Determining When an Asbestos Injury Has Occurred

Because of the nature of asbestos related diseases and the way victims contract them, injury cases involving asbestos can be complicated. Lengthy exposure to asbestos in

Louisiana and the long latency, or development, of asbestos caused diseases takes these cases outside the realm of typical personal injury cases. While this framework is not perfect, it still provides asbestos victims an avenue to seek compensation for their injuries.

In the case of Cole v. Celotex, 599 So.2d 1058 (1992), the Louisiana Supreme Court recognized the difficulty of applying pure tort or personal injury principles to asbestos cases and handed down several important rules for asbestos injury cases coming after it. By reviewing the Court’s analysis of when, legally speaking, an asbestos injury actually occurs, it is our hope that you can better understand the issues involved and how you might be able to receive compensation for any damages you face because of exposure. Whats more, determining the legal timeframe is critical, as timing can affect both a plaintiffs right to file suit as well as the law that applies to the case.

The plaintiffs in the Cole case had all been exposed to asbestos during the course of their job duties. They brought suit; seeking compensation from several manufacturers of asbestos-containing products. They also sued their former employers, claiming that the employers negligence and failure to create a safe work environment contributed to the plaintiffs injuries due to asbestos exposure.

After several appeals, the case landed in the Louisiana Supreme Court. The Court was asked to address several specific issues. Before tackling those, however, the Court had to confront an essential issue of determining the legal timeframe in which an asbestos injury occurs. The Court recognized that this is one aspect of tort law that does not operate well in asbestos cases. In its ruling, the Court stated:

Simply put, the requisites for asserting a [tort] cause of action are  wrongful act and resulting damages.Õ It was found that the main difficulty with the accepted tactic was that it was based on the theory of traditional tort suits. The strategy behind traditional tort litigation does not typically succeed in determining a key event. Once an event is found, it must give rise to a cause of action, which would have lead to the long-term exposure to asbestos in the workplace. Cole, 599 So.2d at 1065.

The Court continued, citing some federal court decisions. The factual circumstances that must exist to suggest potential liability from asbestos exposure were found to be different than the factual circumstances that lead to most tort lawsuits. Dependable tort doctrines are not one-size-fits-all, especially in the case of asbestos exposure lawsuits. Id.

Because of both the slow progression of asbestos?caused diseases, there is a large difference of time between a defendant’s questionable conduct and the occurrence of a plaintiffs injury. That separation is somewhat unique to asbestos injury cases. In a car accident injury, for example, the injury, the act that causes the injury, and the moment at which those occur are readily evident. In contrast, the characteristics noted by the Court slow development and latency  make determining the date of an asbestos injury incredibly difficult and practically impossible. The exact date of injury typically cannot be determined by medical or legal research and often remains unknown. It is the product of guesswork. Id. at 1066. Regardless of the difficultly of pinpointing the exact time of an asbestos injury, the Court recognized that the timing of the injury affects several aspects of a case. Thus, it concluded that key events that were deemed relevant to the cause of the asbestos exposure that the events that were relevant in asbestos exposure cases were a series of events. It was exposure over a length of time that brought the greatest harm to the plaintiffs. There was no singular event that caused the harm, unlike the majority of tort cases. This was true even though the actual observable harm (in the form of disease) might not be present or show symptoms until later, long after the harm had occurred. Id.

The key relevant events giving rise to a claim in long?latency occupational disease cases are the repeated tortious exposures resulting in continuous, on?going damages, although the disease may not be considered contracted or manifested until later. Id.

Thus, instead of trying to identify a single act that led to the injury, the Court was willing to accept the whole range of injurious conduct. While that seems like a straightforward and common?sense approach, it is still important to have the rule state as much.

Because relevant aspects of the law had changed during the time period involved in the Cole case, determining the time the injury occurred was essential to determining which law applied. Also, the Court discussed how the rules of prescription must be relaxed to accommodate long?latency diseases, an aspect dealing with the time a plaintiff has to  bring a lawsuit. Make sure to return to this blog in the coming days for more information on this topic or click over to our section dedicated to mesothelioma and asbestos for more information.

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