Posted on Wed, Jul. 21, 2010
last updated: July 21, 2010 03:57:48 PM
EDWARDSVILLE — The laundry room in the home where Julie Gundlach grew up doubled as a playroom.
And that's where the 39-year-old figures she got the disease that will almost surely kill her.
Gundlach has mesothelioma, a fast-acting cancer that is always fatal, generally taking a life within six to 18 months of diagnosis.
The disease is caused by exposure to asbestos. Gundlach, though, never worked with asbestos, like many mesothelioma patients, who typically were auto mechanics, welders, electricians, plumbers, pipefitters, plasterers, refinery workers, shipbuilders and other industrial employees.
Gundlach worked at restaurants and as an employee recruiter. But her dad was an electrician who worked at job sites across the region.
"He'd come home and put his dirty clothes in the laundry room, which was our playroom," Gundlach said.
Her case represents what local lawyers and judges say is becoming a common accusation in asbestos lawsuits: take-home exposure.
They're cases where, say, someone often shook the dust off a spouse's dirty work clothes before laundering them. Or where a child often hugged dad and spent time sitting on his lap after he returned home from work.
It's sometimes called secondary, second-hand or off-site exposure.
"There are a lot of those cases," said Circuit Judge Daniel Stack, who handles Madison County's well-known docket of asbestos lawsuits. The county, long labeled a venue-shopping destination, handles about one-fourth of the nation's mesothelioma lawsuits.
Stack thinks take-home exposure is one of the reasons the number of asbestos lawsuits in Madison County is on the increase. In the early 2000s, there were more than 800 cases filed annually. The number dropped significantly in subsequent years, as low as 325 in 2006, but went up again in 2009, to 814. This year, there were 421 suits filed in the first six months, putting the county on pace for more than 840 in 2010.
In the United States, asbestos lawsuits nowadays often are filed against employers that had asbestos in the workplace, rather than just the makers of asbestos and products that contain asbestos. Many of the manufacturers are bankrupt.
In cases against employers, the issue of take-home asbestos exposure presents a whole new realm of potential liability for companies. A company clearly has a duty to keep its employees safe, but does a company also have a duty to protect workers' family members, away from the workplace?
Stack thinks so: "I think you have a duty owed to the people at home," he said.
Still, in May 2007, Stack ruled in favor of CSX Transportation in a lawsuit brought by the estate of Annette Simpkins of Granite City. The suit claimed Simpkins developed mesothelioma because she had exposure to asbestos through contact with her husband's body and clothes. Her husband worked for the railroad.
The railroad argued that Illinois courts never before held that employers had a duty to protect family members from take-home asbestos exposure.
Stack told the parties: "I have to be candid with you. It sounds like a great argument for the Supreme Court."
In June, the 5th District Appellate Court in Mount Vernon sided with the estate of Simpkins, who died of her mesothelioma in April 2007. The court ruled the railroad knew or should have known that asbestos brought home by its employees was a risk to their family members.
SPECIALIZING IN MESOTHELIOMA
Both Gundlach and the Simpkins estate have been represented by The Simmons Law Firm in East Alton, which specializes in mesothelioma cases. Ted Gianaris, a partner at the firm, said take-home exposure is typically not as concentrated as exposure in the workplace.
"It seems as though the data shows that people who had lower exposures take longer to develop mesothelioma, so we've seen a lot of family and children of workers exposed in the home, people exposed as bystanders, and we didn't see that as much 10 years ago. That's a lot of the cases we're filing now," Gianaris said.
Gianaris sees U.S. asbestos exposure lawsuits as having come in three waves:
"The third wave seems to be their family members — their wives, children, even their parents. The primary way is through the laundry," Gianaris said.
His firm had another case of a woman whose father worked at a factory, milling and shaping asbestos-containing boards.
"He got the asbestos on his clothing and brought it home, unbeknownst that he was poisoning his family. His little girl, knee-high at the time, would come hug him, hang out with him. Lo and behold, 30 years later, she develops mesothelioma," Gianaris said. "Thatís typical second-hand mesothelioma — child or wife."
