Case Adventures: Asbestos Injuries

Holding a Japanese Manufacturer Accountable for Asbestos Injuries in the U.S.

In the fall of 2006, Scott Hendler received an email from a guidance counselor at a middle school in Austin where Scott volunteered as a mentor. The counselor apologized for not being as active in the volunteer program as he had planned to be, but explained that he recently had been diagnosed with a rare form of cancer called mesothelioma. By coincidence, the school administrator in the office next to the counselor’s had served on the jury in a mesothelioma case Scott had tried a few years earlier. She urged the guidance counselor to call Scott for help.

The guidance counselor had already learned that mesothelioma was the signature cancer of asbestos exposure. But he had no idea where he could have been exposed. After all, he was a schoolteacher and counselor, not an industrial worker. Scott sat down with him and reviewed his work history—in reverse chronological order, moving backward in time from his present position. The man was then 58-years-old.

Scott and the counselor covered every job, year by year, month by month, until they reached 1966. During that summer, the counselor explained, he had taken a job to help pay for college at a pipe yard in Long Beach, California that distributed cement water pipe, but the pipe was imported from Japan.

Japan?! Scott was incredulous. How could it possibly be profitable to ship heavy cement pipe across the Pacific Ocean only to compete with largest U.S. producer of asbestos cement pipe—Johns Manville—which made the product right there in Long Beach? But as a young investigator before law school, Scott had learned never to discount a client’s story, even if it’s difficult to believe. In fact, Scott learned that at such moments, it is more important than ever to listen and investigate further.

When Scott’s team began to look into the facts, they discovered that a Japanese company called Kubota did indeed import cement pipe to California and that the counselor’s former employer had been Kubota’s exclusive distributor in the United States. After further investigation, Scott learned that in the spring of 1966, a ship carrying Kubota cement pipe from Osaka, Japan to Long Beach, California encountered a storm at sea. The cargo shifted during the storm and the ends of the asbestos pipe crashed together, causing them to chip and break. The pipe yard needed someone to re-cut the broken ends of the pipes so they could be marketed and sold. That’s what an eighteen-year-old college student, now an exceptional 58-year-old teacher and guidance counselor, was hired to do.

In 1966, the future guidance counselor had a four-month-long summer job in Long Beach that involved one task for eight hours a day, five days a week: using a carbide grinding wheel spinning at high speed to cut the cement pipe ends in much the same way that a circular saw would. The process shot a constant jet stream of dust into his face and breathing zone. He had only a clear face shield to prevent cement particles from striking his face; there was no protection from the dust cloud that engulfed him. What the client didn’t know until 40 years later was that the cement pipe contained asbestos. That was the source of asbestos exposure that caused his mesothelioma in 2006.

To learn more about Kubota’s manufacturing operation and its asbestos legacy, Scott traveled to Japan in the fall of 2007. He learned that Kubota manufactured the pipe in a small town outside of Osaka called Amagasaki. When Scott visited the town, he saw that the manufacturing operations had been smack in the middle of a residential neighborhood. The manufacturing facility had been shuttered and Kubota had converted the site to management offices. But these changes came too late. In 2007, an environmental disaster was unfolding in Amagasaki: over 100 current and former residents of the neighborhood where the plant was located had developed mesothelioma—an unprecedented number of cases in such a small geographic area. In Japan, the problem was known as “Kubota Shock.”

Scott worked with a Japanese lawyer representing victims in the area to discover what the Japanese medical, scientific, and industrial communities knew about asbestos and when they knew it. They learned that Kubota should have appreciated the risks for people like Scott’s client who worked with the asbestos cement pipe, and for people who lived in Amagasaki near the manufacturing facility.

While he was in Japan, Scott was invited to speak at an international conference in Yokohama that discussed a worldwide asbestos ban. The topic of Scott’s speech concerned the liability of Japanese asbestos companies in lawsuits filed in the U.S. Scott’s extraordinary commitment to develop the evidence about the Japanese asbestos industry did not go unnoticed. Executives from Kubota’s headquarters in Japan, along with their Japanese corporate insurers, asked to meet with Scott’s team in Hawaii for extended settlement talks to resolve the case. After three days of intense negotiations, all sides agreed upon a way to resolve the case that was unprecedented for the Japanese manufacturer. Because Scott and his team moved aggressively and relentlessly, they were able to resolve the case for their client and his family while he was alive to appreciate it. The guidance counselor was able to gain a peace of mind, however modest, from holding accountable the company that caused his illness.

Thomas Jefferson

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