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Product Liability in Asbestos Cases

finger right.jpgfinger left.jpgThere are two major types of asbestos lawsuits filed: Premises liability asbestos lawsuits, and products liability asbestos lawsuits.

A products liability asbestos lawsuit is filed against a person or company who made the product that exposed a person to asbestos. For example, if a plaintiff in a mesothelioma lawsuit was a bricklayer for a construction company and often worked with a cement that was made with asbestos in it, the case against the manufacturer of the asbestos containing cement would be a products liability case.

In civil court lawsuits for damages, legal responsibility for injuries caused by asbestos exposure is sometimes determined under the law of product liability. A product liability case arises when someone uses, or is exposed to, a dangerous product that injures them. Liability is usually based on one of three theories:

  • breach of warranty
  • negligence
  • strict liability

Breach of Warranty: There are two types of warranties: 1) implied warranties; and 2) express warranties. In an asbestos exposure case, you might be able to recover for a breach of an implied warranty under your state’s implied warranty statutes, which are usually found in a state’s commercial code. Implied warranties accompany the sale and use of many types of products, including those containing asbestos. To all intents and purposes, implied warranties present that a product will be safe and fit for its premeditated purpose. Liability for a breach of express warranty may exist if the supplier or seller of a product containing asbestos made a claim about the product that ultimately caused someone to buy or use the product, and that claim later turned out to be false. For example, if a supplier claims that using a particular asbestos product is safe, but the product is in fact unreasonably dangerous, the supplier may be liable to a person who relied on the supplier’s statements and was injured by the product.

Negligence: This means that the defendant knew of the physical hazards involved in working with the substance, yet failed to issue adequate warnings to or provide suitable protection for those workers expected to handle the material in the course of their assigned tasks. In order to prove negligence, the plaintiff must demonstrate that there was a legal standard required and that the defendant owed a duty of protection to the defendant. Fortunately, in cases where a supplier’s negligent conduct may be difficult to prove, courts have developed an alternative theory of liability to allow plaintiffs to recover. That alternative theory is called strict product liability.

Strict Liability: Like negligence, the strict product liability theory requires the plaintiff to prove four elements: (1) a strict duty to supply a safe product; (2) a breach of that duty; (3) causation; and, (4) damages. However, strict liability differs from negligence in two key ways. First, under a strict liability theory, the existence of a duty is shown when there is a commercial supplier that manufactures or retails the product — not just a casual seller. Second, under a strict liability theory, the plaintiff does not need to show that the breach of duty is the result of any negligent action. The mere fact that the product was dangerous or defective is enough to establish a breach of the supplier’s duty. Of the four elements in negligence and strict product liability asbestos cases, causation can often be the most difficult to prove.

Causation or proof of fault in a mesothelioma lawsuit requires that the plaintiff prove that exposure to asbestos caused his or her illness and that the defendant both was aware, or should have been aware, of the existence of an asbestos-related hazard and failed to implement protective measures. The plaintiff must first establish some threshold exposure to the defendant’s defective asbestos-containing products, and must further establish in reasonable medical probability that a particular exposure or series of exposures was a ‘legal cause’ of his injury. One major issue in asbestos litigation is exposure to the defendant’s product. The plaintiff bears the burden of proof on this issue. If there has been no significant exposure, there is no causation. Plaintiffs may prove causation in an asbestos case by demonstrating that the plaintiff’s or decedent’s exposure to defendant’s asbestos-containing product in reasonable medical probability was a substantial factor in contributing to the aggregate dose of asbestos the plaintiff or decedent inhaled or ingested, and hence to the risk of developing asbestos-related cancer. In most lawsuits, defense attorneys will attempt to present scientific reports and studies to try to dispute that asbestos can cause the injury alleged. The latency period for an asbestos-related disease is anywhere from ten (10) to fifty (50) years. This results in a substantial amount of time between exposure to asbestos and the appearance of an injury. Defendants may use that passage of time to argue the injury was caused by exposure to another toxic substance, or a product manufactured by someone else. Therefore, in order to prove causation, the plaintiff must show that the asbestos-containing product can cause the injury claimed, that the plaintiff was exposed to the asbestos in a quantity large enough to cause the injury claimed, and that the plaintiff was not exposed to some other toxic substance or product that could have caused the injury. Additionally, the plaintiff is forced to remember details of work history and exposure from as much as fifty (50) years ago.

For every state the specific criterion governing medical requirements, proof of exposure and duration of exposure and the determination of liability or culpability vary. And they are made yet even more complicated by personal interpretation and more complex issues such as secondary exposure, successor liability, industry wide liability, and so on… However, with the increasing number of manufacturers claiming bankruptcy and filing for protection under Chapter 11, The guidelines or requirements for filing asbestos claims are determined by a board of trustees within the bankruptcy courts and neatly defined in a document called the Trust Distribution Procedures (TDP).

medical reference books.jpgREFERENCES:
(1) Dumin v. Owens-Corning Fiberglass (1994) 28 Cal App 4th 650;
(2) Riverview Fire Protection District v. Workers Compensation Appeals Board (1994) 22 Cal App 4th 1120;
(3) Lineaweaver v. Plant Insulation Co. (1995) 31 Cal App 4th 1409;
(4) Rutherford v. Owens-Illinois, Inc. (1997) 16 Cal. 4th 953;
(5) McGonnell v. Kaiser Gyp. Co., Inc. (2002) 98 Cal App 4th 1098;
(6) Andrews v. Foster Wheeler LLC (2006) 138 Cal. App. 4th 96; and
(7) Weber vs. John Crane, Inc. (2006) 143 Cal App 4th 1433.
(8) Rutherford v. Owens-Illinois, Inc. (1997), 16 Cal.4th 953