He added, "It's been known for decades that this particular deadly dust doesn't recognize job classifications or differentiate between workers and family members. If you can breathe the dust, you can get sick."
Gundlach's diagnosis came after she suffered some digestive problems and constipation. Tests showed a mass in her pelvis, and doctors figured it was ovarian cancer. When they removed the mass in August 2006, they discovered it was mesothelioma in her abdomen.
"The doctors basically said, 'It's not very responsive to treatment. We'll throw some chemo at it and see what happens, but you should probably go home and put your affairs in order,'" Gundlach said. "My daughter was 3 at the time."
She found a doctor in New York who, using aggressive treatments, is seeing "tremendous success rates, comparatively speaking," with some patients still alive five years after diagnosis, Gundlach said. She's been to New York 24 or 25 times for surgeries, chemotherapy treatments and other procedures, and hopes she'll somehow be a one-in-a-million survivor.
"It's been pretty horrific, but it's a sharp cry better than putting your affairs in order," Gundlach said.
Her daughter, Madeline, now 7, knows Gundlach has cancer, but probably doesn't understand.
"We try to keep it real simple and try to explain, but kids don't understand cancer the way adults understand cancer," Gundlach said. "We couldn't keep it a secret from her. I was flying to New York three times a month and having major surgeries. She couldn't climb on mommy's lap."
Gundlach's older sister and mother seem to have no asbestos-related health problems. Gundlach's father died of lung cancer in 2005, a couple of months after he was diagnosed.
"They didn't even really look for mesothelioma. There was no biopsy," she said. "They basically diagnosed him and said he's terminal, and that was that. He was cremated. In hindsight and in light of my diagnosis, we think it was actually mesothelioma."
ADVOCATING AN ASBESTOS BAN
Today, Gundlach is an advocate for mesothelioma research as well as a U.S. ban on asbestos.
"I don't want to dwell on the past. I don't want to dwell on some decision some corporate monger made 50 years ago that put me in the position I'm in," Gundlach said.
She added, "I'd say my real anger and disgust is with people who use it now, and try to downplay the danger of it now. The truth is, there's no safe form of asbestos. The idea that if it's left undisturbed it's perfectly safe is short-sighted and ignorant. There is nothing we build today that is not going to be disturbed someday."
Gundlach said there were settlements with companies in her lawsuit, which was filed in Madison County, though she declined to elaborate on them. Her suit also alleged other possible exposures, such as through brake work that her father did on vehicles at home. Gundlach grew up in a St. Louis suburb and resides in St. Louis. She said some of her father's work as an electrician was in Madison County.
The increase in Madison County asbestos lawsuits worries business-backed interest groups, such as the Illinois Civil Justice League. The group's vice president, Al Adomite, said: "Our review of about 400 cases in 2009 showed that just 11 percent of asbestos plaintiffs last year had any connection to Illinois, much less Madison County. Residents in 47 other states filed cases in Madison County last year, making Madison County a truly 'national' asbestos docket."
The group's president, Ed Murnane, said: "With more than 800 cases filed in 2009 and a similar pace for 2010, the asbestos caseload in Madison County is now back to the levels in 2001-2003, when Madison County earned a national reputation as a 'judicial hellhole.' Is it any wonder that Illinois has gone a decade without a true economic recovery and that our unemployment rate is soaring over 10 percent, while plaintiffs lawyers continue to reap millions off a nationwide asbestos docket that is forcing manufacturers into bankruptcy? Our state legislature, Congress and the courts have decided in favor of millionaire lawyers and against middle-class manufacturing jobs."
Gundlach thinks criticism of asbestos litigation is misguided.
"If it were not for the legalities, I would have never been able to receive the medical treatment I received," she said. "I'm still not able to work. Mesothelioma kills innocent people, asbestos kills innocent people, it's not banned, and that is the story, that is the issue."