ASBESTOS SUBJECT TO STRICT REGULATION

The Fifth Circuit Court of Appeals ruled in the landmark decision of Borel v. Fibreboard Paper Products that an asbestos manufacturer could be held strictly liable for failing to adequately warn a worker that asbestos could cause terminal illnesses.

Equally important, the court said that manufacturers had known about the dangers of inhaling asbestos as early as the 1930s and had failed to test asbestos to determine its effect on workers, even though they had a duty to do so. Since the hazards posed by asbestos were clearly foreseeable to the manufacturers, the Fifth Circuit said they had a duty to adequately warn of these hazards. This they failed to do. Instead, they remained silent.

The manufacturers' silence -- internal company documents more accurately depict a conscious "coverup" of the product's hazards -- put at risk about 20 million Americans who have been occupationally exposed to asbestos. Hundreds of thousands of these workers are expected to die from asbestos-induced cancer.

In Borel, the worker inhaled asbestos dust during more than 30 years as an insulation worker. He knew it was bad for him, but didn't know it could kill him -- principally because the manufacturer never warned workers that asbestos was a carcinogen. As a result of his exposures, he contracted asbestosis, which caused a form of lung cancer known as mesothelimoa. (Asbestosis is a form of pneumoconiosis, the general term for all dust diseases of the lung.) The worker died of the disease before trial and his widow continued the action.

The immediate effect of the Fifth Circuit's decision was that it upheld the jury verdict in favor of the widow. In the wake of Borel, however, other workers exposed to asbestos have won jury verdicts for compensatory and punitive damages against asbestos manufacturers. Today, workers are protected by stricter standards and asbestos insulation is no longer sprayed in buildings and schools. Johns-Manville, one of the asbestos manufacturers named by Borel, has sought protection under Chapter 11 of the Bankruptcy Code.

Borel v. Fibreboard Paper Prods. Co., 493 F.2d 1076 (5th Cir. 1974), cert. denied, 419 U.S. 869 (1974).