Third Wave of Asbestos Litigation Targets Property Owners

Charleston, WV—The “next wave” of asbestos lawsuits is beginning to gain force, and it’s focusing on so-called premise liability cases. These lawsuits go beyond a worker’s employer, accusing property owners.
One such case, which involves only one plaintiff but a list of over 50 defendants, is currently on the docket in West Virginia’s Kanawha Circuit Court. Thomas and Thelma McCue are suing General Plastics, the owner of a building where Thomas worked for three decades as a laborer, maintenance man and mechanic. Due to asbestos exposure at the site, Thomas contracted a lethal lung disease. Yet the McCues are also naming dozens of other defendants, companies and property owners with whom McCue had professional dealings.

These new cases differ from prior trends in asbestos litigation in several ways. First, they are the opposite of class-action lawsuits, in which a number of plaintiffs team up to sue a single defendant, such as an asbestos-manufacturing or -mining company. Moreover, in some instances the defendant is discovered first, and a plaintiff is then recruited to bring a suit.

A study by the RAND Institute for Civil Justice states that as many as three million new asbestos cases could be filed within the next two decades. Estimates put the total cost of asbestos claims payouts at over $200 billion.

Potential defendants—in many cases companies who never dreamed they would be the target of asbestos litigation, but who merely owned the property where contract workers installed or removed asbestos—are becoming increasingly concerned about premise liability lawsuits.

As with litigation against chemical companies, mining conglomerates, or asbestos-material manufacturers, the issue issue is the extent of knowledge that the defendants had about the potential exposure and the potential dangers of that exposure. Along with proving the knowledge, prosecutors must also show that the liable party failed to warn workers of the health hazards, deliberately concealed the health hazards, or neglected to provide adequate safety precautions.

Additionally, there is also the element of timing—not only what the employer or property owner knew, but when they knew it vis-a-vis the plaintiff’s employment period.

Asbestos, a fibrous mineral which has extraordinary tensile strength and heat- and fireproof qualities, has been used for building materials and insulation throughout the 20th Century. Although OSHA issued protocols regarding its use in 1973, it’s still legally allowable and continues to exist in buildings across the nation.