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Is It Asbestos? It's All in the Form: Asbestiform Vs. Non-Asbestiform

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Is It Asbestos? It's All in the Form: Asbestiform Vs. Non-Asbestiform Is It Asbestos? By Brad DeJardin, Connor Scott, Caroline M. Tinsley, and Elizabeth Cummings It’s All in the Form: Asbestiform vs. Non-Asbestiform ASBESTOS LITIGATION ASBESTOS In asbestos litigation, the they are far more likely to argue over which that asbestos was intentionally added to of the asbestos minerals are present in the product. This is not the case with talc difference between asbestiform their case (whether it was a serpentine litigation. In a talc asbestos case, the cen- mineral—chrysotile, or an amphibole— tral allegation is that the talc that made it and non- asbestiform minerals is crocidolite, amosite, tremolite, anthophyl- to the consumer was contaminated with lite, or actinolite) than they are to argue asbestos fibers. Asbestos was never inten- typically not addressed, and the whether asbestos is present in the products tionally added to talc as a component part at issue. This is because most typical asbes- of the finished product, and talc defend- parties on either side may not even be tos litigation, such as that involving friction ants assert that their talc is and always has aware of this crucial difference. In fact, or insulation products, involves allegations been asbestos free. For their part, plaintiffs ■ Brad DeJardin, a partner and head of the complex tort division of Dentons’ Los Angeles office, defends companies faced with complex tort mat- ters, including product liability, mass tort and premises liability suits. Connor Scott is an associate in Dentons’ Los Angeles office, where his practice focuses on product liability and complex torts. Caroline Tinsley, a part- ner in the medical device and pharmaceutical liability practice group in Tucker Ellis LLP’s St. Louis office, defends leading product manufactur- ers in mass tort and product liability matters across the country. Elizabeth Cummings, counsel at Tucker Ellis LLP’s St. Louis office, represents cli- ents in cases involving medical and pharmaceutical liability, toxic tort, and product liability. In-House Defense Quarterly ■ Fall 2019 ■ 33 and plaintiffs’ experts assert that the test- R.L. Perkins & B.W. Harvey, Test Method related disease.” USGS Facts About Asbes- ing methods used by talc defendants were for the Determination of Asbestos in Bulk tos, citing 57 Fed. Reg. 24310 (June 8, 1992) not sensitive enough (by design) to detect Building Materials, A-1 (1993). A mineral (emphasis added). This reference to cleav- asbestos contamination. These cases then is crystallized with the habit of asbestos if age fragments is also significant. Unlike turn on the testimony of plaintiffs’ experts it has the following characteristics: “[m]ean asbestiform minerals, non- asbestiform who purport to identify asbestos (asbesti- aspect ratios ranging from 20:1 to 100:1 or minerals “grow in several directions at form) fibers in talc, and defendants’ experts higher for fibers longer than 5μm… Very once” and “fracture easily into particles who contend that these very same ‘asbes- thin fibrils, usually less than .5 microm- called cleavage fragments” instead of bend- tos fibers’ are in fact not asbestos at all ing. (Mossman, supra.) While asbestiform (non- asbestiform). ■ minerals splinter into fibers and fibrils, “[i]n the non- asbestiform habit, mineral Definition of an “Asbestos Fiber” Plaintiffs and plaintiffs’ crystals do not grow in long thin fibers; ASBESTOS LITIGATION ASBESTOS Asbestos is a “generic term for several they grow in a more massive habit.” 73 Fed. hydrated silicates,” meaning “chryso- experts assert that the Reg. 11285 (February 29, 2008). This mas- tile, amosite, crocidolite, anthophyllite sive habit means that “when non-fibrous asbestos, tremolite asbestos, and actino- testing methods used by talc minerals are crushed, as may occur in lite asbestos.” Metal and Nonmetal Health mining and milling operations,” cleavage Inspection Procedures, in MSHA - Hand- defendants were not sensitive fragments are formed instead of fibers. book Series - PH06-IV-1(1), 8-1 (2006). Id. Therefore, while asbestiform miner- Importantly, asbestos is a regulatory and enough (by design) to detect als form long thin fibers, non- asbestiform industry term. Id. It is not a geological or minerals can break into cleavage frag- mineralogical term. An asbestos fiber is asbestos contamination. ments that are generally shorter, thicker, one of these six regulated minerals that form along cleavage planes in the mineral, has a certain size and shape, defined as a ■ and lack the high strength and flexibility “length greater than five microns” by some of asbestiform fibers. Brooke T. Mossman, sources and by aspect ratio in others. Id. eters in width, and [t]wo or more of the