Steptoe & Johnson PLLC: Asbestos Suits Against Employers Now Permitted In Pennsylvania In Some Situations

Steptoe & Johnson PLLC: Asbestos Suits Against Employers Now Permitted In Pennsylvania In Some Situations

By James J. A. Mulhall |

The Supreme Court of Pennsylvania, Western Division, issued an extremely important decision on November 22, 2013 in the Tooey and Landis holding [enhanced opinion available to lexis.com subscribers]. 

The consolidated appeals involved asbestos lawsuits against employers when the relevant employees' alleged manifestation of the alleged diseases took place more than 300 weeks prior to their last alleged exposure. Prior to the November 22, 2013 decision, such claims against employers were barred by Pennsylvania's Workers' Compensation Act.  Since a workers' compensation claim was not permitted for such latency claims, the plaintiffs claimed that the language of the Act did not preclude a plaintiff from proceeding with a civil lawsuit against the employers.  The court agreed and held that employees can now file lawsuits against their employers when the last exposure allegedly took place more than 300 weeks prior to the alleged disease's manifestation.

More specifically, the court held that "the legislature did not intend the Act to apply to claims for disability or death resulting from occupational disease which manifests more than 300 weeks after the last occupational exposure."

Many questions remain unanswered by the decision.  For example, the standard to be used for the newly permitted claims against employers is unspecified as the court stated that "[e]mployers, like any other entity not covered by the Act, will be subject to traditional tort liability requiring a showing by the plaintiff of, inter alia, negligence on the part of the employer, and employers will retain all of their common law defenses.  Plaintiffs, in turn, will bear the higher burden of proof in terms of causation and liability."

Jim Mulhall is the leader of the firm's Product Liability Practice Group and Toxic Torts Team.  Mr. Mulhall concentrates his practice in the areas of asbestos, product liability, toxic torts, and mass tort litigation.  He is the co-chair of the International Dispute Resolution Practice Group in TerraLex.

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