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Nov
11

More on asbestos and workers’ comp

After reading last week’s post on asbestos and work comp, a good friend and colleague sent me the following.  As he is far more knowledgeable about this than I, his view is well worth consideration.

Interesting points you bring regarding the overlap in the asbestosis/mesothelioma latent injury litigation.
The individual states have always relied on the WC statutory time bars for reporting latent disease injuries.  The true reason why the plaintiff’s attorneys have historically chosen the general liability path to litigation is because the claim for conscious pain and suffering is excluded from workers’ compensation.  Also—the trigger theories for liability in GL permit the plaintiff to assert that he could not have known that he was injured until the long-gestating disease was “discovered.”  Hence, the trigger for coverage was extended until that point when the disease manifested, often some 30 to 40 years after actual exposure began.  Those characteristics and the chance to assert punitive damages were the catalysts for asbestos litigation in Federal courts; bigger damages and bigger awards.
That is also why some of the earliest asbestos-related work injury cases were filed in industries like rail, ship-building, steel and glass/insulation fiber industries.  Specifically with the rail employees—WC never applied.  Interstate commerce required FELA to be applied (the Jones Act and US Longshoremen & Harbor workers Act are built off the FELA model).  As a federal statute FELA permits conscious pain and suffering to be considered compensable.   Those claims are litigated under common law, hence a judge and—more specifically–a jury determine the facts of the case and render verdicts.  Juries determine if conscious pain and suffering were applicable in their jury verdict awards.  They also determine if punitive damages apply.  The verdicts can be gigantic.
The exhaustive litigation discovery over the course of the past 30 years of asbestos litigation demonstrated that manufacturers, distributors and users of the product (employers) in the “stream of commerce” knew of the dangerous characteristics of asbestos products—which always created a risk to them that punitive damage awards could be tacked on by jury trials.  That is principally why asbestos litigation defendants negotiate settlements rather than risk adverse jury verdicts.
One other note—of the two claims you cite—the defendant in the PA case is AK Steel—-which is a relatively “young” company.  Without doing any research, my guess that AK Steel is the successor to one of the old line Pittsburgh-based steelmakers.  In that case, the worker would have to demonstrate that his exposure while working for the steelmaker was latent and long-gestating.
Asbestos litigation has been troublesome for the insurance industry for more than 30 years now so the new rulings regarding WC create interesting discussions.

2 thoughts on “More on asbestos and workers’ comp”

  1. Joe,
    I agree with almost everything your correspondent says; but I wonder why they think that the Longshore Act was based on FELA. It was actually based on the NY compensation act.
    Could you hook me up with them to help me clarify this point. Thanks,

    1. I agree John. As you are well aware, there certainly is no compensation/awards for pain and suffering under USL&H. And the formal hearings are decided by an ALJ or a panel of judges at the appelate levels. The shipbuilders falling under USL&H jurisdiction have seen tens of thousands of asbestos claims. It was my experience that the unapproved settlements between the claimant/surviving widow and the asbestos manufacturer allowed the shipbuilder to escape any liability more often than not.

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Joe Paduda is the principal of Health Strategy Associates

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