The following story was supported by funding from the Economic Hardship Reporting Project and was published by the Utah Investigative Journalism Project in association with The Salt Lake Tribune.
In a committee hearing on Feb. 15, Rep. Brady Brammer, R-Pleasant Grove, said HB328 is a sensible approach to ensure asbestos lawsuits really only target the culprits. The bill, Asbestos Litigation Amendments, would require medical proof that a person has become ill from exposure before a lawsuit could be formally filed.
“That’s about to come [medical disclosure] a little earlier so you don’t argue to the end and then decide that person was never sick at all,” Brammer said.
However, the bill contains other obstacles that potential plaintiffs must remove before a lawsuit can officially begin, including the need to identify the exact location where they were exposed to asbestos, as well as knowing the name of the manufacturer or seller of the asbestos and to know the specific name of each product containing asbestos.
While Brammer did not discuss this point of his bill in his presentation, he was questioned about it by a member of the House Judiciary Committee. Mark Behrens, a US Chamber of Commerce representative who joined the presentation in support of the bill, responded.
“Before you sue anyone, you should have a factual basis for knowing that information,” Behrens said.
But experts say asbestos infections are different than they were decades ago, when more people were often exposed in factories and knew exactly which company should be put at the forefront of the lawsuit. Now many contractors on small housing projects may be exposed to decades-old asbestos products installed in roofing, drywall joints and pipe insulation with no idea who made or sold the product.
Randy Spiers, owner of That Asbestos Guy Environmental, has been in the asbestos testing business for 33 years and says the other problem is that asbestos conditions like mesothelioma take decades to manifest.
“How would you know that forty years later?” he asks.
Legacy Cancer
Asbestos was once a miracle product. During World War II, workers lined ship hulls with the material for insulation, and in the decades that followed it was sprayed to insulate popcorn ceilings. It was poured into foundations, coated in piping, and installed in roofs and drywall, eventually ending up in the soft lung tissues of tens of thousands.
Asbestos fell out of use in most industries by the late 1970s, but was not fully banned in the United States. and 2,442 deaths statewide.
Exposure can also cause asbestosis, a noncancerous condition that also takes decades to manifest symptoms and leaves sufferers with shortness of breath, pain and wheezing cough for the rest of their lives.
At the Brammer Committee hearing, he said some unscrupulous law firms across the country were filing lawsuits against scores of defendants, including smaller companies, without knowing if they were really at fault, with many of those companies only well into the courtroom cases would be released.
“There’s a game where you sue a lot of people and then you get insurance companies to make low-ball offers and use that to fund the rest of the litigation,” Brammer testified, adding that that’s not the case Falling was a practice he had observed in Utah. In fact, he testified that there were very few active asbestos cases here and the legislation was designed to proactively address the problem.
Lawsuits from plaintiffs who worked in shipyards and factories have decreased. Today’s asbestos lawsuits often involve contractors working on renovations and demolition of older buildings.
The pandemic led to a home renovation boom in Utah. Construction Coverage, a construction-focused trade journal, published research showing that in 2021, Utah and Washington were the top states for residents seeking home improvement loans based on census data.
Data from the US Bureau of Labor Statistics also shows how hot the industry was in June 2021, for example employment for drywall contractors in Utah was 2.65 times the national rate; 2.98 times the national rate for electricians; and 3.55 times the national rate for masonry contractors.
Under Brammer’s bill, if contractors compromise on asbestos safety for any jobs, it will be significantly more difficult for an exposed worker to sue their former employer for injury.
Contractors must comply with state and federal laws and regulations. But Spiers, the asbestos tester, says the penalties can be steep – if you’re caught.
“Probably one in a thousand will be caught,” Spiers said. “But it’s a big fine.”
A simple solution?
Brammer’s bill was passed favorably by both a House of Representatives and a Senate committee, thanks in part to the endorsement of asbestos plaintiff attorney Rick Nemeroff. Nemeroff testified in favor of the bill, calling it a compromise compared to an even stricter and “terrible” first draft. The bill has bipartisan support and support from influential supporters, with one lawmaker on the committee even thanking influential supporters like the Northern Wasatch Association of Realtors for their work on the bill.
Asbestos experts are generally confident that even during construction booms like the one seen during the pandemic, exposure can still be kept down through training and awareness raising.
Leonard Wright is an environmental scientist with the Utah Division of Air Quality’s asbestos program. He says homeowners need to know that if they hire a contractor for a renovation larger than three feet by three feet (the size of a closet), their contractor must have an asbestos test done. It doesn’t matter if the house was built in 1923 or 2023. He says DIY projects made by homeowners themselves don’t need to be tested.
“We never want to go against homeowners with our rule,” Wright said. Still, he encourages homeowners to visit Asbestos.Utah.Gov for safe self-cleaning resources and listings of certified asbestos inspectors.
“People always say, ‘I know asbestos when I see it,’ but the only real way to find out is to get it tested,” Wright said. He also points out that a contractor renovating a home would have almost no way of identifying the maker of a discarded asbestos product unless packaging material happened to be left in a crawl space somewhere.
Still, he says it’s up to contractors to make sure they test during renovations and all demolitions.
Stephen Cisny is a tester and asbestos abatement specialist with Asbestos Abatement Services. He says that while contractors should know about this law, many don’t. He even conducted training for dozens of employees at a large state plumbing company that had been in business for decades and whose employees had no idea what the requirements were.
“This blows my mind because they go into hundreds of houses every day,” Cisney said. Still, he gives them points for being proactive in seeking training they can’t get elsewhere. He says contractors have told him they receive no meaningful training on asbestos testing requirements from the Utah Division of Occupational and Professional Licensing, which approves their license and provides them with ongoing training. He calls it a “big disruption” that could be remedied with a little extra training for her license.
“The DAQ governs all of your asbestos laws, but they don’t overlap with DOPL and vice versa,” Cisney said.
He says the risk of exposure from this lack of awareness extends to before the pandemic.
“[During] The pandemic, which makes sense because there was more remodeling and just a lot of construction in general, but that was a problem before and it still is now,” he said.
