Gunter died a few weeks before the appeals court decision. His lawsuit nonetheless went to trial in Cass County, but Gunter lost in May 2012, said his attorney Steven Crick. That verdict now is on appeal.
Crick said cases such as Gunter's belong in circuit court, because the workers' compensation system would have provided only minimal compensation. Mesothelioma is a quickly progressing disease, so Gunter would not have had much time to draw workers' compensation benefits before his death, Crick said. Because Gunter's wife had died previously and his two children are adults, Gunter had no dependents who could have received his workers' compensation benefits after he died, Crick added. But his heirs could have received damages through the court system.
"Mesothelioma is an awful, gruesome illness, and I would not wish that on my worst enemy," Crick said. He added: "Being able to bring a claim for such a horrendous injury — and being able to bring it in court — was a fair and just thing."
The fact that Gunter did not win his lawsuit is seldom mentioned by business lobbyists and lawmakers who cite the need to prohibit such lawsuits. They instead point to the potential for businesses to get hit with huge verdicts, or the uncertainty created for companies that could rack up large legal bills defending themselves against occupational disease claims in court. When legal uncertainty exists, business owners are less likely to spend money expanding their facilities or workforce.
If the workers' compensation system is not the sole means of settling claims over occupational diseases, it "subjects Missouri employers to this question of when are they done with litigation?" said Rich AuBuchon, a lobbyist and general counsel for the Missouri Chamber of Commerce.
"That was the whole point of workers' compensation," AuBuchon added. "So there wouldn't be years of litigation hanging over an employer's head and, at the same time, the employee would have the certainty of getting a specific amount of money."
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