Asbestos Laws in New York

New York is often called the birthplace of the asbestos manufacturing industry. In 1858, a predecessor of the Johns Manville Corporation began using anthophyllite mined in Staten Island to manufacture asbestos insulation. Over the next century, asbestos use spread to a variety of industrial applications in New York and beyond. Now that the health hazards of these materials are well-known, New York has enacted a number of laws and regulations to promote safe handling and removal of materials containing asbestos.

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Many asbestos lawsuits are filed in New York courts. The distinction is hardly surprising given high incidents of asbestos exposure in the state. For many decades, asbestos was widely used in construction projects and on other New York job sites, including oil refineries, power plants and shipyards. As a result this widespread industrial use, many thousands of New York workers were exposed to asbestos.

During World War II, as many as 70,000 workers may have been exposed to asbestos at the Brooklyn Navy Yard alone. Because of the long latency periods, many of these and other exposed workers will likely develop asbestos-related illnesses for years to come. Continued exposure to asbestos in commercial and residential buildings as well as exposure to tons of asbestos at the World Trade Center site following the terror attacks of Sept. 11, 2001, also could contribute to future asbestos-related illnesses.

Asbestos Case Management

In the late 1980s, New York amended its statute of limitations to grant a one-year grace period for filing certain asbestos claims. The measure allowed thousands of claimants to file cases that had previously expired under the statute of limitations. By 2000, 12 percent of all state court asbestos filings were made in New York.
Courts in New York City and Syracuse, New York, have established "inactive dockets" for asbestos cases. These courts place cases of claimants who allege asbestos exposure, but are currently unimpaired, on a separate inactive docket. Discovery and processing of such cases is delayed until the plaintiff's injuries have progressed.
These courts also adopt procedural rules and issue case management orders to address a backlog of cases. For instance, under "first in, first out" procedures, claims of terminally ill claimants are set aside for accelerated trials during one month, twice a year. These case management orders also include procedures for "clustering" groups of similar cases for trial and discovery. For example, multiple cases handled by a single law firm may be clustered into a group.

New York Asbestos Case Verdicts

Although New York courts have made efforts to streamline the processing of asbestos cases and promote quicker resolution, asbestos lawsuits reach varied outcomes. For instance, hundreds of Brooklyn Navy Yard cases have settled. Others have gone to trial. In 2004, a New York jury awarded a total of $22 million to a former electrician and the estate of a former seaman who worked at the Brooklyn Navy Yard. Four years later another New York jury awarded $2.25 million to the family of another former electrician at the Navy Yard who developed mesothelioma. Not all cases have resulted in favorable verdicts for asbestos claimants.
New York law allows the award of punitive damages in personal injury cases. Punitive damage awards are generally used to discourage defendants from performing similar conduct in the future. An award of punitive damages can sometimes result in a very large total case verdict. In New York City, however, the judge who managed all asbestos litigation filed in the city between 1987 and 2008 "deferred" all punitive damages awards indefinitely. Her case management order effectively dismissed all punitive damages claims in her caseload. The case management order was limited to New York City asbestos cases and can be revised by future asbestos case managers.

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Author

Tim Povtak

Tim Povtak is an award-winning writer with more than 30 years of reporting national and international news. His most recent experience is in researching and writing about asbestos litigation issues and asbestos-related conditions like mesothelioma. If you have a story idea for Tim, please email him at tpovtak@asbestos.com

Asbestos Laws in California

California is the site of several shipyards, marine repair facilities, power plants, mining operations and oil refineries where workers may have been exposed to asbestos. California is also home to some of the nation's largest asbestos deposits. Asbestos exposure can cause severe health problems, including mesothelioma cancer, a disease for which there is no cure.

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Over the past decade, California lawmakers responded to these occupational and environmental asbestos risks with a number of laws, regulations, safety standards and programs aimed at reducing exposure. Included in the regulations were new certification requirements for contractors and consultants who handle and remove asbestos in the state.

California was not alone in proposing and adding asbestos regulations in recent years, although some states like Texas, Ohio and Georgia, added a layer of laws to combat a climbing number of asbestos related claims.

Asbestos Regulations in California

As the national awareness about asbestos and its hazards grew and lawmakers enacted tougher regulations of the mineral, California concentrated its efforts on limited exposure. For instance, one asbestos-related regulation, Title 8, mandated employers take specific steps to ensure proper air quality and that they document all levels of potential exposure.
California school districts and institutions of higher learning also adopted new codes. State colleges and universities, acting independently, pushed through their own standards of abatement and exposure under state law. The University of California Santa Cruz in 2001 agreed to keep asbestos related records - exposure records, respiratory fit testing records, abatement records - for 30 years. It also set forth training for abatement and set certification standards.

