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A Short Overview of Asbestos Litigation in Civil Law Countries
By: Kent B. Gravelle, Esq.
As an asbestos defense lawyer in Minnesota, I have on occasion wondered how asbestos claims are handled in other countries. As one may be aware, asbestos litigation has spread to Great Britain, which was to be expected considering that the U.K. is a common law country, as are all former British colonies. However, what about continental Europe which are civil law systems and which generally do not employ juries or award punitive damages?
A search of the web reveals two excellent articles on asbestos litigation in two of the largest civil law countries, France and Germany. The citations are: Peter Best, Liability for Asbestos Related Disease in England and Germany, 4 German Law Journal 7 (July 2003) and Lovells (law firm), Asbestos litigation in France (March 2005).
A review of both articles reveals that both countries rely heavily on their social welfare systems to compensate workers who have been harmed by asbestos (similar to our worker’s compensation). However, France seems to allow for more litigation for those seeking extra compensation beyond worker’s compensation than does Germany. For example, in 2004, a French electrical provider was ordered to pay more than three million Euros to the families of 23 former electrical workers. Lovells at 3. Furthermore, in France, the burden is on the employer to show that it took all necessary steps to preserve its employees’ health. Lovells at 2. Another interesting development is that France has instituted FIVA (Fund for the Compensation of Asbestos Victims) which makes offers to asbestos plaintiffs which, if accepted, bars any court claims. This is reminiscent of our FAIR Act which passed the House but failed to pass the Senate in 2006. However, FAIR did not offer the worker the choice of litigation or government compensation and if it did, perhaps it would have become law.
Unlike France, German courts do not appear to have provided any large awards to asbestos plaintiffs beyond that provided by their workers’ compensation system (Berufsgenossenschaften). Best at ¶36. Furthermore, a search of German newspaper articles on the web reveal no recent changes or developments. This dearth of successful asbestos plaintiffs is explained by the fact that employers can only be found liable if they committed intentional acts (reckless conduct) which resulted in asbestos exposure. Best at ¶34. Of further hindrance to plaintiffs is the fact that there is no discovery regime to access a company’s documents and no depositions. Finally, contingency retainer agreements are not allowed. Best at ¶45.
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