Courts as Policymakers: The Uneven Justice of Asbestos Mass Tort Litigation

AuthorSandra Nichols Thiam, Carol Adaire Jones, Cynthia R. Harris & Samuel F. Koenig
Chapter 5: Courts as Policymakers:
The Uneven Justice of Asbestos
Mass Tort Litigation
Sandra Nichols Thiam, Carol Adaire Jones,
Cynthia R. Harris, and Samuel F. Koenig*
I. Introduction
Asbestos, known as t he magic mineral in ancient times, withstands re,
corrosion, and acid and its malleability makes it possible to incorporate it
in a wide variety of products. With the goal of improving product safet y, it
has been used to reproof and insulate buildings, vehicles and ships, water
pipes, paper, garden products, protective clothing, and even children’s toys.1
But the unintended consequence of the safety benets has been great harm.
Tens of millions of people in the United States have been exposed to asbes-
tos over many decades in a wide range of occupations and environmental
settings. e result is a public health crisis of asbestos-related disease, dis-
ability, and death.
Asbestos causes multiple lung impairments and cancers. For two of the
main disease s, asbestosis and mesothelioma, asbestos is the only known cau se.
Asbestosis is a form of pulmonary brosis that leads to disability and pos-
sible death, and mesothelioma is a rare and aggres sive cancer of the protective
lining of the lungs or abdomen. Lung cancer— the disease responsible for a
majority of asbestos-related deaths—can be caused by multiple factors. All
of these diseases often manifest decades after the rst exposure to asbestos.2
Information on the health risks of asbe stos has been reported in the medi-
cal literature for over a century. By the 1970s, scientic and regulatory agen-
1. Richard A. Lemen & Philip J. Landrigan, Toward an Asbestos Ban in the United States, 14 I’ J.
E. R. & P. H 1302, 1303 (2017); I J. S & D H.K. L, A
 D (1978).
2. See generally S & L, supra note 1; I’ A  R  C, A,
M, F,  D (2012); N’ T P, D’  H & H
S., 14th R  C (2016).
* Sandra Nichols iam is an Associate Vice President at the Environmental Law Institute, while Carol
Adaire Jones is a Visiting Scholar, Cynthia R. Harris is a Sta Attorney, and Samuel F. Koenig is a
Research Associate.
Copyright © 2020 Environmental Law Institute®, Washington, DC.
134 Looking Back to Move Forward: Resolving Health & Environmental Crises
cies around the world, including agencies of the U.S. government such as the
National Institute for Occupational Safety and Health (NIOSH), Occupa-
tional Safety and Health Administration (OSHA), and Environmental Pro-
tection Agency (EPA), started articulating ndings that asbestos is a proven
carcinogen, no level of exposure to asbestos is safe , no form of asbestos is sa fe,
and there is no way to work safely with asbestos.3
Internal documents later uncovered in the course of litigation revealed
that asbestos mining and manufacturing companies and their insurers were
aware of the health haza rds in the decades before World War II. During
the intensive wartime shipbuilding ca mpaign following the Pearl Harbor
attack, the U.S. government also concealed information about the hazards
from shipyard workers. Tragically, neither the corporate asbestos sector nor
the U.S. Navy took action to mitigate the health risks. ey made limited
investments—if any—to reduce a sbestos exposures, and they did not inform
their workers or customers of the hazards. e asbe stos mining and manufac-
turing sector was able to suppress negative medical  ndings until 1964, when
Irving Seliko conclusively linked the rare cancer mesothelioma to asbestos
exposure through independent research with workers in the building trades.
e nation’s regulatory system, workers’ compensation system, and judi-
cial system have responded slowly and inadequately to the crisis. Once U.S.
laws creating broad federal regulatory authority over occupational, environ-
mental, and consumer risks were enacted in the 1970s, the new federal agen-
cies prioritized promulgating asbestos regulations that were more stringent
than prior federal guida nce and existing state regulations. Yet in the face of
erce corporate opposition, federal laws and regulations were slow to reect
the evolving science regarding di sease risks. Even today, environmental safety
and health regulations provide an incomplete patchwork of protections from
workplace and non-workplace asbestos exposures. Unlike most developed
nations, the United States has not completely banned asbestos.
Nonetheless, increased regulatory scr utiny—plus a growing number of
successful tort ca ses—triggered a dramatic decline in the manufacturing
and import of asbestos products, start ing in the late 1970s. Currently, the
production, importation, and installation of a limited set of products creates
new exposures. e greater source of potential exposures, however, is the
widespread stock of asbestos products insta lled in buildings and vehicles over
decades of the 20th centur y, which eventually deteriorate and release bers.
3. Leslie Stayner et al., e Worldwide Pandemic of Asbestos-Related Diseases, 34 A. R. P. H
205, 206, 213 (2013); Lemen & Landrigan, supra note 1, at 1302, 1312; Joseph J. LaDou et al., e
Case for a Global Ban on Asbestos, 118 E. H P. 897, 900 (2010), available at https://
Copyright © 2020 Environmental Law Institute®, Washington, DC.
Courts as Policymakers: The Uneven Justice of Asbestos Mass Tort Litigation 135
e result has been long-term, widespread exposure to asbestos for over
100 years. Hundreds of thousands of people have been disabled and died— a
legacy that continues to grow today. Neither the workers’ compensation sys-
tem nor the tort system has been able to meet the challenge of compensating
the victims of the asbestos crisis fairly and eciently. And Congress has not
stepped in to provide a legislative solution.
e state-level no-fault workers’ compensation programs, eagerly heralded
by workers, unions, employers, and insurers during the Progressive Era, were
not well suited to provide compensation for occupational diseases. Designed
to address workplace accidents, the programs have restrict ive statutes of limi-
tations and require a link between illnesses and the workplace, which pose
major barriers for diseases with long latency periods and multiple potential
causes. e transitory worksites of the building trades, where signicant
asbestos exposures have occu rred, have provided further impediments.
In the 1960s and 1970s, the courts began shifting from a negligence to
a strict liability standard, recognizing a new theory of product liability. In
1973, the U.S. Court of Appeals for the Fifth Circuit applied this standard
to an asbestos claim, nding asbestos insulation products to be “defective”
due to a breach of the duty to warn customers of the health risks of asbestos.
Because workers’ compensation laws generally eliminated workers’ entitle-
ment to sue their employers, this decision opened a new opportunity for
compensation for harms from workplace exposure: suits aga inst the man-
ufacturing or mining companies that supplied asbestos products to their
workplaces. Subsequent document discoveries during litigation conrmed
a decades-long pattern of industry suppression of health risk information,
strengthening the plaintis’ claims as well as mak ing public the true nature
of the problem.
Asbestos injury is now the longest, most expensive mass tort in history;
by 2018, asbestos claims involved over 850,000 plaintis and 8,300 defen-
dants at a cost of $70 billion.4 However, as with workers’ compensation,
there remains a mismatch bet ween the requirements for tort liability a nd the
long latency period and multifactor causation of some chronic occupational
diseases. is mismatch—combined with hundreds of thousands of plain-
tis and thousand s of defendants —has posed serious challenges to achieving
resolutions under tort law that provide eective, timely, and equitable com-
pensation with reasonable transact ion costs.
4. Umair Irfan, Donald Trump Has a Weird Soft Spot for Asbestos, V, Aug. 9, 2018, https://www.vox.
Copyright © 2020 Environmental Law Institute®, Washington, DC.

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