Asbestos Lawsuits

In addition to implementing asbestos safety measures, California has long been one of the leading jurisdictions for asbestos lawsuit filings. Early asbestos lawsuits were generally filed in areas, including California, where significant numbers of workers had been exposed to asbestos. In the 1970s and 1980s, California was one of four states that accounted for more than 60 percent of state asbestos case filings. By 2000, the majority of asbestos filings occurred in a handful of other states, such as Texas.
Not all of these new case filings resulted in verdicts (e.g., they were dismissed or settled). However, from 1993 through 2001, California was among five states that accounted for 65 percent of asbestos trials that ended in verdicts.

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Since 2000, some states with a significant amount of asbestos lawsuits began enacting laws to limit new filings. California has not enacted similar laws. Meanwhile, some of the state's courts have reportedly experienced increases in the number of asbestos case filings by both in-state and out-of-state claimants each year.
Although California has not enacted some of the reform laws that have been popular in other states, its courts have taken other measures to manage large asbestos caseloads and expedite claims by extremely ill patients. For instance, a "fast-track" scheduling approach allows cases of terminally ill patients to go to trial in 120 days. In addition, at least some judges actively encourage the parties to resolve cases quickly through trial or settlement.

Filing an Asbestos Claim in California

If you are suffering from an asbestos-related illness, it is best to speak with a qualified mesothelioma attorney as soon as possible. An attorney can help you file a claim for compensation for your injuries in California or another state, as appropriate. Keep in mind that California and other states limit the amount of time you have to file your case. Because the life expectancy of many mesothelioma sufferers is so short, time is important.

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State Asbestos Laws

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.

States Passed Own Asbestos Laws

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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.
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.

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.

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 no restrictions on filing or claims access. Other states are much more restrictive. Some states are so restrictive that few asbestos claims are ever made. States like New York and California encourage mesothelioma patients to file asbestos claims. While states like Texas, Georgia, Pennsylvania and Florida have created laws that discourage claims.

State Asbestos Laws

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California Asbestos Laws

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.
New York Asbestos Laws

Asbestos related lawsuits are more plentiful in New York than in any other state. 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 Asbestos Laws

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 the past decade 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 Asbestos Laws

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 limited 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. They also addressed medical claim levels and successor liability.
Ohio Asbestos Laws

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 recently introduced medical criteria for victims and also passed a series of updates that provide help for companies who are sued for asbestos claims.
Florida Asbestos Laws

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.
Georgia Asbestos Laws

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 caseload drop from 1,200 to only a dozen in one year.

How Asbestos Abatement Laws Emerged

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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.

Asbestos Abatement Laws

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Medical Criteria

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.
Two-Disease Rules

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.
Expedited Case Scheduling

Some states have passed measures that allow asbestos claimants with severe impairments to receive scheduling preferences for their trials.
Joinder of Claimants

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.
Forum Shopping

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.
Successor Liability

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.
Asbestos Premises Liability

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.
Punitive Damages

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.
Statutes of Limitation

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 can bring a personal injury claim. Speak to a lawyer as soon as possible to find out if you can still file an asbestos claim.

Outlook for Asbestos Legislation

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.

Bookmark and visit our legal section and blog for updates about legislative and litigation trends that may affect your legal rights. Also visit our individual state legal pages often for general information about important legislation, court cases and legal news.

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.

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National Asbestos Legislation

A number of U.S. policymakers have tried to introduce laws to ban the toxic mineral in the country, but they all have failed. As more cases of mesothelioma surface, we can hope that lawmakers finally put an end to using products in America that contain asbestos.

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The dangers of asbestos are well known in the U.S. Although few would dispute the major health hazards related to exposure, America does not have a comprehensive federal law addressing the issue. Indeed, sweeping national legislation about asbestos has proved a struggle. Instead, those issues largely are left in the hands of individual states, which often have different approaches to dealing with risks and claims.

Most federal and state asbestos legislation in the U.S. was motivated by the same two concerns: public safety and economic concerns. The evolution of these concerns can be traced back to the early 20th century. By then, use of asbestos in the U.S. had surpassed that of the rest of the world.

