Transfer of Federal Cases Back to State Court When Only State Law Claims Remaining

Understanding Federal and State Asbestos Laws

Asbestos is regulated by federal and state laws. State asbestos laws generally fall into two categories: Those that deal with implementing federal regulations, and those that define asbestos litigation laws.

The five major federal asbestos statutes and regulations that may be delegated to states include:

• OSHA's Construction Standards (OSHA 29 C.F.R. 1928.58)
• OSHA's General Industry Standards (OSHA 29 C.F.R. 2910)
• EPA's Worker Protection Rule (EPA 40 C.F.R. 763)
• EPA's National Emission Standards for Hazardous Air Pollutants (EPA 40 C.F.R. 61)
• EPA's Asbestos Hazard Emergency Response Act and the Asbestos School Hazard Abatement Reauthorization Act (EPA 40 C.F.R. 763)

State asbestos litigation laws define the legal rights of individuals who develop a related disease as a result of asbestos exposure. These laws also define regulations around who can file a mesothelioma lawsuit, when they can file and how punitive damages are awarded.

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Examples of State Asbestos Laws

California Asbestos Laws

The legal focus in California is on safety to reduce asbestos exposure among California residents. In 2007, lawmakers approved changes to Title 8, which requires employers to take specific steps to minimize asbestos exposure and to document any exposure that occurs. The law also requires that school systems keep abatement records for 30 years.

New York Asbestos Laws

Asbestos lawsuits are plentiful in New York. U.S. asbestos manufacturing began in New York in the mid-1800s, which led to many workers developing related diseases. New York has implemented laws to reduce asbestos exposure among residents and to ensure those who develop related diseases can seek compensation through the court system.

Pennsylvania Asbestos Laws

Pennsylvania once was one of the top five U.S. states for asbestos litigation. Lawmakers chose to let the courts manage these cases, and a set of procedures was set up to deal with the cases. The procedures address case management, physical impairment, punitive damages and successor liability. Many asbestos claims continue to be filed in Pennsylvania.

Texas Asbestos Laws

Texas is arguably the most aggressive state in terms of addressing asbestos litigation. It led the country in the number of asbestos claims filed between 1998 and 2000, and state lawmakers reacted quickly. It passed legislation to limit asbestos claims in 1997 and 2003. In 2005, it passed more detailed and sweeping laws to get cases moved through the docket faster.

Ohio Asbestos Laws

Ohio is one of the country's most active states in terms of asbestos legal reform. By the year 2000, the state was one of five that made up more than 66% of nationwide asbestos legal claims, a fact that drove Ohio lawmakers to introduce restrictions. They introduced medical criteria for victims and passed a series of updates that provide help for companies who are sued for asbestos claims.

Florida Asbestos Laws

Florida lawmakers aimed to reduce asbestos lawsuits by adopting the Asbestos and Silica Compensation Fairness Act in 2005. The law requires asbestos plaintiffs to have better evidence when the lawsuit is filed.

Georgia Asbestos Laws

Georgia also tackled asbestos litigation in 2005. It added new filing requirements for asbestos and mesothelioma plaintiffs, requiring specific documentation of exposure. The results were almost instant. One judge, Fulton County State Court Judge Henry Newkirk, saw his asbestos caseload drop from 1,200 to 12 in one year.

Asbestos Laws in Other States

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State Laws Related to Asbestos Litigation

Legislation varies by state, but it typically covers all or some of the same areas of the law. Those areas include medical criteria, two-disease rules, expedited case scheduling, joinders, forum shopping, successor liability, premises liability, punitive damages and statute of limitations.

Medical Criteria

Some states reduce the number of active asbestos cases by limiting claims of plaintiffs who do not yet have physical or functional impairments. These laws usually require claimants to satisfy minimum medical criteria to proceed with their lawsuits.

Claimants are required to provide different types of evidence, such as medical records or pathology reports, based on the severity of the disease alleged. Evidence must certify that asbestos exposure was a substantial factor in the development of the disease.

