Workers Exposed to Asbestos: Laws and Legal Remedies

Workers harmed by asbestos exposure may be able to sue for damages based on negligence, or on a product liability theory.

Scientists have conclusively proven that asbestos is deadly. As a result, employers are generally required to protect workers from the health risks associated with asbestos exposure. Failure to do so is likely to result in a lawsuit and potentially massive liability. In the sections that follow, we discuss how asbestos affects construction workers and what a worker would have to prove to win a lawsuit for injuries caused by asbestos.

How Does Asbestos Affect Construction Workers?

Asbestos is a microscopic fiber that is most often found in insulation, floor tiles, and other building materials. Construction workers can be heavily exposed to the inhalation of asbestos during removal of asbestos materials due to renovations, repairs, or demolitions.

Breathing asbestos fibers can lead to several deadly maladies. It can cause mesothelioma, a fatal cancer of the membrane lining the cavity of the lung or stomach. It can also cause lung cancer, which is one of the deadliest types of cancer. Furthermore, it can cause asbestosis, which is a buildup of scar-like tissue in the lungs that can result in loss of lung function, disability, and even death.

Personal Injury Cases Resulting From Asbestos

Most personal injury lawsuits for harm caused by asbestos exposure are brought under a legal concept known as negligence, while others are based on a product liability theory.

Claims Based on Negligence

In order to prevail in a negligence case, a worker who has been injured through asbestos exposure must usually prove three elements: that the defendant had a duty to protect the worker from exposure to asbestos, that the defendant breached that duty, and that the breach caused harm to the worker.

Employers in most states have almost an absolute duty to prevent harm to workers caused by asbestos. OSHA regulations require employers to monitor air quality in any situation in which asbestos could reasonably be expected to be present. When asbestos levels become dangerous, workers must be protected.

There are a variety of ways to protect workers. Equipment is available to filter asbestos out of air. As an alternative, respiration equipment may be used to prevent exposure to contaminated air. Also, employers may be required to reduce potential exposure by limiting the amount of time that workers may spend in areas potentially contaminated by asbestos.

A breach is any failure by a construction company to protect a worker from exposure to asbestos. Some examples of possible breaches might include:

  • failing to monitor asbestos concentrations in the air when the presence of asbestos should have been expected
  • failing to use ventilation systems to reduce asbestos concentrations in enclosed spaces
  • failing to provide workers with personal monitoring devices, or
  • failing to place time limits on worker exposure to infected air.

In negligence cases, the most common types of damages include:

  • medical expenses
  • lost wages (for time missed from work due to the injury)
  • pain and suffering, and
  • loss of normal life (the decreased quality of a person’s life as a result of the injury).

In cases involving exposure to asbestos, the causation element is usually the most contentious issue in the lawsuit. The critical question is whether the exposure to asbestos actually caused the worker’s injuries.

Imagine a worker is diagnosed with lung cancer after working in enclosed spaces replacing insulation for twenty years. The worker hires an expert witness (through the worker’s attorney) who testifies that it is highly likely that the worker was exposed to dangerously high levels of asbestos during his career. But the worker’s employer points out that the worker has smoked regularly throughout his career.

The jury is faced with the following question: did the asbestos or the cigarettes cause the worker’s lung cancer? If the jury concludes that the asbestos caused the cancer, the employer could be liable for millions of dollars in damages. If the jury concludes that the smoking caused the cancer, the worker and his family will recover no compensation.

In this example, the jury would weigh the testimony of the expert witnesses on both sides and determine which expert’s testimony is more credible. The case could go either way. The point is that asbestos cases often hinge on the issue of causation. A worker can only win if he or she can prove that the asbestos actually caused the injuries. That can sometimes be very difficult.

Product Liability Claims

A personal injury case for asbestos exposure can also be brought against the manufacturers of products that contain asbestos (on the theory that the product was unreasonably dangerous), or even against the manufacturer of safety equipment that was designed to protect a worker from asbestos exposure, when the equipment did not work as intended.

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