Employers would be granted some relief from asbestos lawsuits under proposed Pa. law

By Nicholas Malfitano | Jul 23, 2018

HARRISBURG – Pending legislation in the Pennsylvania House of Representatives would essentially overrule a 2014 state Supreme Court decision and change asbestos litigation statewide, to plaintiff lawyers' dismay, if it were to pass.

HB-2207, sponsored by Republican House of Representatives member Eli Evankovich of District 54 (in Allegheny and Westmoreland counties) and currently listed on the Pennsylvania House's 2018 Session, would not force a worker injured on the job to provide notice of an injury or related disease within 300 weeks of the last date of exposure, and return such injury claims exclusively underneath the Workers' Compensation umbrella – much as they were before the 2014 decision reached by the Supreme Court in Tooey v. AK Steel Corp.

“In the case of Tooey v. AK Steel Corp., the Supreme Court decided that employees with asbestos-related diseases may file a civil action against their employers, if symptoms of the disease did not manifest until more than 300 weeks after the last occupational exposure,” Evankovich said.

Evankovich says such claims were usually denied by Workers' Compensation carriers because of that same 300-week rule and due to the Supreme Court's decision in Tooey, there has been a large increase in the number of asbestos-related civil lawsuits filed against employers – when in the past, these actions were often brought against asbestos manufacturers only.

Evankovich adds these actions are “unpredictable for employees and potentially devastating for employers” and comments his bill would revert the cases in question back to their pre-Tooey standard, where Workers' Compensation law governed them exclusively.

“My legislation would (bring) occupational diseases with symptoms that may take years to manifest, such as asbestosis and mesothelioma, back into the Workers’ Compensation system. Comparable to what is current law in Ohio, the legislation will waive the 300-week limitation from last exposure for bringing a claim for occupational disease, where the occupational disease has a latency period of longer than 300 weeks,” Evankovich states. 

Evankovich continues that in those cases, injury or disease claims could be filed based on the date on which the plaintiff is diagnosed with the disease or the disease is detectable, which he says provides “an efficient and predictable process” to resolve and pay them. 

Attorney Larry Brown of Brookman Rosenberg Brown & Sandler in Philadelphia recalled what led to a bill like Evankovich's being considered.

“For years and years, a worker in Pennsylvania was not able to sue their employer. The remedy for an injured worker was the Worker’s Compensation Act. That was fine. You know, a guy is injured at work, he cuts off his finger on a lathe or something like that. He gets his medical treatment, he misses time from work and he’s paid from Workers' Compensation carriers,” Brown said, referring to separate insurance companies that are contracted to provide coverage for a given worker’s employer.

According to Brown, what changed the game in dealing with the 300-week rule was addressing injuries caused by latent diseases, such as those caused by asbestos, which may not manifest themselves for many years after exposure.

“These people aren’t even diagnosed with an injury for 900 weeks (nearly 18 years), so they have no Workers' Compensation remedy. They are not even allowed to file a claim against their employer. The case went to the Supreme Court [of Pennsylvania], and the Supreme Court decided that was unfair," Brown said.

"For latent diseases in the Tooey case, the Supreme Court found that the Workers' Compensation Act is not appropriate for latent diseases and allowed the workers to file a third-party action, a regular lawsuit, against their employers."

Brown said employers were then facing the serious issue of not having any coverage with which to respond to workers’ injuries in the aftermath of Tooey, since traditional Workers’ Compensation insurance required under the law was no longer valid to use for that purpose.

“There have been a lot of bills pending over the years to try and address the situation. The proposed bill does away with the 300 week-requirement, so no matter when somebody is diagnosed with a latent disease, they can file a Workers' Comp claim, even 20 years after their exposure ended,” Brown said.

“The Comp people don’t like that for a couple of reasons: 1) They say that we haven’t gotten any premiums for this and 2) Our exposure never ends, people can sue us any time they want. Plus, they’re also afraid it will apply to other latent diseases, not just asbestos-related diseases. Any time an injury doesn’t develop or come up for more than 5 years, they can now be exposed to that.”

Brown said the discussion currently taking place on the bill has to do with the language contained.

“That’s still being debated,” Brown said.

