Mesothelioma Asbestos Lawyer, DuBose Law Firm, PLLC

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Ben Dubose

Ben DuBose has over eighteen years of asbestos and serious personal injury litigation experience, successfully fighting for hundreds of mesothelioma victims in courts throughout the United States

Talc Safety Topic of Congressional Hearings

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Talc safety has been a concern for years. More recently, the clear possibility of asbestos contamination in talc has led to heightened concern about critical diseases, such as mesothelioma and ovarian cancer being caused by use of talc based products.  

Why is asbestos connected to talc safety?

Both talc and asbestos are minerals found in underground mines. Geologists know that these two minerals are often found intertwined in veins, making cross-contamination a real risk.

Talc everyday uses

Aside from baby powder, talc is used in a wide range of cosmetics for its moisture absorption and silkiness. Recently asbestos was found in four cosmetic products from Claire’s and Justice – both catering to makeup for children. It was also used for feminine hygiene, crayons, children’s toys, chewing gum, and a plethora of common products. There is no safe level of asbestos as its microscopic fibers can infiltrate lungs and harbor the potential for developing into lung cancer, asbestosis, and the deadly mesothelioma for fifty years or more.

Congressional hearings on talc safety

Concerns recently grew when the FDA found asbestos in several products, including baby powder. An initial hearing was conducted in March of 2019 over cosmetic talcum powder’s safety. This hearing specifically focused on talc’s connection with ovarian cancer.

The second hearing was launched when the FDA found asbestos in a sample of Johnson & Johnson’s (J&J) baby powder in October 2019. Under consideration may be the use of warning labels or regulation of talc products.

Congress speaks

The hearing questioned the testing methods used.  William Longo, founder of Materials Analytical Service, stated, “Independent labs throughout the country and over the course of several decades have documented the presence of asbestos in consumer talc products, including Johnson & Johnson’s baby powder. The methods used in the past and today by the industry are not sensitive enough to detect trace levels of asbestos.”

While Longo once denied the presence of asbestos in talc, he stated there is now more sensitive testing. He also received access to thousands of internal J & J documents showing their knowledge of small amounts of asbestos in their talc for decades. There is no safe level, yet J&J kept this information from regulators and the public. Protecting the J&J brand and the public trust of their products was their focus. They now have paid out billions of dollars in thousands of lawsuits with thousands more in process.

The House of Representatives Subcommittee on Economic and Consumer Policy tried to convince the CEO of Johnson & Johnson, Alex Gorsky, to testify at the hearing. He turned down the invitation.

Charles M. Elson, director of the John L. Weinberg Center for Corporate Governance at the University of Delaware, said Gorsky’s refusal made sense as the “CEO and his advisers probably figured that the downside was greater to testifying than not.”

Asbestos Warnings after TPC Explosions

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The night before Thanksgiving, 30,000 people near the Texas Petroleum Chemicals Group plant (TPC) in Port Neches, Texas were evacuated due to explosions which led to asbestos warnings. The two explosions sent debris flying “like a missile” over four miles according to Judge Jeff Branick, head of Jefferson County’s Office of Emergency Management. In addition to asbestos and other toxic debris ejected over the large area, a large amount of butadiene and raffinate chemicals was released through the fires and smoke.

This geographical area along the Gulf of Mexico coast east of Houston is covered in oil and chemical facilities, so false warnings and fires are familiar. But these explosions brought thoughts of the 1947 Texas City disaster which killed hundreds when a ship exploded. Evacuation orders included Port Neches, Groves, Nederland, parts of Port Arthur, and the communities of Central Gardens and Beauxart Gardens.

Warnings about touching any new debris in yards or roofs were sent out quickly since it was known asbestos, a toxic mineral, was used throughout the affected buildings.

Why asbestos warnings?

Asbestos was found in yards 1½ miles from the blast. It was used extensively in these buildings – some built in the 1940s. It is a known carcinogen that can cause the deadly disease mesothelioma, along with lung cancer and asbestosis. It is devious as it can take up to 50 years from the time of asbestos exposure before the manifestation of cancer. Parents are concerned because they are finding asbestos in yards where their children play every day.

Removal is not a DIY project, as the microscopic fibers in asbestos can be inhaled easily. Any removal must be done by abatement contractors experienced and certified in this dangerous job. A hotline – 866-601-5880 – is in place for anyone finding asbestos.

Why was asbestos used?

Asbestos was thought a miracle mineral in the early 20th century and even much further back in history. It began to be used in many products by the 1930s until 1980 when it was no longer approved for most products. It is flexible, strong, heat resistant, and can easily be made into a wide range of products. Boilers, shingles on roofs and exteriors, tile mastic, insulation, pipe coverings, brake pads, and textured paint are a few of many uses. As long as the products are undisturbed so that fibers are not released, it is not dangerous. But, as these products age, are disturbed by renovation or teardown, or by disaster such as these explosions, fibers are released and inhaled. The actual fibers are too small to see with the naked eye.

Current situation

Local and outside agencies were quick to respond, beginning with asbestos warnings.

• A week after the explosions, the fire is finally extinguished. No “all clear” yet as response measures are still in process.

