lung cancer on May 2, 2013, and died September 22, according to the lawsuit. Deborah Morgan alleges the defendants that are premise owners had a duty to provide Ronald Morgan with a reasonably safe place to work and a duty to exercise reasonable care in protecting him from work place hazards.

Further, Mrs. Morgan alleges the defendants failed to warn her husband of the dangers of its products when they knew or should have down that expose to asbestos-containing products and other ingredients of the products would cause disease and injury, and that they failed to exercise reasonable care to warn Ronald Morgan of the dangers to which he was exposed by use of the asbestos-containing products and other ingredients in the defendants’ product.

Mrs. Morgan also claims the defendants failed to inform her late husband about safe and sufficient apparel for a person who was exposed to or used the product or products and that the defendants failed to place any warnings on the asbestos-containing products and failed to warn of the dangers of the ingredients of the products.

The 72 defendants in the suit include: A.W. Chesteron Company; Air & Liquid Systems Corporation; Allied Glove Corporation; Ametek Inc.; American Gage & Machine Company Inc.; American Optical Corporation; Atlas Industries Inc.; Aurora Pump Company; Bayer Cropscience Inc.; and Beazer East Inc. (wvrecord.com)

Moundsville, WV: 109 companies have been named as defendants by a couple seeking damages in an asbestos lawsuit.  The plaintiffs claim the companies say are responsible for the mesothelioma diagnosis pertaining to Thomas Ray Allen. Allen was diagnosed with mesothelioma on April 30, according to the lawsuit.

Allen and his wife, Phyllis Allen, claim defendants exposed Thomas Allen to asbestos during his employment in New Martinsville. Specifically, the Allens claim that Thomas Allen was exposed to asbestos and/or other harmful minerals manufactured, supplied, sold, distributed, installed, used, specified, removed and/or required by the defendants.

Further, the Allens contend that the defendants failed to warn them of the dangers of the asbestos-containing products and failed to take reasonable precautions to warn them of the dangers.

The defendants also failed to exercise reasonable care to warn them of the dangers and failed to inform them of what would be safe and sufficient apparel for a person who was exposed to or used the product or products, according to the complaint.

The 109 defendants include Bayer Corporation; Air & Liquid Systems Corporation; Ajax Management Corporation; Alliance Machine Company; Allied Glove Corporation; American Gage & Machine Company; American Optical Corporation; Ametek Inc.; Armstrong International Inc.; and Armstrong Pumps Inc. (wvrecord.com)

Asbestos Settlements  

Salinas, CA: The Windsor Gardens, a 99 bed for-profit nursing home in California, has agreed to a $225,000 settlement to settle allegations it failed to properly handle the removal of asbestos during a renovation.

The nursing home, in Salinas CA, and its general contractor relied on an incomplete “operations and maintenance” report rather than a full survey when doing a renovation in 2012, according to the lawsuit. As a result, they did not know that wallboard in patient rooms contained asbestos, and the harmful substance, which can cause lung cancer, was emitted during work, local CBS affiliate KION reported this week.

Windsor Gardens and its operator, S&F Management Company, entered into the settlement with the Monterey County District Attorney’s Environmental Protection Unit. The general contractor, The Stahl Companies, will also pay $70,435 in a civil settlement. (mcknights.com)

A Man Walks into a Bar, Steps Outside to Sh*t and…

September 16th, 2014. By LucyC

Well, the name of our column is “Crazy Sh*t Lawyers See”, so this one’s fitting…

And this one’s dirty. Shitty, actually. Literally. A former Merrill Lynch financial adviser who decided to relieve himself in the woods behind a bar has filed a lawsuit against the city of Mount Dora and the police officer who cited him for disorderly conduct in 2010. Elvan Moore is alleging his civil rights were violated through the enforcement of a “careless and reckless policy” and that the charges resulted in him losing his job at ML.

OK—my first question—what was the police officer doing in the woods? Answer—he followed Moore out the bar. Ok that’s just weird. According to the officer, he followed Moore out the bar and into woods where he saw him squatting and next to a broken-down car and noted the strong odor of feces. Really—didn’t the cop have anything better to do? Mount Dora’s finest?

Moore is alleging that the charges are bogus, as he was vomiting not defecating (does the exit point really make a difference?) as a result of some vitamins he had taken. Apparently he was also prepared—as the police officer saw that Moore had paper napkins with him.

Now, disorderly conduct, it turns out, is a vague beast. Florida’s disorderly conduct statute includes acts that “corrupt the public morals or outrage the sense of public decency, or affect the peace and quiet of persons who may witness them.” You could pretty much write your own ticket based on that description. Interestingly, the charges were eventually dropped… BUT—they are a matter of public record and that is why Moore has his knickers in a knot.

Moore’s lawsuit claims the officer’s allegations caused him to lose his job at ML, and suffer damages to his reputation, as well as embarrassment and humiliation. Hard to avoid, I would think. And he does have legal recourse through a statute commonly used for police brutality.

The city of Mount Dora has not come clean on how it plans to handle the lawsuit. Moore is seeking over $15,000 in damages.

Who Needs to Log Billable Hours when you’ve got a LiLo?

September 11th, 2014. By LucyC

She’s an attorney’s dream…the client that lets you kiss goodbye billable hours, ’cause heck—you’ve already blown your hours out of the park with this baby! And here we go again…

What’s in your closet? Lindsay Lohan and company, by any chance? Better check behind those suit bags….

No stranger to legal issues (see mug shot, 2013), LiLo has been hit with a cease and desist letter, well, her and her brother (what happened to the father? He’s never far behind) for stealing an idea for a fashion e-commerce site—an idea that involves looking through celebrities closets. It seems LiLo has entered the business world with the same panache she demonstrated in the entertainment arena—if the allegations are true.

The whole business concept is just a tad creepy… the back story is that shortly after Lohan finished her 90 days in rehab last year, she and her brother, Michael Jr. got involved in a fashion start-up—an app that allows people to sift through celebrities virtual closets (e.g. Lohan’s—and, um—I think one could guess—what’s in her closet) to see what designers they’ve bought—so the wannabes can make the same purchases. The app, called Spotted Friend, was the brain child of one Fima Potik, a tech entrepreneur, reportedly.

According to the NewYork Post, where all the good news comes from these days, Lohan tweeted about Spotted Friend in July, 2013. At that time, the website apparently read: “A Fima Potik & Lindsay Lohan Production.”

Cut to July 2104, Page Six reported that Lohan’s younger brother was raising money for Vigme, a “social shopping community.” He said, “If Lindsay buys something, it goes into her [virtual] closet. People see what’s in her closet. If someone else buys [the same item], it puts money into Lindsay’s pocket.” I guess every penny helps—rehab’s not cheap these days…

But—Potik’s lawyer, Marc E. Kasowitz, is not buying, and LiLo, Michael Jr. and business partner Christopher Roth (not sure where he came from) are facing a cease-and-desist letter from Potik, in which Kasowitz wrote, “Prior to their involvement in Vigme, [the Lohans and Roth] were members of Spotted Friend LLC, a social commerce startup that was founded by Fima Potik in 2013. It is Mr. Potik—not the Lohans—that created and developed the idea for a mobile application that allows users to access celebrities’ and friends’ ‘virtual closets’ and to directly purchase fashion items and accessories from these ‘virtual closets.’  I’m having massive Facebook déjà vu here…

“In 2014, after being members of the company for over a year, without any warning, the Lohans and Mr. Roth launched a competing company and improperly took proprietary information and intellectual property from Spotted Friend to start the new business. We intend to take all action necessary . . . to protect Spotted Friend’s and Mr. Potik’s legal rights and commercial interests.”

Not surprisingly, Lohan’s attorney, Mark J. Heller, fired back with: “Allegations of any impropriety in Lindsay Lohan’s business relationship concerning this Web site are inaccurate and clearly designed to capitalize on her worldwide recognition as a fashion icon.” Worldwide fashion icon? What the best dressed wear in rehab these days? Ok—who’s on drugs here?

Spotted Friend is still up and running as of post time—and from the looks of it, it would seem that piggybacking on the coattails of others is nothing new to the whole lot of these folks–Potik included. How’s that? The opening splashscreen at Spotted Friend is actually a “Google” search screen (below). Any one run that by Google’s legal team? (just asking…)

Conversely, the folks at Vigme are still gearing up for an “Expected Launch – Winter 2014” according to their LinkedIn page. We’re waiting with bated breath, of course.

I don’t know—the whole thing has me longing for the days when fashion came out of 7th Ave, vs. a dive bar in West Hollywood. But hey, if there’s a lawsuit, it could end up being more profitable than the app could ever be. Especially for those lawyers…

Gender-Bending at the DMV: What would RuPaul do?

