Builders Beware: A New Class Of Defendants In Asbestos Lawsuits
January 06, 2016 —
David J. Byassee, Bremer Whyte Brown & O’Meara, LLP & Timothy A. Gravitt, Ulich, Ganion, Balmuth, Fisher & Feld, LLPResidential, commercial and industrial builders face new and potentially significant liability for construction activities that took place in the 1960s, 1970s and 1980s: personal injury lawsuits filed by construction workers from exposure to building products containing asbestos. After emptying the pockets of manufacturers and suppliers of raw asbestos and asbestos-containing products over the last 20 years, plaintiff lawyers are beginning to set their sights on a new class of defendants in asbestos litigation: residential, commercial and industrial builders who unknowingly allowed asbestos-containing products to be incorporated into their projects.
The men and women who have been involved in the building industry for 40 years or more may remember the subject of asbestos surfacing in the 1970s with the enactment of the Occupational Safety and Health Act (OSHA). At that point builders were just beginning to learn that asbestos was a component of some building materials, and the potential risk of cancer presented by asbestos was being debated in scientific and medical journals. Although the use of building materials containing asbestos was mostly phased out by the 1980s, the health risks associated with exposure to asbestos continue – and in fact increase – for the duration of an exposed person’s life.
Today it is generally accepted that exposure to asbestos increases the risk of developing asbestosis and certain kinds of cancer, including mesothelioma. Cancers associated with exposure to asbestos are typically diagnosed at least 15 years (and sometimes up to 50 years) after a person’s exposure to asbestos, meaning that exposures in the 1960s, 1970s and 1980s might not manifest in disease until now. The class of persons who may be at risk for asbestos-related disease is long and varied: insulators, HVAC installers, pipe fitters, plumbers, drywall installers, painters, plasterers and roofers, to name a few. Long-term exposure history, coupled with the theory that “each and every” exposure during a lifetime is a substantial factor increasing the risk of developing cancer, presents potential liability to builders acting as general contractors and/or property owners, as well as the usual defendants in asbestos lawsuits, which include manufacturers, suppliers, and users of asbestos-containing materials.
In recent years, plaintiff lawyers have set their sights on builders as the financial wherewithal of traditional asbestos defendants has dried up. Plaintiff lawyers have created a new theory of liability which they use to rope builders in as defendants in asbestos lawsuits: that the builder knew – or should have known – that a deadly ingredient (asbestos) was contained in the building materials used in construction, and the builder failed to warn its subcontractors or anyone else on the project that exposure to asbestos could harm them.
Builders have unique legal defenses to claims brought by employees of subcontractors who have developed asbestos-related disease. For example, the California Supreme Court in Privette v. Superior Court (1993) 5 Cal.4th 689, held that an injured employee of a subcontractor cannot maintain a claim against the hirer (builder) for the employee’s injury absent affirmative contribution on the part of the builder to the injury. Thus the first line of defense in an asbestos exposure case is to argue that the developer had no direct role in the plaintiff’s exposure to asbestos and therefore the Privette doctrine precludes the plaintiff from suing the builder. But resourceful plaintiff lawyers are coming up with arguments to get around this so-called Privette defense in asbestos lawsuits by claiming that builders’ activities such as cleanup of asbestos-containing materials, or assertion of control over the work of the subcontractor, directly contributed to the plaintiff’s injuries and therefore provide exceptions to Privette and allow the claim to proceed.
A practical question is raised in asbestos cases: How is a plaintiff able to prove, decades after working on a project, what building materials contained asbestos, or that a builder knew or should have known in the 1960s, 1970s or 1980s that asbestos-containing materials were used on their project, or that asbestos presented a health risk? To answer the first part of the question (what building materials contained asbestos), plaintiff’s experts will say that during the relevant timeframe asbestos was a common ingredient in many building products, e.g., drywall joint compounds, stucco/plaster/gun cement, acoustic ceiling products, cement pipe, insulation, roofing mastic, caulk and plumber’s putty; this can be further proven by reference to product manufacturers’ disclosures made pursuant to the Asbestos Information Act. Also, through the decades of asbestos litigation against product manufacturers and suppliers, resourceful plaintiff lawyers have developed vast banks of data and documentation identifying the manufacturers of asbestos-containing building products, the end-users of those products, and the projects where those products were supplied. With this bank of knowledge, all that is necessary for them to make the claim against a builder is to have the plaintiff identify a construction project where he or she remembers working during the relevant timeframe. Once that identification is made, it is a simple matter for the lawyers to dig and find out who developed the building/project, who then becomes a defendant in an asbestos lawsuit.
