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February 20, 2018

Schools closed, parents livid after cancer-causing asbestos found

Three Huntington Beach schools will be closed for the rest of the week after recent tests for asbestos showed traces of the cancer-causing fiber on one of the campuses, officials announced.

Hope View, Lake View and Oak View schools will be closed through at least Friday after an expert told concerned parents and Ocean View School District officials at a public meeting late Tuesday that an asbestos fiber was found at Hope View.

“I believe that that fiber was released from the attic space during maintenance or installation activities above the ceiling,” said Cary Rubin, an asbestos expert who has been testing district schools since a modernization project was launched this summer.

The three closed schools all tested positive for asbestos during inspections in August, according to reports posted on the district website. Tests in September were negative. But a third round of inspections this past weekend revealed a fiber at Hope View.

Dozens of parents who gathered for the meeting Tuesday night expressed anger with school district officials over the handling of the issue.

“For the rest of my life, every time this little girl coughs, every time she gets a cold, ‘Is it now? Is this it?’ Shame on all of you,” parent Carol Bader told the school board.

Some even called for the assistant superintendent who oversaw the district’s modernization projects to resign.

“You put our kids in danger, we’re going to live in terror for the next 15 to 20 years,” parent Brett Bouchet said.

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Officials have pledged to test all classrooms at Huntington Beach’s 11 schools after concerns were raised that construction work may have exposed students to the dangerous material.

Meanwhile, Ocean View School District has been investigating whether contractors continued to remove asbestos from facilities after the school year began in September, possibly putting students in contact with dust.

Asbestos is a mineral fiber that until the 1970s was used in building products and insulation materials. Inhaling high levels of asbestos fibers — which can be released into the air during construction and later during removal as well — can increase the risk of lung disease, according to the U.S. Consumer Product Safety Commission.

Parents became aware of the asbestos issue last month when district trustee John Briscoe filed a complaint with the California Division of Occupational Safety and Health after learning the material was being removed from several district schools during a modernization effort that began in July.

For breaking California news, follow @JosephSerna.

Copyright © 2014, Los Angeles Times

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Schools closed, parents livid after cancer-causing asbestos found

Will Fourth Circuit Decision To Unseal A CPSC Case Be A Boon To Asbestos Defendants?

The U.S. Court of Appeals for the Fourth Circuit issued a decision on April 16 in a case called Company Doe v. Public Citizen that signals hope for asbestos defendants who are seeking to combat fraudulent claims in North Carolina. Those claims were brought in connection with a bankruptcy proceeding styled as In re: Garlock Sealing Technologies, LLC et al. (“Garlock”). How could an anonymous CPSC case from Maryland affect a gasket company’s asbestos bankruptcy from North Carolina? In a word: transparency. Both cases involve the ability of third parties to gain access to documents enmeshed in public litigation.

In issuing its ruling in Company Doe, the Fourth Circuit surely had no inkling that its words might cheer long-suffering asbestos defendants. However, that court’s insistence on transparency and public access to the judicial process bodes well for an asbestos case in which similar issues have been percolating. When the district court (and perhaps eventually the Fourth Circuit) hears motions from asbestos defendants and others about divulging sealed documents from the Garlock asbestos bankruptcy docket, the recent decision in Company Doe will surely loom large. There is no guaranty as to where the Fourth Circuit ultimately will come down on the sealing issues in Garlock. But it does appear that a new day is dawning, and—if the Court of Appeals acts consistently with its stated policy favoring public access in Company Doe—it just might prove to be the Day of Reckoning for fraudulent asbestos plaintiffs and their trial lawyer accomplices.

Company Doe Takes Two Steps Forward in District Court

Company Doe v. Public Citizen, No. 12-2209 (“Company Doe”), started when the U.S. Consumer Product Safety Commission received a “report of harm” and sought to post it on its new government-run product safety database website. [Full disclosure: I worked as legal counsel to CPSC Commissioner Anne Northup from 2009 through 2010, but left before this report of harm was received.] The report alleged that a company’s product was related to the death of an infant, but the company strongly objected that the report of harm was not accurate. When the company could not obtain satisfaction through direct negotiations with the Commission, it was forced to file suit against the CPSC in federal district court in Maryland (where the CPSC is located) to enjoin the Commission from posting the erroneous report of harm.

Seal of the Consumer Product Safety Commission. Seal of the Consumer Product Safety Commission. (Photo credit: Wikipedia)

In an unusual twist, the company asked the district court to proceed under two special conditions. First, the company sought to remain anonymous (hence, the “Company Doe” title of the case). Second, the company asked to seal most or all of the proceedings. Because the entire point of the company’s case was to prevent its being falsely associated with an infant’s death, the company argued that allowing its identity to be disclosed in court—and then immediately in the newspapers and across the internet—would defeat the very relief that it sought. Furthermore, the company contended that the court should seal any documents in the case that could be used to deduce its identity. The agency and several self-appointed consumer groups objected to both conditions. Nevertheless, the district court granted the company’s request for anonymity, sealed many records, and kept most filings off the court’s public docket.

Not only did the court rule in Company Doe’s favor on anonymity-related issues, but it ultimately sided with the company on the merits too. The court significantly redacted its opinion in Company Doe v. Inez Tenenbaum et al., as well as portions of other documents that became public. But Judge Alexander Williams Jr.’s decision made it abundantly clear that, by trying to post a report of harm that was not related to the company’s product, the CPSC’s actions were arbitrary and capricious, an abuse of agency discretion, and in violation of the Administrative Procedure Act:

The Commission’s position that the report should be published is untenable. In violation of statutory and regulatory mandates, the report is misleading and fails to relate to Plaintiff’s product in any sensible way … In short, the Commission’s decision is unmoored to the CPSIA’s public safety purposes and runs afoul of bedrock principles of administrative law and the sound policies that buoy them. (pp. 53-4)

Original article:

Will Fourth Circuit Decision To Unseal A CPSC Case Be A Boon To Asbestos Defendants?