Asbestos was widely used from the 1940s to the 1980s, but surprisingly, it seems claims of asbestos exposure and the development of asbestos related disease are not slowing down anytime soon. Recently, the Wall Street Journal published an article examining a lawsuit filed in 2016 that alleges Penn State University negligently exposed a professor to asbestos dust while he was a teacher. Typically, employees exposed to the hazards of asbestos bring their asbestos exposure claims under workers’ compensation. The fear is that this lawsuit will create a new avenue for claimants to pursue claims alleging asbestos exposure.
The article goes on to provide a brief history of asbestos in our country. While asbestos was banned from most building materials in the 1980s, there are still plenty of older buildings where it had already been used in insulation, tiles and ceilings. The article focuses on Penn State, but the facts could likely apply to a number of facilities and older buildings across the country. In the 1970s, Penn State found asbestos in close to 100 buildings and had spent more than a half a million dollars in abatement by the mid 1980s. In a memorandum dated 1989, it was stated Pen State would no longer remove asbestos in order to save costs. In his claim, Plaintiff alleges the university was aware of the health risks of asbestos but chose not to continue aggressive abatement. He cites a 2006 document that states more than 500 university buildings still contain asbestos. It sounds like the Plaintiff will try to show Penn State was willfully negligent in removing asbestos in favor of cutting costs.
Many probably expect asbestos-related litigation to dry up at some point considering the health risks associated with asbestos have been well known for forty years, and asbestos has not been commonly used over that period. This Wall Street Journal article shows that we should not expect asbestos related litigation to go away anytime soon. Penn State University’s situation is probably representative of a number of facilities throughout the country. Statistics from the article reveal that the number of deaths related to mesothelioma have remained virtually unchanged over the past twenty years. This shows that people are still being exposed to asbestos, which means people are going to continue to seek compensation from employers where they think exposure could have occurred.
This Penn State claim could also serve as a warning for the types of claims employees may start bringing across the country. The Woodson case in North Carolina provides a high bar for claimants to clear in order to prevail in showing an injury was the result of employer negligence. However, as the years go on, it is very possible a claimant tries to argue the presence and hazards of asbestos were intentionally ignored in favor of cutting costs, to the point that employer negligence would satisfy the Woodson standard.
Practice Point
It is natural to take the position a claimant could not have been exposed to asbestos with an employer when they allege exposure in the 2000s, since we all know asbestos has not been used for decades. However, it is important to remember many of these older facilities may not have had all of the asbestos removed and a Plaintiff’s attorney will be all too happy to tell you it only takes one fiber. Despite what common sense might tell us, asbestos exposure could still be occurring well into the 2000s, which is important to keep in mind when defending claims and considering what other Defendants can be added to claims.
Maher, Kris. “Asbestos Warnings Grow with Penn State Lawsuit, National Push .” The Wall Street Journal, 17 Mar. 2020, www.wsj.com/articles/asbestos-warnings-grow-with-penn-state-lawsuit-national-push-11584437400
