Asbestos Lawsuits: Laws and Legal Remedies For Workers Exposed to Asbestos

Asbestos is a material that was commonly used in thousands of construction and manufacturing products in the United States until the 1980s. Asbestos is a highly carcinogenic (cancer-causing) substance. Breathing asbestos can trigger lethal diseases. As a result, employers are generally required to protect workers from the health risks associated with asbestos exposure. Employees who are exposed to asbestos on the job can potentially sue their employers. In this article, you'll learn:

• why asbestos is a serious risk for construction workers, and
• what workers have to show to get compensation for asbestos exposure.

How Does Asbestos Affect Construction Workers?

Asbestos is a group of naturally occurring minerals that are resistant to heat and corrosion. Asbestos was commonly used in building materials like insulation, heating ducts, ceilings (especially "popcorn" ceilings), and flooring from the late 1800s through the 1980s. Asbestos is highly regulated now, but older homes and commercial buildings still contain asbestos materials. Construction workers have a high risk of work-related asbestos exposure during renovations, repairs, or demolitions.

Breathing asbestos fibers can cause mesothelioma, a cancer of the membrane that lines the inside of the body's cavities, like the abdomen or chest. Asbestos can also cause lung cancer and asbestosis, which is a chronic and potentially life-threatening lung disease.

Personal Injury Cases Resulting From Asbestos

Workers who are harmed by asbestos exposure while on the job can argue one or more of these legal theories of liability:

• Claims against employers and contractors: workers' compensation or negligence, and

• Claims against product manufacturers: product liability theory.

Let's take a closer look at how employers, contractors, and product manufacturers might be at fault for workers' asbestos-related injuries.

Workers' Compensation and Asbestos Exposure

In many states, including California, employees who are injured on the job have a right to compensation through the state's workers' compensation system, but they can't sue their employers in court.

Workers' compensation claims for asbestos exposure are limited to claims against a direct employer (typically the entity that signs a worker's paycheck). Manufacturers and contractors that expose workers to asbestos are not responsible under workers' compensation law. Workers can sue them in court (see below).

Learn more about workers' compensation and asbestos exposure.

Asbestos Claims Based on Negligence

To win an asbestos exposure personal injury lawsuit, workers ("plaintiffs") typically must prove employers or contractors ("defendants"):

• had a duty to protect workers from asbestos exposure
• violated (breached) that duty by acting or failing to act, and
• caused the workers' harm.

Plaintiffs must also prove that what the defendants did (or didn't do) actually caused the plaintiffs' harm, as well as the specific nature and extent of that harm (called personal injury damages).

Duty

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.

Employers can protect workers with air filters and respiration equipment. Employers might also be required to reduce potential exposure by limiting the amount of time that workers may spend in areas that could be contaminated by asbestos.

Breach of Duty

A breach of duty is any failure by employers to protect workers 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
• use ventilation systems to reduce asbestos concentrations in enclosed spaces
• provide workers with personal monitoring devices, and
• place time limits on worker exposure to infected air.

Causation

In most asbestos exposure cases, the most contentious issue in the lawsuit 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 with insulation for twenty years. The worker hires an expert witness (through the worker's attorney) who testifies that it's highly likely that the worker was exposed to dangerously high levels of asbestos during his career. But the defendant points out that the worker has smoked regularly throughout his career.

The jury is faced with the following question: did the asbestos exposure or the years of smoking cigarettes cause the worker's lung cancer? If the jury concludes that the asbestos exposure caused the worker's cancer, then the defendant could be liable for millions of dollars in damages. If the jury concludes that smoking cigarettes caused the worker's 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. Plaintiffs can only win if they can prove that the asbestos actually caused their injuries.

Damages

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

• medical expenses (past and future)
• lost wages and lost future income
• pain and suffering, and
• loss of normal life (the decreased quality of a person's life as a result of the injury).

Learn more about damages in asbestos lawsuits and how much an asbestos case might be worth.

Remember, in some states, workers' compensation is the "exclusive remedy" when workers are hurt by employers while on the job. But there are exceptions and defining who is and isn't a potentially liable employer can be tricky. For example, say you've worked as a janitor for 25 years. You go to work every day at Smith's Auto Plant, but you are employed by New Day Janitorial Services (NDJS), which has a contract with the Auto Plant to provide janitorial services. You can potentially recover workers' compensation benefits from NDJS, but you probably can't sue the company for asbestos exposure. You might be able to sue Smith's Auto Plant if the building where you work contains deteriorating asbestos.

Asbestos Claims Based on Product Liability

Workers might also be able to file lawsuits for asbestos exposure against the manufacturers of products that contain asbestos (based on product liability law), or even against the manufacturers of safety equipment that was supposed to protect workers from asbestos exposure, but didn't work as intended.

Many of the original manufacturers of asbestos products have established bankruptcy trusts for people who can prove exposure to their products. A lawyer can help you file an asbestos trust fund claim (see below).

Talk to an Asbestos Attorney

If you've developed an illness and you think it might be related to asbestos exposure, you should talk to a lawyer. Learn more about how to hire a mesothelioma or asbestos lawyer and how a lawyer prepares an asbestos injury case. You can also fill out the form at the top or bottom of this page to get connected with an asbestos attorney for free.