Under state law, there are numerous types of damage one can claim in personal injury or wrongful death civil cases. There are economic damages, such as those for medical expenses, continuing medical care and lost wages. There are also non-economic damages, such as those for pain and suffering and loss of life enjoyment. Beyond that, there are punitive damages (also known as exemplary damages), which are intended to punish a defendant. Punitive damages aren’t available in most Massachusetts personal injury cases, but per M.G.L. c. 229, they may be allowed in wrongful death cases where a corporation committed gross negligence or willful or wanton conduct.
This can be applied in some mesothelioma/ asbestos exposure cases, given that asbestos is a deadly fiber that when breathed into the lungs causes a latent form of cancer that is terminal.
Throughout the last two centuries, companies in the asbestos industry have hidden the dangers of this toxic material from the general public. Unfortunately, it seems some businesses are still allowing workers to be placed at risk for deadly asbestos exposure – and that means they have greater odds of paying punitive damages for their actions.
Example of Punitive Damages in Asbestos Case
According to a recent news article from EHS Today, the U.S. District court ordered a demolition company to pay restitution to former worker/ whistleblower who reported improper asbestos handling and unsafe working conditions – and was promptly fired.
Regulators for the U.S. Occupational Safety and Health Administration (OSHA) said the issue began when a demolition worker informed his supervisor that the demolition work being performed at a public school was not being done according to U.S. Environmental Protection Agency (EPA) regulations and the relevant state laws in place for limiting exposure to asbestos. On the same day he told this to his employer, he was not only fired, but given verbal threats, according to OSHA’s violation report.
The same day as this worker was terminated for reporting asbestos violations to his employer, he sought protection from the state’s whistle blower protection agency. The agency agreed that he should not have been fired for reporting a legitimate asbestos violation. The agency also contacted OSHA so that an investigation into the alleged safety violations could begin. Following the OSHA investigation, the terminated employee was the named plaintiff in a whistleblower lawsuit that included claims of wrongful termination and retaliation. A verdict was entered in his favor and he was awarded over $100,000 in back pay, $20,000 in compensatory damages and an additional $50,000 in punitive damages.
Punitive Damages Difficult to Win
As our Boston mesothelioma attorneys can explain, while this is not at typical mesothelioma lawsuit, it did involve the award of punitive damages. As a general rule, punitive damages are not available in personal injury cases, because they do not run congruent with the aims of an action at law. When the courts in England first created legal remedies in the form we have today, there were actions at law and actions at equity. There were actually different courts in England for the two types of remedies and the division still exists in part today.
When courts were formed in what eventually became the U.S., there were not enough judges or resources to have separate courts of equity of law so they were merged into single trial court. This division still exists in practice however, and legal damages, or damages at law, were designed to provide aggrieved parties with a means of redress that did not involve fighting in the streets. This meant that legal damages could compensate, or make whole, a plaintiff who was successful at trial. Damages were however, limited to actual compensation for the harm suffered. Some damages are considered liquid damages which are easier to prove such as lost wages, and others are somewhat more difficult to quantify.
The damages typically available in a Boston mesothelioma lawsuit include damages for pain and suffering, medical bills, lost wages, and in most cases funeral and burial expenses since most plaintiffs will not even survive the conclusion of trial. If this occurs, the next of friend of the decedent will open a probate estate and take over the case in the name of that estate. The surviving beneficiaries in decedent’s will or heirs at law if the decedent died with out last will and testament (intestate estate) will be entitled to any proceeds from the lawsuit paid from a legal settlement from a jury verdict should the case go to trial.
While punitive damages are often disfavored, civil asbestos lawsuit plaintiffs have better odds than most. This is because the companies mining asbestos were well aware of the dangers it posed to humans. This is also true of the companies that were taking the mined asbestos minerals and manufacturing them into consumer products, industrial goods, and construction materials. They kept the dangers hidden so that they could continue to profit even though they knew they were literally poisoning countless people. They also knew that it would take as long as 50 years for these workers to become sick enough to develop symptoms of malignant mesothelioma so they were willing to worry about that in the future because they were making a huge amount of money in the present.
This was more than mere negligence. When looking at the tort of negligence, which provides for compensatory damages, we are generally dealing with conduct that goes beyond an accident, yet falls short of intentionally harming another. If there was intentional harm, we are dealing with an intentional tort, and that is a separate claim entirely. In between negligence and intentional torts is an extreme form of negligence, sometimes called gross negligence. Gross negligence involves a willful and wanton disregard for the safety of others.
Knowingly poisoning workers with deadly asbestos fibers could be considered a willful and wanton disregard for the safety of others. When there is such a willful and wanton disregard for the safety of others, a plaintiff, through counsel could make a credible argument that this would allow for punitive damages. Unlike compensatory damages, which are designed to make the plaintiff whole again, punitive damages are designed not only to punish the defendant, but to also send a message that society will not tolerate this type of conduct in the future from that defendant and other similarly situated defendants. This is not true in every case, as the facts are generally different, so the best thing a mesothelioma plaintiff can do is to discuss punitive damages with his or her attorney during the initial free consultation.
If you or a loved one is diagnosed with mesothelioma in Boston, call for a free and confidential appointment at (617) 777-7777.
Improper Asbestos Removal Practices Leads to Whistleblower Claims, December 11, 2017, By Stephanie Valentic, EHS Today
More Blog Entries:
Montana Settles Asbestos Claims for $25M, Feb. 19, 2017, Boston Mesothelioma Lawyer Blog