Bill would raise major barriers to sue for asbestos injuries in Utah

Experts say contractors and home renovators face most exposure risk

The following story was reported by The Utah Investigative Journalism Project.

In a Feb. 15 committee hearing, Rep. Brady Brammer, R-Pleasant Grove, said HB328 was a common-sense approach to making sure asbestos lawsuits only truly target the guilty. The bill, Asbestos Litigation Amendments would require medical proof an individual had been sickened by exposure before a lawsuit could officially be filed.

“This is just getting to [medical disclosure] a little earlier in so that you don’t litigate all the way to the end and then decide this person was never sick in the first place,” Brammer said.

But the bill includes other barriers that would-be plaintiffs have to clear before a lawsuit can officially begin, including having to identify the exact location they were exposed to asbestos as well as know the name of the manufacturer or seller of the asbestos and know the specific name of each asbestos-containing product.

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 representative of the U.S. Chamber of Commerce who joined the presentation in support of the bill, answered.

“Before you sue someone you should have some factual basis to know that information,” Behrens said.

But experts say asbestos infections are different than decades ago when more people were often exposed in factories and knew exactly what company to put at the top of the lawsuit. Now many contractors on small residential jobs may be exposed to decades old asbestos products placed in roofing, drywall joints and pipe insulation and have no idea who made or sold the product.

Randy Spires, owner of That Asbestos Guy Environmental has been in the asbestos testing business for 33 years and says that the other problem is asbestos afflictions like mesothelioma take decades to manifest.

“How they gonna know forty years later?” he asks.

Legacy cancer

Asbestos was once a miracle product. In World War II laborers lined the hulls of ships with the stuff for insulation, in the decades to come it was sprayed to insulate popcorn ceilings. It was poured into foundations, coated plumbing, and inserted into roofs, drywall and eventually made its way into the soft lung tissues of tens of thousands.

Asbestos stopped being used in most industries by the late 1970s but was not completely banned in the U.S. Mesothelioma, caused by asbestos exposure is now considered a rare cancer by the Centers for Disease Control, which reported only 2,911 cases in 2019 — 26 in Utah — and 2,442 deaths nationwide.

Exposure can also cause asbestosis, a non-cancerous ailment that also takes decades to manifest symptoms and burdens sufferers with shortness of breath, pains, and wheezing coughs for the rest of their lives.

In Brammer’s committee hearing he said that some unscrupulous law firms across the country would file suits against scores of defendants including smaller businesses without knowing if they were really at fault, with many such companies not getting dismissed from cases until well into the litigation process.

“There’s a game that can be played where you sue a lot of people and then you get insurance companies to give low-ball offers and you use that to fund the rest of the litigation,” Brammer testified, while adding that that was not actually a practice he had observed in Utah. In fact he testified that there were very few asbestos cases active here and the legislation was meant to proactively head off this problem.

Cases of plaintiffs who had worked in shipyards and factories suing have dropped off. Present-day asbestos lawsuits often deal with contractors working on renovations and with the demolition of older buildings.

The pandemic ushered in a home rennovation boom in Utah. Construction Coverage, a construction focused trade publication 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 U.S. Bureau of Labor Statistics also shows how hot the industry was in June of 2021 for example, employment for residential drywall contractors in Utah was 2.65 times the national rate; 2.98 times the national rate for electrical contractors; and 3.55 times the national rate for masonry contractors.

Under Brammer’s bill, if contractors cut corners on asbestos safety for any jobs, it will be significantly harder for an exposed worker to sue their former employer for the injury.

Contractors have to abide by state and federal laws and regulations. But Spires, the asbestos tester, says penalties can be large — if you’re caught.

“Probably one in a thousand gets caught,” Spires said. “But it is a big fine.”

A simple fix?

Brammer’s bill has passed favorably out of both a house and senate committee, thanks in part to the endorsement of an asbestos plaintiff’s attorney, Rick Nemeroff. Nemeroff testified in favor of the bill, calling it a compromise compared to an even more stringent and “terrible”” first draft. The bill has bipartisan support and support from influential backers with a lawmaker on the committee even thanking influential supporters like the Northern Wasatch Association of Realtors for their work on the bill.

Asbestos experts are hopeful in general that even with construction booms like the one that happened during the pandemic, exposures can still be kept down with training and awareness.

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 are hiring a contractor for any renovation larger than three feet by three feet (the size of a closet) their contractor needs to have an asbestos test done. It doesn’t matter if the home was built in 1923 or 2023. He says DIY projects done by homeowners themselves don’t require testing.

“We never want to go after homeowners with our rule,” Wright said. Still he encourages homeowners to visit Asbestos.Utah.Gov to find resources on safe DIY clean up and listings of certified asbestos inspectors.

“People always say ‘I know asbestos when I see it,’ but the only real way to know is to have it tested,” Wright said. He also points out that a contractor renovating a house would have almost no way to identify the manufacturer of an old asbestos product unless by some chance some packaging material was left in a crawl space somewhere.

Still, he says it is up to contractors to make sure they test during renovations and all demolitions.

Stephen Cisny is a tester and asbestos remediation specialist with Asbestos Abatement Services, he says that while contractors should know about this law many do not. He even conducted training for dozens of employees of a major plumbing company in the state that has operated for decades where the employees had no idea about the requirement.

“That blows my mind because they are going into hundreds of homes every day,” Cisney said. Still he gives them points for proactively seeking out training they are not getting elsewhere. He says contractors tell him that they don’t get any meaningful training on the asbestos testing requirement from the Utah Division of Occupational and Professional Licensing that approves their license and provides them ongoing training. He calls it a “huge disconnect” that could be fixed with a small amount of added training for their licensure.

“The DAQ regulates all of your asbestos laws, but they have no overlap with DOPL and vice versa,” Cisney said.

He says the exposure risk from this lack of awareness extends to before the pandemic.

“[During] the pandemic that makes sense because there were more remodels and just a ton of construction in general, but this has been a problem before and continues to be a problem now,” he said.