• Counselors are available for those needing emotional support as well as needing more answers to their health questions.

• Air and water quality are continually monitored by federal, state, and local agencies.

• Claims are addressed by visiting homes in the highest impacted areas and for those living outside of those areas, appointments are made to view damage and ensure those who sustained damage have submitted insurance claims.

• Any person or family included in the mandatory evacuation should fill out an online form if they are requesting reimbursement.

Asbestos remains a primary concern. If everyone finding asbestos reports it and gets it remediated by professionals, the chances of future health problems are much reduced. However, if warnings are not taken seriously and DIY measures are performed, it could harm not only those doing the work, but could spread it further – even through their clothes in interactions with other people.

Mesothelioma is still a terminal disease with no actual cure and must be taken seriously.

For Better Health and Increased Happiness, Be Thankful

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We’re entering a holiday season that comes with many unrealistic expectations and a long ‘to do’ list. It also brings memories of loss and of the past. These, along with other thoughts, can take the joy out of the season and also from life.  It is often overwhelming.

Be thankful

Studies have shown that for better health and increased happiness, be thankful. Gratitude recognizes the good in our lives – family, friends, work, health, food or a roof over our heads. Some of these may be missing but searching for areas of gratefulness and fully appreciating even the smallest area of good in life can lift spirits.

One step to achieving this positive state means realizing the source of people’s happiness lies, at least partially, beyond themselves. With that realization, a connection begins with other people, a higher power, or even nature. Psychology research has revealed that “gratitude is strongly and consistently associated with greater happiness. Gratitude helps people feel more positive emotions, relish good experiences, improve their health, deal with adversity, and build strong relationships.” When grateful, a person is more likely to reach out and touch others who are still struggling with thankfulness.

How to increase gratefulness

In general, change focus.

The past: think of positive memories, perhaps of some childhood time or a time of good fortune.

The present: Notice when good things happen and appreciate them: a kind word, a beautiful sunset, a new or old friendship.

The future: Change from pessimism to optimism in almost all occasions.

Overall, appreciate where you are in life right now and who you are. Mr. Rogers said, “I like you just the way you are.” We can apply that to ourselves as well as others. That doesn’t mean you have to stay there, but it helps to refocus and like yourself in whatever situation. Gratitude comes with acknowledging what you have, not what you don’t have. Again as Mr. Rogers said, “I believe it’s a fact of life that what we have is less important than what we make out of what we have.” Stephen Covey in “7 Habits of Highly Effective People” wrote of a scarcity mindset versus an abundant mindset, “It is the paradigm that there is plenty out there and enough to spare for everybody.”

We are thankful for you who are reading this, for our clients, for our family and friends. We are thankful for the opportunity to help people who are victims of others’ misdeeds.

We wish each of you a Happy Thanksgiving 2019 from all of us!

Additional Employees Are Eligible for Overtime in 2020

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As of September 24, 2019, an estimated 1.2 million employees will be eligible for overtime in 2020. This came about with an increase in the “white collar” exemption by the U.S. Department of Labor. It supports the mandate for overtime pay included in the Fair Labor Standards Act. It becomes effective January 1, 2020.

Which employees are eligible for overtime in 2020?

The FLSA requires that most employees in the United States be paid at least the federal minimum wage for all hours worked and overtime pay at not less than time and one-half the regular rate of pay for all hours worked over 40 hours in a workweek.

However, Section 13(a)(1) of the FLSA provides an exemption from both minimum wage and overtime pay for employees employed as bona fide executive, administrative, professional and outside sales employees. Section 13(a)(1) and Section 13(a)(17) also exempt certain computer employees. These exemptions are often called the “white-collar” or “EAP” exemptions. To qualify for exemption, employees generally must meet certain tests regarding their job duties and be paid on a salary basis at not less than $684 per week. Job titles do not determine exempt status. In order for an exemption to apply, an employee’s specific job duties and salary must meet all the requirements of the Department’s regulations.

Once implemented, the minimum annual salary threshold for the “white-collar” exemption will be $35,568, increasing eligibility for an additional 1.2 million more workers. Currently the threshold for the exemption applied to white collar workers making at least $23,000 annually.

The result will be that employees making less than $35,568 (as opposed to only $23,000), even if salaried, will be entitled to overtime pay.   The adjustment by the Department of Labor is aimed at increasing overall compensation in the work force by increasing the number of workers eligible for overtime pay and also increasing the minimum salary required for employers to take advantage of the “white collar” exception.   

What employees are exempt from overtime pay?

Employers must reevaluate employees, currently exempt, who are earning an annual salary under or slightly over the new threshold. To be given a “white-collar” exemption, there are tests. 

Executive exemption

The employee’s primary duty must be managing the enterprise or a department or subdivision of the enterprise. The employee must customarily and regularly direct the work of at least two employees and have the authority to hire or fire workers (or the employee’s suggestions and recommendations as to hiring, firing or changing the status of other employees must be given particular weight).

Administrative exemption

The employee’s primary duty must be office or non-manual work that is directly related to the management or general business operations of the employer or the employer’s customers. The employee’s primary duty also must include the exercise of discretion and independent judgment with respect to matters of significance.

