Asbestos is a fibrous mineral that has been used as insulation and as a fire retardant in a wide variety of products. Because of its durable, fibrous nature, asbestos can produce dust that, when inhaled, becomes deposited in the lungs -- causing or contributing to the development of illnesses including asbestosis (a fibrous scarring of the lungs) and mesothelioma (a malignant form of cancer in the lining of the chest or abdominal cavities).

Because of health concerns, all new uses of asbestos in the United States were banned in July 1989. That year, the EPA published Asbestos: Manufacture, Importation, Processing, and Distribution in Commerce Prohibitions, the effect of which was to eventually ban about 94 percent of the asbestos used in the U.S. (based on 1985 estimates). Most asbestos uses established before that date are still allowed, but are strictly regulated by the government. Even with government regulation, asbestos-related lawsuits have been filed regularly since the 1960's, and continue to be filed frequently today.

Determining Responsibility for Asbestos Exposure

In civil court lawsuits 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.

Breach of Warranty

There are two types of warranties: 1) implied warranties; and 2) express warranties. In an asbestos exposure case, you might be able to recover for a breach of an implied warranty under your state's implied warranty statutes, which are usually found in a state's commercial code. Implied warranties accompany the sale and use of many types of products, including those containing asbestos. In essence, implied warranties provide that a product will be fit and safe for its intended purpose.

Liability for a breach of express warranty 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 the product is in fact unreasonably dangerous, the supplier may be liable to a person who relied on the supplier's statements and was injured by the product.

Negligence

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 product liability.

Strict Liability

Like negligence, the strict product 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 negligence and strict product liability asbestos 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 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 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.