You might have been wondering when the first Lawsuits for asbestos began to come out, well, so have I. And books came to the rescue, How Policy Shapes Politics, Rights, Courts, Litigation, and the Struggle Over Injury Compensation. Has an excerpt, (provided below) which contains information on one of the first lawsuits. Here it is.
Turning to the Courts: The Clarence Borel Era
During the struggle over federal reform of state workers’ compensation, individual asbestos workers who had grown frustrated with workers’ compensation programs increasingly turned to the courts. The story of Clarence Borel, whose lawsuit in the late 1960's culminated in the first major federal appellate court victory for asbestos plaintiffs against asbestos manufacturers, illustrates this process.
Borel had spent decades insulating steam pipes, boilers, and other high-temperature equipment in shipyards and oil refineries using asbestos-laden products in the “Golden Triangle” region, a heavily industrialized area along the Sabine River that divides Texas and Louisiana. For most of his life, Borel had enjoyed steady work and reasonably good health. By the mid-1960's, however, constant exposure to asbestos began to take its toll. In 1964, his doctors warned him that his lungs were cloudy and that he should avoid further exposure as much as possible (Gifford 2010: 47). Borel, the father of six children, ignored this advice and continued to insulate pipes. His condition worsened. In January 1968, he developed pain in his chest and difficulty in breathing while working in a refinery for Fuller-Austin Insulation Company. Initially, he was diagnosed with pneumonia and sent to recuperate in a hospital in Port Arthur. During the next month, his condition deteriorated and doctors sent him to Houston for exploratory surgery. The surgery revealed that he was not only suffering from pneumonia but also had an advanced case of asbestosis. Later he would be diagnosed with mesothelioma. At the age of 57, Clarence Borel was dying.
Like many asbestos workers at the time, Borel did not initially file a lawsuit seeking compensation for his illnesses. Instead, in the spring of 1968, he filed a workers’ compensation claim, which he eventually settled for $8,000 plus $5,081.10 in medical expenses—a total of $13,081.10 for injuries that amounted to a death sentence for a man in his fifties. Later that year, Borel Asbestos Injury Compensation 119 decided to visit an attorney, Ward Stephenson, to see if he could claim further compensation in the courts to help cover his ongoing medical expenses and provide for his family. When Borel arrived in Stephenson’s office, he was visibly ill—pale, gaunt, and short of breath. He admitted that he knew asbestos dust was unhealthy and that he refused to wear a respirator at work because they were uncomfortable and easily clogged (Gifford 2010: 45). Nevertheless, Borel insisted that he never knew that asbestos dust could be fatal because he assumed that it would dissolve upon entering his lungs. He also maintained that he was never adequately warned of the dangers of asbestos. Instead, beginning in 1964, long after he began working, asbestos products provided generic warnings that “inhalation of asbestos in excessive quantities over longer periods of time may be harmful” (Gifford 2010: 47).
Armed with Borel’s detailed work records, Dr. Selikoff and his associates’ medical findings, and Section 402A, Stephenson formally commenced Borel’s lawsuit by filing a complaint in federal court for the Eastern District of Texas against 11 asbestos manufacturers from across the United States. The complaint sought $1 million in damages under Section 402A’s theory of strict product liability for failing to warn. Clarence Borel never saw his day in court. He died on June 3, 1970. However, under Texas law, his wife, Thelma, was able to take his place and the lawsuit proceeded. After a hotly contested trial, the Borels prevailed, winning damages of $79,436.24, more than six times the original workers’ compensation award. It was the first time that a court held asbestos manufacturers strictly liable for failing to provide sufficient warnings about their products’ health risks. In the American legal system winning at trial is only the first step in the litigation process. The losers can appeal, and that is exactly what the defendants did in the Borel case. The manufacturers hired W. Page Keeton to argue their case before the Fifth Circuit of the U.S. Courts of Appeal. Keeton was the Dean of the University of Texas Law School, a leading expert on torts, and one of the architects of Section 402A. Keeton argued that the district court had erred as a matter of law, maintaining that strict liability should not be imposed simply because harm was reasonably foreseeable from a product’s ordinary use. After all, harm is foreseeable from the use of almost any product, even seemingly innocuous items like cars, stoves, and antibiotics. Using Keeton’s academic writings, Stephenson countered that it would be absurd to allow manufacturers to avoid liability by ignoring their products’ dangers and concealing public health risks (Brodeur 1986: 66–68). On September 10, 1973, in an opinion by Judge John Minor Wisdom, the Fifth Circuit rejected the manufacturers’ appeal and affirmed the lower court.
