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A Win for Mesothelioma Victims – Pennsylvania Supreme Court Restores Employee Rights

In December 2013, the Nemeroff Law Firm won a major victory for victims of mesothelioma and other latent occupational diseases in Pennsylvania by restoring their legal right to seek compensation for their injuries from their employers.
In the consolidated case of Tooey v. A.K. Steel, et al. and Landis v. A. W. Chesterton, et al., the Pennsylvania Supreme Court recognized an employee’s right to bring a civil action against an employer for a latent occupational disease, ruling that employers could not use the Pennsylvania Workers’ Compensation Act (“Act”) to deny workers the opportunity to obtain compensation. Under the Act, compensation from an employer was only available if the occupational disease manifested within 300 weeks of the date of last exposure to an occupational toxin.

This ruling by the Pennsylvania Supreme Court represents a major shift in Pennsylvania law in favor of an injured employee and the significance of this decision should be clear to anyone who understands a disease like mesothelioma, which can take decades to manifest but mere months to claim the lives of its victims. Prior to this decision, employees diagnosed with mesothelioma, or other latent occupational diseases, had no chance for relief from the employers that had exposed them to asbestos or other occupational toxins. This opinion goes a long way toward protecting the rights of employees and their families who have suffered from negligence or wrongdoing by an employer.

John Tooey worked as an industrial salesman from 1964 until 1982 and during his employment sold asbestos containing products, which caused him to be exposed to asbestos dust. In December 2007, Tooey developed mesothelioma and died less than one year later. Spurgeon Landis worked for a manufacturer of welding rods from 1946 until 1992 and, during his employment was exposed to asbestos dust. Mr. Landis was diagnosed with mesothelioma in 2007 and died in 2012. Under prior interpretations of the Workers’ Compensation Act in Pennsylvania, neither plaintiff could seek workers compensation benefits or file civil action against their employer, because their mesothelioma did not manifest within 300 weeks of the date of last exposure.

To reverse years of precedent and succeed where other plaintiffs had failed, The Nemeroff Law Firm decided to take the case to the state Supreme Court, arguing that latent occupational diseases, such as mesothelioma, were outside the jurisdiction of the Act and that the Act’s provisions, when applied to these cases, were unconstitutional. Nemeroff was able to prevail relying on Lord Corp. v. Pollard, 548 Pa. 124, 695 A.2d 767 (1997), Boniecke v. McGraw Edison Co., 485 Pa. 163, 401 A.2d 345 (1979) and Greer v. U.S. Steel Corp., 475 Pa. 448, 380 A.2d 1221 (1997). In each of these cases, the employees’ civil action would survive the exclusivity provision if it was determined the injury was not compensable.

The Court ultimately agreed, ruling that the Act did not apply to latent occupational diseases, or diseases that might take years to develop and be diagnosed, and therefore victims were not prohibited from filing a common law claim against an employer. In its written opinion, the Court stated that previous interpretation of the Act would leave “the employee with no remedy against his or her employer, a consequence that clearly contravenes the Act’s intended purpose of benefitting the injured worker.”

The Court went on to state that the Act does not apply to latent occupational disease claims because it is “inconceivable that the legislature, in enacting a statute specifically designed to benefit employees, intended to leave a certain class of employees which have suffered the most serious of work-related injuries without any redress under the Act or at common law.”

After all, while manufacturers and suppliers of harmful toxins bear their share of responsibility in these cases, an employer is the last line of defense for an employee and is obligated to provide a safe work environment. In this landmark decision, the court ruled that interpretations should be “consistent with the humanitarian purposes of the Act,” and “resolve in favor of the employee.”

The implications of this decision cannot be overstated, as it reverberates well beyond these two unfortunate victims. While the ruling was based on the occupational disease mesothelioma, there is nothing in the Court’s reasoning to indicate that employers will be shielded from providing compensation for other occupational diseases with long latency periods. Other latent cancers, such as benzene-induced leukemia, should fall within the Court’s decision as long as the occupational disease first manifests more than 300 weeks from the date of last exposure to the industrial toxin.

It’s very rare as an attorney to have an opportunity to make or change the law, and even more rare to right a wrong for a class of victims and their families who have suffered so greatly. And while neither client lived to see the results of their appeal, the Pennsylvania Supreme Court’s decision does bring some measure of justice to their families and to the families of other unfortunate employees who suffered from occupational diseases that did not develop until years after toxic exposure had ended.

We can only hope that this humanitarian decision in Pennsylvania will influence other states to take action to protect the rights of those have suffered due to employer neglect or misconduct.

Editor’s Note: The appeal in the case of Tooey v. A.K. Steel, et al. and Landis v. A. W. Chesterton, et al. was briefed by Roderick S. Marshall of The Nemeroff Law Firm and Brent M. Rosenthal of The Law Offices of Brent Rosenthal, and argued by Robert F. Daley of Robert N. Peirce & Associates.

