Crafting an Asbestos Scheduled Compensation Solution for Louisiana and the Nation

AuthorBrittan Jackson Bush
PositionB.A., University of Georgia, 2009. J.D. Candidate, Paul M. Hebert Law Center, Louisiana State University, 2012
Pages757-788
Crafting an Asbestos Scheduled Compensation
Solution for Louisiana and the Nation
INTRODUCTION
“Have you been exposed to asbestos?” On a regular basis, our
television poses this question. Before we have time to formulate an
answer, we know that a website filled with information along with
a 1-800 hotline waits at the end of the commercial. Often, we shrug
these advertisements off as mere annoyances and assure ourselves
that somewhere, a lawyer is banking on a legal get-rich-quick
scheme. After the advertisement concludes, we ponder why
asbestos claims still exist, because asbestos’ health effects have not
plagued recent generations.
We fail to recognize, however, that these commercials are
merely the public façade of a problem facing courts across the
country. Asbestos not only affects those with one of its associated
health problems, but also all citizens, because society must bear the
substantial costs of litigating the claims of those injured by
asbestos. The cost of asbestos litigation has caused an amount of
medical and economic suffering never experienced under
American tort law.1 Asbestos litigation has left plaintiffs without
compensation, corporations without assets, courts with crowded
dockets, and litigators with hearty bank accounts.
Unfortunately, the solutions offered by state governments and
the federal government to reform asbestos litigation have been
ineffective.2 Recently, Rando v. Anco Insulations Inc. forced the
Louisiana Supreme Court to choose a solution for Louisiana’s
asbestos litigation crisis.3 Due to judicial constraints, however, the
court was unable to consider the myriad of other solutions
available in other states.4 Therefore, the court’s decision not only
failed to advance any solution to the asbestos litigation problem
but also worsened it.
The inability of the Louisiana Supreme Court to craft a proper
solution for Louisiana’s asbestos litigation problem requires
legislative action. This Comment seeks to remedy the asbestos
Copyright 2012, by BRITTAN J. BUSH.
1. See discussion infra Part I (discussing the history of the asbestos litigation
crisis).
2. See discussion infra Part II (discussing the pros and cons of consolidation
and medical criteria statutes as a solution to the asbestos litigation crisis).
3. Rando v. Anco Insulations Inc., 16 So. 3d 1065 (La. 2009).
4. See discussion infra Part II (explaining the use of asbestoscase
consolidation and medical criteria statutes as solutions to the asbestos litigation
crisis).
758 LOUISIANA LAW REVIEW [Vol. 72
litigation crisis by formulating a state-administered scheduled
compensation model that balances the interests of asbestos
plaintiffs, defendants, and attorneys. Part I lays out the history of
asbestos and its accompanying litigation and explains the
jurisprudence behind Louisiana’s asbestos litigation crisis. Part II
examines the pros and cons of the solutions offered by other state
legislatures to combat the asbestos litigation problem. Part III
analyzes why a state-administered compensation schedule that
incorporates provisions from the 2006 Fairness in Asbestos Injury
Resolution Act and the Louisiana Medical Malpractice Act fairly
balances the interests of asbestos plaintiffs, defendants, and
attorneys.5 Part V concludes by arguing that the Louisiana
Legislature, as well as other state legislatures, should enact a
scheduled compensation plan for asbestos injuries.
I. THE ASBESTOS PROBLEM
The asbestos problem began when asbestos transformed from a
miracle fiber into an occupational hazard that ravaged society.
Asbestos litigation costs negatively affect not only asbestos
plaintiffs but also defendants and the judicial system. In Louisiana,
courts split on whether to adjudicate asbestos claims in the
workers’ compensation or tort system. The Louisiana Supreme
Court recently resolved this split and sent Louisiana courts down a
path of increased asbestos litigation costs for plaintiffs, defendants,
and the State.
A. The Miracle Fiber
Asbestos is a group of six different naturally occurring fibrous
minerals.6 Chrysotile, also known as white asbestos, was the
primary form of commercial asbestos throughout the United States
until the Environmental Protection Agency largely banned the use
of asbestos in 1989.7 Like other forms of asbestos, chrysotile does
5. See Fairness in Asbestos Injury Resolution Act of 2006, S. 3274, 109th
Cong. (2006); LA. REV. STAT. § 40:1299.41 (2010); see also discussion infra Part
III (explaining how a state administered compensation scheduled incorporating
provisions from the FAIR Act and the Louisiana Medical Malpractice Act presents
a solution for Louisiana’s asbestos litigation crisi s).
6. U.S. DEPT OF HEALTH & HUMAN SERVICES, TOXICOLOGICAL PROFILE
FOR ASBESTOS (2001) (noting the six different types of asbestos: amosite,
chrysotile, crocidolite, tremolite, actinolite, and anthophyllite).
7. Id. (noting that although chrysotile was the primary form of commercial
asbestos, amosite and crocidolite were also widely used); 40 C.F.R. § 763.160
.179 (2011) (largely banning the commercial use of asbestos in the United States).
2012] COMMENT 759
not evaporate or dissolve in water and is resistant to thermal,
chemical, and biological degradation.8 The durability of asbestos
led to its incorporation in a variety of manufactured products,
building materials, friction products, and heat resistant fabrics.9
With all of its positive characteristics, asbestos became known as
“the miracle fiber.”10
The miracle fiber became an occupational nightmare for tort
law systems throughout the United States. In the early twentieth
century, medical professionals began to recognize fibrosis in the
lungs of factory workers.11 The common link between victims of
the disease was exposure to asbestos within factories.12 In 1930,
medical professionals discovered that inhaled asbestos fibers
settled between the air cells of the lungs and caused scar tissue to
develop.13 This condition became known as asbestosis and was
recognized as an occupational hazard for those working with
asbestos.14 Asbestosis results in breathing difficulties, fatigue, and,
in serious cases, right ventricle failure.15
The medical problems associated with asbestos did not end
with asbestosis. Factory workers exposed to asbestos soon
exhibited signs of lung cancer.16 In the 1940s, British and
American doctors began seriously examining the link between
asbestosis and lung cancer.17 Their studies revealed three major
findings: (1) the large number of cases involving asbestos workers
with lung cancer originating in the lower lobes of the lungs; (2) the
latency period between exposure to asbestos and the development
of cancer; and (3) the large number of asbestosis victims also
suffering from lung cancer upon autopsy.18 The findings comprised
the earliest epidemiological support for the link between asbestos
8. U.S. DEPT OF HEALTH & HUMAN SERVICES, TOXICOLOGICAL PROFILE
FOR ASBESTOS (2001).
9. Id.
10. MARYLAND DEPT OF THE ENVT, FACT SHEET O N ASBESTOS (2010),
available at http://www.mde.state.md.us/Programs/Air/FactsaboutAsbestos/Pages/
index.aspx.
11. BARRY I. CASTLEMAN, ASBESTOS: MEDICAL & LEGAL ASPECTS 7 (2d. ed.
1986).
12. Id.
13. Id. at 10–11.
14. Id. at 9.
15. THE MERCK MANUAL OF DIAGNOSIS AND THERAPY 470 (Merck Research
Laboratories, 18th ed. 2006) [hereinafter MERCK].
16. CASTLEMAN, supra note 11, at 40.
17. Id. at 39.
18. BARRY I. CASTLEMAN, ASBESTOS: MEDICAL & LEGAL ASPECTS 113 (3d.
ed. 1990).

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT