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December 11, 2018

Yes Rep. McCarthy, You Should Drop Your Asbestos Lawsuit

English: Congressional portrait of Carolyn McC...

U.S. Rep. Carolyn McCarthy. (Photo credit: Wikipedia)

New York Times Columnist Joe Nocera has a hard-hitting piece today about the sheer cynicism of U.S. Rep. Carolyn McCarthy’s attempt to get money from some 70 companies for her lung cancer, which was almost certainly caused by her pack-a-day smoking habit.

I wrote about this last week, of course, drawing a lively set of comments from lawyers who accused me of everything from misunderstanding the science — wrong — to lacking objectivity — maybe, but I don’t earn a fee based on the outcome of my reporting. And Nocera also suggests McCarthy should drop her case, because it merely highlights what a corrupt exercise asbestos litigation has become.

I agree McCarthy should, as a member of Congress, drop her attempt to get money from companies that almost certainly had nothing to do with her illness. Her lawsuit, filed by the politically connected law firm of Weitz & Luxenberg, displays what a routine exercise this has become. The suit lists scores of companies that once manufactured, distributed or handled products containing asbestos, from water-heater maker A.O. Smith to Yuba Heat Transfer, which makes heat exchangers for power plants. General Electric General Electric is in there, as is Flowserve Flowserve, the Long Island Power Authority and Goodyear Goodyear Tire.

The actual complaint conveys a sort of poetic imagery in its cynicism: NYAL – WEITZ &LUXENBERG, P.C. STANDARD ASBESTOS COMPLAINT FOR PERSONAL INJURY No.7.

McCarthy claims, in answers to questions from defendants, that she is “fearful of death” and her “asbestos-related condition has disrupted my life, limiting me in my everyday activities and interfering with living a normal life.” Amazingly, for a woman who appears to have been exposed to just about every company in the asbestos-production chain, Rep. McCarthy denies regular exposure to a large number of other dangerous substances including acids, aluminum, coal dust, live chickens, toluene and silica.

She does admit to a 30-year smoking habit, at times amounting to a pack a day, which she ended in May 2013 when she received her diagnosis of lung cancer. But did she know cigarettes cause cancer? Apparently not. In response to the question of whether she was ever told by a physician that she was “suffering from any disease or illness caused by or contributed to by tobacco,” the former nurse answered, under penalty of perjury, “no.” Neither was she “advised by any physician or any other person that use of tobacco products could adversely affect” her health. Nor was she “ever advised to stop using tobacco products.”

I am not sure how anybody could get through nursing school, even decades ago, without learning the dangers of smoking. Or be under the regular care of physicians at Walter Reed National Military Medical Center, as McCarthy says she was for the past 16 years, without ever once being alerted to the fact that cigarette smoking is a habit best quit. Or how her physicians at Memorial Sloan Kettering Cancer Center failed to mention smoking as a possible cause of her lung cancer.

But her “no” answers could come in handy should the Congresswoman ever decide to sue a tobacco company.

For now, McCarthy is pursuing a claim that she was exposed to stray asbestos fibers brought home on the clothing of her father (cause of death: massive stroke) and brother who worked in shipyards and power plants in the area. But she also found herself in harm’s way when she visited and picked up her father and brother “at various work sites including Navy Yards, Bridges, Hospitals, Schools, Powerhouses and other sites where I breathed the asbestos dust and from asbestos containing equipment being worked on, installed and removed by my father, brother and other workers.”

It’s a well-worn strategy of asbestos lawyers to sue companies like brake-pad manufacturers and gasket makers for contributing to the lung disease of aging workers, most of whom smoked. The theory is they inhaled asbestos fibers as they walked past somebody else replacing the gasket in a steam pipe. Never mind that asbestos exposures must be high and continuous to cause disease; lawyers have come up with a scientifically dubious theory that even one stray fiber can cause cancer, the flutter of a butterfly’s wings causing a metastatic cascade ending in death.

With her complaint, McCarthy carries this to the extreme. How many New York residents have not been exposed to asbestos at least at the level of Rep. McCarthy? Are they all entitled to payouts from Goodyear and GE?

The point of this post isn’t to cause further suffering to McCarthy, who is already going through a horrible experience. But as a lawmaker, she should reconsider engaging in litigation with such dubious underpinnings. I know it is standard practice to sue everybody and sort out the real perps in discovery. That pattern strays into the extortionate with asbestos litigation, however, where each of the named defendants can be rid of a case with the payment of a few thousand dollars, or risk a potentially devastating jury award if they resist.

For an example, look no further than the Weitz & Luxenberg website, which proudly announces a $190 million verdict lawyers there won in July on behalf of five industrial workers who came down with mesothelioma. Those are the stakes for companies that decline to play the game.

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Yes Rep. McCarthy, You Should Drop Your Asbestos Lawsuit