History of U.S. Asbestos Legislation

Although the U.S. government has taken some action on the issue, it has faced criticism for not acting on two issues: Banning asbestos and developing a system to compensate those injured by exposure.
The federal government adopted policies to promote safety related to asbestos. Like most countries, the U.S. does not have a universal ban on the toxic mineral. So far, an estimated 55 countries have substantially banned its use.
Federal legislation to ensure that claimants can be compensated for sickness, loss of life and loss of wages has also been limited. Federal laws were passed to create compensation systems for other types of claimants. The Black Lung Benefits Act created a program for U.S. coal miners. However, a similar program has not been established for people who are sick because of asbestos exposure.

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1930s

By the 1930s, medical evidence had already linked exposure with deadly diseases. Although manufacturers knew about the early evidence, many of them did not warn workers or the public about the dangers and potential future health issues. Routine use of asbestos in construction and industrial products continued.

1960s - 70s

Because related diseases do not surface until decades after exposure, the health hazards created by this exposure did not receive widespread public attention until the late 1960s and the 1970s. That is when victims increasingly filed lawsuits against manufacturers for their injuries, claiming those manufacturers knowingly made them sick. Soon, the health risks of asbestos were too big to hide.

1980s

Through the late 1980s, much of the attention surrounding asbestos focused on abatement, which involves removing or containing asbestos from existing buildings. There were also calls for laws to ban the use of the toxic mineral. During the 1970s, the U.S. government issued guidelines to limit asbestos exposure. These guidelines were followed by more federal, state and local public safety laws during the 1980s.

Present Day

U.S. Sen. Patty Murray (D-Wash.) sponsored the Ban Asbestos in America Act of 2007, but it died in Congress. In 2009, she also sponsored a bill that led to recognition of September 26 as National Mesothelioma Awareness Day. Murray, a longtime advocate for asbestos awareness and research, continues to list these issues among her legislative priorities.

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Legislation

Major legislation on asbestos abatement and tort reform have been considered at the federal level. When it comes to asbestos abatement legislation, the U.S. Environmental Protection Agency (EPA) and the Occupational Safety and Health Administration (OSHA) are the main federal agencies in charge of enforcing these laws.
The EPA and OSHA are instrumental in the evolution of asbestos abatement litigation because both agencies deal with workers, such as those in the construction industry, who often come into contact with asbestos.
One of the biggest threats to those unfairly injured by asbestos exposure is the Furthering Asbestos Claim Transparency (FACT) Act.
It would require asbestos trusts to publicly disclose information about the settlement terms between trusts and claimants. Current state and federal laws consider these negotiations private and confidential, not subject to discovery or admissible in court cases.
The original bill was introduced in the U.S. House of Representatives in 2013. The bill passed and was sent to the U.S. Senate, where a similar bill wasintroduced in 2014. A new congressional session in 2015 archived both versions of the proposals.
However, Rep. Blake Farenthold, R-Texas, introduced a new version (H.R. 526) in the U.S. House in January 2015.
This legislation would add to the pain of all those affected by asbestos-related conditions.

1970
1976
1986
1994
2006
2007

Clean Air Act of 1970

Congress first identified asbestos as a hazardous air pollutant under this law. The Clean Air Act has been amended over the years and resulted in Environmental Protection Agency (EPA) regulations governing the use and disposal of asbestos. The law has been followed by other federal measures to protect workers and the public, such as Consumer Product Safety Act provisions and Occupational Safety and Health Administration (OSHA) regulations. Although asbestos is still used in certain products, its identification as a pollutant has helped reduce use.
Toxic Substances Control Act of 1976 (TSCA)
The Toxic Substances Control Act (TSCA) gave the EPA the power to regulate not only new commercial chemicals, but also existing materials that pose unreasonable health or environmental risks, such as asbestos. The EPA attempted to use this authority in 1989 by issuing a final rule that would have banned most asbestos-containing products. Known as the "Asbestos Ban and Phaseout Rule," it would have prohibited manufacturing, importing, processing or distributing most of these products.
However, a group of interested corporations successfully challenged the rule in court. A 1991 decision by the U.S. Court of Appeals for the Fifth Circuit eventually rejected much of the rule. The following chart shows which products remained banned under the EPA's rule and which bans were lifted after the Fifth Circuit's decision:

Banned
- Corrugated paper
- Rollboard
- Commercial paper
- Specialty paper
- Flooring felt
- New uses of asbestos after 1989
Not Banned
Asbestos Hazard Emergency Response Act of 1986

This law ordered the EPA to establish regulatory standards for inspections and proper abatement of asbestos in schools. The EPA's regulations require all public and private school systems to inspect facilities for asbestos and develop plans for containing and, in rare instances, removing it. The agency also provides guidelines and technical assistance to help school districts.
Bankruptcy Reform Act of 1994

