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Air Force vet's asbestos lung cancer case kept in federal court

A 20-year Air Force vet and his wife discovered he had lung cancer in 2011. Since that tragic diagnosis, they have learned that the cancer was caused by asbestos he was exposed to during his military service. The couple was among 19 plaintiffs who filed suit here in Madison County Circuit Court last December against United Technologies Corporation and several other companies that manufactured the products that allegedly caused the asbestos-related illnesses in the veteran and others.

For these two plaintiffs, however, the lawsuit was removed from Madison County and ordered to be refiled in federal court. The reason for that change was that, because the ill man encountered the asbestos while serving in the Air Force, the defendant manufacturers were acting as federal contractors. Therefore, they alleged, they could raise a defense called the "federal officer removal provision" in federal law. Earlier this week, a federal judge in Carbondale upheld that defense, so the couple will now have to try their case in federal court.

One problem with that for the plaintiffs is that they and their lawyers will not be able to pool their resources with the other people who claim to have developed asbestos-related illnesses from using products manufactured by United Technologies, called UTC, and the other defendants.

A more serious potential problem is that the manufacturers can try to claim complete immunity from the lawsuit because they were acting on behalf of the U.S. government, which itself is often immune from injury lawsuits. Whether an immunity claim would succeed, however, is an open question at this point.

The man with lung cancer served in the Air Force between 1957 and 1977, working at various times as a construction worker, a machine operator, a mechanic, a plumber and an electrician for the service. In the lawsuit, the couple claims that he was given products manufactured by UTC and other defendants, and those products contained asbestos. Since the companies knew or should have known about the dangers to workers from asbestos, they failed to exercise due care when they included asbestos in those products.

Moreover, manufacturers of dangerous and defective products are generally held to a standard called "strict liability" when their products cause harm. Manufacturers -- along with distributors, retailers and repair technicians -- are required to provide products that are reasonably safe. Under U.S. law, when products injure people there is generally no legal question of whether the company was negligent -- they are simply required to pay for the damage they cause.

That said, the Air Force vet and his wife have included both strict liability and negligence as complaints in their lawsuit, among other allegations, which seeks at least $50,000 in compensation for the lung cancer.

Source: The Madison-St. Clair Record, "Murphy denies plaintiffs' motion to remand asbestos suit to state court," Bethany Krajelis, June 13, 2013

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