In the six months since the state Supreme Court came out with a decision allowing common-law actions for mesothelioma and occupational disease suits, litigation has been picking up.
Several attorneys from across the state told the Law Weekly that plaintiffs with mesothelioma have started suing their former employers. The new actions have been a direct result of the state Supreme Court’s November 2013 decision in Tooey v. AK Steel, which ruled that the Workers’ Compensation Act does not cover occupational diseases, such as mesothelioma, that manifest more than 300 weeks after employment ends. The decision freed potential plaintiffs to seek compensation from their former employers through common-law actions.
“We have seen an uptick in employer liability cases that have been filed,” said Cathy Gordon of Litchfield Cavo in Pittsburgh. “It’s been a steady stream. I wouldn’t say the flood gates will open, but it’s been a steady stream … at least in Western Pennsylvania.”
The uptick in filings has included cases in which plaintiffs join their former employers in ongoing litigation, as well as new actions in which the plaintiffs are suing employers directly, attorneys agreed.
One Philadelphia-based defense attorney, who works with employers, said the number of amended complaints has not been as high as originally thought, but, in terms of new filings, every case now includes the employer.
According to plaintiffs attorney Benjamin Shein of the Shein Law Center, the ruling has allowed plaintiffs to seek recovery in cases where the manufacturer was unable to be identified and in cases where the manufacturer went bankrupt.
He said that, so far, he has amended complaints in several cases to add the employer as a defendant, and the courts have “universally” accepted the amendments and “routinely” denied the preliminary objections seeking to dismiss the employers.
Shein added that he has also started accepting cases even when the manufacturers are in bankruptcy, something he said he would not have been able to do a year ago.
“It strengthens cases already on the docket and gives a remedy to claimants that wouldn’t have had a remedy in the past,” Shein said. “It will increase the ability for asbestos victims and lawyers to bring additional cases.”
Defense attorney Peter J. Neeson of Rawle & Henderson said both plaintiffs and manufacturing defendants have been seeking to have employers added to cases.
“If you have a guy who worked in a plant for 20 to 25 years, an employer is going to be a major player when providing a workplace that’s safe,” Neeson said. “From a scientific, warning and exposure standpoint, if the employer is in the best situation to do something about working conditions, why wouldn’t the employer be in there answering the kind of accusations that come up in these cases?”
While Tooey will increase the number of defendants involved in mesothelioma cases, it may not greatly increase the total number of cases, attorneys said, as there is only a limited number of people diagnosed with the disease each year and asbestos was largely phased out of large-scale industrial use in the 1970s and 1980s.
Neeson said he expected to see cases with employers as defendants start hitting the trial phase within the next 12 to 24 months.
“We’re starting to see an uptick in the joinders of the plaintiffs’ employers in the cases,” Neeson said. “Tooey opened the door.”
In November 2013, a divided Supreme Court ruled in Tooey that barring cases with late-manifesting occupational diseases would undermine the intent of the workers’ compensation statute. Justice Debra M. Todd, who wrote the majority’s 21-page opinion, noted that the latency period for mesothelioma is between 30 and 50 years, and the 300-week window in the workers’ compensation law would then act as a “de facto exclusion” for all work-related mesothelioma claims.
Quoting from the Supreme Court’s 1992 decision in Alston v. St. Paul Insurance, Todd added that the provision “‘reflects the historical quid pro quo’” relationship, where an employer assumes no-fault liability for work-related injuries without the possibility of facing a larger common-law verdict, and an employee receives fast compensation but forgoes some elements of damages.
Some attorneys who spoke with the Law Weekly noted that actions against the employers could lead to insurance complications for employers, as many employers do not have policies that cover damages outside the workers’ compensation provisions.
However, most attorneys agreed that while the inclusion of more defendants will not necessarily mean larger settlement amounts, it could increase the number of cases that end in settlement.
“If you have an employer who has money to contribute to a settlement, then you have an additional piece of pie that is put into the mix in order to resolve the case,” Neeson said. “When you have more people available to resolve it, generally speaking, it makes it easier to resolve the case.”
Sharon L. Caffrey of Duane Morris said having an employer joined in a mesothelioma case could also result in longer litigation due to the negligence elements that employers would face. Typically only strict liability claims, which can take less time to litigate, are lodged against manufacturers, Caffrey said.
With strict liability, “it’s a lot quicker. There’s no evidence about who knew or should have known,” Caffrey said. With negligence, “it takes a couple of extra witnesses. … It could get into OSHA issues. It’s going to be interesting to see how plaintiffs want to handle those cases.”
All the attorneys who spoke with the Law Weekly agreed that it may be too early to tell exactly how adding employer defendants will impact mesothelioma and occupational disease cases.
“These cases take a couple of years to get to a jury. What we have here is the beginning stages of the employers being found, determined whether they’re viable and then being joined in the litigation. We’re just in the first stage of the sea change,” Neeson said. “It’s slow. With a sea change like this, it’s like turning the Titanic, but it’s turning.”