Supreme Courts Asbestos Verdicts
Around the world Supreme Courts have been deciding issues arising from deadly asbestos legacies including who can be held to account for avoidable diseases contracted by citizens. In Europe, North America and Asia the highest courts in the land weighed in on the side of the victims in landmark verdicts in 2021-23; in Brazil, however, in a unique historical precedent, last month the Federal Supreme Court upheld its 2017 judgment outlawing the production, processing, use, sale and export of asbestos. After much litigation and many obstacles, on February 23rd the Court confirmed its ban on asbestos. Asbestos mining, which had continued in the State of Goiás despite the earlier ruling, was now once and for all deemed illegal.1
Other Supreme Court Decisions
On February 8, 2023, the French Court of Cassation (the Supreme Court) ruled that:
An employer who illegally uses a toxic substance [asbestos] undermines the dignity of employees who have been exposed to it. These employees will be able to obtain compensation separate from that which repairs their anxiety injury. 2
Approving the decision of the Court of Appeal, the Court of Cassation explained that there were two types of damage, each corresponding to a different breach by the employer:
When the employer had breached his safety obligations by using an authorized toxic substance without providing adequate occupational risk prevention measures, its employees could claim compensation for anxiety damage;
When an employer had illegally used a prohibited toxic substance, thereby committing a criminal offense, its breach of the employment contract undermined the dignity of the employee, who could then claim compensation for moral prejudice, independently of the anxiety prejudice.
Asbestos rally and demonstration by French and international asbestos victims groups in Paris, October 13, 2012.
By deciding not to intervene in a high-profile case brought by women who had been exposed to Johnson & Johnsons asbestos-tainted talc-based baby powder, on June 2, 2021 the United States Supreme Court left in place a Missouri Court of Appeals ruling (2020) and a St. Louis jury verdict (2018) which had awarded 20 women dying or dead from ovarian cancer a total of $2.12 billion.3 Given the market penetration of Johnson & Johnsons baby powder, the Courts decision resounded around the world with coverage in newspaper articles, magazines, tv programs and via internet portals.
Just one month earlier, the Supreme Court of Japan had issued a plaintiffs verdict in its first unified asbestos judgment. The Court accepted arguments advanced by the legal team representing 500 claimants in class action lawsuits brought by asbestos-injured construction workers or family members at courts in Tokyo, Yokohama, Osaka and Kyoto and confirmed that the Government of Japan had been negligent in delaying action on the asbestos hazard and that manufacturers of building products were liable for damage done by occupational exposures to their asbestos-containing products. Seventy per cent of the claimants in the class actions had died of their injuries since the cases were brought. It is noteworthy that the right of self-employed construction workers to claim compensation for asbestos exposures was confirmed by the Supreme Court.4
Demonstration in Tokyo May 18, 2021. Photograph courtesy of Sugio Furuya.
The Courts verdict had massive coverage in the Japanese media as well as the foreign press.
Brazilian citizens, French factory workers, US consumers and Japanese construction workers have all benefited from the decisions of Supreme Courts in their countries. Taken collectively, these landmark rulings demonstrate an increasing disquiet with national failures to address deadly asbestos legacies. Holding guilty parties to account for their misdeeds provides some solace to claimants and their families. One can but hope that Supreme Courts in other countries do likewise.
March 7, 2023
1 Brazils only chrysotile (white) asbestos mine was in the city of Minaçu in Goiás State. The mine was owned by SAMA Minerações Associadas, a subsidiary of Eternit, S.A.
Kazan-Allen, L. Brazils Asbestos Ban Upheld! February 25, 2023.
2 Usage illégal de lamiante et atteinte à la dignité des salaries [Illegal use of asbestos and attack on the dignity of employees]. February 8, 2023.
3 Kazan-Allen, L. Victory for U.S. Ovarian Cancer Victims. June 3, 2021.
4 Kazan-Allen, L. Historic Victory for Japans Asbestos Victims. May 20, 2021.