Category Archives: asbestos

TSA Machines: the Asbestos Litigation of the Future?

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For all its harmful effect, asbestos has a wonderful property which prompted its frequent use – it is resistant to fire, heat, electrical and chemical damage, making it ideal for insulation purposes.  The Federal Government was well aware of its benefits, and required government contractors building ships for the United States Navy to use asbestos to, among other things, prevent fires aboard-ship.

Fast-forward several years: decade after decade of asbestos litigation burdens employers, the legal system, and our daytime and midnight television commercial space while the Federal Government which mandated the use of asbestos walks away, the words “sovereign” and “immunity” heard between laughs.

Recently, your easily alarmed and somewhat paranoid blogger started thinking about this upon seeing this story.  It appears that more and more concern is being raised about the possible cancer-causing effect of the Transportation Security Administration’s full-body scanners.  According to Dr. Edward Dauer, head of radiology at Florida Medical Center in Fort Lauderdale, the full-body scanners pose a threat to those over 65 years of age and women genetically at risk of breast cancer.  The radiation could also imperil the lens of the eye.

Frequently enough, California employers send their employees abroad or even to other parts of California by flight.  Conferences, training sessions, meetings, and presentations might require an employee to take to the skies countless times a year.  A certain George Clooney film immediately comes to mind.

And, as California retains jurisdiction over all injuries that occurred and/or those in which the contract of hire was completed in California (see Labor Code section 5305) employers might soon enough find themselves before a Workers’ Compensation Judge, hearing the theory of how all those client meetings all over the country exposed applicant X to so many scanner machines, causing this cancer or that.

Hopefully, the machines are harmless to the body; both to flyers and to California’s self-insured employers and insurers.  If they are not, we can only hope that the Federal Government will not walk away from the mess it created, leaving private-sized employers to shoulder a federal-sized problem.

5500.5 and spreading the wealth of sovereign immunity (Part 2)

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In the last post, we set the stage for the breakdown in co-defendant cooperation in cases where the bulk of the liability should (but, of course, doesn’t) fall on the liability-immune Federal government.  The California Workers’ Compensation system and California case-law offers us a silver lining to this scenario.

In the case of Cloristeen Collins v. Plant Insulation Company (185 Cal. App. 4th 260 (2010)), the Court of Appeals found that when our dear monarch proudly declared that the King can do no wrong, his loyal subjects had, all along, correctly noted that the King had no clothes!

Essentially, the Court held that fault for personal injury should be apportioned amongst the parties, regardless of the sovereign immunity defense, and that each party must only pay for their percentage of fault.  So if the Federal government is 50% at fault, although it is immune to actual liability, the plaintiff can expect to receive only 50% of his or her recovery, and the defendants need dread only paying the same.

So how does this help Joe Business or Jane, Inc.?  Well, let’s say an asbestos applicant wins an award of $1,000,000.00 in a civil claim against a group of defendants, including the Federal Government.  If the jury assigns 40% of the fault to the federal government, and only 10% of the fault to Joe Business, that means that Joe Business gets a credit against Workers Compensation liability.

Why not 100% of the award credit?  Under Labor Code § 3861 a defendant employee’s credit is related to its relative fault.  So, what does that mean in the Workers’ Compensation case?

Well, Joe Business first must pay out 10% of applicant’s civil trial recovery – that’s after applicant (at that point a plaintiff) pays his or her attorney, after the costs, and after the reduction due to the Federal government’s sovereign immunity.  Assuming an attorney fee of 33%, and pretending that there are no costs to be paid out as well, Joe recovered $198,000.00 ($1,000,000.00 [base award] x 50% [federal immunity] x 66% [recovery after attorney fee]).

Joe Business will first have to pay up to $19,800.00 in the Workers’ Compensation arena. (See Rodgers v. Workers’ Comp. Appeals Bd. (1984) 36 Cal.3d 330, 336.)  But after that, Joe gets a credit for $178,200.00.  Pretty nifty, right?  More on practical application at a later date.  For now, let’s re-form the phalanx and stop playing the whipping boy for Uncle Sam tort-happy history.

Just a caveat: I’m not aware of any case where this theory has been put to the test.  So, just like the first back-yard distillery, there’s no way of knowing if it will be the cause of a huge mess or a huge celebration.  In either case, good hunting!

5500.5 and spreading the wealth of sovereign immunity (Part 1)

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We’ve all been there.  What began with a firm row of phalanx shields facing an advancing asbestos applicant devolved into a crowded hearing room with a dozen or more other defense attorneys, glancing left and right while getting ready for the feeding frenzy to begin.  None of our clients are truly at fault – the culprit employer, with the most years of exposure, the highest degree of fault, and the § 5500.5 liability for exposure is clear to everyone.  Or rather, the would-be exposure, fault and liability.  The attorney for this employer sits comfortably in the hearing room, swapping chuckle-inducing text-messages on her blackberry or twittering away on his laptop.  This attorney, who by all accounts of fairness or decency should be preparing to bite the bullet and lead the defense against the applicant’s claims, feels not the slightest degree of pressure.

The applicant, of course, worked for some aspect of the Federal Government, building ships or delivering mail.  The lawyer, without looking up from her calendar as she scribbles down lunch plans, merely says the magic words that keep her from lifting a legal finger:  sovereign immunity.  You see, after all, the King can do no wrong.

Left at this point, California Workers’ Compensation law sometimes leaves the unlucky employers that have their shops set up along Applicant’s Memory Lane, in some extreme cases responsible for 1% of the exposure amongst themselves, to foot the entire bill.  Soon comes the puffery of settlement and the melee of negotiation.  “Cough up the money! I know your client’s got it!”  “We’re just ten grand away from settling this thing, pay your fair share.”  Suddenly, the bonds of brotherhood uniting defense attorneys against the flood of applicants coming for their clients is gone, as the equally blameless defendants scatter to avoid being the “target.”

I’ve talked about a tool you can use to put some pebbles in the boots of lien-claimants.  With the stage now set, on Tuesday I’ll tell you about a big rock to toss in the shoe of an asbestos (or other) applicant.