Assessment of the Pathogenic Potential of The mission of the United States Geological following; parallel fibers occurring in bun- Asbestiform vs. Non- asbestiform Particu- Survey is to serve “the Nation by providing dles, fiber bundles displaying splayed ends, lates (Cleavage Fragments) in In Vitro (Cell reliable scientific information to describe matter masses of individual fibers, and/ Or Organ Culture) Models and Bioassays, 52 and understand the Earth.” USGS, Who We or fibers showing curvature.” Id. Grow- Regul. Toxicol. Pharmacol. (2008), https:// Are, https://www.usgs.gov. It defines asbes- ing in the asbestiform habit means grow- www.ncbi.nlm.nih.gov. tos as follows: ing “almost exclusively in one dimension,” At times, non- asbestiform minerals The term “asbestos” is not a mineralog- which allows these minerals to be “eas- may appear long and thin, resembling ical definition. It is a commercial desig- ily bent.” Brooke T. Mossman, Assessment asbestiform, however this similar appear- nation for mineral products that possess of the Pathogenic Potential of Asbestiform ance does not change their morphological high tensile strength, flexibility, resis- vs. Nonasbestiform Particulates (Cleavage features. Because the difference between tance to chemical and thermal degrada- Fragments) in In Vitro (Cell or Organ Cul- asbestiform and non- asbestiform minerals tion, and high electrical resistance and ture) Models and Bioassays, International is in how the minerals were formed, each that can be woven. Symposium on the Health Hazard Evalu- of the regulated asbestos minerals has a USGS, Some Facts About Asbestos, http:// ation of Fibrous Particles Associated with non- asbestiform analogue. These asbestos www.capcoa.org (hereinafter “USGS Facts Taconite and the Adjacent Duluth Complex minerals and their non- asbestiform coun- About Asbestos”). (2003), https://ntp.niehs.nih.gov. terparts are presented in Table 1. Non-asbestiform minerals are chemi- Definition of Asbestiform cally similar to asbestiform minerals but do Table 1 and Non-Asbestiform not crystallize in the asbestiform habit and Unlike the term asbestos, the terms “asbes- lack the characteristics of asbestiform min- Non-Asbestiform Asbestiform tiform” and “non- asbestiform” are miner- erals. When non- asbestiform, these min- Anthophyllite Anthophyllite alogical terms. They refer to the “habit” in erals are referred to as mineral fragments Asbestos which a given mineral crystallizes, which or cleavage fragments. This morphological Tremolite Tremolite Asbestos determines whether that mineral is a reg- difference is key (at least, according to de- Actinolite Actinolite Asbestos ulated asbestos mineral or one of its ana- fendants). According to both the USGS and Antigorite Chrysotile logues. The EPA defines asbestiform as a OSHA, “available evidence supports a con- Cummingtonite- Amosite type of “morphology” and states that it is clusion that exposure to non- asbestiform grunerite “said of a mineral that is like asbestos, i.e., cleavage fragments is not likely to produce crystallized with the habit of asbestos.” a significant risk of developing asbestos- Riebeckite Crocidolite 34 ■ In-House Defense Quarterly ■ Fall 2019 Federal Agencies and Standard- of these agencies define asbestos as a min- United States Environmental Setting Organizations Define eral that formed in the asbestiform habit, Protection Agency (EPA) Asbestos by Asbestiform Habit as seen below. Multiple regulations from the EPA also rec- In talc asbestos litigation, the central issue ognize that “Asbestos means the asbesti- is whether asbestos is present in talc, which Occupational Safety and Health form varieties of serpentine (chrysotile), then turns into a dispute over whether Organization (OSHA) riebeckite (crocidolite), cummingtonite- a specific mineral identified in the tal- In 1992, OSHA amended its definition of grunerite, anthophyllite, and actinolite- cum powder products is asbestiform or asbestos to remove the non- asbestiform tremolite.” National Emission Standards for non- asbestiform. Hazardous Air Pollutants, 40 C.F.R.§61.141 Plaintiffs’ counsel will generally provide ■ (2018); see also Toxic Substances Control argument and expert testimony to present Act – Prohibition of the Manufacture, the following points: In talc asbestos litigation, Importation, Processing, and Distribu- t 8IFUIFSUIFNBUFSJBMTBSFBTCFTUJGPSN tion in Commerce of Certain Asbestos- or non- asbestiform is a smokescreen the central issue is Containing Products, 40 C.F.R.§763.163 and a definition game. (2018); Toxic Substances Control Act – t ćFIVNBOCPEZEPFTOPUDBSFXIFUIFSB whether asbestos is Asbestos Containing Materials in Schools, particle is asbestiform or non- asbestiform 40 C.F.R.§763.83 (2018). once it is in the lung. present in talc, which Likewise, as discussed above, EPA pub- t "TCFTUJGPSNBOEOPOBTCFTUJGPSNQBS-
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