With more than 750,000 claims filed across the country since the early 1960s, asbestos litigation is considered the largest mass tort in American history. The large number of lawsuits has triggered a variety of concerns that influence how individual states define the legal rights of asbestos claimants.
However, there is no such thing as a set of national asbestos laws. Instead, the federal government consistently has left each state to shape its own legislation. State asbestos laws generally fall into two categories: those that deal with safety issues and those that define the legal rights of individuals who have been exposed to asbestos.
To better understand asbestos laws and legislation as well as the legal process involving asbestos exposure, get your free copy of The Mesothelioma Center’s informational packet. The unique packet is highly detailed and comprehensive, and it walks the reader through the legal process after someone is diagnosed with mesothelioma or another asbestos related disease.
Some states passed laws in recent years to limit the number of asbestos claims in their courts. These laws are often driven by general concerns about large numbers of claims by people who have not developed physical impairments. Courts, lawmakers, defendants and even some plaintiffs’ attorneys worry that these claims may deplete the amount of compensation available to the sickest claimants.
But there are also concerns about how lawsuits by unimpaired claimants affect specific state courts and economies. Many states worry that these claims overburden court systems and delay the resolution of many cases. Some states are also concerned that widespread litigation could bankrupt companies, eliminate jobs and tax local and state economies.
Legislation varies by state, but they typically cover all or some of the same general areas of the law. Those areas include: medical criteria, successor liability, two-disease rules, joinders, forum shopping, punitive damages and statutes of limitation.
States have addressed these concerns with a variety of measures to limit who can bring asbestos lawsuits and which defendants can be held liable for injuries. Some states, like Texas, Ohio and Florida, have passed tort reform legislation to manage and reduce asbestos cases.
Nearly every state has similar legislation to reduce and manage asbestos hazards. All have a goal of public safety. However, there are much greater differences in how states handle asbestos legal claims. Some states permit them and place few restrictions on filing or claims access. Other states are much more restrictive. Some states are so restrictive that few asbestos claims are ever made. New York and California are seen as more favorable for claimants, while Texas, Georgia, Pennsylvania and Florida have created laws apparently designed to limit claims.
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The legal focus in California is on safety, making sure state residents are limited in any exposure to asbestos. Lawmakers in 2007 approved changes to Title 8 which requires employers to take specific steps to minimize potential exposure and to document any that occurs. The law also requires that school systems keep abatement records for 30 years.
Asbestos related lawsuits are plentiful in New York. U.S. asbestos manufacturing began in New York in the mid-1800s, effectively increasing exposure and creating potential plaintiffs. Most of the work of legislators in New York regarding asbestos is to ensure the safety of residents related to occupational and environmental exposure.
Pennsylvania once was one of the top five U.S. states in the number of asbestos related lawsuits filed. Lawmakers there chose to let the courts manage these cases, and over time, a set of procedures was set up to deal with these cases. The new procedures address case management, physical impairment, punitive damages, several liability and successor liability. Pennsylvania remains a state in which many asbestos claims are filed.
Texas is arguably the most aggressive state in terms of addressing asbestos litigation. It led the country in the number of asbestos related claims filed between 1998 and 2000, and state lawmakers reacted quickly. It passed legislation to limit these claims in 1997 and in 2003. And in 2005, it passed more detailed and sweeping laws to get cases moved through the docket faster. Texas also addressed medical claim levels and successor liability.
Ohio is one of the country’s most active states in terms of asbestos related legal reform. By the year 2000, the state was one of five that made up more than 66 percent of U.S. asbestos claim filings, a fact that drove Ohio lawmakers to introduce restrictions. They introduced medical criteria for victims and also passed a series of updates that provide help for companies who are sued for asbestos claims.
Florida lawmakers aimed to reduce asbestos lawsuits by adopting the Asbestos and Silica Compensation Fairness Act in 2005. The law requires asbestos plaintiffs to have better evidence, including that of asbestos exposure, at the time the lawsuit is filed.
Like Florida, Georgia also tackled asbestos litigation in 2005. It added new filing requirements for asbestos and mesothelioma plaintiffs, requiring specific documentation of exposure. The results were almost instant. One judge, Fulton County State Court Judge Henry Newkirk, saw his asbestos-related caseload drop from 1,200 to only a dozen in one year.
As awareness spread about the deadly injuries caused by asbestos exposure, concern also spread about the use of asbestos in existing buildings. People became aware that the once popular building material was present in schools, office buildings, churches, government buildings and hospitals, among other buildings. Of course, widespread interest arose in removing or safely containing the asbestos found in these buildings.
By the late 1980s, a new industry emerged for asbestos abatement services. Although safety concerns created a high demand for asbestos removal and cleanup, abatement services were not always performed safely. While some contractors took asbestos safety hazards seriously, others sometimes used untrained workers to perform dangerous removal tasks.
