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Category: Mesothelioma

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.

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.

Attorney Chris Norris, head of the appellate practice at Nemeroff Law Firm, was recently quoted in an article on Law360 discussing the controversial issue of take-home asbestos exposure cases. In asbestos litigation, take-home exposure refers to secondary exposure. These cases typically involve instances where employees who are exposed to asbestos in the workplace subsequently expose friends or family members to harmful asbestos materials.

Take-home exposure cases have presented a great deal of complexity and disagreement among the legal community. The Law360 article illustrates this point by citing two pending California cases. In August, the California Supreme Court agreed to consider lower court decisions which resulted in two different outcomes about whether companies have a duty to compensate asbestos victims they did not have a direct relationship with. One case ruled that a product manufacturer owed a duty to the nephew of an employee. The other ruled that there cannot be premises liability for secondary exposures.

According to the article, courts will commonly use one of two tests to determine whether companies owe a duty to victims of secondary exposure:

Foreseeability Analysis – Considers whether a company could expect that employees could expose family members to asbestos fibers at home from dust-coated clothing or possessions.
Special Relationship Analysis – Considers whether a company had a direct contractual relationship with an asbestos victims.
Attorney Norris commented on the conflict, stating that “the question, legally, has come down on two different sides, the question of what was foreseeable, to a product maker or premises owner. Some states say foreseeability itself doesn’t create a duty, and other states have basically said that it’s common sense that a worker’s spouse could be exposed, but that they might not extend the duty as far if it’s a visiting granddaughter or someone like that.”

Legal experts are hopeful that the California cases will provide some clarity on secondary asbestos exposure cases across the country, but as Attorney Norris notes, the issue has largely been divided on a state-by-state basis. If you have questions about take-home asbestos exposure and your rights, contact the Nemeroff Law Firm for a free consultation.

A recent study conducted by a team of researchers at the University of Hawaii Cancer center is breaking new ground in the scientific understanding of mesothelioma. According to the researchers, mesothelioma may be caused by multiple cell mutations rather than a mutation in a single cell – which is the case in most cancers.

The study, published earlier this month in the Journal of Translational Medicine ( JTM), began when researchers attempted to determine if mesothelioma was monoclonal, meaning that it is derived from a single cell mutation which replicates and causes cancer to grow. This is the case with many types of cancers.

Researchers analyzed patterns of “clonality” by comparing samples from individuals with mesothelioma to samples from healthy individuals and others with monoclonal cancers. Ultimately, their findings suggested that “malignant mesothelioma is the result of polyclonal tumors,” or mutations in multiple distinct cells.

The University of Hawaii study is a significant step toward improving our understanding of this tragic disease, and may lead to improvements in the ways we treat mesothelioma patients. For example, researchers are using the study findings to suggest that treatments should be targeting multiple cancerous cells with different types of mutations, rather than a single monoclonal cell. In the past, mesothelioma patients have been treated with the same monoclonal antibodies common with cancer treatments.

You can learn more about mesothelioma on our website or by contacting the Nemeroff Law Firm.

Swedish researchers from Umea University’s Department of Health and Clinical Medicine recently concluded a study in which they suggest that a wide variety of construction workers face significant risks of suffering from mesothelioma – even if they didn’t work jobs known for higher rates of asbestos exposure.

According to the study, which was published in the American Journal of Industrial Medicine, workers in the construction industry – especially those who perform jobs involving asbestos-containing products – have exhibited significant rates of mesothelioma.

Examples of the types of construction jobs with high rates of mesothelioma cases include:

Concrete workers
Wood workers
Researchers noted that while some of these occupations have long been associated with higher numbers of mesothelioma, asbestos exposure occurred across many different types of construction industry occupational groups. Their opinion was that protection against asbestos exposure may be an extremely difficult or nearly impossible task in construction.

While the Occupational Safety and Health Administration (OSHA) establishes guidelines for protecting U.S. workers against exposure – including risk education, asbestos handling training, and proper protective gear – the Swedish study suggests that these regulations may not go far enough. You can read more about the study here.

If you have questions about mesothelioma resulting from exposure to asbestos in the workplace, the Nemeroff Law Firm is here to help. We’ve recovered millions on behalf of asbestos victims and their families.

Contact us today to start your FREE case review.