In this podcast, Paul Kelley from Satterley and Kelley talks about employer liability for asbestos exposure that leads to mesothelioma. He explains when employees may qualify for worker’s comp and when they may be able to make a claim under the tort system. The latter provides additional benefits including compensation for pain and suffering.
John Maher: Hi, I’m John Maher. I’m here today with Paul Kelley. Paul is a partner with the Kentucky personal injury law firm, Satterley & Kelley, which has over 30 years of collective experience in handling cases involving mesothelioma and asbestos exposure. Today, we’re talking about unique rules for pursuing asbestos claims against employers in Pennsylvania. Welcome, Paul.
Paul Kelley: Hey, John. How are you doing today?
John: Good, thanks. So, Paul, can employees sue their employers for asbestos diseases under Pennsylvania law?
Paul: So, under most circumstances, John, yes. It used to not be that way. About 10 years ago, very good lawyers, unfortunately not me, but some very good lawyers got the high court in Pennsylvania to change the law because, under the Workers’ Compensation laws in Pennsylvania, if the diagnosis of mesothelioma, for example, came in more than 300 weeks after the employee’s exposure ended, then it extinguished the cause, the Worker’s Compensation claim, before you actually had a disease, in order to file one.
And it always seemed unfair because people get this disease and, ordinarily, they would be able to recover some Workers’ Compensation benefits and get some recovery for this terrible disease that they got. But if it happened 301 weeks after their last exposure, then they were out.
John: And then, that’s a problem for mesothelioma cases because of the latency period. You can get mesothelioma 10, 20, 30, 40 years after your exposure. It’s much more typical that it happens after 300 weeks.
Paul: Absolutely. I mean, hardly anybody is diagnosed after 300 weeks of exposure. Now, again, it’s 300 weeks from the last exposure, not the first exposure. But still, what we see typically is 20, 30, 40 years after somebody stops being exposed, they’re diagnosed with this condition. 300 weeks is less than 10 years.
So, a lot of people were precluded from being able to recover any benefits at all from their employers. And, so, a lot of us lawyers complained over the years, that’s unfair. And if we can’t recover under Comp, and Comp, by the way, Workers’ Comp, is statutory, so the legislature enacts those laws, and only the legislature can do anything about increasing or decreasing the amount of time.
And I suspect that the reason that the 300-week limitation is in there is because it was a compromise with insurance companies that insure all of these different companies. It was a compromise that, “We want to know when our liability will end.”
So, fair enough. But, again, the problem is that people are left without any recovery. And, so, there was a big push, back in the early 2010s, to try to get the law changed, which the courts can do, to allow employees to sue their employers if they’re precluded by the statute from pursuing a Workers’ Compensation claim.
And as you can imagine, Pennsylvania employers that exposed people to asbestos there fought very hard against that. But there was a breakthrough in 2013, and the law was changed. And it now allows people to sue their employers, again, if their last exposure was more than 300 weeks from their diagnosis.
And this provides a benefit, a huge benefit, to people. Workers’ Compensation laws are not great, in terms of what you can recover, but one of the big benefits of Workers’ Compensation law is you don’t have to prove anybody who’s at fault. All you have to prove is that you suffered a work-related injury. And if you suffered a work-related injury, then the employer has to pay whatever benefits are available, usually medical expenses, lost income, sometimes a survivor’s benefit to the widow or widower of the employee, but at least you don’t have to prove that somebody necessarily did anything wrong.
So, by knocking it out of the Comp system, while there are more damages that are available, pain and suffering being a big one that you just don’t get in Workers’ Comp, you have to now prove that somebody’s at fault, your employer was at fault, for causing you this disease.
And the employer’s going to say a lot of things about that. They’re going to say, “Well, manufacturers of products caused the disease. Suppliers of products caused the disease. Contractors that came into our employment caused the disease,” or “Maybe we did cause it, but we didn’t know that companies were giving us asbestos,” or “We didn’t know asbestos was hazardous or that it would cause this cancer.”
And, so, they have some defenses. So, it’s not necessarily this great, wonderful thing that you’ve been knocked out of the Comp system, and now you have to pursue this tort claim. But what it does do is it provides people in 2023 a remedy that they didn’t have in 2010, because now they can pursue this.
