ASBESTOS: WHAT TYPES OF CLAIMS ARE BROUGHT?

Injured persons began filing asbestos-related workers' compensation claims decades ago, even as early as the 1930's. By the mid 1960's asbestos became the subject of lawsuits against the manufacturers of the products. Today, injured persons often file civil lawsuits against manufacturers, designers and sellers of products as well as workers' compensation claims against employers. Many asbestos companies have filed for bankruptcy protection, so claims are often filed with those bankruptcy courts.

Most asbestos cases in this area are filed for individual injured persons, not as "class actions." A class action is a confusing term. Many people think that all asbestos cases are class actions. Not true. Many cases are filed in groups, i.e. 5-20 injured persons filing against similar companies. However, a strong case, meaning a case for a person seriously injured with good evidence of exposure to specific products, may be more valuable going it alone.

Typical civil lawsuits are filed in state or federal courts claiming that the defendant was negligent or that it designed or manufactured a defective product or failed to warn of the hazard of asbestos in the product.

Negligence is easy to understand. Like the car driver that fails to yield and causes a car crash, the manufacturer that used asbestos after becoming aware of the hazards of asbestos could be held to be negligent when that product causes an injury.

Strict liability can make product liability claims easier to win. In the 1960's consumer protection became accepted. The idea that the buyer should beware and accept unknown risks was replaced with the idea that a manufacturer has a duty to test its own products, discover and hopefully eliminate risks or at least disclose those risks to the consumer. Most people don't have a laboratory to test products before making a purchase. That seems silly, but before strict liability and consumer protection laws were passed that was the rule: buyer beware. Today, if a company seeks the benefits of selling a product to a mass market, then that company has to accept the responsibility for problems with the product. An injured person does not have to prove that the manufacturer was negligent, but simply that the product was defective and caused the injury. This theory encourages manufacturers and designers to make sure that their products are tested, that research goes into design and manufacturing, that the ingredients used are understood. Under strict liability a manufacturer can't just say, "I didn't know." The manufacturer is supposed to inquire, supposed to know, supposed to warn.

Often, an asbestos claim is brought by the family of a person who died of his injury. In Missouri and Kansas this is called a wrongful death lawsuit. The family of the victim brings the claim, usually making the same types of negligence and strict liability claims.

The manufacturers defend these claims in various ways. For example, they may challenge the injury: is the injury really caused by asbestos? They may claim that it was the injured person's fault: did the injured person smoke or use asbestos when he knew it could cause harm? They may claim that the injured person was not really exposed to asbestos from the manufacturer's product. They can claim that the lawsuit was filed too late, outside of the statute of limitations. Specific cases may have other defenses.

Bankruptcy claims pay far less money but can bring some financial compensation to victims. Like the civil claim, the injured person will need to prove that he/she was exposed to the bankrupt company's products and suffers or suffered an asbestos-related disease. There is no jury trial but, on rare occasion, may be an arbitration hearing.

Needless to say, bringing an asbestos claim can be tricky and time consuming. Successfully bringing the claim requires the assistance of an attorney, preferably one who has handled similar cases.

If you have a question please e-mail Steven Crick. Your question may be addressed in future column. Specific questions may require an appointment. For more information, go to www.hfmlegal.com.