MANAGING ASBESTOS CLAIMS AND LITIGATION
CD: How would you describe recent trends in asbestos claims and litigation? Have any specific developments taken shape over the last 12 to 18 months?
Crist: Asbestos litigation is a billion dollar business. Saturation advertising mines the ever-dwindling number of plaintiffs allegedly exposed to a substance not extensively used in over 30 years. To expand these numbers, aggressive creativity that at times defies fact, law, logic and science remains the norm. As the number of mesothelioma claims remains stagnant or drops, plaintiffs’ attorneys have redirected their attention to smoking lung cancer patients. As the number of solvent defendants has dwindled, plaintiffs’ attorneys have increasingly focused upon entities whose connection with friable products in specific or even asbestos products in general, was once considered too remote or attenuated for legal causation. The results are cases against not only manufacturers of products used by or around the plaintiff, but also against products that the plaintiff never used or was around. In such ‘take-home asbestos’ cases, the defendants include the employers – or premises owners – of the persons that allegedly transported the dust on their clothes, which in turn exposed others who claimed a resulting disease.
Healy: Because the number of mesothelioma diagnoses in the United States has hovered around 3000 per year, the number of lawsuits from that disease has remained relatively flat. This has resulted in creative efforts by the plaintiffs’ bar to find more asbestos-related injury claims. These creative efforts, among them mass aggressive advertising, have resulted in increased filings of lung cancer claims as well as the advancement of non-traditional causation theories, such as ‘each and every fibre is a substantial cause’ or ‘any exposure above background is a substantial cause’. And because some courts and states – Ohio and Wisconsin, for example – are calling for more transparency in the filing of bankruptcy trusts, plaintiffs are now waiting until after their tort claims are resolved to pursue the trusts, or filing cases in jurisdictions which have not adopted trust transparency. The confluence of these efforts, along with large verdicts against non-traditional defendants, are warning signs of yet another crisis.
Oct-Dec 2015 issue
Segal McCambridge Singer & Mahoney
Shook, Hardy & Bacon LLP
Tucker Ellis LLP