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Asbestos was a major presence on Navy ships for many years, beginning during World War II and lasting beyond the Vietnam War era. For many sailors, there was no place to escape exposure to asbestos. Shipbuilders at Brooklyn Naval Shipyard, Mare Island Naval Shipyard, Norfolk Naval Shipyard and Kaiser Shipyard came into contact with the material daily. For those at sea, asbestos was used to put out fires, and was a commonly used material in pumps, pipes, gaskets and boilers.
Even though the Navy was aware that asbestos could be deadly, they continued to use the material because it served so many valuable roles. Despite these actions, the Navy is immune from a lawsuit because it is part of a government body. Even though a suit is not possible, one of the options available is to pursue benefits from the Department of Veterans Affairs.
Before the VA will grant the request to distribute servicemember or survivor benefits, specific requirements must be met. Service records must show exposure to asbestos during service time, and the servicemember’s history must be examined for exposure prior to or after service time. The exposure during service time must be linked to causing the mesothelioma or other cancer that develops. This can be a rather time-consuming process, and benefits may be denied initially. If the benefits request is rejected, service members or their survivors may file an appeal.
Many lawsuits have been filed against companies that provided materials to the Navy. These suits can become quite complicated, involving questions of state and federal law. Contractors will attempt to claim immunity from suit, and the assistance of an experienced attorney in the field will be crucial to helping these cases successfully move forward. The first hurdle that litigants may face deals with the court that will hear the case.
Many claims are brought in state courts, in the location where the servicemember was initially exposed to the asbestos. Contractors may try to use the removal statute to have the case transferred to federal court, even though the case involves a personal injury claim. If the contractor can show that it was acting under the direction of a federal agency, has a colorable defense under federal law, and a connection exists between its acts and the injury suffered by the plaintiff, the case will be removed to federal court.
This process could cause lengthy delays to those who do not have a lot of time. Additionally, some of these contractors may have limited funds, and the costly litigation could leave little available to those injured who are successful with their claims. Much of the argument in these cases concerns whether the contractor has any defenses that it may be able to use. The defense claimed most often in these matters is the government contractor defense.
Since the Navy is immune from suit, the contractor may claim that they are immune as well, because they are working under the Navy’s orders. According to Boyle v. United Technologies Corp., a 1988 U.S. Supreme Court case, three elements must be satisfied in order for the defense to apply. First, reasonably precise specifications must have been approved by the governmental body involved. Second, the equipment or materials provided must meet these precise specifications. Lastly, if the product was dangerous, the contractor needs to warn the government, because the government is unaware of the dangers.
Depending upon the situation, this aspect of the case can involve a lengthy discovery process to determine the amount of government involvement at each step of the process. Attorneys will need to examine the planning of the product provided. Also, attorneys will need to examine what the contractor knew about the dangers of the product. Was this information communicated clearly to an unaware governing body? Did the governmental entity proceed despite these warnings? Did the government interfere with the warnings in any way? This information will be necessary to help prove the contractor’s negligence.
Those that were exposed to asbestos as part of their military service face a difficult road in obtaining benefits from the government, and will need to move fast if filing a suit against government contractors. Mesothelioma can lay dormant for decades. When symptoms emerge, sailors need to seek treatment as soon as possible. The illness is extremely aggressive, and causes a great deal of physical and emotional pain. If you are concerned that your military service may have placed you into contact with asbestos, speak with an experienced attorney to discuss your next steps.
Based in North Carolina, Wallace & Graham, P.A. represents clients nationwide. Call or contact us online for a free case evaluation. Our skilled and caring attorneys will explain your rights and fight for the justice you deserve.
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