PITTSBURGH - Asbestos lawsuits keep giving Pennsylvania's highest court the chance to put its own policies in place by ignoring laws passed by the legislature, a Supreme Court justice wrote last week.
A sharp dissent by Justice David Wecht criticized the recent ruling that forces the University of Pittsburgh to face a lawsuit filed by the estate of a former employee who died from mesothelioma. That case pairs with a 2013 ruling from the same court to give asbestos victims more time to file claims, though state law imposed its own deadlines.
Exposure cases against employers are subject to the Occupational Disease Act, which forces workers to sue within four years of their last exposure. But this is troublesome in asbestos cases, as health effects often take decades to manifest.
Sure, this is a problem, Wecht acknowledged. But it's not up to the court to fix it.
"What I strongly object to is the Majority's suggestion that we should... falsely assert that the General Assembly did not intend to deny a civil tort remedy to claimants whose diseases manifest too late," Wecht wrote.
"The fact is that the legislature did intend to create a dual denial system."
How lawmakers worded the ODA is unambiguous, Wecht wrote.
"Put simply, I believe that today's decision uses and abuses the tools of statutory interpretation to distort, rather than uncover, the legislature's true intent," he added.
Wecht, a Democrat whose dissent was joined by Republican justice Kevin Brobson, took office in 2016. That was three years after the court ruled in another asbestos case that found a 300-week time limit to file under the Workers' Compensation Act was a "de facto exclusion of coverage" for asbestos claims.
Justice Debra Todd wrote the majority opinion in both cases. Had Wecht been on the court in the 2013 case, titled Tooey, it is clear how he would have voted.
"Confronted today with the unambiguous provisions of the ODA that the Tooey court overlooked, the Majority doubles down (and expands) upon Tooey's mistaken rationale. This is compound error," Wecht wrote.
"Unlike the Majority, I would overturn Tooey's flawed holding rather than reaffirm it. We are required to interpret the ODA as the General Assembly chose to write it, not as w might prefer it to be written."
The two decisions are victories for asbestos plaintiff lawyers in the state. There are currently more than 700 cases pending in the Philadelphia County Court of Common Pleas, plus many others in Allegheny County and elsewhere.
In the late William Herold's ODA case, which spawned Wecht's dissent, the University of Pittsburgh tried to convince the Supreme Court that the Tooey decision involved language in the Workers' Comp law that doesn't exist in the ODA.
The statewide plaintiff lawyer group - the Pennsylvania Association for Justice - obviously felt differently. It filed an amicus brief that said if the ODA prevented Herold from suing his employer because his disease took too long to develop, it would cause workers to pursue "obviously futile claims in the Workers' Compensation system before pursuing a negligence claim" and that would "have disastrous practical implications."
Justice Todd's Herold opinion works its way through centuries of workplace disease law, specifically the 1915 "Grand Bargain" that established the Workers' Compensation Act. It made it easier for injured employees to find relief through Workers' Comp while limiting their ability to sue their employer.
Having the ODA as the exclusive remedy in Herold's case would leave his estate with no other avenues for recovery against Pitt, given the four-year statute of limitations.
"If the ODA is interpreted to shield an employer from all potential liability, the quid pro quo would be vitiated," Todd wrote. "When there is no possibility of compensation, the Grand Bargain is no bargain.
"Moreover, leaving such employees with no remedy against his or her employer contravenes the ODA's intended purpose."
This finding changed the ODA's structure, Wecht wrote. A "dual denial" system blocking claimants from filing a lawsuit while also receiving no statutory benefits could possibly be unconstitutional and undermine the Grand Bargain, he said.
But the Supreme Court has not yet fully embraced that theory, Wecht said.
"If those provisions are unconstitutional, however, the solution is to strike them from the law, thus leaving workers with late-manifesting occupational diseases free to seek compensation within the administrative scheme," Wecht wrote.