And it is better than Comp, in the sense that Comp, quite frankly, just doesn’t compensate people well enough for the kind of injury that’s at issue here. Workers’ Comp is wonderful for injuries that people get over. That’s wonderful for cuts and scrapes and burns and some small, broken bones-
John: Broken leg or something like that, yeah.
Paul: But it’s not very good for someone who gets terminal cancer.
Paul: And that’s what mesothelioma is. It’s a terminal cancer. So, while we have to do a lot of work in order to prove that the employer’s negligence caused the injury to our client, if we’re able to do that, then the employee is now able to get a full range of benefits. And again, as I mentioned before, they can recover pain and suffering. And that typically is tremendous.
I mean, the physical and mental pain associated with mesothelioma, the emotional distress, the people suffer knowing that they’re probably going to die from this condition. And sometimes people are young, and they have families, and there’s some benefits that are available to the families under the Tort System that aren’t available in the Workers’ Compensation scheme.
And, so, it’s a good thing. It’s a really good thing. And Pennsylvania has been one of the leaders in the country in recognizing the inequity involved, of just completely leaving people without a remedy because they weren’t fortunate enough to, fortunate in quotes, to get this disease before the expiration of that 300-week mark.
And, of course, people can have more than one employer that contributed. And, so, you can potentially pursue claims against any employer that you believe is responsible for causing the disease.
So, a lot of people, particularly people that worked in manufacturing and kind of your more blue collar-type jobs, they get conditioned, “Workers’ Comp, Workers’ Comp, Workers’ Comp. That’s all I can do. That’s all I can get.” And I’m here to tell you that, right now, as things stand in 2023, that’s not all you can get. In fact, you may not be able to get Comp at all and can recover directly in a lawsuit against your employer for causing the disease. So, it’s very important to understand that right and to not just assume that you’re limited in what you can get.
Now, I’d be remiss, John, if I didn’t let people know that, as you can imagine, this is a lightning rod issue for the employers in Pennsylvania. They thought they got their peace years ago, when the Workers’ Compensation laws were put in full force in effect. And, so, they are continuing to pursue ways to get the law changed back to what it was prior to the court’s decision back in 2013.
Thus far, those efforts have been unsuccessful. And right now, if somebody is diagnosed with mesothelioma today, and, again, that last exposure was more than 300 weeks ago, they can pursue a claim and try to prove that their employer’s negligence caused their disease.
John: Right. So, prior to 2013, you could still pursue a negligence claim, but it was not against the employer. You had to go up against these, the manufacturers and the suppliers of the products that contained asbestos and things like that. And it’s just that, now, after 2013, in addition to those which are still in effect, and you can still go after those manufacturers and suppliers, you can also file a claim against … directly against your employer as well.
Paul: Yeah, that’s absolutely right. And it also provides the additional benefit that the employer was such an easy target for the manufacturers. Pre-2013, everybody pointed to the employer and said, “Well, it was their fault because they had the ultimate responsibility for providing safety to the employee.”
Paul: While I certainly agree that the employer has that responsibility, I don’t agree that they’re the only ones that had that responsibility.
Well, now, when the employers are in this case, guess what they do? They fight back. And it creates, in a lot of ways, the perfect storm for the victim because now you have all the right parties there, and at some point, they’re going to become adverse to each other, and at some point they’re going to start pointing fingers.
And our experience is that a jury will typically pick somebody. I mean, they’re not going to … They almost never say, “Oh, this just happened,” in the face of overwhelming evidence that somebody was exposed to asbestos and that asbestos causes mesothelioma.
So, yeah, the law has always been such that you can recover in the civil justice system, the Tort System, from manufacturers, suppliers, contractors, other at-fault parties, but now it provides this other unique source of recovery if the Workers’ Compensation Act precludes compensation.
John: Right. Do you find in a case, too, that because you have both employer and the manufacturers involved in the case, that they start pointing fingers at each other and, in order to do that, they really have to admit that, “Yeah, this person probably got mesothelioma because of exposure to asbestos from our products.”
And, so, it almost helps the case overall because, in order for them to point fingers at each other, they have to be admitting that, yes, this product did contain asbestos, and this person probably got mesothelioma from it.
Paul: And that’s absolutely what happens. I could probably talk about this particular issue all day, but for the purposes of our discussion today, when I started doing this over 20 years ago, there wasn’t as much pushback that asbestos caused this person’s disease. That was almost always a given. And the way they defended was, “It was somebody else’s that caused it. It wasn’t us.”
