We are pleased to announce that the Pennsylvania Supreme Court recently
issued a landmark decision in favor of our clients, the heirs and estate
of John “Jack” Tooey.
From 1964 to 1982, Mr. Tooey worked as an industrial salesman for Ferro
Engineering, a division of Oglebay-Norton Co. (Ferro/Oglebay). As part
of his job responsibilities, Jack was exposed to asbestos from a variety
of products used at the steel mills he visited in Pennsylvania, West Virginia,
Ohio, Michigan and Indiana, including but not limited to asbestos-containing
products manufactured by Ferro/Oglebay.
Jack was diagnosed with malignant pleural mesothelioma in December 2007
at the age of 76, and passed away less than a year later. A lawsuit was
filed on behalf of Jack and his wife in March 2008 against multiple defendants,
including Jack’s former employer Ferro/Oglebay.
As is the case with most other states, the law in Pennsylvania provides
that claims against an employer for work-related injuries are generally
limited to Workers Compensation claims. These laws, which are often referred
to as “exclusive remedy” provisions, preclude a claimant from
bringing a third-party lawsuit against an employer.
In Mr. Tooey’s case, Ferro/Oglebay convinced the Pennsylvania Superior
Court that it was entitled to summary judgment based on Pennsylvania’s
exclusive remedy law. The matter was appealed to the State’s Supreme
Court where it was asserted that occupational injury claims stemming from
latent diseases, such as
asbestos cancer which doesn’t develop for at least 15 years after exposure, are
exempt from Pennsylvania’s exclusive remedy statute as worded.
On November 22, 2013, the Pennsylvania Supreme Court issued its opinion in
Tooey v. AK Steel Corp., et al.
, ruling 5-1 in favor of Mr. Tooey’s family. Specifically, the Supreme
Court held that the exclusivity provision of the Pennsylvania Workers
Compensation Act does not apply to third-party claims for diseases which
manifest more than 300 weeks following the last occupational exposure.
In the opinion, the court stated, "It is inconceivable that the legislature,
in enacting a statute specifically designed to benefit employees, intended
to leave a certain class of employees who have suffered the most serious
of work-related injuries without any redress under the Act or at common
The Supreme Court’s ruling allows the Tooey family’s case to
now proceed against Ferro/Oglebay. The decision, which constitutes a major
shift in Pennsylvania Law, will have more far-reaching effects. The case
essentially paves the way for victims of latent occupational diseases,
including but not limited to asbestos cancer/mesothelioma, to assert third-party
claims against the former employers that put them “in harm’s