My employer says it provided me with state-of-the-art equipment to prevent my exposure to asbestos. Are they still liable for my asbestosis, and if not, who is?

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Asbestos Preventive Equipment Failed Injury Law

My employer says it provided me with state-of-the-art equipment to prevent my exposure to asbestos. Are they still liable for my asbestosis, and if not, who is?

Your employer may still be liable to you, in part, for your asbestosis. Much of the safety equipment that was available did not, in fact, protect against asbestos exposure, and a percentage of the employers using that equipment were aware of this fact. If yours was, they will be liable for part of your damages. For example, your employer may have given you a dust mask to wear, but may have purchased dust masks that were not rated to filter out asbestos particles. Your employer will have records of the safety equipment ordered and used, and your attorney can work with these records to discover whether appropriate equipment was provided to you.

Additionally, the manufacturer of the safety equipment may be liable for your damages under two theories of product liability which will form the basis of a successful case: (1) the safety equipment did not work correctly, or (2) the equipment was ineffective at protecting you from asbestos exposure.
In number (1), although you wore the equipment as instructed, it did not perform as it should have and unreasonably exposed you to the very danger it was supposed to be protecting you from.
In number (2), the manufacturer of the safety equipment simply did not produce equipment that was effective and your injury was caused by poor design. Proving a design defect is generally harder since it delves into the reasoning why a manufacturer technically choose one design over another. You can expect both sides to call experts to try and prove that these choices were appropriate. If you can prove the manufacturer knew the particular piece of safety equipment was not effective at filtering out asbestos particles but still marketed it for that use, the manufacturer may be exposed to a punitive damage risk – in other words, damages may be assessed for the purpose of punishing the manufacturer for producing ineffective equipment. This is not an unusual situation, so your attorney will want to investigate exactly how and why the safety equipment failed.

Finally, the manufacturer or supplier of the asbestos may also share in the liability for creating and distributing an unreasonably dangerous product that caused your illness. This is also a product liability claim in that you were, presumably, using the asbestos as it was intended to be used but the exposure to it made you sick because the product is unreasonably dangerous.

The possible breakdown of a product liability asbestos lawsuit and parties may look like this:

A. Against the employer:

(1) If your employer did buy equipment marketed as being effective against asbestos exposure and trained you in its use, your employer may have very limited or no liability.

(2) If you were supplied with this equipment and refused to use it, your damages may be significantly reduced because you contributed to your illness – a theory called contributory negligence. So, for example, if you refused to wear a respirator because it was uncomfortable, your employer may be able to successfully argue that your illness was actually caused by your actions – or lack of action, in this case.

B. Against the manufacturer:

(3) If the manufacturer did not realize that its safety equipment products were ineffective, it will still be liable to you for supplying an ineffective product. Your damages from the manufacturer in this case might not amount to much, unless your asbestos attorney can show that the manufacturer didn’t conduct sufficient testing to really be able to say whether the safety equipment was effective or not. Your damages may also be increased if the manufacturer actively promoted the products as being effective when they were not.

(4) If the manufacturer knew the safety equipment product was ineffective and still marketed and sold it as being effective against asbestos exposure, you may be able to claim punitive damages from the manufacturer or, at the very least, the manufacturer’s liability will be increased.

C. Against the supplier of the asbestos:

(5) If the asbestos supplier simply provided asbestos without doing anything to warn about the dangers of asbestos exposure, the supplier may share in the liability to some extent. There may be a small change in how much damages are awarded based on how well they warned end users of the danger of asbestos exposure, but that is rare – in other words, if the supplier tried to make end users aware of the dangers, it may help reduce the damages that they are required to pay.

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