Most cases of asbestos exposure stem from occupational exposure — coming into contact with the toxic mineral while working. Asbestos liability means that a company is legally responsible for injuries resulting from asbestos exposure. And once diagnosed, the physical, emotional and financial costs of these illnesses add up quickly. If a court finds a company liable for injuries caused by asbestos exposure, the company usually must pay monetary damages.
Experienced mesothelioma attorneys can help you determine who is liable for your injuries and understand how liability is determined. They can also help you file a claim against the companies liable for your injuries.
To understand the context of asbestos liability, fill out the form on the right side of this page to receive a free copy of the Mesothelioma Center’s comprehensive informational packet.
How Is Asbestos Liability Determined?
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 an asbestos containing product like 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 lawsuits 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, theirs jobs are still the same: They must convince a jury that the defendant is liable for their injuries. Each state has its own liability laws, but asbestos claims are usually based one of three legal theories, negligence, strict liability and/or breach of warrant.
To win a claim for negligence, a plaintiff must prove that (1) the defendant had a legal duty to the plaintiff; (2) the defendant’s conduct violated that duty; (3) the defendant’s negligence caused the plaintiff’s injury; and (4) 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 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
If a supplier makes a false claim about a product that causes someone to buy or use it, the supplier may be liable if the person who relied on the claim is injured. Similarly, if a product is sold with an implied guarantee that it is fit and safe for its intended purpose, the seller may also be liable for injuries that result from its use.
There are two types of warranties: implied and express. 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.
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 twentieth 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 that although the state officials knew about safety violations at the mine, officials 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 they knew about the health hazards, asbestos manufacturers failed to adequately warn the public before lawsuits were filed. During the 1970s, U.S. courts found that 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 use asbestos to manufacture other products may also be subject to asbestos liability. Thousands of products like 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 also potentially liable for asbestos-related injuries. Asbestos mine workers are not the only workers at high risk for asbestos exposure. Other occupations with substantial risks include painters, machinists, electricians and refinery workers. 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.
People are 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 expect (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 some 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, by property owners are generally expected to keep their premises safe and protect the public from asbestos dangers. This includes using properly certified asbestos abatement companies when necessary.
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 only identify the defendants, but also gather evidence and present the case against each defendant.
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How Asbestos Liability Is Compensated
A variety of options exist for compensation. Lawsuit verdicts and settlements generally provide the best opportunity to significant compensation. Money may be paid for asbestos-related damages including lost wages, medical expenses and related expenses such as travel treatments. 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.
But first, a plaintiff must usually prove to a court that the defendant is liable or persuade the defendant to settle because there is a good case for liability. That is why it’s a good idea to consult an experienced mesothelioma attorney about your case.
Proving liability for diseases with long latency periods like mesothelioma is more challenging than other work-related injuries. The long latency period between initial exposure to asbestos and the development of mesothelioma can take 30 to 50 years or more. Coming up with proof of exposure that happened several decades ago is more difficult than proving work-related injuries that happened recently.
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 also 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.
Future of Asbestos Liability
Asbestos liabilities are high and will continue for many decades. There is a concern that companies will run out of money to compensate all of their asbestos liabilities. Some states have adopted measures that attempt to limit or postpone compensation for all but the most seriously ill. As of 2011, asbestos trusts only have assets of $36.8 billion. This is not expected to be enough to compensate all asbestos injuries in future years. Although legislation was proposed a few years ago address this issue, Congress did not come to agreement. In the meantime, lawsuits continue to present the greatest opportunity for compensation for asbestos-related injuries.
No one can undo the permanent damage caused by asbestos-related injuries. However, if you have been injured by asbestos exposure, money may be available to compensate some of your expenses and other losses.
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Last Modified December 19, 2018
5 Cited Article Sources
- U.S. Environmental Protection Agency, Naturally Occurring Asbestos: Approaches for Reducing Exposure (March 2008), available at . Retrieved from: http://www.epa.gov/superfund/health/contaminants/asbestos/pdfs/noa_factsheet.pdf
- U.S. Geological Survey, Reported Historic Asbestos Mines, Historic Asbestos Prospects, and Other Natural Occurrences of Asbestos in Oregon and Washington (2010), available at Retrieved from: http://pubs.usgs.gov/of/2010/1041/downloads/Plate.pdf
- Borel v. Fireboard Paper Products Corporation, 493 F.2d 1076 (1973). Castleman, B.
- Asbestos: Medical and Legal Aspects. Aspen Publishers: New York. 2005
- White, Michelle J., Asbestos and the Future of Mass Torts (Feb. 2004), available at . Retrieved from: http://www.nber.org/papers/w10308