The issue of tests for secondary asbestos exposure

By Treven Pyles

Posted on May 29th, 2017

The absence of a direct relationship between the victim and the employer often leads state courts to reject take-home asbestos claims. To bring a successful legal claim, claimants have to trace their exposure to a defendant who is liable for failure to warn or protect against the dangers of asbestos.

Occupational asbestos exposure is responsible for the vast majority of mesothelioma cases, as workers in industries such as construction or shipbuilding were exposed to huge amounts of airborne fibers on a regular basis before the 1980s. However, while between 70-80% of asbestos victims were exposed in the workplace, the rest are struggling with devastating diseases as a result of environmental or secondary asbestos exposure.

Asbestos Exposure Percentage

Due to their rough texture and microscopic size, asbestos fibers can easily become embedded in fabrics. As industrial hygiene was commonly overlooked by most companies that manufactured or used asbestos products, employees were not required to change their clothes at the end of the shift and thus brought home asbestos fibers. Some people even remember leaving work covered in asbestos dust.

Therefore, family members were often exposed to asbestos indirectly, either by interaction with a near relative carrying asbestos dust or by dusting and washing their work clothes. Around 8% of asbestos victims are women and most of them developed an asbestos disease as a result of secondary exposure.

Frequency, regularity, and proximity test for causation of asbestos exposure

To succeed in an asbestos exposure case, the plaintiffs - primary as well as secondary exposure victims - must prove that asbestos attributable to the defendant was a cause of the injury. For the proof of causation in asbestos, the Superior Court has adopted the frequency, regularity, proximity test.

To satisfy the frequency, regularity, proximity test, the plaintiff must present evidence showing exposure:

  • To a particular product, regularly
  • Over an extended period and
  • In proximity to where the plaintiff worked

However, the tests employed to determine liability in the case of secondary asbestos exposure are not compulsory and may vary from state court to state court. For this reason, depending on where the claim is filed, individuals who suffered from secondary asbestos exposure may have difficulty in recovering financial compensation.

When it comes to secondary asbestos exposure, each state applies its own set of rules to determine if the defendant can be held accountable for the plaintiff's injury, which occasionally results in claims getting rejected.

The most problematic aspect of secondary asbestos exposure claims is the absence of a relationship between the victim and the employer, which makes it challenging for state courts to decide if the defendant is responsible. North Dakota and New Jersey are two of the states that have recently rejected secondary asbestos exposure claims based on the inability to find the defendants liable.

Why it can be difficult to parse out an employer's responsibility for the health problems caused by secondary asbestos exposure?

Claimants indirectly injured by asbestos are eligible for financial compensation and many have been awarded compensation after getting diagnosed with lung cancer, mesothelioma, asbestosis, or other asbestos diseases. To bring a successful legal claim, claimants have to trace their exposure to a defendant who is liable for failure to warn or protect against the dangers of asbestos.

However, it can be a challenge for secondary asbestos exposure victims to establish liability. Asbestos diseases can have a latency period of 20 to 50 years. Also, when filing a successful claim, secondary asbestos victims must be able to:

  • Identify the source of asbestos
  • Show fault for failure to warn of the danger of exposure or failure to protect against the danger

Someone who did not directly work with asbestos-containing products may not know what materials contributed to their exposure. This is most common when the family member who was directly exposed to asbestos has passed away.

Proving all of these aspects can be very difficult, particularly if liability is disputed by the employer in question. Due to the length of time which has passed, further difficulties can be found if the company no longer exists. Choosing a lawyer from a firm that specializes in asbestos litigation can make the difference between a right resolution and a case that leaves you with a deep sense of injustice.

Victims must prove husbands worked with asbestos decades earlier

Success in pursuing an asbestos claim may not always be a simple matter of showing that a victim diagnosed with an asbestos-related condition was exposed to the toxic mineral during their period of employment at a particular workplace.

The aim of an attorney is to obtain an admission of liability, and an out-of-court settlement to speed up the process for the claimant. The victim should prove that it was negligence and lack of duty of care in the workplace conditions, which caused or contributed to the development of the claimant's fatal asbestos-related disease.

Case study

  • In one recent case, the wife of a welder believed to have worked with asbestos-containing materials - but tragically died in an accident, is convinced that her lung cancer was the result of secondary exposure to her husband's asbestos-contaminated coveralls. The deceased husband's former employer says they will only compensate the victim if witnesses can be found to support the claim that her late husband worked with asbestos.
  • The evidence obtained supported that the victim had exposure to asbestos while shaking out the dusty clothing and overalls before washing them. The dust ended up covering the kitchen floor, which she had to sweep up. A call has gone out to former work colleagues to provide their witness accounts of work conditions at the time, especially during the 1970s, when asbestos was at the height of its use in industrial products and applications.
  • The victim, who has received four cycles of chemotherapy, is unable to pay for immunotherapy treatment, which could extend survival and improve her quality of life. Liability was quickly admitted by the company's representatives and once all the necessary evidence was served on them, a reasonable offer was made which the victim accepted to conclude matters.

Successful secondary asbestos exposure trust funds claims

A successful asbestos claim usually involves asbestos attorneys that specialize in investigating exposure on the job and can find out the work history of a family member who was directly exposed to asbestos.

If you, or a loved one, have been diagnosed with an asbestos-related condition after suffering secondary exposure, we are here to help.

At Environmental Litigation Group, P.C., we have a team of occupational disease experts that can investigate and find information to support your secondary asbestos exposure case.