Asbestos Law Update

The EPA’s 20204 chrysotile asbestos ban has been well-documented, on this site and elsewhere. However, this watershed law is just one of the many asbestos law changes that have turned this sector upside down in recent years.

Some things haven’t changed, such as the devastating effect of asbestos exposure diseases, such as mesothelioma. Many industrial asbestos exposure victims came into contact with this deadly substance in the 1980s, when asbestos use was still relatively common. Then, some fifty years later, they often go to their doctors complaining of dry coughs or other symptoms and receive a fatal illness diagnosis. It’s hard to understate the physical and emotional pain these victims must endure.

Similarly, despite some tweaks here and there, the approach of an asbestos exposure lawyer hasn’t changed. Hard work collecting evidence and refining legal theories still leads to maximum compensation. In addition to compensatory damages for medical bills and emotional distress, substantial punitive damages are often available in these cases.

State Laws Update

In many ways, the aforementioned EPA asbestos ban was the first domino to fall. Other dominos have fallen in other states, while in other jurisdictions, the dominoes are on the brink of falling over.

California

Not surprisingly, most of the states on this list are blue states with historically tough environmental laws. California is a good example. The Golden State was one of the first jurisdictions to limit the use of Roundup, a weed killer whose active ingredient, glyphosate, is a known carcinogen.

This “get tough” attitude has extended to asbestos exposure. California lawmakers have limited asbestos use above and beyond the EPA’s chrysotile (white) asbestos ban. Other recent provisions build on the EPA’s 1989 ban on asbestos in schools, require pre-demolition or renovation asbestos testing, and specifically protect asbestos workers.

Incidentally, California’s official state rock is serpentine, a metamorphic rock that often contains chrysotile asbestos, the most common form of asbestos

Illinois

The Prairie State is nowhere near California geographically. But politically, it might as well be next door, especially in terms of asbestos restrictions.

Recent Illinois laws include regulations which require the complete removal of asbestos in older buildings. These regulations bypass the OSHA rule which states that trace amounts of asbestos are acceptable, even though that agency has also declared that there’s no hay nivel seguro of asbestos. That’s politics for you.

Another Illinois law requires mandatory enhanced inspections for “at-risk” public properties, a phrase the law doesn’t define very well. Such legal uncertainties underscore the need for an experienced asbestos exposure lawyer in these matters.

Florida

Lawmakers in the first red state, or at least beige state, on our hit parade have focused on fly-by-night asbestos remediation contractors.

In most states, these contractors must only meet the same licensing and bonding requirements that apply to similar contractors. Florida asbestos remediation contractors must now obtain additional certifications. An aggressive public awareness campaign complements these higher standards.

Legal changes, even in another state, often raise the standard of care, making it easier for an asbestos exposure lawyer to prove negligence, or a lack of care, in a particular case.

Texas

This reddest of red states has also enacted tougher compliance requirements for not only remediation contractors, but also the entire remediation process, including hazardous waste disposal.

State lawmakers have also tightened the industrial compliance screws, once again raising the standard of care not only in Texas, but in other jurisdictions as well.

New York

From Love Canal in the 1970s to PFAS water poisoning on Long Island in the 2010s, the Empire State has a long history of environmental disasters. Many state lawmakers are determined to flip the script.

New York lawmakers recently updated Rule 56 of the state’s Industrial Code, which contains most of the asbestos handling rules in the Empire State. Most of these updates focus on the remediation process, as is the case in the aforementioned states. 

The update also includes a controversial statement. “Usually, it is best to leave asbestos material that is in good condition alone. Generally, material in good condition will not release asbestos fibers.”

That’s good short term advice but terrible long term advice. Eventually, all building materials break down and release asbestos into the air.

Building a Case

All these additional contractor regulations have added an additional step to this process. If contractors negligently test for, remove, and/or dispose of asbestos, they could be liable for asbestos exposure damages. 

So, an asbestos exposure lawyer often adds negligent contractors to a list of defendants, or more likely, files legal actions against these companies. 

Most states have complex comparative fault laws, as well as joint and several liability laws, in multiple defendant claims, or multiple possible defendant claims.

Usually, comparative fault shifts blame for an injury from one party to another, generally from the victim to the tortfeasor (negligent actor). If multiple parties were at fault, jurors must divide legal responsibility between them 50-50, 80-20, or whatever the evidence dictates. These laws vary significantly in different states.

Joint and several liability laws vary even more significantly. Usually, joint and several liability doesn’t affect victims. J&SL basically legalizes finger-pointing among defendants.

New York’s “let sleeping dogs lie” statement is a good example. Assume Ellen lived in an older building. When a contractor renovated the HVAC system, the contractor didn’t properly remove asbestos. The contractor could point the finger at the builder for installing asbestos, and the builder could point the finger at the contractor for improperly removing this hazardous substance.

The constantly-changing standard of care, as discussed above, often comes into play in these situations. “Right” and “wrong” are not set in stone at least in terms of negligence matters.

As mentioned, J&SL usually doesn’t affect the underlying injury claims. However, some states have J&SL laws that can reduce or eliminate compensation in some cases.

Shift to Ambient Exposure Victims

In the 1900s, most asbestos exposure victims were industrial exposure victims who handled asbestos-laced products and/or worked in asbestos-laced facilities. Going forward, most asbestos exposure lawsuits may concern ambient (environmental) exposure victims. 

9/11 is a good example. The smoke and dust cloud that covered much of New York City was laced with asbestos and other harmful materials. Furthermore, spiky asbestos fibers, which resemble kidney stones, easily cling to surfaces, such as hair and clothes. Therefore, there’s no telling how many people were exposed to asbestos when the Twin Towers collapsed.The wave of ambient exposure victims will make the pretrial process more complex for asbestos exposure lawyers. Unless a lawyer has a technological tool, it’s very difficult to connect ambient asbestos poisoning with a particular source.