Victims of asbestos exposure may be able to sue negligent companies responsible for their asbestos-related disease. Asbestos manufacturers knew asbestos was deadly and many failed to protect workers and their loved ones. Asbestos exposure commonly occurs when working with the deadly mineral, but companies are liable for secondhand exposure as well.
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Written by Joe Lahav, Esquire Edited By Walter Pacheco Legally Reviewed By William A. Davis
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How to Cite Asbestos.com’s Article
Lahav, J. (2023, April 11). Asbestos Liability. Asbestos.com. Retrieved June 5, 2023, from https://www.asbestos.com/mesothelioma-lawyer/legislation/liability/
Lahav, Joe. "Asbestos Liability." Asbestos.com, 11 Apr 2023, https://www.asbestos.com/mesothelioma-lawyer/legislation/liability/.
Lahav, Joe. "Asbestos Liability." Asbestos.com. Last modified April 11, 2023. https://www.asbestos.com/mesothelioma-lawyer/legislation/liability/.
Understanding Liability in Asbestos Cases
Asbestos liability means a company is legally responsible for injuries resulting from asbestos exposure. If a court finds a company liable for asbestos exposure related injuries, the individual who was injured may be able to recover damages.
Thousands of people are diagnosed with mesothelioma and other asbestos-related diseases each year. Yet, asbestos injuries are absolutely preventable. For this reason, it is often possible to hold those who exposed people to asbestos liable for the harm they caused.
Most asbestos exposure stems from occupational exposure. People also come into contact with the toxic mineral from secondhand exposure, or from contaminated consumer products such as talcum powder.
Experienced mesothelioma attorneys can help you determine who is liable for your injuries and file a claim for compensation. According to a KCIC industry report, Americans who were sick because of occupational asbestos exposure filed about 3,685 lawsuits in 2020.
How Is Asbestos Liability Determined?
Each state has its own liability laws. Typically, asbestos lawsuits are based on one of three legal theories: negligence, strict liability and/or breach of warranty.
Each plaintiff typically must prove the defendant is liable or persuade the defendant to settle because there is a good case for liability. Proving liability for mesothelioma and other diseases with long latency periods is more challenging than other work-related injuries.
The long latency period between initial asbestos exposure and the development of mesothelioma can take up to 50 years. Proof of exposure that happened several decades ago is more challenging than proving recent work-related injuries. That’s why it’s a good idea to consult an experienced mesothelioma law firm about your case.
In most cases, to prevail in a claim for negligence, a plaintiff must prove:
- The defendant had a legal duty to the plaintiff.
- The defendant’s conduct violated that duty.
- The defendant’s negligence caused the plaintiff’s injury. This is known as causation.
- The injury resulted in damage to the plaintiff.
Causation is often the most challenging of the four negligence elements to prove. The burden is on the plaintiff to prove their exposure to an asbestos product was a substantial factor in causing their disease.
Proof of medical probability often presented in court includes frequency of asbestos exposure, duration of exposure and proximity to the product.
It is sometimes difficult to prove a defendant was negligent. However, in some instances a plaintiff can instead rely on a theory of strict liability. Strict liability and negligence claims require similar proof. With strict liability, the plaintiff typically must prove the four elements of negligence, but it usually differs in two ways.
Under strict liability, the plaintiff does not need to prove that the defendant acted negligently in order to recover damages. The fact that the material was inherently dangerous is enough to establish that the defendant breached its duty.
Additionally, legal duty to a plaintiff exists if the defendant is not just a casual seller, but a commercial supplier that manufacturers or retails the asbestos product.
Breach of Warranty
Implied warranties essentially ensure a product is safe for its intended purpose. For example, asbestos product manufacturers can be held liable for manufacturing products that were not safe and caused people to develop cancer, thus breaching an implied warranty of safety.
Liability for breach of an express warranty occurs when a maker or seller of an asbestos product made a claim that caused someone to buy or use the product, and that claim turned out to be false.
For example, if an asbestos manufacturer or seller claims that an asbestos product is safe, but it turns out to be harmful, the manufacturer or seller may be liable to someone who relied on the claim and was injured.
Who Is Liable for Asbestos Exposure?
Determining who is liable for asbestos exposure can be complicated. More than one company may be responsible for a single person’s asbestos-related injuries. Those companies may include mining companies, manufacturers of asbestos and related products, employers who use asbestos-containing products, and owners of asbestos-contaminated properties.
At least 35 states have naturally occurring asbestos sites. Asbestos was mined in many of those states before the last U.S. asbestos mine closed in 2002.
Companies that failed to take proper safety precautions and warn workers and the public about asbestos risks may be held liable for any resulting injuries. Airborne asbestos particles placed miners and nearby residents at high risk. With asbestos-related diseases’ long latency period, new cases will be diagnosed for years to come.
For instance, many miners and residents were exposed to asbestos from W.R. Grace & Co.’s mine near Libby, Montana. They sued W.R. Grace for their injuries. The company faced such huge asbestos liabilities that it filed for bankruptcy protection.
After the bankruptcy filing, many residents also sued the state of Montana. They claimed state officials knew about safety violations at the mine and failed to adequately warn the public. In January 2012, a Montana court approved a $43 million settlement of the case.
