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June 01, 1996 3:40 PM
"Late" Notice Permitted in Asbestos Claims

 While working in various capacities for approximately 30 years, an employee was exposed to asbestos fiber. During 1987 the employee retired. In 1988 the retired employee consulted with both a lawyer and a doctor. In November of 1989 the employee had actual knowledge that he suffered from asbestosis. 

In 1990, a third party products liability claim was filed against the manufacturers, distributors, and suppliers of asbestos material as a result of his asbestosis. In March of 1991, the former employee received the proceeds of the first settlement from a defendant in the third party action. 

On October 23, 1991, within two years after he had knowledge of his occupationally-related disease, the former employee filed a workers' compensation claim against his former employer. The court did not bar the claim even though the employee had not notified his former employer until the filing of the workers' compensation claim. 

The court held that where the employer was not prejudiced by the receipt of late notice and did not dispute that the disability was work connected, the employee would not be deprived of the statutory benefits. The court reasoned that the purpose of the notice provision of the Statute is to avoid prejudice to the employer by permitting the employer the opportunity to provide immediate medical diagnosis and treatment for the purpose of mitigating damages and to facilitate the earliest possible investigation of the factual allegations. 

The court declared that there was no legislative intent that would be served by barring the claim of the injured worker, who suffered from a compensable occupational disease, because of failure to give timely notice to the employer. Brock v. Public Service Electric and Gas Co., 290 N.J. Super. 221, 675 A. 2d 668 (App.. Div. 1996).

Futures Class Action Rehearing Requested

In May of 1996, the US Court of Appeals for the 3rd Circuit rendered a decision in a pending class action lawsuit (Georgine et al v. Amchem Products Inc. et al.) which may have some effect upon all future asbestos claimants. The Appeals Court determined that the method of settlement was not appropriate and de-certified the class. That lawsuit had been filed by several plaintiffs in concert with several defendants in an effort to settle future claims of victims of asbestos disease. The settlement established a program for the distribution of approximately $1.3 billion for personal injury caused by asbestos fiber. 

The nationwide agreement between the twenty Center for Claims Resolution (CCR) member companies and plaintiffs' attorneys, which was supported by organized labor, would have resolved future asbestos personal injury claims through a court-approved process. This would have brought more than 20 years of asbestos litigation to an end. The Court of Appeals declared that the proposal was "arguably a brilliant partial solution to the scourge of asbestos." 

It was our opinion as well as that of many other attorneys throughout the country that the proposal was fair and just and provided a means to make payment to the victims without the delays and risks of trial. The proposed settlement would have saved available resources so that the injured parties could be paid fairly. 

This proposed settlement was to be a model that could be followed in the thousands of cases that are presently pending in the Federal Court system as a result of Multi District Litigation (MDL). As you recall, all Federal Court cases were consolidated for pre-trial discovery in Philadelphia several years ago. As of this date there has been little or no activity on these matters. 

The Appeals Court suggested that, Congress, not the courts, should establish a method of compensation. It based its decision upon a minority interpretation of Federal Rule of Civil Procedure 23, under which a court applying the standards for class certification in a case must ignore the fact that a settlement has been reached and must pretend that the entire case must be tried. 

A rehearing of the matter has been requested by the plaintiffs in the Georgine matter. If granted, the rehearing will be before all members of the Third Circuit Court of Appeals in Philadelphia. The ruling to de-certify the class was made by only 3 judges. No date has been set for a decision on the request for a rehearing. Should review at the Appellate level be unfavorable, it is anticipated that a review by the U.S. Supreme Court will be requested.

Award allowed For Emotional Distress and Medical Monitoring 

A 41 year old pipefitter was exposed to asbestos fiber while working for the railroad in different capacities from the early 1970's through the 1980's. During his work in the steam tunnels of the Grand Central Terminal in New York City he was exposed to asbestos insulating materials which he was required to remove, repair and maintain. The dust created from this operation would cover his skin and clothing and enter his nose and mouth. In fact, the worker indicated that he could taste the insulation. The workers were nicknamed the "snowmen of Grand Central." 

In August of 1987, nearly a year after a fire and multiple asbestos citations, Metro North finally required that the pipefitters attend a class on asbestos awareness. They were told that asbestos is a substance that can cause asbestosis, lung cancer and mesothelioma, a cancer of the tissue outside the lungs. 

During 1991 the worker was examined at Mt. Sinai Hospital in New York but was not diagnosed as having an asbestos-related disease. However, based upon his history, the physicians who examined him advised him that he had a significant risk of dying from an asbestos-related medical condition and that there was a reasonable scientific basis to fear that the pipefitter would develop an asbestos-related lung cancer. The physicians recommended medical monitoring in the future to detect any signs of asbestos-related disease. 

The Second Circuit Court of Appeals, interpreting the Federal Employers' Liability Act (FELA), decided that the pipefitter may be entitled to a claim for emotional distress and medical monitoring even though there was no actual evidence of asbestos-related disease. 

The Court's decision has not been universally accepted throughout the United States but may represent a trend in asbestos litigation. (Buckley v. Metro North Commuter Railroad, 79 F.3d 1337 (2nd Cir. 1995).

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