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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.

The American Association for Justice has selected Ellen Presby of the nationally-recognized Nemeroff Law Firm as a moderator for a portion of the organization’s 2014 Winter Convention in New Orleans, La., Feb. 8-12, 2014. The conference brings accomplished trial lawyers and experts together to discuss the latest developments in trial advocacy and attend interactive education seminars.

Presby will moderate the program “Advocacy Track, Making the Case—Experts and Evidence: Using Daubert Effectively.” Attendees will learn how to effectively prepare and use experts in the wake of high hurdles created by various court interpretations of the decision in Daubert v. Merrell Dow Pharmaceuticals.

“I am honored to have the opportunity to share my trial experience and to help other attorneys learn how to get the most out of expert witnesses,” Presby said. “Used effectively, experts are powerful tools that can deliver a significant advantage for clients. Even with the boundaries set by Daubert, expert testimony is necessary to help juries understand the issues.”

Presby is a sought-after speaker with nearly three decades of litigation experience. She holds multiple legal victories against major corporations, including a role in a $1.275 billion pharmaceutical class action settlement, and she was recently appointed to the plaintiff’s steering committee for a major multidistrict pharmaceutical litigation. She specializes in personal injury and product liability cases and stands at the cutting edge of pharmaceutical law and trial techniques.

Presby has been listed as one of National Trial Lawyers Top 100 Lawyers from 2007 to 2012, a Texas Super Lawyer every year since 2003 and was named one of the top 50 female lawyers in Texas by Law & Politics Media and Texas Monthly magazine in 2004. She has served as Co- Chair of the State Bar of Texas Grievance Committee, and on the Boards of the Texas Trial Lawyers Association, the Public Justice Foundation, and the Dallas Chapter of the American Board of Trial Advocates.

Rick Nemeroff, a leading asbestos lawyer and founder of the nationally-recognized Nemeroff Law Firm, is among the nation’s top trial attorneys selected to speak at the American Bar Association (ABA) 23rd Annual Spring CLE meeting. Nemeroff will be part of a panel of experts at the “Learn Trial Techniques from the Best” session on Saturday, April 5 in Phoenix, Ariz.

Nemeroff will offer proven techniques for preparing for, conducting and winning trials. Presenting the plaintiff viewpoint, he will discuss his unique trial skills, on topics ranging from jury selection through verdict, which have resulted in significant legal victories.

Nemeroff is a sought-after speaker, author and consultant on litigation techniques and maintains an active trial practice with record-breaking verdicts. His firm recently won a landmark case, convincing the Pennsylvania Supreme Court to reverse previous decisions and allow employees with latent occupational disease to pursue legal action under the Workers Compensation Act. The decision was a major victory for Nemeroff’s clients and other victims of occupational diseases.

“This venue brings viewpoints from all sides – plaintiff, defense, industry and insurance – to a forum where we can discuss the latest developments and share winning techniques and strategies,” Nemeroff said.

This year’s ABA conference, “Hot Topics in Toxic Torts and Environmental Law,” features preeminent plaintiff and defense attorneys as well as leading corporate and insurance counsel from across the country. Program topics will include the environment, energy, asbestos, consumer product regulations, managing mass tort cases and more. The event runs April 3-5 at the Biltmore Resort & Spa in Phoenix.

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