When we hear the words “asbestos” and “mesothelioma,” we automatically think of victims in their 60s, 70s or 80s. Individuals who worked as miners, millers & manufacturers or insulators and shipbuilders in a time before safety measures were in place are the usual mesothelioma patients. Meet Kris Penny, the face of the U.S.’ third wave of asbestos disease.
When we hear the words “asbestos” and “mesothelioma,” we automatically think of victims in their 60s, 70s or 80s. Individuals who worked as miners, millers & manufacturers or insulators and shipbuilders in a time before safety measures were in place are the usual mesothelioma patients. Meet Kris Penny, the face of the U.S.’ 3rd wave of asbestos disease.
Kris lives in Clermont, Florida with his wife, Lori McNamara and their four children. He is 39 years old and has peritoneal mesothelioma, a rare cancer affecting the abdominal lining. Peritoneal mesothelioma is almost always caused by exposure to asbestos. The image above shows Kris in April 2015 (left) and six months later (right). Peritoneal mesothelioma is usually a death sentence. Patients live one, maybe two years after diagnosis.
How is it possible that a man in his late 30s to develop asbestos-related cancer? Kris worked as a cable-puller in the early 2000s. He spent two years running fiber-optic cable underground for AT&T. The pipes in which these cables were installed are made of asbestos cement. When cables are moved through the pipes, it is common for dust to be generated.
Kris’ recent suit against AT&T claims he was never informed of this information. AT&T is disputing that claim.
I’ll say upfront that this story shocked me. I had no idea that we as a county were facing another wave of asbestos-related disease. However, experts were expecting this as early as 1990 when they met in New York to discuss what they were calling the “3rd wave” of asbestos-related disease.
Fire-resistant asbestos, a mineral that must be mined from the earth, first killed those who mined it and worked with it. These people are known as the 1st wave. The 2nd wave consisted of insulators and shipbuilders, as the mineral was widely used in those industries.
This panel of experts, including doctors, scientists and union officials, predicted the 3rd wave at that meeting. They agreed that workers would be exposed to the deadly mineral contained in pipes, ceiling tiles and automobile brakes. Sadly, especially for Kris Penny, they were right.
Barry Castleman, an environmental consultant, was present at the meeting in New York. His main takeaway was that “in-place asbestos was going to pose a continuing danger to millions of workers and to the general public.” And, he seems to have been correct, too.
What about the Environmental Protection Agency (EPA) ban on asbestos and all the remediation efforts that have been taken?
Have I got a surprise for you!
It’s true that the EPA banned some asbestos use in the U.S. Some, not all. The U.S. Geological Survey states that 400 metric tons of asbestos were used in America in 2014.
Castleman, an expert witness (typically for plaintiffs) in asbestos-disease cases said, “The consumption’s gone down by over a thousand-fold” since the 1970s. The problem is the asbestos is still there.” Kris Penny’s legal team hired Castleman for Kris’ case.
It doesn’t take massive exposure to asbestos to end up with mesothelioma. The disease, with an annual average U.S. diagnosis rate of 2,700 people, can be caused by brief, light exposures. While it typically appears in the pleura, the lining of the lung, it can also appear in the peritoneum, as it did with Kris Penny.
Where might one find the “in-place” asbestos, which the EPA didn’t ban?
- Cement corrugated sheet
- Cement flat sheet
- Pipeline wrap
- Roofing felt
- Vinyl floor tile
- Cement shingle
- Cement pipe
- Automatic transmission components
- Clutch facings
- Friction materials
- Disk brake pads
- Drum brake linings
- Brake blocks
- Non-roofing coatings
- Roof coatings
Kris’ work stories are typical of many cable-pullers. In 2003 and 2004, he worked for Danella Construction and was one of the workers who went down into BellSouth (now part of AT&T) manholes in Florida. His job was pulling fiber-optic cables through asbestos-cement pipes, as well as removing old copper-wire cables.
One method of propelling the string used to drag the cables between manholes was shooting bursts of compressed air into the asbestos-cement pipes. This sent the dust in the pipes airborne and the dust clouds often became “pretty thick” according to Kris. “If it became too much we would jump out of the manhole.”
