Mesothelioma And Asbestos State Legal Resources

The deadly health effects of asbestos exposure have been known and documented since Roman times, when asbestosis was known as the “disease of slaves” (who worked with the substance) (1).

By the early 1900s, it was becoming apparent to the medical community in Europe that there was a connection between asbestos and the high incidence of respiratory disease among those who worked around it (2).

In the United States, the connection between asbestos and respiratory disease had been scientifically proven in studies commissioned by insurance carriers and the asbestos industries during the 1930s. The asbestos industry weighed the cost, and decided that it would be less expensive to simply conceal the evidence, allow workers to die and pay whatever legal costs might be incurred as a result. Meanwhile, the federal government, reacting to the S.S. Morro Castle tragedy (a shipboard fire) in 1934 became the largest buyer of asbestos products.

In 1977, the corporate conspiracy of silence was exposed, and the industry that cherished large profits while disdaining human life has been paying a staggering financial price ever since (3).

Incredibly, asbestos is still legal in the United States. In 1989, the Environmental Protection Agency passed a ban on asbestos that was overturned by the U.S. Fifth Circuit Court of Appeals under corporate pressure (4). This however may soon change; U.S. Senator Patty Murray (D-WA) has reintroduced a bill in Congress called the “Ban Asbestos in America Act of 2007” (S. 742). After having been stalled in committee for over five years, the bill will come to the senate floor in the fall of 2007, where it is expected to pass on a bipartisan vote.

Rights and Responsibilities Under the Law

Under the laws of every state and the District of Columbia, those who have been injured by corporate malfeasance and neglect have a right to sue for compensation. There are also environmental laws governing the use, handling and disposal of asbestos products, both at the federal and state level. Generally, state standards are stricter than federal ones; however these can vary from one state to the next.

Likewise, the laws governing civil action can differ from one state to another; some state laws, such as those in Oregon and Washington State greatly favor the plaintiff. Other states, such as Louisiana and Texas, lean more toward favoring corporate defendants.

Herein lies one of the challenges of pursuing legal action. Aside from the long latency period (mesothelioma symptoms may not appear until fifty years after asbestos exposure), a typical asbestos suit involves numerous defendants, which may be located in multiple states. Because of the long latency period, it requires a great deal of research to determine who is ultimately responsible and under which jurisdiction such a case may fall. (This is one reason that the law firms most successful in asbestos litigation are national ones with offices in multiple states.)

There is also the issue of the law itself. Over the past quarter century, corporate power has grown unchecked. The result has been increasing legislation and policy that favors corporations while disregarding the needs of people. Many states have passed laws intending to restrict the rights of plaintiffs to sue corporate defendants (6). U.S. Senator Arlen Specter (R-PA) attempted to introduce a bill in 2005 that would have eliminated a plaintiff’s right to sue altogether. Instead, those suffering from asbestos-related diseases would have had to recover their damages from a federal fund. This bill died in committee, was re-introduced, then tabled; no action have been taken on it since June of 2006 (7). The point here is that laws regarding asbestos and mesothelioma are constantly changing, and not always in favor of victims.

Jurisdiction

Originally, asbestos litigation was always heard in federal court. However, as the amount of litigation has increased and public awareness has grown, these cases have been shifted to the state level. However, corporate defendants invariably appeal any judgment in favor of the plaintiff, meaning that the case moves up to an appellate court. Because the cost of settling such litigation has been so high, most asbestos corporations have taken to hiding behind Chapter 11; most asbestos litigation is heard in bankruptcy court for that reason (8).

Asbestos cases brought in state courts tend to move faster and have better outcomes for the victim than those brought before the federal court. For that reason, asbestos lawyers will always seek to have an asbestos suit heard in a state court. “The” federal court in this case is the Pennsylvania Eastern District (Multi-District Litigation) Court, currently presided over by Judge James T. Giles. Judge Giles is described by Lester Brickman of Cordozo Law School as “cautious” (9); reportedly, this judge does not favor punitive damages. In general, state courts are much better for the plaintiff; likewise, corporate defendants will try to get the case heard in the federal court.

The Litigation

Asbestos litigation has generally been favorable to the plaintiff, although multi-million dollar settlements are rare; most of those are reduced on appeal, particularly when punitive or non-specific awards (i.e., pain and suffering, loss of consortium, etc.) are involved. Awards that can be quantified and documented (medical expenses, loss of income, etc.) are more frequently upheld.

In addition, those who have a diagnosis of mesothelioma with documentation by medical professionals have a much better chance of getting a judgment in their favor (10). The main reason is that mesothelioma has only one proven cause, whereas lung cancer may be due to a number of causes. Asbestosis is another specific disease; however, the burden will be on the plaintiff to prove that the disease is actually asbestosis. Here again, a medically documented diagnosis will go far in getting a verdict in favor of the plaintiff.

Environmental Codes

As laws regarding litigation differs from state to state, so do the environmental regulations regarding its handling and disposal. In most states, including Washington and Colorado, any company planning to remove and dispose of asbestos must file reports and abide by several requirements; in the Olympic Peninsula region of Washington, this includes private homeowners as well. In Colorado, such reporting requirements for private homeowners are optional (although recommended); Louisiana has no such requirements.

Colorado state law has very specific requirements for the handling of asbestos; any deviance from these requirements necessitates the filing of a variance form, in which the contractor must explain why standard procedures will not be used, and how the job will be handled.

Regardless of the state, asbestos regulations and policies are issued either through the department of environmental quality (DEQ) or department of health.

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