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Landmark Case That Changed Asbestos Law

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From San Francisco Chronicle July 4, 1980

Today as an asbestos victim, you can count on being able to sue those responsible.  If you are the survivor of a family member who died because of asbestos exposure, you also can count on being able to file a wrongful death suit.  The pioneering practice of asbestos law at Kazan Law helped make this possible.  We not only practice under existing asbestos litigation rules, we help create those rules.

When I first started my career as a personal injury attorney, asbestos law as we know it today did not exist. To commemorate Kazan Law’s 40th anniversary, we’ll take a look at one of my first cases against the Johns-Manville Company.  It was a landmark victory that changed asbestos law forever.

Reba Rudkin, the plaintiff in the case, had been dead for several months by the time the state Supreme Court made its landmark decision. Mr. Rudkin’s death was attributed to “lung cancer” at the time, caused by on-the-job asbestos exposure which also caused his asbestosis .

Mr. Rudkin had worked for 29 years at a now closed Johns-Manville plant in Pittsburg, CA where industrial products like asbestos cement boards and panels were made.

A San Francisco Chronicle newspaper article, aptly published on July 4 1980, a day after the court decision, notes:

According to Rudkin’s attorney, Steven Kazan, yesterday’s ruling was the first time a California court has permitted a worker to sue his employer for injury since 1917, except for minor cases of physical assault.

Yes, that ruling was a game changer.

In a 5 – 2 decision, the court said the alleged misconduct by Johns-Manville was flagrant enough to provide an exception to a state worker’s compensation law that had prevented workers from suing employers for work related diseases or injuries

Employers were immune then from injury lawsuits under the 1917 Worker’s Compensation Act because it said workers could only seek compensation through the labor department, not through injury lawsuits in the courts.

Using an approach that is now standard, we filed a civil lawsuit against Johns-Manville in 1974 (Rudkin v Johns Manville et al), arguing that the Worker’s Compensation Act should not shield the company and its executives from fraud and conspiracy charges.  With Mr. Rudkin suffering from the lung disease that would soon kill him, we sued Johns-Manville for fraud and conspiracy in inducing him to work in an environment they knew was dangerous.

In a deposition for the case, Johns-Manville’s former plant manager had testified that there was in fact a “hush hush” policy to suppress information about the health hazards of asbestos.

Justice Stanley Mosk, in the majority decision, ruled that a worker or his family could sue “for aggravation of the disease because of the employer’s fraudulent concealment.”

This established an exception to the workers compensation exclusive remedy rule, later codified in Section 3602(b)(2) of the California Labor Code. It also opened a pathway for hundreds of other sick and dying former employees  to seek justice from Johns-Manville and other big companies.

This case also determined that the family of a plaintiff who died during a pending court case had the right to continue the suit. This also was a very important ruling that has helped many families achieve justice and compensation from companies responsible for the death of their loved one.

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