The U.S. Bankruptcy Code was amended in 1994 to allow companies with significant asbestos liabilities to seek bankruptcy protection for future claims. Sometimes called the "Manville Amendments," the provisions provided an option for manufacturers like the Johns Manville Corporation, which had been sued many times and faced more liabilities in the future. These companies filed for reorganization to protect their assets. Modeled after the Manville Trust, the 1994 amendments established a way for the companies to settle future claims through the creation of special bankruptcy trusts.
Fairness in Asbestos Injury Resolution Act of 2006 (the "FAIR Act")
The FAIR Act represents Congress's most comprehensive effort to address the issue of compensation for claimants. Federal lawmakers have introduced multiple versions of the bill in both the House and the Senate during the past decade.

The most recent version was introduced in 2006 and would have done the following:
- Establish an office within the Department of Labor to handle asbestos injury claim
- Provide fair compensation to eligible claimants in a non-adversarial manner
- Determine compensation amounts based on the severity of the claimant's disease
- Bring most pending claims in state and federal courts to a standstill
The FAIR Act never became law.
Ban Asbestos in America Act of 2007
Like the FAIR Act, multiple versions of the Ban Asbestos in America Act were introduced in Congress during the past decade. The most recent version, introduced in 2007, never became law.

The bill would have done the following:
- Revise the TSCA to include additional materials in that law's definition of asbestos
- Direct a number of federal entities, including OSHA and EPA, to conduct various scientific studies about the relationships between certain asbestos materials and diseases
- Require the EPA to report to Congress on various recommendations for protecting human health from asbestos exposure
- Authorize the EPA to issue more regulations banning the importing, manufacture, processing, or distribution of asbestos products
- Appropriate money for research of asbestos-related diseases

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Asbestos Liability

Although it usually takes a long time to discover injuries from asbestos exposure, thousands of people are diagnosed with asbestos-related diseases each year. But asbestos injuries and their related costs are 100-percent preventable. For this reason, it is often possible to hold those who have exposed people to asbestos risks liable for the harm they have caused.

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Most cases of asbestos exposure stem from occupational exposure - coming into contact with the toxic mineral while working. Asbestos liability means that a company is legally responsible for injuries resulting from asbestos exposure. And once diagnosed, the physical, emotional and financial costs of these illnesses add up quickly. If a court finds a company liable for injuries caused by asbestos exposure, the company usually must pay monetary damages.

Experienced mesothelioma attorneys can help you determine who is liable for your injuries and understand how liability is determined. They can also help you file a claim against the companies liable for your injuries.

To understand the context of asbestos liability, fill out the form on the right side of this page to receive a free copy of the Mesothelioma Center's comprehensive informational packet.

How Is Asbestos Liability Determined?

Asbestos claims make up a special area of the law. Asbestos lawsuits are often called "mass torts" because asbestos exposure causes injury to many people. The actions of a single defendant can harm one person, dozens or even thousands of people. For instance, several people can be exposed to asbestos near a mine, in a plant, on a Navy ship, or after using an asbestos containing product like insulation.
Injured people can file claims individually or as part of a group. Courts sometimes join multiple lawsuits with similar claims (e.g., against a common defendant) for easier case processing.
Sometimes large groups of people with similar claims come together to file a class action lawsuit. This type of lawsuits can be an efficient way to settle large numbers of claims in a single lawsuit. But they require court approval to ensure that each claimant is fairly represented.
Whether plaintiffs file their claims individually or as part of a group, theirs jobs are still the same: They must convince a jury that the defendant is liable for their injuries. Each state has its own liability laws, but asbestos claims are usually based one of three legal theories, negligence, strict liability and/or breach of warrant.

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Negligence

To win a claim for negligence, a plaintiff must prove that (1) the defendant had a legal duty to the plaintiff; (2) the defendant's conduct violated that duty; (3) the defendant's negligence caused the plaintiff's injury; and (4) the injury resulted in damage to the plaintiff.
Causation is often the most challenging of the four negligence elements to prove. The burden is on the plaintiff to prove their exposure to an asbestos product was a substantial factor in causing their disease. Proof of medical probability often presented in court includes frequency of exposure, duration of exposure and proximity to the product.
Strict Liability

