People injured by asbestos exposure have rights, but enforcing them is sometimes challenging
An Ohio couple has filed a lawsuit in West Virginia’s Kanawha Circuit Court against 70 defendants. They claim that these defendants are responsible for the husband’s diagnosis of asbestosis in June of 2011. The man was employed as a laborer and maintenance worker from 1954 until 1997. The claim argues that he was exposed to asbestos and asbestos-containing products in the workplace.
The lawsuit is based on allegations of negligence, contaminated buildings, breach of expressed and implied warranty, conspiracy, misrepresentation and post-sale duty to warn. Legal issues around liability and torts form the basis of the lawsuit.
Some the defendants in the lawsuit include 3M Company, Allied Chemical Corporation, A.O. Smith Corporation, A.W. Chesterton Company, American Electric Power, American Electric Power Service Corporation, Appalachian Power Company, and Aurora Pump Company.
This legal action is unusual not just because of the number of defendants, but because many asbestos claims do not follow the traditional route through the civil justice system. Rather, those claiming injury because of exposure to asbestos often apply to trust funds set up by companies responsible for asbestosis exposure after they have gone through Chapter 11 bankruptcy – a process that protects companies from lawsuits at least temporarily.
Many critics say that this arrangement allows companies to keep operating and forces plaintiffs to take much less than they were awarded. A Rand Corporation study revealed that injured workers typically receive only one-third of the amount they might receive through the justice system. Companies that have not gone through bankruptcy appreciate this system, as the trust funds act as a first line of defense against lawsuits against them. However, plaintiffs are increasingly filing lawsuits against solvent companies known to have exposed consumers and workers to asbestos. Businesses are trying to limit their exposure by finding a way around this. They have received some help from politicians.
Ohio Governor John Kasich recently signed legislation that requires victims of asbestos to file claims with the trust funds first before seeking legal remedies through the ours. This new law requires them to reveal all the possible or actual claims filed against the trust funds and to assemble all the evidence they will be using in a civil suit. A similar law has been proposed in Wisconsin. Both have the unstated goal of dragging out litigation so long that plaintiffs have died before being able to testify.
Although the stated goal of laws and legislation such as these is to prevent so-called double dipping, this is legislation in search of a problem – double dipping doesn’t really exist. Recipients of awards from trust funds must reduce any additional awards by the amount they already received, and so are unlikely to receive windfalls by seeking justice through the civil courts.
In the meantime, solvent companies, like those sued by the Ohio couple, have developed a variety of strategies to fight back. A favorite is countering claims of asbestos-caused lung disease with accusations that the plaintiff smoked and that, rather than asbestos exposure, is the cause of the illness. Another tactic used by defendants is to claim that a paintiff – especially the widow of a deceased victim – has no standing to bring a lawsuit or that evidence should be excluded.
Whether other states will try to limit the exposure of businesses in this way remains to be seen. However, those who are thinking about seeking compensation for asbestosis-related illnesses should act soon before other obstacles are put in their way.