ASBESTOS LITIGATION SUPPORT AND EXPERT WITNESS SERVICES

Andrew F. Oberta, MPH, CIH
The Environmental Consultancy

The cases I have worked on have concerned a variety of asbestos management issues as well as health effects of exposure to asbestos fibers. In addition to civil litigation I have consulted on criminal cases for the prosecution and defense. I have been retained by plaintiff’s and defense attorneys and served as a court-appointed expert reporting to the Special Master in a case involving the WR Grace DMA process.

Asbestos management litigation

These cases have concerned the conduct of contractors, consultants and building owners involved in asbestos surveys and removal projects, and the related financial consequences. The issues on which I have consulted and testified are whether the pertinent regulations, contractual obligations and prevailing standard of care were followed, and whether claims for compensation were justified. To form my opinions I reviewed the contract documents including proposals, plans and specifications, field notes, bulk and air sample results and project reports as well as depositions and other documents submitted to the court by the litigants.

Several of the cases have involved field work where I physically inspected the affected premises, took bulk samples of suspect materials and had them analyzed for asbestos content, and tested the physical properties of installed asbestos-containing materials. Samples are analyzed by accredited and licensed laboratories. While I do not analyze bulk samples, I examine them in my laboratory using optical microscopes and a HEPA-exhaust hood. I have also prepared cost estimates for removal of asbestos-containing materials identified in the course of my investigations.

I have been deposed on several of these cases and appeared before an Administrative Law Judge on one case.

 


A consultant didn't find the asbestos floor tile under this carpet and was sued by the building owner.


I estimated the cost of removing asbestos from
the attics in a large condominium complex for a legal malpractice case.


The fireproofing on this deck passed the "pull test" after the explosion in Oklahoma City in 1995.

Health effects litigation

I have been retained by plaintiff’s attorneys on several cases involving asbestos-related diseases. The plaintiffs were exposed to airborne asbestos fibers in the workplace through direct handling of asbestos-containing materials or asbestos-contaminated items, through bystander exposure or through take-home exposure from contaminated clothing. Defendants have been their employers and the companies that manufactured or distributed the asbestos-containing products, or used them in a manner resulting in exposure of the individual.

To formulate my opinions I review documents provided by the litigants including depositions, survey reports, product specifications and brochures, patents and training manuals. I also rely on publications in technical journals and reports in my personal library or those provided by the attorneys. In some cases I am able to relate my personal experience to the circumstances of exposure in the case.

The reports I prepare include my opinion on how exposure to airborne asbestos fibers occurred, resulting in an increase in the risk of developing asbestosis, lung cancer or mesothelioma. My findings are based on the principles of industrial hygiene and do not constitute medical opinions. I do not estimate the risk of developing an asbestos-related disease as a result of the individual’s exposure.

I have yet to work on a case where the plaintiff’s exposure to asbestos fibers was measured with air samples at the time he was exposed. While a “dose reconstruction” may be possible from air sampling data in the published literature, or from related information in the case files, I am reluctant to do so because of the difficulty in supporting the required assumptions and the range of uncertainty in the results. I have been successful, however, in measuring the exposure of an individual by simulating his activities at the same location where he was exposed, using the same asbestos fiber and methods that resulted in his exposure. Air samples taken during the tests illustrated on the lower right showed airborne asbestos fiber concentrations well above permissible limits for occupational exposure as well as the AHERA criteria for clearance of abatement projects in schools.


A plaintiff was exposed to asbestos fibers from an asbestos cement plant -- I visited this one in Israel.

The same plaintiff used an asbestos glove -- this one in my collection is 60% chrysotile asbestos.

Exposure tests measured asbestos fiber levels from shaking residual fiber from discarded bags.

 

Court-appointed expert
By mutual agreement of plaintiff’s and defense counsel, I served as a court-appointed expert reporting to the Special Master in a case where W R Grace was proposing to use their DMA asbestos digestion process as the basis for determining abatement costs in cost recovery litigation for two airport complexes. I reviewed an extensive amount of documentation on the development of the process, the economics of its application, and the results of its testing for exposure to asbestos fibers and the chemical constituents of the DMA agent at a WR Grace research facility. I visited this facility to observe the application of the agent to Monokote fireproofing on beams and the deck. I toured parts of both airport terminals and support buildings to observe the locations where Monokote had been installed. From this assignment I gained an early and thorough knowledge of the principles and limitations of the DMA process and similar asbestos conversion methods.

Criminal cases

As a consultant to the EPA Criminal Investigation Division, I inspected the location of an alleged illegal asbestos removal from a large steam-heated water tank. Under the watchful eye of the defense attorney and expert, I directed the collection of residue from the tank surface by an EPA technician. This residue was analyzed by an EPA laboratory and found to contain asbestos. I received the samples as evidence and examined their physical characteristics, then returned them to EPA under chain of custody. During the investigation I also examined other samples and associated them with the tank through their physical characteristics, as well as reviewing documents and attending conferences with EPA attorneys and agents.

As a consultant to the defense attorney in a case alleging illegal removal of asbestos-containing materials in an office building. I met with the attorney and discussed the regulations and industry practices regarding the identification and removal of asbestos-containing materials, the responsibilities of consultants, contractors and building owners, and how these various aspects could have affected the conduct of the defendant and other parties involved. A summary of my intended testimony was submitted to the court, and the defendant entered a guilty plea at the start of the trial.

Attorneys are invited to contact me at (512) 266-1368 / andyobe@aol.com to discuss cases for which they may be interested in retaining my services. I will respond with a CV that details my education, credentials, employment and publications, a draft of an engagement letter and request for a retainer, and a schedule of fees. References will be provided on request.
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