It is sometimes difficult to prove a defendant was negligent. However, in some instances a plaintiff can instead rely on a theory of strict liability. Strict liability and negligence claims require similar proof. With strict liability, the plaintiff must prove the four elements of negligence, but it differs in two ways.
Under strict liability, the plaintiff does not need to prove that the defendant acted negligently in order to recover damages. The fact that the material was inherently dangerous is enough to establish that the defendant breached its duty. Additionally, legal duty to a plaintiff exists if the defendant is not just a casual seller, but a commercial supplier that manufacturers or retails the asbestos product.
Breach of Warranty

If a supplier makes a false claim about a product that causes someone to buy or use it, the supplier may be liable if the person who relied on the claim is injured. Similarly, if a product is sold with an implied guarantee that it is fit and safe for its intended purpose, the seller may also be liable for injuries that result from its use.
There are two types of warranties: implied and express. Implied warranties essentially ensure a product is safe for its intended purpose. For example, asbestos product manufacturers are held liable for manufacturing products that were not safe and caused people to develop cancer, thus breaching an implied warranty of safety.
Liability for breach of an express warranty occurs when a maker or seller of an asbestos product made a claim that caused someone to buy or use the product, and that claim turned out to be false. For example, if an asbestos manufacturer or seller claims that an asbestos product is safe, but it turns out to be harmful, the manufacturer or seller may be liable to someone who relied on the claim and was injured.

Who is Liable for Asbestos Exposure?
Determining who is liable for asbestos exposure can be complicated. More than one company may be responsible for a single person's asbestos-related injuries. Those companies may include mining companies, manufacturers of asbestos and related products, employers who use asbestos-containing products and owners of asbestos-contaminated properties.
Mining Companies

At least 35 states have naturally occurring asbestos sites. Asbestos was mined in many of those states during most of the twentieth century.
Airborne asbestos particles place miners and others who live and work near the mines at high risk for developing asbestos-related diseases. Although the last U.S. asbestos mine closed in 2002, new cases of diseases caused by exposure at these mines will be diagnosed for years to come.
Asbestos mining companies that fail to take proper safety precautions and warn workers and the public about asbestos risks may be held liable for any resulting injuries. For instance, many miners and residents were exposed to asbestos from W.R. Grace & Co.'s mine near Libby, Montana. They sued W.R. Grace for their injuries. The company faced such huge asbestos liabilities that it filed for bankruptcy protection.
After the bankruptcy filing, many residents also sued the state of Montana. They claimed that although the state officials knew about safety violations at the mine, officials failed to adequately warn the public. In January 2012, a Montana court approved a $43 million settlement of the case.
Asbestos Manufacturers

Asbestos is widely used as a construction and industrial material. Although they knew about the health hazards, asbestos manufacturers failed to adequately warn the public before lawsuits were filed. During the 1970s, U.S. courts found that these asbestos manufacturers had a duty to properly warn about asbestos dangers. In 1973, the first victory was handed down in case filed against 11 asbestos manufacturers.
The U.S. government also issued warnings and regulations about asbestos during the 1970s. Despite the warnings, asbestos has not been completely banned in the U.S. Although many major asbestos manufacturers have filed for bankruptcy protection, asbestos is still manufactured in the U.S. for use in many products. The companies that continue to manufacture asbestos are under a duty to properly warn about the material's dangers. If they don't, they face substantial liabilities.
Manufacturers of Asbestos-Containing Products

The duty to warn about asbestos risks does not necessarily end with asbestos manufacturers. Companies use asbestos to manufacture other products may also be subject to asbestos liability. Thousands of products like boilers, brakes, engines, electronics and even household goods often contain asbestos. Failure to provide proper warnings about the asbestos risks can cause harm and lead to asbestos liability.
However, state laws differ on the extent to which so-called third party manufacturers are liable for asbestos injuries. Plaintiffs may find it easier to prove their cases if the manufacturer required the use of asbestos in the design of its product. In cases where asbestos is not required, whether or not the defendant foresees the use of asbestos may become an issue. A qualified mesothelioma attorney can advise on the applicable law and the facts of your specific case.
Employers

Employers are also potentially liable for asbestos-related injuries. Asbestos mine workers are not the only workers at high risk for asbestos exposure. Other occupations with substantial risks include painters, machinists, electricians and refinery workers. Employers are under a duty to provide safe work conditions, warn their employees about asbestos dangers and provide proper safety training. Otherwise, employers may also face liability.
People are exposed to asbestos on the job due to the type of work they do (e.g., grinding asbestos-lined brakes) or asbestos in their workplace expect (e.g., schools, bakeries or courthouses). In all cases, the law recognizes a duty to keep employees safe. Even local governments may face lawsuits by employees for failing to properly oversee asbestos removal or containment in municipal buildings.
Unfortunately, the threat of liability does not always persuade some employers to take proper safety measures. In recent years, a number of asbestos abatement workers have developed serious illnesses because their employers cut corners. These employers are sometimes subject to lawsuits and jail time.
Owners of Asbestos-Contaminated Properties

