PHILADELPHIA – Though a 2013 state Supreme Court decision might
have worried employers that they’d be dragged into asbestos lawsuits over Workers’
Compensation issues, asbestos attorneys say that it hasn’t happened too often.
In Tooey v. AK Steel
Corp., the court said the state’s Workers’ Compensation Act, which provided
the lone remedy for workplace injuries, could not be used to bar recovery
claims when symptoms of an employee’s asbestos-related disease did not manifest
until after the law’s 300-week exposure deadline.
Asbestos-related illnesses have a long latency period, often
not showing up until dozens of years after the initial exposure.
Robert F. Daley, of Robert Peirce & Associates in
Pittsburgh, joined the plaintiff’s side when the case reached the Supreme
Court. The case brought by the estate of John Tooey was consolidated with Spurgeon
“It provides another avenue of relief for mesothelioma
victims, in some instances, against defendants that are their former employers
who may have been negligent,” Daley said.
Though, Daley added the ramifications of the decision have
not necessarily been far-reaching.
“It’s not every case that has an employer defendant in it,
and I haven’t seen much beyond mesothelioma cases, or maybe lung cancer cases,
so it’s been limited to asbestos from what I’ve seen,” Daley said.
R. Scott Marshall, of the Nemeroff Law Firm in Dallas,
concurred the number of cases with possible employer liability have been
limited since that verdict.
“I understand there have been additional lawsuits filed
against the employer since the Tooey decision. I can’t give you an estimate as
to how many, but I don’t think it has been a tremendous number,” Marshall said.
“I think it’s due in large part to the fact there are so few
mesothelioma cases that are diagnosed every year.”
It’s not happening at all in states like Illinois, where the
state Supreme Court there ruled in the opposite direction late last year in Folta v. Ferro Engineering.
In Folta, the Illinois Supreme Court ruled a widow whose
husband’s asbestos-related illness manifested more than 40 years after his last
exposure could not collect damages from the employer allegedly responsible for
Mark Behrens, a partner in the Washington, D.C. branch of
Shook Hardy & Bacon and co-chair of the firm’s Public Policy Group,
described the decision in Folta as
contrasting with that of Pennsylvania's decision in Tooey, despite the Illinois court being seen as a fairly liberal
judiciary and not as pro-business as the Pennsylvania court was when the issue
Behrens termed the results of these individual challenges as
“a mixed bag” and said they differ on both a case-by-case and state-by-state
“It depends on how the state Workers’ Comp laws are written.
It may be that Workers’ Comp does cover asbestos in some states,” Behrens
decision comes up because there is a statute that provided after a certain
number of years, the worker would no longer be able to obtain Workers’ Comp.
You really would have to look to the state Workers’ Comp laws.”
Behrens said he believes the Arkansas Supreme Court is
currently deciding the issue there.
“If Pennsylvania, for instance, had provided a remedy for
asbestos, then you wouldn’t have the Tooey
decision,” he said.
“You wouldn’t have people saying if only because of the time
cut-off in the statute, that after a certain period of time, the workers were
no longer able to obtain recovery in Workers’ Comp, which then gave rise to the
lawsuit to try to get out of that system.”
Behrens feels the trend of plaintiffs attorneys trying to
establish a method to collect from employers is part of their long-running effort
to find solvent defendants. Dozens of the companies frequently targeted by
asbestos plaintiffs have created bankruptcy trusts that establish a protocol
for paying out claims.
Those who haven’t established trusts are left to fight
lawsuits in civil courts, where juries can reach multimillion-dollar verdicts.
Behrens quoted prominent Mississippi plaintiffs attorney Richard
“Dickie” Scruggs, who candidly termed modern asbestos litigation as “an endless
search for a solvent bystander.” He later served prison time after being
charged with participating in judicial bribery schemes.
“One of the trends in the last few years has been that in
trying to identify solvent potential defendants, plaintiffs’ lawyers are
challenging the exclusive remedy provision of state (Workers' Compensation)
laws to try to bring employers into the asbestos litigation,” Behrens said.
“The Supreme Court of Pennsylvania in the Tooey case said that, because
Pennsylvania's Workers' Compensation statute does not provide a recovery for
occupational diseases that take many years to develop, such as with asbestos,
the legislature must have intended to allow personal injury cases to fill that
gap,” Behrens stated.
“Immunity for employers is congruent with coverage for
employees: when the Workers' Compensation remedy expires, so does the bar
against suing the employer.
“Why is it that the Pennsylvania plaintiffs bar, after 40
years of asbestos litigation, brings the Tooey
case when they do? Why wasn’t it brought 40 years when the asbestos litigation
started? It’s because of this trend that plaintiffs lawyers used to focus on
the most culpable companies, the major producers [of asbestos], until they were
forced into bankruptcy.”
Daley, meanwhile, stated the topic had been brought before
the state Supreme Court on several other occasions over a period of years, but
just not heard until that particular case.
“I can’t speak to why that would be, obviously. But from our
point of view, the reason it took so long is because it just had to work its
way through the court system,” he said.
“When the Supreme Court did decide to take a look at it, the
decision that the Supreme Court made, was made. I don’t think there is any
particular reason, because the issue has been out there for longer than a
Marshall speculated the reason behind the Supreme Court’s
taking another look at the prospect of pursuit of damages outside Workers’ Compensation
law could be due to “a constitutional issue” plaintiff counsel raised in Tooey, one which he said had not previously
been “fully addressed.”
“The issue revolves around a provision in the Pennsylvania
State Constitution, which requires the employer to provide reasonable
compensation for an employee’s injury, in return for the employee foregoing
their right to sue the employer,” Marshall said.
Daley pointed to the future potential of more Pennsylvania
plaintiffs attempting to utilize the additional avenue of recovery provided
“I think with any mesothelioma case, because of the
circumstances of the development of the disease, you’re never going to be
within the [300-week Workers’] Comp window,” Daley said.
“And so any practitioner doing mesothelioma work is
obviously aware of Landis and Tooey, and I’m certain those practitioners
investigate former employers and in some instances, decide to litigate against
Marshall agreed with his colleague.
“Mesothelioma is a very long latency disease that takes
years and years to develop and manifest,” Marshall said.
From the Pennsylvania Record: Reach Courts Reporter Nicholas
Malfitano at firstname.lastname@example.org