Mesothelioma has a particular affinity for navy veterans. Caused by asbestos,
mesothelioma is a cancer that begins in the lining of the lungs or abdomen
and requires timely, rational, cutting edge therapies to provide maximal
help for patients. Survival rates from the time of diagnosis may measure
in weeks or months, depending on factors such as staging, cell type, age,
and the therapies used.
 Navy veterans suffer disproportionately from this cancer, and shipyard
cities like San Diego, Seattle and Los Angeles reflect this in the number
of people there who die from mesothelioma.
Just like they need medical care, navy veterans need a level playing field
in the courts.
Navy vets who pursue civil claims are confronted by loopholes in the law
that allow shrewd asbestos defense lawyers to either harmfully delay the
prosecution of a claim (called "federal officer" removal to
federal court), or delay the claim altogether (called the" MDL Black
These two procedural weapons have been sanctioned by the federal government,
which ultimately must answer to the most massive, unforgivable miscarriage
of justice in the history of this country. The solution? Court sanctions
for frivolous removals whose primary objective is delay and an order from
the US Supreme Court voiding the 1991 order that created the "black
In the Navy
Naval ships built from the 1930's to the mid-1970's used asbestos
in numerous components, but nowhere more intensively than in the engine
and boiler rooms. Navy machinists, officers and sailors breathed in the
lethal asbestos while repairing, maintaining or replacing hi-temp equipment.
These hot, dusty, below-deck compartments were often thick with asbestos
fibers, and 8-hour work shifts in the engine room were as lethal as swimming
in any toxic soup. Navy personnel and civilian shipyard workers oftentimes
tragically brought the poisonous fibers home to their families as dust
that covered their hair, skin and clothing.
As a result, of the 4,000 Americans diagnosed with mesothelioma every year,
about a third were exposed in the navy or in navy shipyards. This number
does not include family members who contracted the illness from the "take-home" asbestos.
It can take as long as 50 years from the time of exposure to the onset
of mesothelioma symptoms.
 When the victim of asbestos poisoning gets diagnosed, the shock is extraordinary:
primary care physicians who know little about mesothelioma treatment options
may deliver the news by saying, "Get your affairs in order and take
a long cruise to Tahiti."
For a navy veteran or shipyard worker who was poisoned aboard a seagoing
vessel, being advised to "take a cruise" is its own special
kind of irony. Although veterans with asbestos cancers face treatments
that are expensive, elusive, and daunting, excellent medical care is available
with specialists such as Dr. Robert Cameron of UCLA's David Geffen
School of Medicine, and each year more and more mesothelioma patients
find their way to his office. Regrettably, as we have written before,
the VA does not have a current mesothelioma research and treatment program for vets.
Treatment options do exist to extend the life of some mesothelioma patients.
Surgery, chemotherapy, radiation, and immunotherapy are all part of the
 Once the treatment begins-treatments which can drain a family's financial
resources-many patients seek legal redress. They need to pay for travel,
for the expensive chemotherapy and surgery. They need compensation to
make up for lost wages, or loss of future earning capacity. And they need
it fast. The only thing that grows more quickly than the tumor is the
stack of medical bills.
The defense knows that time is not on a mesothelioma patient's side,
so they attempt to "run out the clock." When a mesothelioma
patient files his case in state court, alleging exposures while serving
on a navy vessel, the asbestos company lawyers lick their chops. Why?
Under a tortured reading of the rules of jurisdiction, they contend that
federal law, not state law, should apply. The product manufacturer's
theory is that they made, sold or used asbestos inside Navy ships because they were
ordered to do so by the federal government. Consequently, they argue, the case
should be removed from state to federal court.
Why would an asbestos company care if the case was heard in state court
or federal court? The answer is in the question. Victims want access to
a jury. Defendants despise juries. Delay is a victim's worst enemy.
Conversely, delay is the mass poisoner's best friend. The fact is
that if you've got mesothelioma and you served your country in the
navy, if your case gets removed to federal court, you will never see a
jury trial. Never.
In many states such as California, if a case is not resolved during the
life time of the patient, and the patient dies from his cancer, then a
big percentage of his compensation expires with him. States like California
do not allow widows to recover the damages for the decedent's pain,
suffering, anguish, and bodily disfigurement. The law penalizes the victim
for dying of his injury, and rewards the poisoner for making a product
so lethal that it kills quickly. The law rewards the bad guy for hiring
lawyers who know how to manipulate the procedural law so that their corporate
client gets a windfall when the case drags on and their victim perishes.
How the Shell Game Works
When a navy veteran with mesothelioma files a personal injury lawsuit in
state court, the corporate defendant will often invoke a federal rule
that allows it to "remove" the case from state to federal court
(think of it as an automatic transfer from a state courthouse to a federal
courthouse down the street). The wrongdoer will contend that federal not
state law should apply. Their argument is that when a claim results from
actions directed by a federal officer, the best place to try the case
is before a federal judge in federal court with a federally empanelled
jury under federal law.
As Jeffrey Simon, one of the top asbestos trial lawyers in America says,
"If they want to
try the case in federal court, great. Bring it on. But that's not what
they want. They want to
delay until the plaintiff is dead or the case vanishes into the MDL 'black
hole,' never to see light of day."