The vast majority of states and some municipalities responded by adopting abatement laws. These statutes and regulations govern the handling and disposal of asbestos. They often regulate the training and licensing of authorized asbestos contractors. They also protect the public and asbestos workers by requiring safe cleanup or removal techniques and by using accredited laboratories to test air samples from completed jobs. Regulation of abatement services has helped federal, state and local governments monitor and crack down on unethical practices that threaten public safety.
For instance, a joint effort by federal and state agencies led to the 2004 conviction of Raul and Alexander Salvagno, a father and son who owned an asbestos abatement company in New York. Their company, AAR Contractor Inc., was accused of using untrained workers to do "rip and run" cleanup jobs that violated asbestos abatement regulations. Instead of using an independent laboratory to monitor their work, the Salvagnos used their secretly owned lab to fake thousands of air monitoring results and falsely claim that their job sites were free from asbestos.
The Salvagnos were ordered to forfeit nearly $4 million in profits and pay more than $45 million in restitution to victims. The son was sentenced to 25 years in prison, while his father was sentenced to 19.5 years. At the time, they received the longest federal jail sentences for environmental crimes in United States history. Sadly, customers and workers who were put in danger due the Salvagnos’ shortcuts may continue developing asbestos-related illnesses long after the sentences end.
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Some states reduce the number of active asbestos cases by limiting claims of plaintiffs who do not yet have physical or functional impairments. These laws usually require claimants to satisfy minimum medical criteria to proceed with their lawsuits. Claimants are required to provide different types of evidence (medical records or pathology reports, for instance) based on the severity of the disease alleged.
Often, evidence must certify that asbestos exposure was a substantial factor in the development of the disease. Claimants who have not yet developed physical impairments and cannot satisfy the medical criteria requirements are not allowed to proceed. They usually can file their claims later.
Some jurisdictions apply different statutes of limitation to malignant and non-malignant asbestos claims. In some instances, defendants are prohibited from requiring nonmalignant asbestos claimants to release any future claims, if they later develop cancer, as a condition of settlement.
Some states have passed measures that allow asbestos claimants with severe impairments to receive scheduling preferences for their trials.
Some courts have tried to expedite cases and encourage settlements by joining asbestos cases with dissimilar claims for trial (for example, mesothelioma claims and claims by plaintiffs with no physical impairments). Some states fear that these efforts produce more lawsuits. As a result, these states require all lawsuit parties to agree before allowing courts to join multiple claims for a single trial.
Large case awards sometimes attract out-of-state claimants to a jurisdiction. Some of these jurisdictions have adopted forum shopping laws to limit claims by plaintiffs who reside or were exposed to asbestos in other states. They are intended to prevent plaintiffs with no connection to a state from clogging court dockets.
Some states enacted legislation to protect companies (successor companies) that buy or merge with other companies (predecessor companies) that engaged in activity that caused asbestos injuries. Once companies merge or consolidate, successor companies generally take on the liabilities of predecessor companies.
Successor liability laws limit the asbestos liability of a successor company to the fair market value of the predecessor before merger or consolidation. As a result, the successor company avoids losing all of its assets due to the asbestos liabilities of the predecessor.
A "premises owner" is generally defined as any person or business that owns, controls or leases a building or land. Premises liability laws clarify whether an owner is liable for injuries to an individual resulting from asbestos exposure on the property.
For instance, if a law presumes that a premise owner maintained safe levels of asbestos exposure, a plaintiff may be allowed provide evidence that the owner knew or should have known that asbestos levels exceeded certain limits.
Juries sometimes award punitive damages to deter particularly bad conduct. These awards can result in large case verdicts. Although most states do not limit punitive damages awards, others have passed laws to limit them in asbestos cases. Supporters argue that limiting the size of punitive damages awards make more compensation available for future asbestos claimants.
States that successfully pushed tort reform legislation adopted state-specific versions of these laws. That is why it is important to work with a knowledgeable mesothelioma attorney who can give you specific advice about state asbestos laws.
Many states have not passed any asbestos tort reform legislation. Instead, their courts are left to decide whether they need measures to control asbestos litigation. In some states, such as Pennsylvania, Maryland and New York, only the most active courts have adopted court rules and procedures to manage asbestos cases. These rules may even be similar to some of the reform legislation described above.
Each state has at least one law on its books that affects the legal rights of people who have been affected by asbestos exposure. This law is known as a statute of limitations and limits the amount of time that a claimant has to bring a personal injury claim. Speak to a lawyer as soon as possible to find out if you can still file an asbestos claim.
The number of asbestos lawsuits will continue to influence state laws and court rules that affect how cases are managed. The number of lawsuits and the amount of compensation available to asbestos claimants may even renew future interest in passing federal asbestos legislation.
Remember that laws can change over time. For instance, a law passed by a state legislature today, could be overturned by a state court months from now. That is why it is also important to work with a mesothelioma lawyer to get the most up to date and accurate information for your situation.
Joe Lahav is a lawyer and legal advisor at The Mesothelioma Center. He graduated with honors from the University of Florida College of Law in 2000, and he's licensed to practice in Washington, D.C., and Florida. Joe lost his mother to cancer, and he understands the emotional toll mesothelioma can have on families. Read More