Written by Christopher M. Placitella, Esquire
The majority of mesothelioma claims involve the allegation that the manufacturer or distributor of the asbestos containing products in issue failed to provide adequate warnings to the user. Most of such cases are brought as a result of exposure to asbestos through construction material or in factories that used or made asbestos containing products. One special kind of mesothelioma case involves exposure to railroad workers. Traditionally, people injured through exposure to asbestos while working on railroads were able to bring two different kinds of actions.
The traditional case, premised upon state law, alleges that the manufacturer or the distributor of the the asbestos used on the railroad car failed to warn of the dangers associated with the use of asbestos. The second kind of case involves an action directly against the Railroad itself for negligence under the Federal Employees Liability Act (FELA). Today's Supreme Court ruling essentially wipes out the traditional state law based failure to warn claim for railroad workers. The FELA mesothelioma claim,however, remains available if the proof supports it in a given case.
The Court's ruling is based upon the legal doctrine known as "preemption." Under this principle, the Court held that since there was a federal statute that by virtue of its operation permitted the use of the asbestos, the victim's state law claims for failure to warn are barred. While the holding can be read to be a narrow one premised on the Locomotive Inspection Act (LIA), 49 U. S. C. ยง20701 et seq, there is of course concern that the asbestos industry will ask Courts to interpret the decision broadly in an attempt to knock out other kinds of state law claims involving defective products.
In my opinion, the decision over reaches and is wrong. Just because an asbestos product is permitted should not eliminate the manufacturer's obligation to warn of known dangers. The effect of the decision is cruel placing the risk of loss on those already devastated in injury and mortality. The irony is that the specifications that allow the use of asbestos and other dangerous products are not written solely by the government but often originate with the manufacturers themselves who know full well of the dangers posed by the use of their products. This decision gives a free pass to wrongdoers and places the burden of paying for medical care on the innocent and ultimately the taxpayers who will foot the extraordinary medicals bills ultimately paid for by Medicare and Medicaid.
For those readers with the interest to read the decision in its entirety you can click on http://www.supreme court.gov/opinions/11pdf/10-879.pdf.