September 10th, 2014. By LucyC

Kinda hard to think about this case—which we all knew would be coming down the pike—without thinking of the likes of RuPaul. But I’m getting ahead of myself…

South Carolina’s DMV is being sued by a boy and his mother over the 16-year old’s right to wear his “everyday” makeup for his driver’s licence photo. In her lawsuit, Teresa Culpepper alleges the SCDMV told her son to remove his mascara for the photo. When he refused, the SCDMV refused to take the photo, citing a policy that a driver’s license applicant cannot “purposely alter his/her appearance so that the photo would misrepresent his/her identity.”

OK—so where does that leave all us lipstick-loving, hair-colored, false eyelash-wearing women?  And what about wigs—how does that work? And what about women who wear trousers?  Wow, what a can of worms…

The back story: earlier this year Chase Culpepper reportedly showed up for his DL photo wearing foundation, mascara, eye shadow, and lip gloss—you might have seen Chase’s pic splattered across the news at the time. Makeup’s everyday stuff for most women—part of the external persona. According to Chase’s mum, the makeup and androgynous gender performance are part of Chase’s identity. Although Chase was born male, he wears gender non-conforming clothes and makeup.

Teresa Culpepper states that her son passed his driving test and satisfied all other requirements for a license. The only obstacle was the interpretation of the SCDMV’s policy by an employee at the Anderson office of the DMV. Apparently, a DMV employee complimented Chase on his makeup, but said he would not be able to wear fake eyelashes in the picture. “C.C. [Chase Culpepper] and his mother informed her that his eye lashes were real,” Culpepper states in her complaint.

“The employee then said she needed to speak with a supervisor and left to do so. She returned and told C. C. that her supervisor had stated that he needed to ‘go home’ and ‘take off the makeup.’ C. C. and his mother informed the employee that C. C. wears makeup daily and that how he looked at the time is how he looks on a regular basis,” according to the complaint.

Tammy King, the manager of the SCDMV’s Anderson office and the named defendant, then allegedly told the Culpeppers that “C. C. could not take his driver’s license photograph while wearing his regular everyday makeup,” because “it was in her ‘discretion’ to not allow C. C. to have his driver’s license photo taken if she felt he was wearing a disguise.”

Wait a minute—hadn’t they just explained all this?

“C. C.’s mother asked defendant King if a female applicant seeking a driver’s license wearing makeup of the kind C. C. was wearing, i.e., foundation, mascara, eye shadow, and lip gloss, was required to remove her makeup prior to taking a photograph for a driver’s license.

“Defendant King did not respond to plaintiff’s question,” Culpepper says. No, probably because there is no answer.

Lots to ponder here, folks…If a woman wears makeup to look more feminine, it’s not gender-bending, right? But if a man wears makeup…? If RuPaul is highly established as a drag queen (ie, a man doing some gender-bending via cosmetics), which of his/her personas gets photographed at the DMV? Is it up to him/her? We’ve got a wealth of fodder right here for when you’re slow on conversation at your next cocktail party.

The complaint goes on: “There is no disputing, and the SCDMV has acknowledged, that C.C. wears makeup on a regular basis.

However, the SCDMV and its employees have interpreted the policy to prohibit a male applicant from wearing regular everyday makeup that they allow female applicants to wear under the same policy.”

Culpepper claims the defendants discriminated against her son because of “their preconceived notion of how males should and can look. This preconceived notion is a sex stereotype and does not constitute a legitimate state interest.” No shit Sherlock.

Predictably, I suppose, the SCDMV’s policy is vague and relies on an interpretation of what “misrepresenting his/her identity” means, leaving the interpretation up to the discretion to SCDMV employees, something that is not allowed in the private sector. So, you ask—what’s the exact policy? Well, there isn’t one. In their suit, the Culpeppers argue that the policy leaves applicants like Chase at the mercy of sex/gender discrimination and sex stereotyping.

As the complaint states: “Defendants impermissibly discriminated against C.C. based on his sex and their sex stereotype…They unconstitutionally restrained C. C.’s freedom of expression and compelled and continue to compel him to convey an ideological message of their design. And they deprived C.C. of his constitutionally protected liberty interest in his personal appearance. Moreover, defendants’ policy is unconstitutionally vague and overbroad, enabling SCDMV personnel to make arbitrary and capricious decisions based on their perception of how a particular individual should look as male or female.” Amen to that.

So, Chase Culpepper, better put your best face on because could you could become the poster boy for DMV discrimination.