The answer to the second part of the question (whether the developer knew or should have known that the products brought to their projects contained asbestos) requires a detailed investigation into the dates at which the products were supplied to the project, the manufacturer of the product, and what information was available in the market place about the material content of the particular product.
The answer to the third part of the question (knowledge that asbestos presented a health risk) is trickier. One of the first standards set by OSHA in 1972 related to permissible levels of exposure to asbestos. It is a common tactic for plaintiff lawyers to argue that the existence of OSHA standards created a presumption of knowledge in the building industry about the dangers of asbestos. But what about pre-OSHA knowledge? Here plaintiff lawyers will argue that well before OSHA, going back as far as 1936, exposure to asbestos was regulated in California under General Industry Safety Orders relating to Dusts, Fumes, Mists, Vapors and Gases. They argue that the General Industry Safety Orders put builders “on notice” of the dangers of asbestos by virtue of being regulated by the State of California, and, by extension, builders had “knowledge” of the health risks associated with asbestos.
There are defenses that skilled defense counsel can utilize to defeat asbestos claims, assuming the Privette defense is not available. The first is to thoroughly investigate and evaluate all of the plaintiff’s potential exposures to asbestos throughout his entire lifetime, and identify those sources that likely were the major contributors to his disease. Next, counsel has to properly investigate the project at which the plaintiff is alleged to have been exposed to asbestos, identify all of the possible sources of exposure, i.e., the products that were used or might have been used at the project, and finally how the plaintiff was allegedly exposed at the project. As most builders do not maintain records of what products were used in their projects dating back 15 years or more, let alone the identities of the trades that worked on the projects, knowledgeable defense counsel can be a valuable partner in unearthing the brands of products typically in use in the locale where the construction took place, and identifying the manufacturers of those products. Defense counsel must analyze the frequency, duration, proximity and intensity of the exposure, as well as the type of asbestos the plaintiff was allegedly exposed to (not all asbestos is created equal – some types are more toxic than others). This will involve careful evaluation of the levels of exposure created by the alleged activity of the builder, to determine, through experts and a thorough understanding of the scientific and medical studies on the subject, whether the levels of asbestos exposure created by the activity could be considered a “substantial factor” in contributing to the risk of the plaintiff’s development of his asbestos-related disease.
Asbestos lawsuits present a significant risk to the unsuspecting and unprepared builder. Money damages available to a plaintiff are substantial. Medical expenses for treatment of asbestos-related disease typically run into the hundreds of thousands of dollars, lost income (including retirement benefits) can also be significant, and jury awards for pain, suffering and emotional distress can be staggering - often millions of dollars. In some cases punitive damages are even awarded.
The bottom line is that a builder runs a big risk if it treats an asbestos claim like any other claim. The level of analysis and investigation to properly defend against the claim requires prompt action by knowledgeable counsel, and frequently there is no insurance coverage.
David J. Byassee is an attorney with the firm
Bremer Whyte Brown & O’Meara, LLP, and is a litigator who has devoted nearly a decade to representation of real estate developers and builders. He can be reached at: dbyassee@bremerwhyte.com.
Timothy A. Gravitt is an attorney with the firm
Ulich, Ganion, Balmuth, Fisher & Feld, LLP who is devoted to defending real estate developers and builders in a variety of litigation. He can be reached at: tgravitt@ulichlaw.com.
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New Certification Requirements for Veteran-Owned Small Business Concerns and Service-Disabled Veteran-owned Small Business Concerns Seeking Public Procurement Contracts
March 27, 2023 —
Jennifer Harris, Timothy D. Matheny & Abby Bello Salinas - ConsensusDocsEffective January 1, 2023, Veteran-Owned Small Business Concerns (VOSBs) and Service-Disabled Veteran-Owned Small Business Concerns (SDVOSBs) will be required to obtain Small Business Administration (SBA) certification to participate in any federal government agency VOSB or SDVOSB sole source or set-aside prime contracts. This change originated from a Final Rule (87 FR 73400) published by the SBA on November 29, 2022. As a result of this Final Rule, not only will VOSBs and SDVOSBs be required to re-visit, and in some cases re-apply for various certifications, but these new regulations will also impact joint ventures that rely on their member’s VOSB or SDVOSB status to bid public work.