A company does not necessarily have to be an employer to be responsible for your asbestos-related injuries. For instance, a contractor who is injured from asbestos exposure at an off-site location may have a legal claim against the property owner. Municipal buildings, like courthouses and schools, often contain asbestos which can harm non-employees.
The extent of liability differs by state, by property owners are generally expected to keep their premises safe and protect the public from asbestos dangers. This includes using properly certified asbestos abatement companies when necessary.
There is usually more than one defendant in an asbestos lawsuit. Any number of these defendants may be found liable. Each state has different laws on how to divide responsibility among multiple defendants. A mesothelioma attorney can only identify the defendants, but also gather evidence and present the case against each defendant.

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How Asbestos Liability is Compensated

A variety of options exist for compensation. Lawsuit verdicts and settlements generally provide the best opportunity to significant compensation. Money may be paid for asbestos-related damages including lost wages, medical expenses and related expenses such as travel treatments. Compensation for pain and suffering is sometimes available as well. Families who have lost loved ones to asbestos-related illnesses may be able to file wrongful death claims for their losses and expenses such as funeral costs.
But first, a plaintiff must usually prove to a court that the defendant is liable or persuade the defendant to settle because there is a good case for liability. That is why it's a good idea to consult an experienced mesothelioma attorney about your case.
Proving liability for diseases with long latency periods like mesothelioma is more challenging than other work-related injuries. The long latency period between initial exposure to asbestos and the development of mesothelioma can take 30 to 50 years or more. Coming up with proof of exposure that happened several decades ago is more difficult than proving work-related injuries that happened recently.
Sometimes it is not possible to file a lawsuit even though a company is liable. Several major asbestos manufacturers and other asbestos defendants have filed for bankruptcy protection. Asbestos bankruptcy trusts, also called asbestos compensation trusts, have been created to handle their asbestos liabilities.
Although this type of bankruptcy protection stops future lawsuits, it may be possible to file a claim for compensation with the asbestos trust. A qualified mesothelioma attorney can also help you determine if a trust claim is an option and how a claim might affect lawsuits against other liable companies.
In addition to receiving compensation from asbestos lawsuits and trust funds, compensation is available to veterans through the VA benefits system.

Future of Asbestos Liability

Asbestos liabilities are high and will continue for many decades. There is a concern that companies will run out of money to compensate all of their asbestos liabilities. Some states have adopted measures that attempt to limit or postpone compensation for all but the most seriously ill. As of 2011, asbestos trusts only have assets of $36.8 billion. This is not expected to be enough to compensate all asbestos injuries in future years. Although legislation was proposed a few years ago address this issue, Congress did not come to agreement. In the meantime, lawsuits continue to present the greatest opportunity for compensation for asbestos-related injuries.
No one can undo the permanent damage caused by asbestos-related injuries. However, if you have been injured by asbestos exposure, money may be available to compensate some of your expenses and other losses.

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Tim Povtak

Legal FAQs About Mesothelioma Lawsuits

In addition to the many medical questions you have about the disease of mesothelioma cancer, there are a number of legal questions that can surface about the disease. Who is responsible for me getting this? What can I do about it legally? How do I find an attorney who knows about mesothelioma and other asbestos-related diseases?

All of these are good questions to ask. Here are answers to those questions and also answers to other questions you may have.

Do I need a lawyer and what should I look for?
I can't remember where I was exposed to asbestos. Can I sue?
I was exposed to asbestos in the military. Will you sue the military?
Can I sue for compensation if I have mesothelioma?
What factors determine the compensation in mesothelioma cases?
Where should I file my lawsuit?
If I file my lawsuit out of state, will I have to travel?
Is there a deadline for filing a mesothelioma lawsuit?
How long will my case last?
Will my case go to trial, or will it settle out of court?
What if I die before my case is resolved?
I’ve heard that some asbestos lawsuits result in multi-million dollar awards. Will I also get a large award?
Can I get disability or workers compensation benefits?
Can I still sue if I file another type of claim?
Is hiring a mesothelioma lawyer expensive?

Do I need a lawyer and what should I look for?

