In a significant ruling for people who become sick with incurable lung problems after being exposed to asbestos at work, the Pennsylvania Supreme Court in February 2012 upheld a plaintiff's right to sue companies for making products and maintaining workplaces that caused lung cancer, asbestosis and, later, mesothelioma. The state's high court affirmed the man's right under the so-called "two disease rule," which allows separate recoveries for different occupational illnesses that were diagnosed at different times.
The justices ruled in Daley, v. A.W. Chesterton; U.S. Supply Co, et al. that:
the separate disease rule, as adopted in Pennsylvania, allows a plaintiff to file an action for a malignant asbestos-related disease, even if he previously filed an action for a different malignant asbestos-related disease, provided the second or subsequent action is based on a separate and distinct disease which was not known to plaintiff at the time of his first action.
As a Virginia (VA) railroad and FELA personal injury attorney, I have helped numerous retired railroad employees whose on-the-job exposure to asbestos caused them to develop mesothelioma and other deadly lung diseases. The two disease rule, which is also referred to as the separate disease rule, has been invoked in several of these FELA cases. In one instance, a judge in West Virginia (WV) threw out my client’s case, saying that because the man had signed a blanket release of all potential claims against his railroad employer when he left his engineer job nearly two decades earlier, he had no right to file a mesothelioma lawsuit. Of course, when my client stopped working for the rail company, he had neither cancer nor any other asbestos-related disease.
For more information about mesothelioma and railroad-related lung cancers, check out these videos and articles:
Top 3 Things You Should Know When Filing a Mesothelioma Claim Against a Railroad
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The West Virginia Supreme Court of Appeals reversed the lower court's dismissal. I argued in my brief that even if he had a different asbestos-related disease when he signed the liability release years before, the separate disease rule allowed him to seek compensation for his later-diagnosed mesothelioma cancer. In that case, my railroad engineer had never even had an earlier asbestos lung disease. The appeals decision held that blanket employment separation releases cannot normally bar a later arising lung disease or cancer.
While courts in several states do not follow the two disease rule, the U.S. Supreme Court embraced the principle in deciding for the plaintiff in Ayers v. Norfolk & Western. In the majority opinion, Justice Anthony Kenndy wrote:
The separate disease rule is pertinent for at least two reasons. First, it illustrates that courts have found it necessary to construct fair and sensible common-law rules for resolving the problems particular to asbestos litigation. Second, it establishes that a person with asbestosis will not be without a remedy for pain and suffering caused by cancer. That person can and will be compensated if the cancer develops.
I am pleased to see that the Pennsyvania state justices applied the same common-sense principle that victims of more than one occupational illness or cancer have a right to receive compensation from all the companies whose negligence caused their suffering for separately identifiable diseases.
The ruling, while not binding on courts outside Pennsylvania (PA), provides strong precedent and support for all railroad, shipyard, factory, automotive, construction and HVAC workers who handled and breathed in asbestos for decades. Even office workers and family members of workers and military personnel are at risk for asbestos-related diseases. When those tragedies strike, a strong two disease rule can ensure that cancer victims are not victimized all over again.
EJL
About the Editors: The Shapiro, Lewis & Appleton personal injury law firm, which has offices in Virginia (VA) and North Carolina (NC), edits the injury law blogs Virginia Beach Injuryboard, Norfolk Injuryboard and Northeast North Carolina Injuryboard as pro bono services.
Rick Shapiro has practiced personal injury law for over 30 years in Virginia, North Carolina, and throughout the Southeastern United States. He is a Board-Certified Civil Trial Advocate by the National Board of Trial Advocacy (ABA Accredited) and has litigated injury cases throughout the eastern United States, including wrongful death, trucking, faulty products, railroad, and medical negligence claims. During his three-decade career, Shapiro has won client appeals before the VA Supreme Court, VA Court of Appeals, NC Supreme Court, SC Supreme Court, WV Supreme Court, TN Supreme Court, and three times before the United States Court of Appeals for the Fourth Circuit, underscoring Shapiro’s trial achievements. In addition, he and his law firm have won settlements/verdicts in excess of $100 million. His success in and out of the courtroom is a big reason why he was named 2019 “Lawyer of the Year” in railroad law in U.S. News & World Report's Best Lawyers publication (Norfolk, VA area), and he has been named a “Best Lawyer” and “Super Lawyer” by those peer-reviewed organizations for multiple years. Rick was also named a “Leader in the Law, Class of 2022” by Virginia Lawyers Weekly (total of 33 statewide honorees consisting of lawyers and judges across Virginia). And in September 2023, Rick was selected as a recipient of the National Board of Trial Advocacy (NBTA) 2023 President’s Award. Although many nominations were submitted from across the country, Rick was just one of eight attorneys chosen by the prestigious National Board which certifies civil trial attorneys across the U.S. Rick was also recently named to Virginia Lawyers Weekly 2024 Virginia’s Go To Lawyers Medical Malpractice. The attorneys awarded this honor are nominated by their colleagues and chosen by a panel from the publication.
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