New Regulation
Previously, a VOSB and SDVOSB could self-certify to perform set-aside and sole source projects on non-U.S. Department of Veteran Affairs (VA) procurements—a VOSB and SDVOSB only needed to be certified by the VA Center for Verification and Evaluation (CVE) when bidding on VA procurements contingent on its status.
Reprinted courtesy of
Jennifer Harris, Peckar & Abramson, P.C.,
Timothy D. Matheny, Peckar & Abramson, P.C. and Abby Bello Salinas, Law Clerk, Peckar & Abramson, P.C.
Ms. Harris may be contacted at jharris@pecklaw.com
Mr. Matheny may be contacted at tmatheny@pecklaw.com
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Insured's Jury Verdict Reversed After Improper Trial Tactics
October 09, 2018 —
Tred R. Eyerly - Insurance Law HawaiiThe appellate court reversed a jury verdict for the insured due to improper trial tactics by his attorney. Homeowners Choice Property and Cas. Ins. Co., Inc. v. Kuwas, 2018 Fla. Ct. App. LEXIS 9500 (Fla. Ct. App. July 5, 2018).
The insured sued Homeowners Choice (HCI) alleging breach of contract due to a denial of coverage for property damage as a result of water loss. During the trial, HCI raised objections to various questions posed by the insured's counsel during the testimony of HCI's litigation manager, as well as various closing arguments made by the insured. The jury entered a verdict for the insured for a substantial sum. HCI appealed.
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Tred R. Eyerly, Damon Key Leong Kupchak HastertMr. Eyerly may be contacted at
te@hawaiilawyer.com
Georgia Court of Appeals Holds Lay Witness Can Provide Opinion Testimony on the Value of a Property If the Witness Had an Opportunity to Form a Reasoned Opinion
September 25, 2018 —
Gus Sara - The Subrogation StrategistIn Woodrum v. Ga. Farm Bureau Mut. Ins. Co., 815 S.E.2d 650 (Ga. Ct. App. 2018), the Court of Appeals of Georgia considered whether the lower court properly disqualified a contractor as an expert witness and excluded the contractor from offering lay opinion testimony regarding the value of a property. The Court of Appeals held that, while the lower court properly disqualified the contractor as an expert witness, it improperly excluded the general contractor’s lay opinion testimony regarding the value of the property. This case establishes that, in Georgia, a lay witness can provide opinion testimony on the value of a property if the proponent of the testimony demonstrates that the witness had an opportunity to form a reasoned opinion.
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Gus Sara, White and Williams LLPMr. Sara may be contacted at
sarag@whiteandwilliams.com
Ambiguity Kills in Construction Contracting
May 27, 2019 —
Christopher G. Hill - Construction Law MusingsWell, I’m back and hope to have a more consistent publishing schedule moving forward. I appreciate the continued readership through what has been a busy time for my solo construction practice over the last couple of months. Now, back to our program. . .
Here at Construction Law Musings, I have often beaten the drum of a solid contract that leaves as little as possible to chance or the dreaded “grey areas” where we construction lawyers like to make money. An example of the issues that can arise from ambiguity can be found in a case from 2017 in the Western District of Virginia, W.C. English, Inc. v. Rummel, Klepper & Kahl, LLP et al
In this case, English, a general contractor, entered into a contract for Quality Assurance (QA) functions with RK&K, the defendant, on a contract English entered into with the Virginia Department of Transportation (VDOT). Needless to say, because this would not be a post at Musings otherwise, there were issues with the QA performed by RK&K leading to additional costs for English to correct certain work that did not comply with the contract documents between VDOT and English. English sued for breach of contract based upon a term sheet, signed by the parties, from RK&K that required RK&K to indemnify English for claims by VDOT that related to RK&K’s work (the English Term Sheet). RK&K moved to dismiss the complaint based upon a different term sheet, also signed by the parties, which stated that RK&K could not be held responsible for English’s failure to perform pursuant to the contract documents (the RK&K Term Sheet).
