News of the Week
Bendectin case revived; i There was more chemical industry legal travail last week than just the suits against Union Carbide. Merrell Dow Pharmaceuticals, which thought it had settled all suits having to do with its prescription drug Bendectin last summer, found itself back in federal court in Cincinnati facing more claims than ever. And in New York City, several lawyers representing Vietnam veterans asked federal court Judge Jack B. Weinstein to rescind his month-old approval of the settlement of the agent orange lawsuits between veterans and seven chemical companies. Opening arguments and initial testimony were given in U.S. District Court in Cincinnati last week in the first of possibly two commonissue jury trials designed to establish whether Bendectin, a drug taken by millions of pregnant women to combat morning sickness, caused birth defects. In the first trial, if the jury decides the drug did cause birth defects, it then will be asked to determine which of nine specific disorders it caused. If necessary, a second jury trial would then be held to determine the company's liability on the basis of whether it properly tested the drug and warned consumers of any hazards. Plaintiffs whose claims are based on birth defects found to be caused by Bendectin could then sue Merrell Dow individually or try to form a class to do so. More than 1000 claimants are now combined for the common-issue trials. Last June, Judge Carl B. Rubin established a class to facilitate settling all current—then 700-plus— and future claims in the U.S. In July, Merrell Dow settled with the class for $120 million, to be divided among claimants. In October, however, the Sixth Circuit Court of Appeals invalidated the class and, hence, the settlement. The company made an initial deposit of $40 million to the settlement fund. That money is still on deposit w i t h the court. Claims against the company are estimated to total between $7 billion and $8 billion, and total assets plus insurance coverage are estimated to add up to less than $2 billion. 6
February 11, 1985 C&EN
orange pact hit | I 1 | 3
Weinstein: further hearing in March The attack on the $180 million agent orange settlement reached last May came from lawyers who say that the fund, which was established when it was thought that the pool of claimants would total between 50,000 and 75,000, would be inadequate for the 170,000 or so who did file by the January deadline. It is thought that the total could reach 200,000. Benton Musselwhite, who represents the veterans' advocacy group Citizen Soldier (C&EN, Jan. 28, page 28), and other attorneys asked Judge Weinstein of U.S. District Court in Brooklyn in a hearing last Wednesday to set aside the settlement. Judge Weinstein said he would hear more argument on the motions March 18. D
Proposed asbestos ban enters regulatory limbo The Environmental Protection Agency, declaring that it lacks the authority to regulate asbestos on its own, is turning over its proposed ban on the substance to two other federal agencies. The unusual move has puzzled and angered environmental groups and trade unions. Asbestos has been shown to cause pulmonary fibrosis and cancer.
In 1983, EPA began drafting regulations to ban some uses of asbestos immediately and phase out the rest over a 10-year period. The drafts have been circulating at the Office of Management & Budget for several months, after having been sent there for review in accordance with the Reagan Administration's emphasis on deregulation. Now EPA says that under the Toxic Substances Control Act, the agency must give other federal agencies a chance to regulate hazardous substances before it acts. So EPA will be referring most of its asbestos programs to the Consumer Product Safety Commission and the Occupational Safety & Health Administration, according to an EPA spokesman. Critics of the agency's move say the action is simply an attempt by the Administration to stall further regulation of asbestos. "I think OMB is responsible/' says A. Karim Ahmed, director of research at the Natural Resources Defense Council. "OMB has been holding up the regs for some time." Moreover, both CPSC and OSHA have limited authority to control the material. Most asbestos used in the U.S. today is in cement pipe, construction materials such as roofing, and friction materials like brake linings—all of which generally are not regarded as consumer products. OSHA currently is trying to lower the maximum allowed exposure to asbestos in the workplace. However, OSHA does not regulate many work settings. State and local government employees are not covered by federal law, for example. "EPA has the authority to ban chemicals and require substitute materials that are adequately tested," says Scott Schneider, an industrial hygienist with the United Brotherhood of Carpenters. "OSHA does not." EPA says it will continue its asbestos-in-schools program, which requires school administrators to inspect for asbestos hazards but does not specify that the material must be removed. Other action on the material is entering a kind of regulatory limbo. If CPSC and OSHA decide not to act, the problem may well end up back at EPA. D
