A Looser Asbestos Standard in the Third Circuit?

In the case of Secretary of Labor v. ConocoPhillips, the Third Circuit was faced with an internal dispute between the Secretary of Labor and the Occupational Safety and Health Review Commission. The dispute arose because the Secretary of Labor claimed that Conoco had committed nine “serious” asbestos violations whereas OSHA claimed that the violations were “not serous” because the Secretary failed to present evidence of possible employee exposure to asbestos in every case. The Third Circuit rejected OSHA’s interpretation of the evidentiary requirement and instead held that “demonstrating the possibility of harmful exposure to asbestos does not require case-specific evidence under this Court’s standard, where the Secretary demonstrates that (1) employees engaged in a particular type of asbestos work, (2) the work at issue is presumed to generate significant employee exposure to asbestos under the regulations, (3) the employer had actual or constructive knowledge of the violative conditions, and (4) regulations were violated.” No doubt plaintiffs will attempt to use this looser standard in proving asbestos cases in the future.

If you have any questions about this post, please contact Bob Cosgrove at rcosgrove@wcmlaw.com.