State courts and appellate courts tend to come down on the side of manufacturers v. mesothelioma sufferers, and legal experts suspect this is partly due to the number of mesothelioma/asbestos ?toxic? tort cases that have, in many instances over the past few decades, succeeded in bankrupting businesses.
For example, in 2009, the New York Worker?s Compensation Board reversed a lower court ruling that would have awarded John Ciafone, a machinist, for what he and his lawyer argued was malignant pleural mesothelioma acquired as a result of his employment with Consolidated Edison, or Con Ed, New York State?s primary electricity, natural gas and steam heat supplier.
Mesothelioma
Malignant pleural mesothelioma, or MPM, results from exposure to asbestos and arises in the lining around the lungs. That is its only cause, and because it is rarely diagnosed in the early stages, and often diagnosed only much later as a peripheral result of other medical exams and scans (to detect other diseases), doctors, lawyers and victims are often uncertain at what point during the last 30 years or so the victim acquired the illness.
Other forms of asbestos-related disease include peritoneal mesothelioma, in the lining around abdominal organs, and pericardial mesothelioma, in the protective sac around the heart. A very rare form of the disease is tunica vaginalis testis in males, and tunica serosa uteri in females, both occurring in the protective membranes around reproductive organs in less than one percent of mesothelioma cases.
Ciafone was convinced that his employment at Con Ed, which involved working with the asbestos-insulated steam pipes that heat customers? homes and businesses, was the source of his MPM. These pipes, which serve more than 100,000 commercial and residential locations in Manhattan, run beneath the streets and deliver an estimated 30 billion pounds of steam from six steam plants, two of them cogeneration processes, also known as combined heat and power, or CHP.
Precedent
Thanks to a blizzard of previous mesothelioma cases, notably against such powerhouse industries as Johns-Manville Products (in Johns-Manville Corp. v. Superior Court of Contra Costa County), plaintiff?s winnings ? like those of Reba Rudkin ? set a framework for judgments against the asbestos industry, by in Rudkin?s case only because subsequent evidence revealed that Johns-Manville had acted duplicitously in concealing the real dangers of asbestos from employee.
In their opinion, the court wrote: ?We conclude that while the workers? compensation law bars the employee?s action at law for his initial injury, a cause of action may exist for aggravation of the disease because of the employer?s fraudulent concealment of the condition and its cause.?
Verdict
Eventually the number of tort cases reached such a peak that Johns-Manville was forced into setting up a trust (the Manville Trust) to pay asbestos tort claimants who came out of the woodwork once Rudkin and several others won their cases. This resulted in Johns-Manville filing Chapter 11 in an effort to avoid further liability in its asbestos dealings, since immunity from all past and future claims is granted in exchange for the company putting its assets and insurance proceeds in a trust, as Johns-Manville did.
The total cost of all asbestos litigation in the United States is estimated at between $200 and $265 billion, in 2007 dollars, according to the American Academy of Actuaries? Mass Torts Subcommittee. This eventually led to the U.S. Supreme Court referring to asbestos tort litigation as an ?elephantine mass,? a reference that alludes to another known as ?the elephant in the room.?
And, while higher courts are generally averse to rulings which threaten American business (that is, capitalism), the ruling in the W.R. Grace trial ? which cleared every single executive of the company, including one who had died from wrongdoing ? seems much more than a travesty of justice.
A final asbestos case, which initially delivered a $24.2-million settlement against Honeywell ? perhaps the largest award to a single individual in history, was later reversed on appeal. That court said that the Miami-Dade judge should have stopped incriminating portions of a letter written by an employee of Honeywell subsidiary Bendix from being presented to the jury. Another charge said jurors were not given the opportunity to apportion blame because Dr. Stephen Guilder had done the asbestos brake work as a teen, found employment throughout his medical training, and later became a surgeon. A third factor behind the dismissal was Guilder?s peripheral settlements with both General Motors and Deere &Co., also cited in the complaint.
Munley, Munley & Cartwright, P.C. is an accident and injury law firm located in Pennsylvania.?For more information, please visit us at www.munley.com.
Andrew Miller is an experienced Social Media expert and Author. He has worked in marketing for over a decade and finds his passion in bringing concepts to life for the world to enjoy. He is also an avid legal blogger and currently working on a book with his wife about social entrepreneurship. He is a true Socialpreneur and finds that his goal in life is to be an agent for positive social change through both his writing and business endeavors.
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Source: http://www.usblawg.com/employment-labor-law/mesotheliomaasbestos/
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