Two-Disease Rules

Some jurisdictions apply different statutes of limitation to malignant and nonmalignant asbestos claims. In some instances, defendants are prohibited from requiring nonmalignant asbestos claimants to release any future claims, if they later develop cancer, as a condition of settlement.

Expedited Case Scheduling

Some states have passed measures that allow asbestos claimants with severe impairments, such as a mesothelioma diagnosis, to receive scheduling preferences for their trials.

Joinder of Claimants

Some courts have tried to expedite cases and encourage settlements by joining asbestos cases with dissimilar claims for trial (for example, mesothelioma claims and claims by plaintiffs with no physical impairments).

Some states fear that these efforts produce more lawsuits. As a result, these states require all lawsuit parties to agree before allowing courts to join multiple claims for a single trial.

Forum Shopping

Large case awards sometimes attract out-of-state claimants to a jurisdiction. Some of these jurisdictions have adopted forum shopping laws to limit claims by plaintiffs who reside or were exposed to asbestos in other states.

These laws are intended to prevent plaintiffs with no connection to a state from clogging court dockets.

Successor Liability

Some states enacted legislation to protect companies (successor companies) that buy or merge with asbestos companies (predecessor companies). Once companies merge or consolidate, successor companies generally take on the asbestos liabilities of predecessor companies.

Successor liability laws limit the asbestos liability of a successor company to the fair market value of the predecessor before merger or consolidation. As a result, the successor company avoids losing all of its assets because of the asbestos liabilities of the predecessor.

Asbestos Premises Liability

A "premises owner" is generally defined as any person or business that owns, controls or leases a building or piece of land. Premises liability laws clarify whether an owner is liable for injuries to an individual resulting from asbestos exposure on the property.

For instance, if a law presumes that a premise owner maintained safe levels of asbestos exposure, a plaintiff may be allowed to provide evidence that the owner knew or should have known that asbestos levels exceeded certain limits.

Punitive Damages

Juries sometimes award punitive damages to deter particularly bad conduct. These awards can result in large case verdicts.

Although most states do not limit punitive damages awards, others have passed laws to limit them in asbestos cases. Supporters argue that limiting the size of punitive damages awards makes more compensation available for future asbestos claimants.

States that successfully pushed tort reform legislation adopted state-specific versions of these laws. That is why it is important to work with a knowledgeable mesothelioma attorney who can give you specific advice about state asbestos laws.

Many states have not passed any asbestos tort reform legislation. Instead, their courts are left to decide whether they need measures to control asbestos litigation.

In some states, such as Pennsylvania, Maryland and New York, only the most active courts have adopted court rules and procedures to manage asbestos cases.

Statute of Limitations

Each state has at least one law on its books that affects the legal rights of people who have been affected by asbestos exposure. This law is known as a statute of limitations and limits the amount of time that a claimant has to bring a personal injury claim or wrongful death claim.

Speak to an experienced asbestos law firm to find out if you can still file a claim.

Outlook for Asbestos Legislation

The number of asbestos lawsuits will continue to influence state laws and court rules that affect how cases are managed. The number of lawsuits and the amount of compensation available to asbestos claimants may even renew future interest in passing federal asbestos legislation.

Remember that laws can change over time. A law passed by a state legislature today could be overturned by a state court months from now.

For example, according to a 2018 KCIC industry report, 13 states have recently passed bankruptcy trust transparency legislation or adopted similar regulations involving asbestos trust fund claims.

In 2018, lawmakers in New Jersey created a bill to ban asbestos in the state. In February 2019, the bill passed the Senate. It still has to pass the upper house in New Jersey and be signed into law by the state's governor.

It is important to work with a mesothelioma lawyer to get the most updated and accurate information for your situation.

Transfer of Federal Cases Back to State Court When Only State Law Claims Remaining

Source: https://www.asbestos.com/mesothelioma-lawyer/states/

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