Asbestos Liability

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In civil actions for damages, legal responsibility for injuries caused by asbestos exposure is sometimes determined under the law of product liability. A product liability case arises when someone uses, or is exposed to, a dangerous product that injures them. Liability is usually based on one of three theories:

1. breach of warranty;
2. negligence; or
3. strict liability.

Liability based on a breach of warranty theory may exist if the supplier or seller of a product containing asbestos made a claim about the product that ultimately caused someone to buy or use the product, and that claim later turned out to be false. For example, if a supplier claims that using a particular asbestos product is safe, but it is in fact dangerous, the supplier may be liable to a person who relied on the claims and was injured by the product. Warranties may be either express or implied, and in many cases, even where a supplier of a product attempts to "disclaim" certain warranties in the written materials that accompany the product, such disclaimers may not be legally valid. Thus, it is important to speak with a mesothelioma lawyer about your case.

Liability based on a negligence theory requires proof of four elements:

1. the defendant had a legal duty to provide a safe product;
2. the defendant breached that duty;
3. the breach caused an injury; and,
4. the injury resulted in damages to the plaintiff.

Fortunately, in cases where a supplier's negligent conduct may be difficult to prove, courts have developed an alternative theory of liability to allow plaintiffs to recover. That alternative theory is called strict products liability.

Like negligence, strict products liability theory requires the plaintiff to prove four elements:

1. a strict duty to supply a safe product;
2. a breach of that duty;
3. causation; and
4. damages.

However, strict liability differs from negligence in two key ways. First, under a strict liability theory, the existence of a duty is shown when there is a commercial supplier that manufactures or retails the product not just a casual seller. Second, under a strict liability theory, the plaintiff does not need to show that the breach of duty is the result of any negligent action. The mere fact that the product was dangerous or defective is enough to establish a breach of the supplier's duty.

Of the four elements in a negligence and strict product liability cases, causation can often be the most difficult to prove. First, in most lawsuits, defense attorneys will attempt to present scientific reports and studies to try to dispute that asbestos can cause the injury alleged. Second, there is usually a substantial amount of time between exposure to the asbestos and the appearance of an injury. Defendants may use that passage of time to argue the injury was caused by exposure to another toxic substance, or a product manufactured by someone else. Therefore, in order to successfully prove causation, the plaintiff must show that the asbestos-containing product can cause the injury claimed, that the plaintiff was exposed to the asbestos in a quantity large enough to cause the injury claimed, and that the plaintiff was not exposed to some other toxic substance or product that could have caused the injury. Working with a mesothelioma lawyer will ensure you are in the best position to prove the elements to win your case.

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