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The Law Office of Christopher G. HillMr. Hill may be contacted at
chrisghill@constructionlawva.com
Construction Litigation Roundup: “Apparently, It’s Not Always Who You Know”
December 16, 2023 —
Daniel Lund III - LexologyA respondent party in a pair of international arbitrations on the losing end of roughly $285,000,000 in adverse awards attacked the awards based upon arbitrator bias.
“If there is one bedrock rule in the law of arbitration, it is that a federal court can vacate an arbitral award only in exceptional circumstances. … The presumption against vacatur applies with even greater force when a federal court reviews an award rendered during an international arbitration.”
Applying the Federal Arbitration Act (according to the court, the international arbitrations were “seated” in the United States and fell under the New York Convention, such that the FAA is required to be the basis for vacatur efforts), the court examined assertions that certain alleged non-disclosures by the panel “concealed information related to the arbitrators’ possible biases and thereby ‘deprived [respondent] of [its] fundamental right to a fair and consensual dispute resolution process.’” The aggrieved party urged that one arbitrator’s undisclosed nomination of another arbitrator to serve as president of another arbitral panel – “a position that sometimes pays hundreds of thousands of dollars” – possibly influenced the second arbitrator to side with the first. Assertions were also levied that the arbitrators’ undisclosed work with the attorneys for the claimant in other arbitrations “allowed them to become familiar with each other, creating a potential conflict of interest.”
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Daniel Lund III, PhelpsMr. Lund may be contacted at
daniel.lund@phelps.com
The Show Must Go On: Navigating Arbitration in the Wake of the COVID-19 Outbreak
July 20, 2020 —
Justin K. Fortescue, Zachery B. Roth & Marianne Bradley - White and Williams LLPThe recent COVID-19 outbreak has altered life for all of us, in ways both big and small. Unprecedented restrictions relating to the pandemic have forced individuals across the globe to change the ways in which they live and work. Perhaps not surprisingly, these restrictions have also changed the way we resolve disputes. Just as virtual conferencing has become the “new normal” for family gatherings and social events, it has also become the “new normal” for everything from mediation, to oral argument, to full-blown hearings.
To be sure, there are a number of advantages to conducting adversarial proceedings virtually. First and foremost, it results in substantial cost savings for the parties involved. In-person proceedings typically require significant travel expenses, including airline tickets, hotel reservations, and food and beverage stipends. The use of a virtual forum essentially eliminates these expenses, cutting costs dramatically for attorneys, clients, judges, and arbitrators alike.
Virtual conferencing also affords the opportunity for increased participation from party representatives living across the country, or even across the world. While demanding work schedules often make it impossible for multiple party representatives to attend a deposition, or even a hearing, in person, virtual proceedings require much less of a time commitment. Because these virtual proceedings require participants to spend less time away from other work-related obligations, party representatives are able to attend proceedings that they may otherwise have had to miss.
Reprinted courtesy of White and Williams LLP attorneys
Justin K. Fortescue,
Zachery B. Roth and
Marianne Bradley
Mr. Fortescue may be contacted at fortescuej@whiteandwilliams.com
Mr. Roth may be contacted at rothz@whiteandwilliams.com
Ms. Bradley may be contacted at bradleym@whiteandwilliams.com
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More Regulations for Federal Contractors
October 08, 2014 —
Craig Martin – Construction Contractor AdvisorThe Office of Federal Contract Compliance Programs (OFCCP) has been busy. In the last several weeks, the OFCCP has proposed regulations that will require contractors and subcontractors to provide summary compensation data and another rule prohibiting federal contractors and subcontractors from discriminating against employees or applicants who inquire about, discuss, or disclose their own compensation or the compensation of another employee or applicant.
Equal Pay Report
The OFCCP has proposed Summary Compensation regulations which would require federal contractors and subcontractors with more than 100 employees to “provide summary data on the compensation paid to employees by sex, race, ethnicity, specified job categories, and other relevant data points.” Covered employers would have to submit three types of information:
1. the total number of workers within a specific EEO-1 job category by race, ethnicity and sex;
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Craig Martin, Lamson Dugan and Murray, LLPMr. Gopal may be contacted at
pgopal2@bloomberg.net