Yes, it is a good idea to hire a mesothelioma lawyer who is experienced with these types of cases. Mesothelioma lawyers are experts in asbestos exposure and the related diseases. Their teams of investigators can track down the cause of your exposure and find the companies that are responsible.

Before you hire an attorney, it is important to find someone with whom you feel comfortable. Many mesothelioma attorneys offer free initial consultations so that you can find the lawyer who is best for you. If you need help Asbestos.com can assist you in finding an attorney..

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I can't remember where I was exposed to asbestos. Can I sue?

Yes. If you are not sure who is responsible for your asbestos exposure, you can still sue. Your mesothelioma lawyer will investigate where you were exposed to asbestos and which companies are responsible for your illness. If more than one company is at fault, each is usually assigned a percentage of the damages. You attorney will gather all of the information needed to file your lawsuit.

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I was exposed to asbestos in the military. Will you sue the military?

No. Lawsuits are usually filed against the companies that produced the asbestos materials that caused your illness, not the government or military.

Whether or not you file a lawsuit, you may also be eligible for assistance through the Department of Veterans Affairs. Contact our Veterans Assistance Department for help obtaining veterans benefits.

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Can I sue for compensation if I have mesothelioma?

You may be able to sue for compensation. Whether you can file a lawsuit depends on many factors, including how and where you were exposed, who was responsible for your exposure and when you were diagnosed with mesothelioma. You should talk to a mesothelioma lawyer about your case as soon as possible. For more information, also see Your Legal Rights.

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What factors determine the compensation in mesothelioma cases?

Mesothelioma lawsuits are filed to receive compensation for expenses and losses related to the illness. As a result, medical expenses, lost wages from inability to work, pain and suffering will impact the amount of any compensation you receive. Other factors such as state law and the defendant’s financial condition also affect how much compensation you can ultimately receive.

Each case is different and there is no guarantee you will receive compensation. You should speak with a mesothelioma attorney about the value your case, but beware of any promises to win a specific amount.

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Where should I file my lawsuit?

You may be able to file your case in more than one state. The court you choose can impact the outcome of your case. Your mesothelioma attorney will gather information about your claim and help you decide where to file your case. Please see Case Filing for more information.

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If I file my lawsuit out of state, will I have to travel?

No, you will not have to travel. Your mesothelioma lawyer will come to you to perform an interview, record your deposition, and will go to court on your behalf.

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Is there a deadline for filing a mesothelioma lawsuit?

Yes. Each state limits how long you have to file a mesothelioma lawsuit. What’s more, a patient’s life expectancy plays a role in how an attorney will want to attack the case. A lawyer can explain the statute of limitations. It is wise to speak with a mesothelioma lawyer as soon as possible after you are diagnosed to avoid missing the deadline. Visit Case Filing for more information.

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How long will my case last?

There is no set timeframe for asbestos cases. The duration depends on many factors including whether you are able to reach a fair settlement during the case process. Your attorney may be able to expedite your case if you are at an advanced stage of cancer.

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Will my case go to trial, or will it settle out of court?

Many cases never go to trial because the companies settle before trial. Each case is unique and there is always the chance that your case may go to trial. Sometimes the parties reach a settlement after the trial starts. Your mesothelioma attorney will advise you throughout the case process. Please see Trial and Settlements for more information.

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What if I die before my case is resolved?

If you die while your lawsuit is pending, your estate will act in your place and divide any award among your survivors. Your loved ones may also be able to file a wrongful death suit. See Legal Options and consult a mesothelioma attorney for more information.

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I’ve heard that some asbestos lawsuits result in multi-million dollar awards. Will I also get a large award?

It is true that some asbestos lawsuits have resulted in awards or settlements worth several million dollars. Not every case results in a huge verdict or settlement. Whether you receive compensation and the amount will depend on the circumstances of your case. Visit Settlements and speak with a mesothelioma lawyer for additional information.

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Can I get disability or workers compensation benefits?

If you are diagnosed with mesothelioma, you can apply for expedited Social Security disability benefits. Contact our Patient Advocates for free assistance.

You may also be eligible for workers compensation benefits. Each state’s laws vary and your state workers compensation board can provide more information. A mesothelioma attorney can also help you consider your options.

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Can I still sue if I file another type of claim?

Yes. If you file for disability, workers compensation or veteran’s benefits, you may also be able to sue the manufacturer of the asbestos product responsible for your illness. Contact a mesothelioma lawyer for assistance.

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Is hiring a mesothelioma lawyer expensive?

