Asbestos is characterized by a fibrous mineral which is applied as insulation and serves as a fire retardant in many products. Since it is tough and fibrous in nature, asbestos has the ability to create dust and when it is inhaled, it can accumulate in the lungs. The accumulated dust inside the body will develop into diseases which include asbestosis. Asbestosis is a condition where the lungs develop fibrous scarring. Mesothelioma is a malignant type of cancer which is found in the lining of the chest or abdominal cavities.
Because of the emergence of these types of health concerns, the US barred all new users of asbestos in July 1989. That same year, EPA launched Asbestos: Manufacture, Importation, Processing, and Distribution in Commerce Prohibitions. The impact of this book was to prohibit the use of at least 94% of the asbestos USA. The use of asbestos was still allowed before that date but the government has sternly regulated it. But with the government regulation, the asbestos-related cases were filed since 1960 and until today.
Determining Responsibility for Asbestos Exposure
While in civil court lawsuits for damages, the legal responsibility for the injuries due to exposure from asbestos is usually determined under the law of product liability. Liability is based on one of these theories:
- Breach of warranty
- Stern liability
Breach of Warranty
There are two kinds of warranties, namely implied warranty and express warranty. With asbestos exposure case, you may regain for a breach of an implied warranty under the state’s implied warranty regulations. These are normally found in state’s commercial code. This implied warranty complements the sale and use of different kinds of products, as well as the products with asbestos. Implied warranty then makes sure that the product is fit and sale for its intended use.
Liability for a breach of express warranty may happen when the supplier or seller of the product with asbestos claims that the product that made somebody purchase or uses it but later turned out to be false. As a sample, if a supplier insists that using a specific asbestos product is safe but the product is actually unsafe and detrimental, the supplier may be responsible to an individual who trusted on the supplier’s endorsement and was harmed by the product.
Liability which is based on negligence principle needs proof of four components, namely
- The defendant had a legal responsibility to give a safe product;
- The defendant violated that responsibility;
- The breach resulted in an injury; and
- The injury caused damages to the plaintiff.
Luckily, when a supplier’s negligence may be hard to prove, the courts made an alternative principle of liability to let plaintiffs recover. That alternative principle is known as strict product liability.
Similar to negligence, the strict product liability theory needs the plaintiff establish four elements:
- The stern duty to provide a safe product
- The breach of that responsibility
Strict liability varies from negligence in two main ways. First, under a strict liability theory, the presence of a duty is indicated when there is a commercial supplier that produces the product – not only an ordinary seller. Second, under a strict liability theory, the plaintiff does not have to demonstrate that the breach of duty is the result of any negligent act. The mere fact that the product is detrimental or defective is sufficient enough to create a breach of the supplier’s duty.
From the four elements of negligence and strict product liability asbestos lawsuits, causation is usually the hardest to prove. First, in many lawsuits, the defense attorneys will try to show official and scientific reports and studies to discuss that asbestos can cause the alleged harm. Secondly, there is normally enough time between the exposure to asbestos and emergence of the injury. The defendants may apply the passage of time to claim that the injury was due to the exposure of another poisonous and harmful substance, or a product made by another individual. Thus, to prove causation, the plaintiff must demonstrate that the product with asbestos can result to harm and injury that the plaintiff must illustrate that he/she was exposed to the asbestos enough to cause the injury and that the plaintiff was not subjected to other poisonous substance or product that have caused the injury.
Who is at Risk for Asbestos Exposure?
Many individuals question if they are, or have been subjected to the health risks due to asbestos. Health risks from asbestos dust are identified in the workers exposed in shipbuilding occupations, asbestos mining and milling, producing of asbestos materials and fabrics, and other products made with asbestos, insulation work in the construction, building jobs, brake repairs, and many other occupations. The demolition workers, drywall removers, and firefighters may be subjected to asbestos dust.
Individuals whose occupations made them in contact with asbestos, like workers who remodel buildings and other structures containing asbestos may inhale the fibers present in the air and this condition is called occupational exposure. The families of the workers may also inhale asbestos fibers emitted by the textiles that have been in contact with materials containing asbestos and this is known as para-occupational exposure. Those who live or work close to operations that use asbestos may also inhale asbestos fibers or dust that have been emitted in the air by the operation, and this is called as neighborhood exposure.
The amount of asbestos to which the individual is exposed will differ according to the factors:
- The concentration of fibers emitted in the air
- The duration of the exposure
- The individual’s breathing rate (with the theory that the workers who do manual jobs breathe quicker)
- Weather conditions and
- Any protective gears or devices the worker is wearing.
Investigators discovered that the workers who got the higher exposure and longer exposure period increase their health risks compared to those who have short exposures to asbestos. Workers who develop asbestos-related illnesses may show no signs for a long time of their exposure since it may take 10 to 40 years for the signs to show up. Because of this time-lapse issue, lawyers are usually asked if there is still time to acquire a claim for an injury or disease as a result of exposure to asbestos.
There May Still Be Time to Make a Claim
There are many people who have experienced injuries from toxic substances like asbestos who did not know about the health risks during the time of initial exposure. Because of this, there are some states that have made laws allowing people to file cases for a certain period after the date when their asbestos-related diseases were observed, instead of the date of the exposure. A lawyer has the ability to determine whether you still have time to file a case within the restricted time applicable in your state.
Compensation For Asbestos Exposure Injuries
There are many effects of poisonous exposure that are permanent and irreversible. Although the law aims to put the injured individual in the condition he was before the injury, this may not be possible anymore. Financial compensation equivalent to the injured person’s damage is provided. A plaintiff who can prove that he/she was subjected to asbestos may have the ability to regain for financial and non-financial consequences for that exposure which includes:
- Lost earning capacity
- Lost past and future compensation and benefits
- The cost of required rehabilitation
- Cost of past and future medical care
- Lost enjoyment of life
- Past and future pain and misery
- Emotional distress
There is another type of damages that plaintiffs suffered from exposure to asbestos who may recover from and this is called as “punitive” damages. Punitive damages are given not to reward the victim for his/her losses, but to punish the defendant’s mistakes. Although punitive damage compensation catches media attention, these are rare cases. How much is awarded from punitive damages claim is generally dependent on the assets of the defendant and the degree of the unjust act. There are certain states that require a part of punitive damages compensation to be paid to the state.
If you have some concerns or issues about some potential exposure to asbestos, or if you or someone you know experiencing from asbestosis or mesothelioma, or other certain medical condition related with exposure to asbestos, you may find a lawyer to discuss the matter or your case to protect your legal rights.