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The Road-map / Anatomy of an Asbestos Lawsuit and Mesothelioma

Updated on November 22, 2012

Asbestos has been used in North America since the late 1800’s. During this time, it has been used in many products. The construction industry has used it for insulation, fireproofing, roofing materials and sound absorption materials. The shipbuilding industry has used it for insulation for boilers, steam pipes and hot water pipes. The automotive industry has used it for clutch pads and brake shoes. Many types of tiles and ceiling tiles were made from asbestos, as were coatings, adhesives and paints. At one point, asbestos was even utilized in talc-containing children’s crayons. Over time, the medical and scientific communities found that the dust formed by asbestos was hazardous.

Because of this, the U.S. Consumer Product Safety Commission (CPSC) banned the use of asbestos in the 10’ in wall patching compounds and fiber places because the asbestos fibers were released in into the environment when used. It wasn’t until 1989 that the U.S. Environmental Protection Agency (EPA) banned all new uses of asbestos.

Note that uses identified prior to 1989 were still legal. At this time, it was also established that school buildings had to be inspected for damaged asbestos in an effort to better protect children. All asbestos found in these inspections had to be encased or removed. Finally in the year 2000, crayon manufacturers agreed to quit utilizing asbestos in children’s crayons even though the risks of exposure were found to be extremely low in the popular children’s product. At this time, the EPA also began looking at vermiculite. Vermiculite is an asbestos containing product used in gardening.

The EPA recommends that vermiculite products be kept damp in an effort to prevent dust from forming also that it be used outside rather than in enclosed areas in an effort to reduce exposure to the dust. For many, the actions of the EPA and the CPSC didn’t occur quickly enough. And while exposure through crayons or home gardening usage of vermiculite may not have provided sufficient exposure to asbestos, many that worked within in the industries that manufactured with these products or worked in construction with these products on an ongoing basis, may have been exposed at levels posing a significant risk to their health.

This exposure may cause cancers such as Mesothlioma and individuals who suffer may be entitled to financial restitution if they can prove their case. Asbestos manufacturers must be found at fault before any judge will find them liable in court and required that they pay medical bills and others cost to a Mesothelioma victim. Civil lawsuits require that the manufacturing company be found to be negligent, in breach of warranty and to have strict liability before they are required to make any financial payment to the plaintiff. Negligence can be difficult to prove.

Merriam-Webster Dictionary defines negligence as “failure to take the care that a cautious person usually takes.” But legally, negligence is a bit more complex and difficult to prove. First, it must be proven that the manufacturer had a legal responsibility to provide a safe product. Once that is proven, then it becomes necessary to prove that the defendant did not provide a safe product despite the legal obligation. Legally, this is referred to “breaching.”

Once proven that the manufacturer breached his obligation, then the injury must be tied to this breach. This is usually done through medical evidence that would prove the asbestos caused mesothelioma. And the final component of proving negligence is that the injury has caused damaged, or in this case that Mesothelioma is harmful to the individual. In most medical cases, including asbestos law suits, it is often very difficult to prove that product caused the injury or illness.

To prove this, attorneys usually present scientific evidence in the form of medical reports as well as expert medical opinions that asbestos to the mesothelioma The opposing lawyers will try to contradict this with differing medical evidence and by proposing other causes for the illness. Ultimately, it will be up to the judge to determine whether or not the attorneys have proven asbestos as the cause of mesothelioma.

Breach of warranty is a bit easier to prove. In cases such as this, lawyers are arguing over “implied warranty.” The plaintiffs lawyers would be arguing that there is an implied warranty that comes with asbestos containing products, specifically that the products are safe when use as intended. There is a second type of warranty is the express warranty.

This type of warranty would typically not apply to an asbestos case. The final parameter that must be determined is whether the criteria of “strict liability” has been met. Strict liability mean that the defendant ha absolute legal responsibility for the injury or illness. This is very similar to negligence, but has two additional requirements. The first of these is that they defendant must be a commercial supplier that manufactures and/or sells the product. In addition, it is not required that the breach occur as a result of an error or negligent act and the attorneys simply must prove that the product is dangerous irregardless of any other factors.

If you believe you suffer from Mesothelioma or another cancer as a result of exposure to asbestos, you should contact an attorney. A list of attorneys that may be able to assist you can be found in our directory of cancer attorneys.


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