Mesothelioma lawyers generally work on a contingency fee basis. This means they only receive compensation if and when you do. You do not pay out-of-pocket expenses during the litigation. If you win or receive a settlement, the attorney receives a percentage of your compensation. The contingency fee is determined when you hire your attorney.

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Class Action Lawsuit

Class action lawsuits are filed by a single or multiple claimants representing a much larger group of people alleging the same complaint. Mesothelioma patients and their loved ones rarely file these. Instead, they hire an individual attorney to focus solely on their case.

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Class action lawsuits involving mesothelioma and asbestos began surfacing in the late 1960s after the public became aware of the serious health hazards associated with asbestos exposure. Since, judges have resorted to a number of procedural methods to manage asbestos claims that now number in the millions. In the American judicial system, class action lawsuits long have been a way to resolve disagreements involving similar claimants with similar injuries and defendants. Compared to other mass torts, however, class actions have not been widely used in asbestos cases.

A class action lawsuit is a claim in which a group of people collectively bring a complaint to court. These types of lawsuits are filed against a defendant by one or more plaintiffs on behalf of a group of "similarly situated" people. State and federal courts have their own procedural rules governing class actions. Generally, in order to maintain a class action lawsuit, the group must share similar injuries caused by shared circumstances that raise the same legal issues. If the court determines that there are sufficient similarities and that separate lawsuits would be impractical or burdensome, it will certify the group as a class and allow them to litigate their case collectively.

Mesothelioma class actions typically are filed against companies that knew the dangers of asbestos exposure but did not inform employees of the risks. Manufacturers and distributors of asbestos-containing products, mining and construction companies and shipbuilders are often named as defendants in these types of class actions.

History of Mesothelioma and Asbestos Class Actions

About 20 years after the first mesothelioma and asbestos class action lawsuits were filed, the number of cases grew to about 20,000. As awareness about asbestos related diseases increased and doctors diagnosed more people with mesothelioma cancer, the number of claims escalated to about 750,000 in another 20 years. Judges were aware of the overwhelming number of claims and the difficulty of managing so many. In 1991, federal asbestos cases were consolidated in the U.S. District Court for the Eastern District of Pennsylvania for pre-trial purposes. Multi-district asbestos litigation continues to be heard in this court, and is known as MDL 875.

U.S. District Court for the Eastern District of Pennsylvania

Georgine v. Amchem Inc.

Shortly after the cases were transferred to the MDL, many expected that the presiding judge would facilitate a global settlement between the major asbestos defendants and plaintiffs' attorneys. When this effort failed, a group asbestos manufacturers, who had formed the Center for Claims Resolution (CCR), and major plaintiff's firms attempted to negotiate a settlement agreement. Not intending to go to trial, the parties filed a complaint, an answer, a joint motion to certify a class and a proposed settlement agreement for a case entitled Georgine v. Amchem Prods., Inc.

Under the proposed Amchem case, the parties would seek to create a class solely for settlement purposes. Claims of unimpaired plaintiffs would be deferred and a payment matrix would be applied to other claims, including future asbestos claims. The U.S. Supreme Court eventually ruled against class certification, holding that it was inappropriate because the class of claimants was too large and had too many varied interests. In addition, common questions of law and fact did not predominate within the proposed class.

U.S. Supreme Court

Ortiz v. Fibreboard Corp.

Since Amchem, federal courts have not favored asbestos class actions. In Ortiz v. Fibreboard Corp., 527 U.S. 815 (1999), the Supreme Court again ruled against certifying an asbestos class action. Although state courts have generally been more willing to certify class actions than federal courts, asbestos class actions are not as common as class actions for other types of torts.

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Deciding Whether to Participate in a Class Action

If you are asked to join an asbestos class action, remember that you can choose to join the class or "opt out" so that you can pursue your own lawsuit. You should consider hiring a attorney specialized in mesothelioma cases to advise you on your individual circumstances and legal options.

Out-of-Court Settlements

An out-of-court settlement is likely when a large group of claimants is involved. Any settlement is divided among several, potentially thousands, of claimants. This possibility may be attractive to patients who wish to avoid a trial. It is, however, difficult to get several plaintiffs and defendants to reach agreement on legal issues. If the parties do manage to reach agreement on a class action settlement, the court must still approve the settlement terms.

Difficulties with Large Plaintiff Numbers

Class action members generally have less control over their cases than claimants who file separate lawsuits. Lawyers who handle class actions represent the interests of a large number of plaintiffs. Attorneys for individual lawsuits, however, can focus more closely on their client's individual issues. Many asbestos claimants prefer to have more control over their cases and opt not to join class actions.

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