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 Landis’ case.

“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 the exposure.

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 was decided.

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 basis.

“It depends on how the state Workers’ Comp laws are written. It may be that Workers’ Comp does cover asbestos in some states,” Behrens said.

“The Tooey 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 decade.”

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 for.

“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 them.”

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 nickpennrecord@gmail.com

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