Professional exemption

The employee’s primary duty must be work requiring advanced knowledge in a field of science or learning that is customarily acquired by prolonged, specialized, intellectual instruction and study.

Training needed for employers and employees

Employees in the pay gap between the current pay threshold of $23,000 and the new limit of $35,538 may not be tracking their work time. Under the new plan, all work time and overtime must be tracked. For employers, this may mean training for affected employees on time-keeping procedures.

Both employers and employees need awareness training on other features of the plan. Employers may count up to 10% of annual non-discretionary bonuses, incentives, and commissions toward an employee’s salary – sometimes bumping them above the $35,538 threshold and disqualifying them from overtime.

Employers may restructure by increasing the salary of some and reclassifying others to nonexempt. They may also create ways to limit overtime hours – especially for the newly nonexempt employees who are not familiar with tracking hours.

This will take some time for both sides to adapt to the new rules, but awareness of the rules and how they apply to your particular situation, will go a long way toward a smoother transition and less frustration. The timing of the new rule gives everyone three months to adjust and be ready for the new year.

In 2016, the Department of Labor under the Obama Administration previously set an even higher minimum salary requirement to qualify for one of the white collar exemptions.  The $47,476.00 minimum requirement established by the Obama Department of Labor would have protected even more workers (an estimated 4.2 million) by dramatically increasing the number of workers eligible for overtime pay and significantly increasing the minimum salary required for white collar exemptions from the overtime pay requirement.  

However, a US District Court ruling stopped implementation of the 2016 rule before it became final.   During the pendency of the appeal, the Department of Labor under the Trump administration decided to dismiss the appeal previously initiated by the Obama Department of Labor – thus ending final implementation of the even higher salary threshold.

Nevertheless, the current Department of Labor has made the current rule change to the $35,538 threshold which is an improvement under the previous number established in 2004. Overall, this is good news for both “white collar” exempt employees as well as employees who work over 40 hours as they can be assured they will be more fairly paid for time worked.

Statistics on Vaping-related Diseases and Deaths Rise

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Statistics on vaping-related diseases and deaths rise almost daily, it seems.

  • On August 23, the first vape-related death was found. This patient used vaping for the nicotine content.
  • Another five deaths were reported within a month – some using vapes containing THC, others nicotine.
  • On September 11, the Trump Administration pushed for a ban on all flavored e-cigarettes in the US because of the attraction to under-aged youth.
  • By September 12, The Centers for Disease Control (CDC) reported a confirmed 26 states reported 380 cases of illness from vaping in addition to the six deaths.
  • September 15, Governor Andrew Cuomo of New York announced the first state ban on all flavored e-cigarettes, except tobacco and menthol. Michigan followed with their statewide ban.
  • By September 26, The CDC stats rose to 805 cases of lung injury in 46 states and one territory. The death toll was 12 people.
  • By October 4, the FDA published a statement, “[T]he agency believes it is prudent to stop using vaping products that contain THC or that have had any substances added to them, including those purchased from retail establishments. Simply put, inhaling harmful contaminants in the lungs could put a patient’s health at risk and should be avoided.” The FDA warning included purchasing vapes containing THC from retail stores or on the street.

Vaping-related diseases and deaths in Texas

These confirmed cases may be the first wave of a tsunami of illness and death from these innocent-appearing and marketed devices. It is notable that September 25th, the CEO of Juul, Kevin Bruns, stepped down from his position. Juul launched in 2015 and by 2017 had a larger e-cigarette market share than any other competitor, including the major tobacco companies. At the time Bruns resigned, Juul published a release stating Juul “suspended all broadcast, print and digital product advertising in the US.”

As of October 9th, 95 cases of severe lung diseases were reported by Texas health officials. These patients reported vaping before symptoms began. One person died as a result according to the Texas Department of State Health Services (TDHS). Another 28 deaths possibly involving vaping are under investigation. These patients are between 13 and 75 years of age, with a median age of 22. One quarter of patients are minors. TDHS reported approximately 9 in 10 cases vaped marijuana or THC, though the dangers of nicotine are not insignificant and much is still to be researched.

Texas is a big state, with many students in the vulnerable ages of the vaping trend. The Texas A&M University system now bans e-cigarettes and vaping in every “building, outside space, parking lot, garage and laboratory” according to John Sharp, chancellor of the Texas A&M system – this means all properties, not just the 11 universities. The University of Texas system also banned vaping in an overall tobacco ban in 2017, however, the American College Health Association recommends institutions go further. Since the wording might be misconstrued as applying only to traditional tobacco products, the association believes the wording must reflect strict no-tobacco language and include all methods of smoking, including e-cigarettes and vaping. 

Will the bans help?

A USA TODAY/Ipsos poll showed 80% of people agree purchasing of vaping devices should not be allowed for people under 21. 59% of respondents believe the ban will lead users to the black market, while 82% of vapers think that is true. Users also say government regulations will not reduce users, according to another survey.

If you are vaping, consider your health and that of those around you. Statistics are not in your favor.