There are often many potential liable parties in a mesothelioma case. In addition to the manufacturers of asbestos-containing products, often the sellers, shippers and installers of asbestos products can be held liable for failing to warn individuals of the dangers of asbestos products.
One recent asbestos product liability action was brought against a Colorado company called Dana Kepner Co. The lawsuit was filed by the widow of a construction worker who spent his career laying pipes, including some that contained asbestos. Like many other construction industry workers across the country, the man’s occupation resulted in significant asbestos exposure, which eventually caused him to develop mesothelioma.
Mesothelioma is a very serious form of cancer that is often not diagnosed until it is in an advanced stage. Mesothelioma often takes years to develop after a worker is exposed to asbestos and this lengthy latency period also makes it difficult to find viable liable parties in an asbestos product liability action.
In the case of the construction worker, his exposure to asbestos-containing pipes occurred in the 1970s and 1980s. The original manufacturer of the pipes went bankrupt by the time the litigation commenced, which is one reason why his widow pursued a case against the company that sold the pipes to the construction worker’s employer.
The seller attempted to have the product liability lawsuit dismissed under Colorado’s Innocent Seller Statute. Colorado law immunizes product sellers from asbestos product liability litigation unless a mesothelioma sufferer can show that it is impossible to obtain jurisdiction over the manufacturer or prove that the seller had actual knowledge of the product defect.
A judge denied the seller’s motion to dismiss because the construction worker’s widow sufficiently alleged that the seller had actual knowledge that the cement pipes contained asbestos. The construction worker’s exposure began in 1977 and the widow alleges that the pipe manufacturer began providing printed product information to its distributors as early as 1972. That information and other materials provided by the manufacturer may have put the seller on notice regarding the hazardous characteristics of the asbestos cement pipes.
The seller also sought to dismiss the widow’s product liability lawsuit on the basis that she failed to demonstrate that the seller had “actual knowledge of the particular defects,” which formed the basis of her lawsuit. In his written opinion, the judge reminded the seller that the widow was required only to state a claim that contains enough facts to be plausible on its face. The widow alleged that the seller had actual knowledge of the defect in its pipes because of the manufacturer’s information. Actually proving this assertion is a matter that would happen in the discovery or trial stage of the litigation.
This raises an important distinction between the pleading and discovery phases of litigation. Discovery is a process that occurs after a mesothelioma complaint is filed and answered. Discovery can take many forms, including the exchange of written questions and requests for admissions or documents.
Attorneys who artfully conduct discovery in mesothelioma cases are often able to reach a settlement with a manufacturer or seller of asbestos products. These companies know the risks associated with taking a mesothelioma case to trial and often will settle instead of gambling with the outcome that may occur with a jury. It is unclear whether the widow’s mesothelioma case will make it to the trial stage, but the judge’s recent decision means that this case will at least make it to discovery.