Gosh—I sure hope this doesn’t translate into a no make-up at all policy… passport photos are bad enough…

Infidelity Site gets Screwed and Sues South Korea! (Now THAT takes a set…)

September 3rd, 2014. By LucyC

Legislating morality has never been an easy task, but South Korea may just have it handled. There’s no need for debate, apparently, as AshleyMadison.com is finding out. The dating website, designed to facilitate social contact between married people looking for a little extra-curricular—was blocked this spring—shortly after it launched—by the government of South Korea, which claims it incited immorality. And in the best North American tradition, Ashley Madison is suing the government of South Korea, alleging false accusations of illegal activity. Adultery is illegal in South Korea. Wait a minute—isn’t it also illegal just about everywhere else on the planet?

In a statement of claim filed in Canadian federal court at the end of August, AshleyMadison.com denies the accusations, describing itself as “a social networking website facilitating communication between like-minded adults.” Umm, that description would also fit for axe murders, pedophiles, ornithologists and cooking enthusiasts, would it not? Guess the folks at Ashley Madison adhere to the “go big or go home” school of brand positioning… Regardless, a quick look at some of the company’s online info would seem to indicated that maybe they DO promote adultery, eh? Or is there some other definition of “infidelity”? (see image)

So, in the lawsuit, Ashley Madison accuses the South Korean government of engaging in “uncompetitive acts” by unfairly banning the website while allowing local businesses to operate similar ones. Ah ha! There’s the rub.

The lawsuit claims the effects of the South Korean government to shut down the site has had a trickle down effect to the Canadian market, where the company is based. The Toronto-based company claims the shut-down has limited the social media site’s success among Korean-Canadians and other Asian-Canadians and reducing overall competition in the social media market. And I’ll bet it’s a pretty big market at that.

“There’s no adultery that happens on Ashley Madison, it’s just a publication,” the company’s CEO and founder, Noel Biderman, told The Canadian Press. “We write very little, our users write everything. So therefore Facebook would have to be shut down, any place where somebody wrote about, or any phone call anybody made—holding all those devices, all those platforms responsible, that’s where you have to start that conversation. You can’t selectively pick us to try to make an example out of us,” he said. Ahh, but they can. And they have.

Hmm. Note to Mr. Biderman: I don’t think the <h1> headers on the corporate site (above) are user-generated content…

The site itself, which uses the slogan “Life is short. Have an affair,” launched there on April 1, the claim states, and it has already expanded to more than 30 countries. (Damn, wish I’d thought this one up…) According to the lawsuit, the South Korean site drew nearly 50,000 members in the first two weeks post-launch. Ka-Ching!

Shortly thereafter, Korea Communications Standards Commission, a government agency also named in the lawsuit, blocked the site, alleging that it “contained illegal information.”

Ashley Madison claims they were never told what exactly the commission’s concerns were, and that its appeal of the decision was dismissed within days “without further explanation.” How very parental.

Ashley Madison says the website “neither contains illegal information, nor does it aid or abet any illegal activity.” Well, lawyers would argue that that’s debatable.

Instead, the lawsuit claims South Korea is trying to give its own companies a leg up (no pun intended) when it comes to breaking into the Canadian market. So is this really about who gets to profit off this “illegal activity? “ Likely answer: yes.

“The defendants’ anti-competitive practices in South Korea have a direct impact in Canada on communications and social networking businesses and websites competing for the Korean-Canadian and Asian-Canadian market for such websites,” the lawsuit states.

“Given the global reach of the internet, a social networking service that meets with success among any particular group of people in one country has or will have a significant competitive advantage among people of that same group or related groups in other countries.”

So far, the action has been met with a stoney silence from the South Koreans. None of the claims have been proven in court and Korean authorities have yet to file a statement of defense. (Really?)

Notably, Ashley Madison has also been banned in Singapore—but it never launched in that country. Biderman said the situation in South Korea is different because the site had already been operating for weeks when it was shut down. Something certainly seems a little 50 shades of greyish….

The company is seeking an unspecified amount for loss of revenue and lost profits, as well as general damages for uncompetitive conduct.  It also wants the court to order South Korea to stop blocking the website.

The lawsuit was filed through Ashley Madison’s parent company, Avid Life Media, and is suggesting the trial be held in Vancouver. Fwiw, Avid Life Media is parent to a collective of dating sites for those who might not otherwise find success via the more mainstream dating sites. “Those”would refer to larger women, cougars and those seeking sugar daddies (to be blunt).