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Dr. Philip Landrigan
April 26, 2005
United States Senate
Philip J. Landrigan, MD, MSc, DIH
Professor of Occupational and Environmental Medicine
"A Fair and Efficient System to Resolve Claims of Victims for Bodily Injury Caused by Asbestos, and Other Purposes"
April 26, 2005
Mr. Chairman and Members of the Committee on the Judiciary,
I am pleased to appear before you today to review the impacts that asbestos has had on the health of American workers, and to discuss the legislative remedies that have been proposed for dealing with the asbestos epidemic.
My name is Philip J. Landrigan, MD, MSc, DIH. I am a physician, a board-certified specialist in occupational medicine, and Chairman of the Department of Community and Preventive Medicine in the Mount Sinai School of Medicine in New York. I am Editor-In-Chief of the American Journal of Industrial Medicine. I am President of the Collegium Ramazzini, an international scientific society in occupational and environmental medicine. I have had many years of experience of dealing with the clinical manifestations and studying the epidemiology of the diseases caused by asbestos. A copy of my biographical sketch is appended to this testimony.
The late Irving J. Selikoff, MD, the "Father of Asbestos Research in the United States", was one of the founders of the Department that I now chair at Mount Sinai. This Department contains New York's largest clinical facility in occupational medicine and one of the nation's largest research and training programs in occupational health, a program that Dr. Selikoff established 30 years ago. We have been designated by the National Institute for Occupational Safety & Health (NIOSH) as the major provider of diagnostic services to the men and women who worked at Ground Zero, the site of the World Trade Center in the terrible days and weeks that followed the attacks of September 11, 2001. We have now examined over 12,000 of those workers - police officers, firefighters, construction workers, paramedics, and building cleaners. Many of them were exposed in their work to asbestos.
The testimony that I shall be presenting today reflects the collective knowledge and experience of our occupational medicine group at Mount Sinai, and most especially the thoughts of my colleague, Stephen Levin, MD, Director of the Selikoff Center for Occupational and Environmental Medicine.
The Asbestos Epidemic
Clinical and epidemiologic studies, many of them initiated by Dr. Selikoff at Mount Sinai, have established incontrovertibly that asbestos is a human carcinogen. All forms of asbestos are carcinogenic. Asbestos has been shown to cause cancer of the lung, malignant mesothelioma of the pleura and peritoneum, cancer of the larynx and certain gastrointestinal cancers. Asbestos also causes asbestosis, a progressive fibrotic disease of the lungs.
Asbestos has been declared a proven human carcinogen by the Environmental Protection Agency (EPA) and by the International Agency for Research on Cancer of the World Health Organization.
Asbestos and cigarette smoke are powerfully synergistic in the causation of lung cancer. Nonsmoking asbestos workers have five times the background risk of lung cancer. Smokers who have had no exposure to asbestos have 10 times the background risk of developing lung cancer. But asbestos workers who also smoke have 55 times the background risk of lung cancer. This is the classic and best-studied example in the medical literature of a synergistic interaction between two proven human carcinogens.
New use of asbestos has almost completely ended in the United States and in most other developed nations as a result of government bans and market pressures. Those forces were stimulated by the epidemiologic studies that I have noted above and by the release of information on the carcinogenicity of asbestos that previously had been suppressed by the asbestos industry. By contrast, extensive and aggressive marketing of asbestos continues in the developing world, where sales remain strong and worker protections are too often weak.
Problems with the Proposed Fairness in Asbestos Injury Resolution Act
Difficulties with the proposed exposure criteria
Contrary to the requirements for minimum duration of exposure set forth in the bill, there is clear evidence from carefully conducted epidemiological studies that exposures to asbestos for even one month under heavy exposure conditions can increase the risk of lung cancer two-fold and also increase the risk of death from asbestosis.
The requirement for 5 or more weighted years of exposure to asbestos to establish a diagnosis of asbestosis is not supported by scientific evidence.
Also unsupported by the published medical literature are the minimum requirements set forth in the bill of 8, 10 or 12 years of exposure for establishment of asbestos causation in a case of lung cancer.
The bill contains a medically unsupported proposal for discounting exposures to asbestos.
The bill establishes three exposure classifications:
However, these years of work are discounted depending on when they occurred. Every year of exposure that occurred after 1976, no matter what was the level or circumstance of occupational exposure, counts as only one half of a year. Every year of exposure that occurred after 1986 counts as only one tenth of a year.
The plan to discount exposures from 1976-1986 by half is without medical or scientific basis. Many workers had exposures during this period that were no different in intensity from those that preceded 1976.
Similarly, discounting post-1986 exposures to 1/10 the accumulated years is without medical or scientific basis. Removal or other disturbance of asbestos in place has yielded exposure levels in the past two decades that are no different from those encountered before 1986 or 1976.
It may be illustrative to see how application of this proposed discounting formula will work when applied to the situation of individual cases. It would appear, for example, that no claims for lung cancer level VII (with bilateral plaques, without asbestosis), will be paid for anyone with "moderate" exposure to asbestos prior to 1972. Or put another way, a person with lung cancer could have worked in areas with "regular airborne emissions of asbestos fibers" since 1973 and still not quality for compensation under this bill because he or she would fail to meet the substantial exposure criteria set forth in the bill.
Specifically, for lung cancer level VII (with bilateral pleural disease) a claimant would need 12 years of weighed exposure (pg 82). Only those exposures that occurred before 1976 would count at full value. If exposure for a lung cancer victim with pleural disease started in 1972, it would take 30 years of exposure to meet this 12-year exposure requirement. For every year later that the person started occupation exposure (1973, 1974 etc) it will take an extra 10 years of occupational exposure to meet the criteria for compensation in the bill. Thus a person with lung cancer and pleural plaques who began occupational exposure to asbestos in 1974 would need 52 years of work exposure (through 2025, or "until" 2026) to meet the 12-year weighted exposure criteria in the bill.
For cancers other than lung (malignant level VI) the proposed situation is still more difficult. A person with colorectal, laryngeal, esophageal, pharyngeal or stomach cancer would need 15 years of weighted occupational exposure to asbestos to qualify for compensation under this bill for any of those diseases. If all of that person's exposure occurred after 1976 it would take 105 years to meet the criteria. This would seem an unattainable goal.
Difficulties with the proposed diagnostic criteria
The requirement that pleural disease be bilateral to be considered the consequence of exposure to asbestos is not warranted by medical evidence. Asbestos-related scarring often develops unevenly and almost always begins unilaterally. Miller and Lilis showed a clear relationship between degree of pleural scarring and loss of FVC independent of whether the pleural changes were bilateral.
The criteria set forth in the bill require that there be no evidence of obstructive airway disease (i.e. that the FEV1/FVC ratio be >= 0.65) in order to compensate for loss of FVC is not consistent with the medical literature. There are many cases of combined restrictive and obstructive disease in workers with airway disease and asbestos-related scarring.
The bill contains medically unsupported criteria for diagnosis of cancer
In summary, the proposed Fairness in Asbestos Injury Resolution Act establishes barriers to the diagnosis of asbestos-related disease that are arbitrary, that are not based in science, that are not based in medical knowledge, and that would appear, almost without exception, to make extremely difficult - indeed, well nigh impossible - any diagnosis of causation of disease by asbestos.
The approach to the diagnosis of disease caused by asbestos that is set forth in this bill is not consistent with the diagnostic criteria established by the American Thoracic Society. If the bill is to deliver on its promise of fairness, these criteria will need to be revised.
I shall be pleased to answer questions.