Now, in the last 10 years or so, we’ve seen a lot more pushback, that someone’s mesothelioma was actually caused by asbestos exposure. I’ve always found that to be, for the most part, kind of a loser argument. It’s kind of like, “Oh, well, there’s all this exposure here, so we’re just going to say, ‘Oh, this person just had bad luck, bad genetics,'” whatever the case may be.
But whenever we’re in trial, and it doesn’t matter where we are anywhere in the country, whenever we’re at trial, ultimately, there’s finger-pointing. I mean, they may, at some point, put on a medical defense and try to assert that it’s just not asbestos-related at all. But if they do that, we inevitably hear the infamous, “If it was caused by asbestos exposure, then it was their exposure.”
And it’s almost always the employer, if it’s occupational exposure, as opposed to somebody doing some brake mechanic work on the side or something else, inevitably, they always point the finger at the employer. It’s always the employer’s fault.
And they do that because, prior to 2013, at least in Pennsylvania, the employer’s not there. They’re not at that trial. They’re not there to push back. They are the easiest target. Now, they’re there, and they push back, and they push back at the manufacturers. And they give the jury the full story. I mean, we’re giving that to them. But they’re solidifying the full story to the jury as everybody’s responsibility for causing the injury.
And asbestos and the diseases caused by asbestos, they’re unique. Nobody can really say that it was this exposure over here that caused the disease, and this exposure over here had nothing to do with it. I mean-
Paul: Medically and scientifically, I don’t care what anybody says, nobody can do that. And the way the medicine and the way the law is developed is, we recognize that there can be multiple causes for this disease. Sometimes, there can be many, many, many causes for the disease. And when I say causes, I mean asbestos causes. Somebody may work at 35 job sites, and it can cause a disease, or they may work at one job site, but there’s 35 different products that are supplied to that job site. And they can all be-
Paul: Responsible, both medically and legally. And again, we won’t dig into the weeds too much, but there’s a slight difference between medical causation and legal causation.
But employers can be held responsible for their responsibility in contributing to the exposure. And then, of course, the manufacturers and suppliers can also be held responsible because they’re the ones that made the product. They have a responsibility under State law to provide a safe product.
But employers, since the beginning of time, have always had a huge target on their back. And up until 2013, they were really the whipping boy of every asbestos defendant because they weren’t there to push back.
Well, now they’re there, so they’re a lot harder to push the blame on. And for our purposes, it’s a lot harder for a jury to give nothing. If the employer’s there, and the jury thinks the employer’s at fault for causing the disease, now the victim can recover for that.
John: And, so, if you’ve been diagnosed with mesothelioma, and you think that that was caused by your exposure to asbestos from working at a company in Pennsylvania, what should you do next?
Paul: Certainly, contact a lawyer. I mean, I mentioned earlier today that a lot of folks are conditioned to believe that they only have a Workers’ Compensation claim. That may or may not be true, depending on the facts of your case. So, don’t speculate or assume anything. Speak to a lawyer. See what information there is about that particular job site or job sites that they work for, and fully assess your rights to pursue whatever remedies are available to you.
And as we’ve mentioned numerous times that we’ve gotten together, this is a devastating diagnosis. And, so, it’s important to get medical care and medical treatment under control and make sure that the doctors have set up a plan that makes sense for you and your family.
But in terms of what we do and asbestos lawyers do, nothing gets better through the passage of time. So, the quicker that retain a lawyer and the quicker the lawyer can start investigating and pursuing the claim, the greater chance of recovery that you have.
John: And is there a Statute of Limitations on pursuing a claim in Pennsylvania?
Paul: For asbestos cases in Pennsylvania, it’s two years from the diagnosis. That can be lengthened a little bit if there’s a bonafide issue as to when you knew or should have known what caused your disease. But the rule of thumb is, you can’t go wrong if you file your case within two years that you were diagnosed. And that’s certainly what we try to do and try to get it filed much sooner. But you do have two years, and it goes by quickly.
John: All right. Well, that’s really great information, Paul. Thanks again for speaking with me today.
Paul: Thanks, John.
John: And for more information about mesothelioma and asbestos exposure, visit the law firm of Satterley & Kelley at satterleylaw.com, or call 855-385-9532.