Barbara Anderman  |  July 28, 2014

Category: Consumer News

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asbestos-diseasesTwo laws, the Death on the High Seas Act (DOHSA) and the Jones Act, were passed by Congress in 1920 to provide seamen a federal cause of action for employer negligence. These laws limit recovery to monetary damages.

Now the laws are being extended into asbestos lung cancer and mesothelioma lawsuits. A Pennsylvania federal judge overseeing the asbestos lawsuit multidistrict litigation (MDL) ruled that injured sailors, but not their estates, have the right to pursue compensation from ship owners for asbestos exposure.

U.S. District Judge Eduardo Robreno is overseeing the litigation filed on behalf of merchant marines and their surviving families against a number of ship owners. The plaintiffs claim that asbestos exposure on the ships caused lung scarring, leading to lung cancer and other asbestos related diseases.

Maritime History – Imperfect Laws

Common law has long dictated that it’s the “master’s duty” to provide servants with a seaworthy ship. Robreno pointed out, “As with the duty to provide an injured seaman with food and medical care, that duty is firmly anchored in the master/servant relationship, and it is imposed without regard to fault.” But as time progressed, historical standing for maritime decisions was replaced by the Jones Act and DOHSA.

The Jones Act doesn’t directly address unseaworthiness claims and punitive damages. It only addresses pecuniary damages and wrongful death. However, Robreno said that as common law predates this act, that pursuit of punitive damages is viable. (Punitive damages are usually fiscal, and intended to deter the defendant and others from engaging in similar conduct.)

In 2009, the Supreme Court was faced with the Atlantic Sounding case, in which justices were asked to decide whether a seaman can recover punitive damages on a general maritime claim for “maintenance and cure.” The answer was yes. This adds to the plaintiffs’ argument that “forms of relief that were historically available under general maritime law should not be eliminated in the name of uniformity absent a Congressional statement to the contrary.”

Today the consensus is that “punitive damages are not meant to compensate for losses suffered, but to be awarded where a defendant’s conduct is ‘outrageous,’ owing to ‘gross negligence,’ ‘willful, wanton, and reckless indifference for the rights of others.” The sailors’ stand is that the exposure to asbestos falls in this realm.

Asbestos Overview

The use of asbestos dates back over 4,000 years, but it wasn’t until the end of the 19th century, in the industrial era, that asbestos garnered wide-scale use. Industry found asbestos to be incredibly desirable for its resistance to heat, fire and electrical damage, sound absorption capabilities, and low price.

A major user of asbestos was the shipyards. During World War II, millions of people worked the shipyards, with thousands of pounds of asbestos used on the ships. Onboard it was used to insulate hot water and steam pipes, boilers and incinerators.

When undisturbed, asbestos-containing materials are not a risk, but when the fibers become airborne during demolition, construction, repair work, or in general upkeep of machinery or materials it’s a danger. On ships, the poor ventilation in working areas often led to some of the highest cases of human exposure, as seamen unintentionally inhaled the microscopic fibers, causing a variety of respiratory issues, including asbestosis, mesothelioma and asbestos lung cancer.

To date, the Asbestos MDL is the longest-running mass tort in U.S. history. Since 1991, close to 60,000 and over 3 million claims were transferred to the Eastern District of Pennsylvania, where the MDL is consolidated. Hundreds of companies have been called to the table by mesothelioma sufferers or their families. A number of these asbestos lawsuits have ended in settlements; however, thousands of cases still remain in litigation.

In general, Asbestos Lung Cancer lawsuits are filed individually by each plaintiff and are not class actions.

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