Between 1998 and 2000, Pennsylvania was among the top five states for asbestos lawsuit filings. Widespread use of asbestos in Pennsylvania’s shipyards, refineries, power plants, steel mills and mining operations placed workers there at high risk for developing asbestos-related diseases. For example:
- According to a 2006 study by the International Journal of Occupational Environmental Health, some of the country’s highest occurrences of malignant mesothelioma are concentrated in Delaware County, Pennsylvania.
- Data from the federal Agency for Toxic Substances and Disease Registry (ATSDR) shows that workers at job sites in Ellwood City and New Castle, Pennsylvania were exposed to dangerous asbestos levels. Communities surrounding these facilities have become concerned about the health risks. Both sites are also among 28 areas of "primary concern" identified by the ATSDR.
The likely result is that claims of injury because of asbestos exposure should to continue for years to come. Concerns about unimpaired asbestos claimants and bankrupt defendants have led to efforts to limit who can file asbestos related claims and how much compensation defendants must pay in Pennsylvania.
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Asbestos Litigation Rules in Pennsylvania
Pennsylvania courts have established procedures and rulings to manage asbestos litigation within the state. Those fall into the areas of evidence of: physical impairment; case management orders; deferring punitive damages; several liability; and successor liability. Here are details of those:
Evidence of Physical Impairment
Pennsylvania state law allows plaintiffs with non-malignant asbestos related diseases to file a second lawsuit and recover damages if they later develop an asbestos related cancer. In Simon v. Pacor, however, the Pennsylvania Supreme Court ruled that plaintiffs are not entitled to compensation for asymptomatic pleural thickening without physical impairment. In other words, pleural thickening alone is not enough to bring a claim for asbestos-related injury in Pennsylvania courts. A plaintiff must also have a symptomatic physical impairment in order commence a lawsuit.
Case Management Orders
Procedural rules allow parties some flexibility in proposing plans to facilitate quick resolution of their lawsuits. These Case Management Orders (CMOs) are subject to court approval. If the parties do not offer a CMO, the court sets out its own default order.
For instance, the Philadelphia Court of Common Pleas has issued a CMO for all asbestos cases that provides for the following:
- simplifying court filings;
- creating an inactive docket for claimants who do not yet have physical impairments;
- establishing requirements for reactivating inactive cases;
- scheduling discovery and trials;
- and grouping cases for trial based on similarities (e.g., plaintiff’s law firm, worksite, disease).
Deferring Punitive Damages
In the late 1980s, Judge Richard Klein of the Philadelphia Court of Common Pleas observed increases in new asbestos case filings. Meanwhile, asbestos case defendants were increasingly declaring bankruptcy and dramatically reducing their settlement payments to plaintiffs. In response, Judge Klein began a practice of separating and deferring consideration of punitive damages while other damages claims in an asbestos case were resolved.
Punitive damages awards, which aim to discourage future wrongdoing, can increase award an amount substantially. Some judges take a view that limiting punitive damages awards leaves more money available to pay other claimants’ actual damages (e.g. medical bills). Judge Klein’s decision to defer punitive damages eventually became the practice of the court’s Complex Litigation Center. Since the practice was implemented, the court awarded punitive damages in only one asbestos lawsuit as of 2008. That case was decided under Kentucky law and awarded $25.2 million to three mesothelioma patients.
Recent changes to Pennsylvania law impose several liability on wrongdoers. Several liability is the notion that a person or company is only liable for its portion of harm or damages and no more, that liability can be shared. Under this theory, a defendant’s liability is limited to the portion of harm allocated to it at trial. Often, plaintiffs in an asbestos lawsuit file a claim against multiple companies or businesses. Levels of blame, if appropriate, can be assigned to each defendant after a trial or in a settlement agreement. The defendant is not responsible for compensating a plaintiff for other defendants’ portions of the judgment.
For claimants who knew or should have known about their asbestos injuries prior to June 28, 2011, Pennsylvania recognizes joint and several liability. Under the theory of joint and several liability, plaintiffs can recover an entire judgment against any one defendant.
Successor liability is the notion that after a merger or takeover, the new company inherits the any obligations of the previous entity. If Company A buys Company B, and Company B is found to be liable in a future claim, Company A must accept that liability. Pennsylvania law limits the extent to which successor companies are responsible for asbestos liabilities acquired from another company. Successor liability is limited to the fair market value of the total assets of a predecessor company at the time of merger or consolidation.
4 Cited Article Sources
- Carroll, S.J. et al. (2005). Rand Institute for Civil Justice. Retrieved from: http://www.rand.org/pubs/monographs/2005/RAND_MG162.pdf
- Dixon, L. and McGovern, G. (2011). Rand Institute for Civil Justice. Retrieved from: http://www.rand.org/content/dam/rand/pubs/monographs/2011/RAND_MG1104.sum.pdf
- Passarella, G. (2008, March 20). The Legal Intelligencer. Retrieved from: http://www.law.com/jsp/article.jsp?id=900005560866&slreturn=1&hbxlogin=1
- Schmitt, C. and Aldebron, J. (2006). Public Citizen Congress Watch. Retrieved from: http://www.policyarchive.org/handle/10207/bitstreams/10865.pdf
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Last Modified August 2, 2019