asbestos

On November 22, 2013, the Supreme Court of Pennsylvania issued an order in Tooey v. Ak Steel Corp., 81 A.3d 851 (Pa., 2013) that had major implications for toxic tort litigation in the state.  Plaintiff John Tooey allegedly worked for Ferro Engineering as an industrial salesman of asbestos products from 1964 to 1982.  In 2007, Mr. Tooey developed mesothelioma; he passed away the following year.  The Tooey court considered whether the manifestation of an occupational disease outside of a 300-week period set forth by the Pennsylvania Workers’ Compensation Act removed a claim from the protection of the Act, such that the exclusivity provision of the Act did not apply.  The court concluded that claims for occupational diseases with long latency periods – over 300 weeks – do not fall within the purview of the Act and, therefore, the exclusivity provision is inapplicable.

Recently in Asbestos Columns, published by Harris Martin, I authored an article on the causation of lung cancer asking how much does asbestos really contribute.  Courts that look at the issue of causation in asbestos cases are now less likely to allow testimony from plaintiff’s experts that any exposure above background will substantially contribute to cause an asbestos related disease and more likely to require a plaintiff to prove that the alleged exposure attributable to a defendant was sufficient to cause his disease.

Talc, the mineral from which talcum powder is made, is rather innocuous by itself. However, because its chemical makeup and geologic formation is similar to tremolite, a form of asbestos, deposits of the two substances often are located near each other.  This proximity creates the possibility for contamination of the talc, and plaintiff’s attorneys are taking advantage of that possibility.

A trend has emerged across the country whereby more courts are rejecting the every exposure theory in asbestos litigation.  This theory, also referred to the single fiber theory, is used by plaintiffs in asbestos litigation to argue that a single fiber is substantially causative of asbestos-related diseases.