Asbestos Legal Action
Considering that it is alleged that some corporate management had been fully aware of the dangers of asbestos since 1940, you may believe that their alleged decades-long cover-up of information on asbestos-related illnesses should be considered as a criminal act. Sadly, criminal codes do not currently address this issue. This is because a corporation is obliged to make profitability its first priority. Some CEOs and those who sit on boards of directors may have believed in profitability, even when this objective was in conflict with the safety of human life.
However, such disregard for human life may constitute a legitimate basis for civil action. This is not a bad thing, since it improves the plaintiff's chances of holding the defendant accountable for their negligence and/or malfeasance.
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Law in the U.S. (and most of the Western industrialized world) is divided into two broad areas: criminal law and civil law. In order to understand why corporations cannot be held liable under criminal statutes, it helps to understand how law works under these respective categories.
Asbestos and Criminal Law
The Founders and Framers were well aware of how law had been misused and abused by aristocratic rulers in Europe in order to suppress ordinary subjects and deprive them of their rights, liberties and even their lives - often on a whim.
The Framers were determined that no person - meaning a living, breathing, natural human being - should be arbitrarily deprived of life and liberty without due process. Therefore, they added a number of protections, most of which are found in the first ten Amendments - known collectively as the Bill of Rights.
These rights include the right for the accused to know the nature of the charges against him; the right to an advocate (a defense attorney); the right to confront his accuser; the right to a hearing before a tribunal of his peers (a jury trial); protection against self-incrimination (better known as the "right to remain silent"); the right to appeal; protection against double jeopardy; and most importantly, a presumption of innocence.
These last three points are especially significant. In theory, the U.S. criminal justice system is set up in such a way as to give the accused every possible advantage in defending himself against the charges. A criminal defendant may appeal a guilty verdict to a higher court; however, the prosecution has no similar right to appeal a "not guilty" verdict because of the double jeopardy rule. By law, a jury must find a defendant "guilty beyond a reasonable doubt." This can be rather subjective, but when one takes into consideration that the jury's verdict in a criminal case must be unanimous, it is a very high standard.
Asbestos and Civil Law
Civil law is an umbrella term that covers contracts, property transactions, administrative law (allowing citizens to challenge their government and its policies) and torts, which is law covering injuries, damages and losses related to accidents and negligence. This latter category is the specific area of law under which asbestos legal action is taken.
Unlike criminal law, in which the defendant is always a natural person, the defendant in a tort case may be a person, a group of persons, or a legal entity such as a corporation or even the estate of deceased person.
When an asbestos lawyer is suing for asbestos-related injuries under the law of torts, the plaintiff - the injured party, also known as the petitioner - brings an action, or a complaint against a company. Because the law of torts requires the element of product identification in many states, it often involves the original manufacturer of the substance, or its successors. The party against whom the plaintiff brings action is known as the defendant, or respondent.
In an asbestos lawsuit, the plaintiff is seeking financial compensation for medical expenses (as well as incidental expenses such as travel), loss of wages and pain and suffering. In order to successfully win such an award, the plaintiff must prove to the court that his/her illness was a direct result of asbestos exposure, and that this exposure was in turn the result of negligence on the part of the defendant.
This is where seeking a remedy in civil court poses a distinct advantage over criminal action. Unlike a guilty verdict - which requires a standard of "reasonable doubt" - proof of liability in a civil action requires a preponderance of evidence. In other words, the plaintiff must prove that something is more likely true than not.
Because this is a substantially lower standard of proof, it is easier for the plaintiff to present a convincing case. This is the reason that someone found not guilty of a crime in a criminal proceeding can be found legally liable for the same action in civil court (see Simpson v. Goldman et. al., 1996).
There are a number of tactics available to the defendants in order to disprove the plaintiff's case. In light of the allegation of suppression of information regarding the toxic effects of asbestos by corporations, most of these standard defenses may be ineffective, and dismissed today. (This can also have a large bearing on punitive awards that juries award on top of compensation for damages in states that allow punitive damages.)
An asbestos legal action may be settled out of court; in fact, there was a proposal in Congress to protect corporate interests by denying citizens the right to sue in asbestos injury cases. Instead, there would have been an under-funded trust fund established from which asbestos victims would be compensated. However, the bill died in the Senate in February of 2006.
Increasing numbers of corporations that wind up as defendants in asbestos legal actions have sought refuge in Chapter 11 bankruptcy proceedings - a right upon which Congress put severe restrictions for ordinary citizens in 2005. As a result, attorneys now look for other potentially liable parties, including asbestos retailers and corporations who have taken over asbestos companies, as well as those who have been involved with the marketing of asbestos in the past.