Why choose the Nemeroff Law Firm?

  • Experience


    The Nemeroff Law Firm holds a national reputation for defending the rights of victims with asbestos-related mesothelioma and others harmed by corporate misconduct. Nemeroff Law Firm is one of the most effective law firms in the country with experienced personal injury attorneys who cannot be matched in knowledge and understanding of what it takes to fight for you to win. We offer both legal and medical-professional investigative skills, expert witnesses, cutting-edge technology and state-of-the-art techniques for maximum recovery.

  • Reputation


    Our caring, committed attorneys and staff work hard every day to provide quality legal representation to those we serve. Because of our work ethic and commitment to clients, we’ve built a reputation of success throughout the legal industry and among the numerous victims and families we have helped in the past. Our reputation speaks volumes about how much we truly care for our clients, and it should make anyone in need of a proven firm confident about placing their trust in our team.

  • Track Record

    Track Record

    The Nemeroff Law Firm has successfully represented thousands of asbestos victims and families across the nation. In the past few decades, Attorney Nemeroff and our team have recovered hundreds of millions of dollars for our clients. Although every case is different and each client unique, our experienced attorneys have proven themselves capable of securing the compensation our clients deserve. Our record of success speaks for itself – we know how to win. Allow us to take on the fight for you.

  • Compassion


    An unexpected situation has brought you to the Nemeroff Law Firm. You are forced to deal with a devastating and debilitating disease or injury. Your dreams have been cut short and your fear of what is to come is more than you can handle. You deserve the best legal help to get you through this difficult time. When you choose to place your trust in our firm, you can rest assured that you’ll be working with proven and compassionate attorneys who care about your case and your life.

Accolades & Professional Memberships

  • Rick Nemeroff

    Rick Nemeroff has consistently proven to his adversaries what can happen when they square off with Rick in court. Rick fights for individuals and families who have been harmed by indifferent corporations. He is a dedicated attorney, and his clients know that they will be represented by a professional who combines compassion and caring with […]

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  • R. Scott Marshall

    Several years ago, Scott moved across the country for the opportunity to join the Nemeroff Law Firm and represent individuals and their families whose lives have been devastated by mesothelioma. It continues to be a gratifying experience each and every day, as he and other attorneys from the firm do their best to provide counsel […]

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  • Jennifer Black

    Jennifer loves to win and loves to be on the right side of an argument – giving asbestos victims a voice provides her the opportunity to do both. She derives great satisfaction from helping clients of the Nemeroff Law Firm, and she is dedicated to translating her life-long passion for empowering victims into winning results. […]

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  • Carla Guttilla

    Carla comes from a typical, hardworking, blue-collar family. Her biggest inspiration–her parents–are in their 70’s and continue to work every day, operating a mom and pop tire store in Pittsburgh, PA. As a lawyer, she wanted to advance the rights of hard working folks just like her parents. When Carla first began working with asbestos-harmed […]

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  • Jeffrey A. O’Connell

    Attorney Jeffrey O’Connell has devoted his entire legal career to helping people with diseases caused by toxic substances, including asbestos, and is an important part of the Nemeroff Law Firm’s national toxic tort practice. Jeff is an integral part of the litigation team that handles discovery and prepares these complex cases for trial, a role […]

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  • Barrett Naman

    Barrett Naman Barrett Naman visit> Barrett dedicates his practice to working for victims of injustice and fighting corporate entities that value profits over the health and safety of people. His belief that all victims deserve the best and most focused representation drives him to aggressively fight for his clients. Born and raised in Beaumont, […]

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  • Carl Money

    D. Carl Money has spent his entire legal career fighting on behalf of workers and their families.  After law school, he worked as a general counsel in the Texas Legislature where he developed and directed legislative agendas that ensured access to justice for individuals wronged by corporate corruption.  For most of the past sixteen years, […]

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  • Ryan Phillips

    Prior to graduating from law school, Ryan spent four summers as a law clerk with the Nemeroff Law Firm. During that time, he gained valuable practical experience and witnessed first-hand the life changing results that the firm is capable of delivering. After graduating from college, he attended law school on a large academic scholarship. He […]

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  • Sidney Robert

    Sidney has 25 years of legal experience working in law firms focused on personal injury and toxic tort litigation. In practice, Sidney has litigated a vast array of cases involving personal injury, asbestos related diseases, complex business litigation and employment discrimination claims. Courage and compassion best describe Sidney’s persona as she is a born fighter […]

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  • Ellen A. Presby

    When Ellen A. Presby is faced with the life-altering ramifications of personal injury, it is vital to have knowledgeable and dedicated legal representation such as that provided by Ellen. With more than three decades of litigation experience, Presby serves as a lead attorney for personal injury, products liability and pharmaceutical cases. Attuned to her client’s […]

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