The defendants continued to fight. They asked for a rehearing but the Fifth Circuit refused (Borel at 1109). They then appealed to the U.S. Supreme Court, but the Court denied their petition (419 U.S. 869 (1974)). After these options were exhausted, the Borel litigation finally came to a close. Other federal appellate courts followed in Judge Wisdom’s footsteps, holding that asbestos manufacturing and mining companies could be held strictly liable under Section 402A (see, e.g., Karjala v. Johns-Manville Products Corporation; Moran v. Johns-Manville Sales Corporation).
adxasbestos removal.com 125 S Clark St Chicago, IL
Turning to the Courts: The Clarence Borel Era
During the struggle over federal reform of state workers’ compensation, individual asbestos workers who had grown frustrated with workers’ compensation programs increasingly turned to the courts. The story of Clarence Borel, whose lawsuit in the late 1960's culminated in the first major federal appellate court victory for asbestos plaintiffs against asbestos manufacturers, illustrates this process.
Borel had spent decades insulating steam pipes, boilers, and other high-temperature equipment in shipyards and oil refineries using asbestos-laden products in the “Golden Triangle” region, a heavily industrialized area along the Sabine River that divides Texas and Louisiana. For most of his life, Borel had enjoyed steady work and reasonably good health. By the mid-1960's, however, constant exposure to asbestos began to take its toll. In 1964, his doctors warned him that his lungs were cloudy and that he should avoid further exposure as much as possible (Gifford 2010: 47). Borel, the father of six children, ignored this advice and continued to insulate pipes. His condition worsened. In January 1968, he developed pain in his chest and difficulty in breathing while working in a refinery for Fuller-Austin Insulation Company. Initially, he was diagnosed with pneumonia and sent to recuperate in a hospital in Port Arthur. During the next month, his condition deteriorated and doctors sent him to Houston for exploratory surgery. The surgery revealed that he was not only suffering from pneumonia but also had an advanced case of asbestosis. Later he would be diagnosed with mesothelioma. At the age of 57, Clarence Borel was dying.
Like many asbestos workers at the time, Borel did not initially file a lawsuit seeking compensation for his illnesses. Instead, in the spring of 1968, he filed a workers’ compensation claim, which he eventually settled for $8,000 plus $5,081.10 in medical expenses—a total of $13,081.10 for injuries that amounted to a death sentence for a man in his fifties. Later that year, Borel Asbestos Injury Compensation 119 decided to visit an attorney, Ward Stephenson, to see if he could claim further compensation in the courts to help cover his ongoing medical expenses and provide for his family. When Borel arrived in Stephenson’s office, he was visibly ill—pale, gaunt, and short of breath. He admitted that he knew asbestos dust was unhealthy and that he refused to wear a respirator at work because they were uncomfortable and easily clogged (Gifford 2010: 45). Nevertheless, Borel insisted that he never knew that asbestos dust could be fatal because he assumed that it would dissolve upon entering his lungs. He also maintained that he was never adequately warned of the dangers of asbestos. Instead, beginning in 1964, long after he began working, asbestos products provided generic warnings that “inhalation of asbestos in excessive quantities over longer periods of time may be harmful” (Gifford 2010: 47).
Armed with Borel’s detailed work records, Dr. Selikoff and his associates’ medical findings, and Section 402A, Stephenson formally commenced Borel’s lawsuit by filing a complaint in federal court for the Eastern District of Texas against 11 asbestos manufacturers from across the United States. The complaint sought $1 million in damages under Section 402A’s theory of strict product liability for failing to warn. Clarence Borel never saw his day in court. He died on June 3, 1970. However, under Texas law, his wife, Thelma, was able to take his place and the lawsuit proceeded. After a hotly contested trial, the Borels prevailed, winning damages of $79,436.24, more than six times the original workers’ compensation award. It was the first time that a court held asbestos manufacturers strictly liable for failing to provide sufficient warnings about their products’ health risks. In the American legal system winning at trial is only the first step in the litigation process. The losers can appeal, and that is exactly what the defendants did in the Borel case. The manufacturers hired W. Page Keeton to argue their case before the Fifth Circuit of the U.S. Courts of Appeal. Keeton was the Dean of the University of Texas Law School, a leading expert on torts, and one of the architects of Section 402A. Keeton argued that the district court had erred as a matter of law, maintaining that strict liability should not be imposed simply because harm was reasonably foreseeable from a product’s ordinary use. After all, harm is foreseeable from the use of almost any product, even seemingly innocuous items like cars, stoves, and antibiotics. Using Keeton’s academic writings, Stephenson countered that it would be absurd to allow manufacturers to avoid liability by ignoring their products’ dangers and concealing public health risks (Brodeur 1986: 66–68). On September 10, 1973, in an opinion by Judge John Minor Wisdom, the Fifth Circuit rejected the manufacturers’ appeal and affirmed the lower court.
The defendants continued to fight. They asked for a rehearing but the Fifth Circuit refused (Borel at 1109). They then appealed to the U.S. Supreme Court, but the Court denied their petition (419 U.S. 869 (1974)). After these options were exhausted, the Borel litigation finally came to a close. Other federal appellate courts followed in Judge Wisdom’s footsteps, holding that asbestos manufacturing and mining companies could be held strictly liable under Section 402A (see, e.g., Karjala v. Johns-Manville Products Corporation; Moran v. Johns-Manville Sales Corporation).
adxasbestos removal.com 125 S Clark St Chicago, IL