The bill was referred to the Committee on Labor and Industry on April 2.

“I like the remedies right now. The remedy right now is if one of my clients was exposed to asbestos at a place like U.S. Steel, General Electric, any kind of a business, and remember, I have to also show that business was negligent. It’s not enough that they just worked there and were exposed. I have to present competent evidence to show that they were negligent: They didn’t do something they should have done, they didn’t take precautions or they did something they shouldn’t have done, to prove negligence,” Brown said.

In a forward-thinking sense, Brown provided his thoughts on the potential impact of such legislation, were it to pass.

“It’s not a bill that really benefits my clients. My clients are in a good situation in terms of being able to file a direct claim against any manufacturers, distributors or suppliers, employers who exposed them to asbestos that caused them injury. In the long term, it’s hard to say what the effect would be with Workers' Comp. But I’m fearful that the Comp carriers would be fighting the companies that manufactured, distributed and supplied asbestos, and my clients won’t get remedies at all,” Brown stated.

“The Supreme Court [of Pennsylvania] said the old system wasn’t good, the Supreme Court gave the victims the right to file a direct claim against their employers, and I don’t see any reason we shouldn’t be abiding by what the Supreme Court said.”

Fellow attorney Larry R. Cohan of Anapol Weiss in Philadelphia seconded Brown's point of view and indicated representation of business interests was behind the push to see the system return to its pre-Tooey roots, referring to the old system as “very limited” in how it compensated plaintiff victims.

“If you want to deny victims the opportunity to receive compensation for developing horrible diseases like mesothelioma from asbestos and leukemia from benzene, then you would go back to the pre-Tooey standard” Cohan stated. “If you represent the insurance industry, chemical manufacturers, asbestos manufacturers and the petroleum industry, I would assume that you would want to have the pre-Tooey standard.”

“The proposal to provide Workers' Compensation benefits to these victims is very limited, meaning that most of these individuals are dying from their conditions, which means that there will be very, very little, if any, compensation to their families under the worker's comp laws. Tooey permits the families of these individuals to make legitimate third-party claims and for the first time, we're seeing that these individuals are getting compensated.”

Cohan explained employers were able to escape direct, third-party liability for injury under the previous legal standard in Pennsylvania set by the Azzarello v. Black Bros Co., Inc. case of 1978.

“Previously, you had to demonstrate exposure to a specific manufacturer's chemical or product, and of course, many of these individuals, by the time they even get to a lawyer, it's their family because they've already passed away; [Due to] mesothelioma from asbestos and leukemia from benzene, and other conditions take their lives very quickly. How is a family member or spouse going to identify with particularity products by name that may have been at that job site 40 or 50 years ago,” Cohan said.

“For example, we know that [an] employer was utilizing benzene-containing products at the refinery, or we know, for example, that they were using asbestos-containing products at the steel mill. Certainly before OSHA came into being [in the 1970's], these men and women were permitted to be exposed to those products, without protections by the employer.”

According to Cohan, the Occupational Safety and Health Administration (OSHA) was not concerned with the right to sue, their job was to make workplaces safe by instituting rules which required worker ventilation, respiratory protection, skin protection and setting standards to protect workers from chemical exposures.

“In most of these cases, we find that back in the 1960's for example, the employers were well-aware of the dangers of asbestos, but they were taking no steps to protect their workers. That's what these liabilities are based on. Historically before Tooey, they did not have to provide worker's compensation benefits nor could they be [held] liable for third-party liability. Tooey has said that those workers are entitled to a remedy, and they can make a claim against the employer,” Cohan stated.

In Cohan's view, the Supreme Court of Pennsylvania made the right call for plaintiff victims in Tooey.

“Our Supreme Court spoke and provided victims of toxic torts with a remedy, and after decades of being without a remedy and being denied worker's compensation and the right to a third-party recovery, the Court held those victims’ right to receive compensation. Our view is that the law is clear, and the Supreme Court has set the standard,” Cohan said.

From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nickpennrecord@gmail.com

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Anapol Weiss Brookman Rosenberg Brown and Sandler Pennsylvania House of Representatives Pennsylvania Supreme Court

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