At no time, according to his suit, did BellSouth tell Kris or other Danella employees that the pipes were made of asbestos-cement. However, it was BellSouth’s routine practice to instruct its own employees to refrain from using compressed air and to always wet down the pipe before breaking it. Kris’ lawyer, Jonathan Ruckdeschel, said BellSouth was warning its own people “by the mid-’90s at the latest, years before Kris ever got into a manhole.”
Ruckdeschel continues, “BellSouth claims that they stopped installing new asbestos conduit in the early ’80s, so any pipe he was working with had to have been in the ground for at least 20 years by the time he got there. And yet there’s nothing inside the manhole to tell the worker, ‘Don’t do the things that are going to cause you to get exposed. Be careful — this is asbestos-cement pipe. Invisible amounts of asbestos dust can cause you to die.’”
Jeffrey Rolfsen, a former BellSouth supervisor, was deposed in October. He stated that BellSouth relied on Danella to enforce safety rules, despite the fact that BellSouth retained the power to issue a stop work order if it suspected contractors weren’t employing safe practices. Rolfsen said, under oath, “I just didn’t worry about it. They knew what they were doing better than I knew.” (Yes, Virginia, there is a real Grinch!)
AT&T issued a statement to the Center for Public Integrity, a non-partisan, non-profit news organization saying, “We hire sophisticated contractors that are experienced in dealing with asbestos, and we require them to comply with [Occupational Safety and Health Administration] regulations.”
Further AT&T alleges that Kris “knew and understood the risks and hazards of asbestos and voluntarily exposed himself to these risks.” The company insists that Kris’ “injuries, if any, were caused by his own negligent conduct, or by the negligent conduct of others.”
The risk isn’t limited in scope, either. According to Jesse Davis, a safety coordinator for the Communication Workers of America, it’s a nationwide problem. “We’re finding more and more where asbestos-containing conduit exists. Every manhole they [telecommunications workers] go in, they should be asking about the presence of asbestos.”
Davis cited two instances involving CWA members.
Cable workers for Verizon were on a job in Fairfax, Virginia in 2011. There were 31 workers at the site. A casual passerby looked at the conduit the workers were handling and told them it was asbestos-containing conduit. Verizon was cited by Virginia’s Occupational Safety and Health Program for three serious violations of the company’s asbestos standard. The company contested all three citations.
Verizon entered into a settlement wherein two of the three citations were dropped and the company promised improvements in safety training for its employees. The company said it didn’t “believe there was any actual employee exposure to asbestos-containing materials” on the Fairfax job.
The second instance Davis cited happened in 2014, this time in Lynchburg, Virginia and also with Verizon workers. The 20 workers knew about the CWA warnings and asked their union representative to have the conduit tested for asbestos. The results of those tests showed that the pipes were 35% asbestos. Verizon got hit with six citations, all of which it said it challenged.
As for Kris Penny, he underwent surgery in August at the University of Maryland Medical Center in Baltimore in an effort to beat his 1-2 year prognosis. Dr. H. Richard Alexander removed as much of Kris’ cancer as possible and treated him with a high dose of heated chemotherapy. The procedure lasted 8.5 hours.
Kris’ wife Lori said that his cancer “just changed our life completely. People get up, and they go to work, and they come home, and they have dinner. And they do all these things, and our life is just not like that.”
While Kris did well during surgery – Dr. Alexander even told Lori he was “a strong guy, as fit as they come” – things have not gone well since. Kris has had two subsequent surgeries, also in Baltimore. One repaired a rupture and the other was done to flush out an abdominal infection.
Kris and Lori went back to Florida where he dealt with more hospital stays and procedures. The once vital 200-pound man dropped to around 130 pounds. As the discovery phase of his suit against AT&T came to a close, Kris provided a videotaped deposition on October 27.
In it, he pointed to a picture showing his feeding tube and colostomy bag. The vibrant business owner who was about to perform work on his company’s first big contract looked skeletal and exhausted. He spoke of such great loss of energy that he need to “think about every step” and “time everything I do.”
His lawyer predicts that Kris is one of the first of the coming 3rd wave of asbestos disease. A wave of relatively young victims sickened from limited asbestos exposure.
Ruckdeschel said, “And we have to just wait as the years and the decades go by.”
While the situation may appear grim, Kris maintains a positive attitude and plans to beat his cancer.
I wish Kris, Lori and their family all the best.