Asbestos was widely used as a construction and industrial material. Although asbestos manufacturers often knew about the health hazards, they failed to adequately warn the public before lawsuits began to be filed.
U.S. courts found these asbestos manufacturers had a duty to properly warn about asbestos dangers. In 1973, the first victory was handed down in a case filed against 11 asbestos manufacturers.
The U.S. government has also issued warnings and regulations about asbestos since the 1970s. Despite the warnings, asbestos has not been completely banned in the U.S. Companies that continue to manufacture asbestos can face substantial liabilities if they fail to warn employees and the public about risks.
Manufacturers of Asbestos-Containing Products
Companies that use asbestos in the manufacturing of other products may also be subject to asbestos liability. Thousands of products — including boilers, brakes, engines, electronics and even household goods — often contain asbestos. Failure to provide proper warnings about the asbestos risks can cause harm and lead to asbestos liability.
However, state laws differ on the extent to which third party manufacturers are liable for asbestos injuries. Plaintiffs may find it easier to prove their cases if the manufacturer required the use of asbestos in the design of its product.
In cases where asbestos is not required, whether or not the defendant foresees the use of asbestos may become an issue. A qualified mesothelioma attorney can advise on the applicable law and the facts of your specific case.
Employers must provide safe work conditions, warn their employees about asbestos dangers and provide proper safety training or face liability. The law recognizes a duty to keep employees safe. Even local governments may face lawsuits for failing to properly oversee asbestos removal or containment in municipal buildings.
People may be exposed to asbestos on the job because of the type of work they do (e.g., grinding asbestos-lined brakes) or asbestos in their workplace (e.g., schools, bakeries or courthouses). Asbestos mine workers are at high risk for asbestos exposure, and other occupations with substantial risks include painters, machinists, electricians and refinery workers.
Unfortunately, the threat of liability does not always persuade employers to take proper safety measures. In recent years, a number of asbestos abatement workers have developed serious illnesses because their employers cut corners. These employers are sometimes subject to lawsuits and jail time.
Owners of Asbestos-Contaminated Properties
A company does not necessarily have to be your employer to be responsible for your asbestos-related injuries. For instance, a contractor who is injured from asbestos exposure at an off-site location may have a legal claim against the property owner.
Municipal buildings, like courthouses and schools, often contain asbestos that can harm non-employees.
The extent of liability differs by state, but property owners are generally expected to keep their premises safe and protect the public from asbestos dangers. This requires owners to use properly certified asbestos abatement companies when necessary.
Combinations of Defendants
There is usually more than one defendant in an asbestos lawsuit. Any number of these defendants may be found liable. Each state has different laws on how to divide responsibility among multiple defendants.
A mesothelioma attorney can identify the defendants, gather evidence and present the case against each defendant.
How Is Asbestos Liability Compensated?
The two main ways to seek asbestos liability compensation are: Lawsuit verdicts and settlements. Families who have lost loved ones to asbestos-related illnesses may be able to file wrongful death claims for their losses and expenses such as funeral costs.
Money may be paid for asbestos-related damages including lost wages, medical expenses and related expenses such as traveling for treatment. Compensation for pain and suffering is sometimes available as well.
Although it takes a long time for asbestosis or cancer to develop after asbestos exposure, once these illnesses are diagnosed, the physical, emotional and financial costs add up quickly. Most injured Americans have to rely on legal claims to seek mesothelioma compensation. This is because the United States does not have a centralized asbestos compensation program or universal health care system.
Mass Torts and Class Action Lawsuits
Asbestos claims make up a special area of the law. Asbestos lawsuits are often called “mass torts” because asbestos exposure causes injury to many people. The actions of a single defendant can harm one person, dozens or even thousands of people.
Several people, for example, can be exposed to asbestos near a mine, in a plant, on a Navy ship or after using a mass-produced asbestos-containing product such as insulation. Injured people can file claims individually or as part of a group. Courts sometimes join multiple lawsuits with similar claims (e.g., against a common defendant) for easier case processing.
Sometimes large groups of people with similar claims come together to file a class action lawsuit. This type of lawsuit can be an efficient way to settle large numbers of claims in a single lawsuit. But they require court approval to ensure that each claimant is fairly represented.
Whether plaintiffs file their claims individually or as part of a group, their task is the same: They must convince a jury that the defendant is liable for their injuries.
Asbestos Bankruptcy Trusts
Sometimes it is not possible to proceed with a lawsuit even though a company is liable. Several major asbestos manufacturers and other asbestos defendants have filed for bankruptcy protection. Asbestos bankruptcy trusts, also called asbestos compensation trusts, have been created to handle the asbestos liabilities of these bankrupt companies.
Although this type of bankruptcy protection stops lawsuits from proceeding against the company, it may be possible to file a claim for compensation with the asbestos trust. A qualified mesothelioma attorney can help you determine if a trust claim is an option and how a claim might affect lawsuits against other liable companies.
In addition to receiving compensation from asbestos lawsuits and trust funds, compensation may be available to veterans through the VA benefits system.