Silly asbestos ruling hurts those the law should be protecting

There's an old saying, "No harm, no foul." But a Louisiana jury has changed that principle in a decision that could open a Pandora's Box of lawsuits.

The case involves a group of residents in Westlake, La., who purchased fill dirt from a contractor. The contractor had acquired the dirt while working for Conoco, removing and replacing soil next to an oil refinery. The soil contained asbestos.

None of the plaintiffs were sick, and none have proven they'd even had significant exposure to the contamination. Nevertheless, the jury awarded them compensatory and punitive damages saying they had suffered the fear of harm, rather than actual harm.

Quentin Riegel, an attorney for the National Association of Manufacturers, says the decision sets a dangerous precedent. "Plaintiffs in Louisiana can sue for damages by alleging theoretical exposure to any hazardous substance, no matter how slight and regardless of whether or not physical injury has occurred," he said.

If allowed to stand, the decision will set our legal system on its head.

For example, we are all exposed on a daily basis to potentially harmful substances such as car exhaust, cleaning products, gasoline, fertilizer, dental ex-rays, over-the-counter drugs - even sunlight.

Asbestos occurs naturally in the soil, and minute levels of asbestos can be found all around us. Over the years, it has been used in thousands of products including ironing board covers, brake linings, roofing shingles and insulation.

If the rule in this case - that any exposure to a hazardous substance, no matter how slight - is grounds for a lawsuit, people could sue over everyday exposure to ambient levels of potentially harmful substances. The courts would be choked with lawsuits.

Legal experts say that if the court's ruling was applied in all toxic tort cases, so many individuals would qualify as potential claimants that people literally could be recruited off the street to serve as plaintiffs. After all, they wouldn't have to show they'd been harmed, only that they'd been exposed in some way to a potentially harmful substance.

The case now is before the Louisiana Supreme Court. The stakes are so high that even some trial attorneys are criticizing the lower court's decision. They say that, if the decision is allowed to stand, their clients - genuine asbestos victims who have suffered real harm - would have to wait in line for justice and may never see a dime in compensation.

A very long line.

Don Brunell is president of the Association of Washington Business.

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