Thousands of people are diagnosed with asbestos-related diseases each year. Yet, asbestos injuries and their related costs are absolutely preventable.
Most cases of asbestos exposure stem from occupational exposure — coming into contact with the toxic mineral while working. People also get sick because of secondhand exposure and asbestos contamination of consumer products such as talcum powder.
For this reason, it is often possible to hold those who exposed people to asbestos liable for the harm they caused.
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.
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, more than 4,200 lawsuits were filed in 2017 by Americans who had gotten sick because of occupational asbestos exposure.
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 like most other developed nations do.
How Is Asbestos Liability Determined?
Each state has its own liability laws, but asbestos lawsuits are usually based on one of three legal theories: negligence, strict liability and/or breach of warrant.
To win 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.
- 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 must prove the four elements of negligence, but it 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 are 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.
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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 during most of the 20th century.
Airborne asbestos particles place miners and others who live and work near the mines at high risk for developing asbestos-related diseases. Although the last U.S. asbestos mine closed in 2002, new cases of diseases caused by exposure at these mines will be diagnosed for years to come.
Asbestos mining companies that fail to take proper safety precautions and warn workers and the public about asbestos risks may be held liable for any resulting injuries.
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 is widely used as a construction and industrial material. Although asbestos manufacturers knew about the health hazards, they failed to adequately warn the public before lawsuits began to be filed.
During the 1970s, 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 case filed against 11 asbestos manufacturers.
The U.S. government also issued warnings and regulations about asbestos during the 1970s. Despite the warnings, asbestos has not been completely banned in the U.S. Although many major asbestos manufacturers have filed for bankruptcy protection, asbestos is still manufactured in the U.S. for use in many products.
The companies that continue to manufacture asbestos are under a duty to properly warn about the material’s dangers. If they don’t, they face substantial liabilities.
Manufacturers of Asbestos-Containing Products
The duty to warn about asbestos risks does not necessarily end with asbestos manufacturers. Companies that use asbestos to manufacture 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 so-called 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 are under a duty to provide safe work conditions, warn their employees about asbestos dangers and provide proper safety training. Otherwise, employers may also face liability.
Asbestos mine workers are at high risk for asbestos exposure, and other occupations with substantial risks include painters, machinists, electricians and refinery workers.
People may be exposed to asbestos on the job due to the type of work they do (e.g., grinding asbestos-lined brakes) or asbestos in their workplace (e.g., schools, bakeries or courthouses).
In all cases, the law recognizes a duty to keep employees safe. Even local governments may face lawsuits by employees for failing to properly oversee asbestos removal or containment in municipal buildings.
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 an 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 which 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.
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How Is Asbestos Liability Compensated?
A variety of options exist for compensation. Lawsuit verdicts and settlements generally provide the best opportunity for significant compensation. 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.
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.
Each plaintiff must prove to a court 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 exposure to asbestos and the development of mesothelioma can take 10 to 50 years. Coming up with proof of exposure that happened several decades ago is more difficult than proving work-related injuries that happened recently.
That is why it’s a good idea to consult an experienced mesothelioma attorney about your case.
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.
For instance, several people 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 file 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 their asbestos liabilities.
Although this type of bankruptcy protection stops future lawsuits, 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 is available to veterans through the VA benefits system.
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- Borel v. Fireboard Paper Products Corporation, 493 F.2d 1076 (1973).
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Last Modified August 1, 2019