When the wrongdoer files its motion to remove the case to federal court,
the stakes become life or death, because if the case is successfully removed
it is assigned to a special multi-district litigation (MDL) federal court
 The asbestos MDL is commonly referred to as "a black hole" because
cases sent to it languish with no discovery or trials every taking place
 while the victims die awaiting a trial that will never occur. The injustice
is so great that it mirrors the horrific "Trial" by Franz Kafka.
The solution is simple. Give the patients their day in state or federal
court by voiding the judicial order that created MDL-875. And if defendants
continue to trot out feeble arguments simply to delay, slap them with
Outrage by the Court
To understand the finality of having your case removed to federal court
and then sent to MDL-875 in Pennsylvania, consider the following from
a memorandum filed with federal court in South Carolina protesting the
"The data collected by the Judicial Panel on Multidistrict Litigation
clearly illustrates what an empty promise MDL-875 is, even for the sick
and dying. By August 10, 2000, more than 86,000 cases had been transferred
to MDL-875. Yet, during Fiscal Year 1998 only four cases were remanded
back for trial. In Fiscal Year 1999, only six cases were remanded back
Other courts have recognized the injustice of the current scheme.
 Veterans with mesothelioma, quite simply, deserve their day in court.
The defendants who intentionally used asbestos knowing that it would disable,
injure, and kill those exposed to it, deny that removal to federal court
is a delay tactic. They argue that that removal to federal court is perfectly
allowable because of the federal officer rule cited above.
The argument that removal to federal court is proper under "federal
officer" jurisdiction for navy veterans with mesothelioma is both
absurd and cruel. Stripped of all the gobbledygook, the asbestos companies
are claiming that the navy ordered them to use asbestos without warning
about the dangers. They are claiming essentially that the federal government
put a gun to their head and commanded them to use a deadly product and,
presumably over their sincere and overwrought protestations, commanded
them not to warn about the danger.
Can you imagine that? The same companies who tested the asbestos, knew
about the dangers, concealed the dangers from the consumers, thwarted
medical research on asbestos, and raked in the profits, stand in front
of a judge and argue with a straight face that they, as
good humanitarians, wanted to warn, but were ordered not to by the bad old Federal Government,
which of course everybody loves to hate (unless you're one of their
favorite no big contractors).
No defendant has ever shown, after thousands of asbestos trials, that any
federal officer ever directed a defendant not to warn of asbestos hazards,
through the use of placards, notices, placards or manuals. To the contrary,
military specifications manuals instructed that manufacturers of shipboard
equipment were specifically permitted to provide "notes, cautions
and warnings" in the technical manual "to emphasize important
and critical instructions . . . in accordance with the following definitions:
. . . (c) 'Warning" - Operating procedures, practices, etc.,
which will result in personal injury or loss of life if not correctly
Jumping through the flaming hoops to douse this silly claim takes time
off the clock while both sides brief the issues, set the motions for hearing,
argue the motions, and sit idly by while the federal judges huddle and
make their decision. Though federal courts will often deny the wrongdoer's
request and send the case back to state court, by the time the wheels
of justice have lurched forward the patient has lost precious time. The
simple solution is to stop allowing MDL to swallow up these cases.
For wrongdoers, threatening a victim with federal court removal is win-win.
If the case gets removed, it is sent to wither away in the basement of
a federal court in Pennsylvania. If the case is returned to state court,
the plaintiff has lost valuable time because his mesothelioma has likely
A former machinist on an aircraft carrier and mesothelioma patient put
it like this: "These companies made a bunch of money selling their
equipment to the navy without warning us that decades later we'd be
dying from using it. I think the officers on my ship were as uninformed
about asbestos as the rest of us. They didn't make the boilers, or
the turbines, or pumps, or the gaskets or pipe covering. The navy wasn't
negligent then, but if they continue to do business with these corporations
that are killing us and covering it up, and if the federal courts allow
the crimes to continue, then maybe my government is negligent now. I guarantee
it, if the Navy threatened to stop ordering equipment from GE or Westinghouse,
they'd 'fess up and settle real fast."
Tell the family of Admiral Elmo Zumwalt that they should not grieve the
loss of their father, who died of mesothelioma. Tell the family that Admiral
Zumwalt was responsible for his own demise, because he supposedly ordered
corporate America to sell the navy asbestos lade machinery without warning
sailors about the dangers of asbestos.
The time to help navy veterans get their day in court? After more than
86,000 miscarriages of justice, perhaps the time is…now.
*** POSTED MARCH 26, 2007 ***
 The San Diego Union-Tribune, March 15, 2004
 The Anniston Star, March 30, 2005
 Multi-district litigation courts are created pursuant to federal law,
28 U.S.C. §1407
Maine Asbestos Cases, 44 F.Supp.2d 368, 374 (D.Me 1999).
 In the United States District Court for the District of South Carolina,
Rock Hill Division, Milton Duncan and Mary Ann Duncan vs. Alfa Laval,
Inc., et. al., Plaintiffs' Emergency Motion for Remand for Lack of
Subject Matter Jurisdiction and Memorandum in Support Thereof
 The United States District Court for the Southern District of Texas
found that if the cases were not remanded, "They will surely be transferred
to the MDL Court in the Eastern District of Pennsylvania. There are thousands
of asbestos cases pending in that forum, and, if history be any indicator,
Plaintiff's claims against the Remaining Defendants will not be heard
for many years. Keeping these claims in federal court will not increase
efficiency and expediency. Rather the opposite is true."
Madden v. Able Supply Company, 205 F.Supp.2d 695, 702 (May 27, 2002).
 MilSpecs Manual, 1961