Should a person injured by exposure to asbestos be able to sue a manufacturer of products containing asbestos even if he cannot prove that he ever inhaled asbestos fibers from those products? Pacific Legal Foundation doesn’t think so. That’s why this week we filed this brief in the Pennsylvania Supreme Court in Howard v. A.W. Chesterton. Inc.
John Ravert worked for 40 years as a manual laborer, repairing roofs and furnaces among other things. The cement and sealant materials he used on the job in the 1960s-1980s contained asbestos, albeit in liquid form, not in the dusty form that is a known to cause cancer. Because Ravert’s exposure to these products varied widely, and occurred over such a long period of time, Ravert could not identify which products actually exposed him to asbestos fibers. When he contracted mesothelioma, Ravert sued some eighty different manufacturers in an attempt to recover for his illness.
Scattershot lawsuits are common in asbestos litigation. The widespread use of asbestos products, and latency of the resulting illnesses, often makes it difficult for plaintiffs to prove with any precision how much exposure they had to asbestos from any particular defendant’s products. Courts therefore permit circumstantial evidence that a plaintiff inhaled asbestos fibers from a given product based on the plaintiff’s close proximity to that product on a frequent and regular basis. While imperfect, this rule makes a lot of sense. It allows injured parties who otherwise wouldn’t be able to prove their case to be compensated for their injuries, while at the same time preventing product manufactures, who made a product a plaintiff was exposed to one time, from being stuck with the bill for an illness likely caused by other products the plaintiff was exposed to on a more regular basis.
This case runs the risk of turning that standard on its head. Ravert (replaced by the executors of his estate, Margaret and Robert Howard) has argued that because mesothelioma can be caused by low doses of asbestos, he need not prove that he was exposed to any particular product on a frequent and regular basis. Instead, Ravert argues that the mere fact that a product contained asbestos and he was near it on one occasion should be enough for him to recover, regardless of any other sources of asbestos he may have encountered. As we explain in our brief, Ravert’s argument misunderstands why the frequency requirement exists. Courts do not require evidence of multiple exposures to an asbestos containing product because they believe that multiple exposures are necessary to cause illness. Evidence of frequent exposure is required as a pragmatic way to ensure that the price of the injury is borne by the manufacturer most likely to have caused it.