Court finds last employer responsible for asbestos liability in multiple employer cases

James McAllister, a shipyard carpenter, died of mesothelioma, a rare cancer of the protective lining of the body's major cavities and organs, as a result of exposure to asbestos while working for three shipyard employers: Willamette Iron & Steel Co., Albina Engine & Machine and Lockheed Shipbuilding. McAllister likely inhaled airborne asbestos fibers that are known to cause pleural and peritoneal mesothelioma, which affect the lining of the lungs and abdomen respectively.

After her husband's death, Karen McAllister sought restitution, and a judge decided that Lockheed was liable. Shortly after, the benefits Review Board reversed the decision and held Albina liable for benefits payment.

The Board explained that "Each employer bears the same burden of providing that the claimant was not exposed to injurious stimuli at that employer in sufficient quantities to cause his disease, or that the claimant was exposed to injurious stimuli while working for a subsequent covered employer. If no employer manages to persuade the ALJ that its evidence is 'entitled to greater weight,' then the ALJ should assign liability to the claimant's last employer."

In yet another twist, Willamette Iron & Steel Co. admitted that McAllister was exposed to asbestos while working, but because McAllister had worked for Albina after working for Willamette, Albina was still considered liable.

In the end, California's Ninth Circuit Court in San Francisco has made the final call. According to the court, the last employer is liable for asbestos exposure when unable to rebut with substantial evidence the presumption that it is responsible for occupational diseases. Therefore, the court found Lockheed was the last responsible employer and liable for the payment of benefits, as the company was McAllister's last employer and did not rebut the evidence that he had been exposed to asbestos while working.