The Future Of Asbestos Litigation And The 60,000 Mesothelioma Patients Yet To Be Diagnosed

One of my main purposes of writing this blog is to dispel the myths that surround trial lawyers and personal injury law.  There’s a myth, for example, that every time some sort of chemical exposure or defective product might be more dangerous than suspected, trial lawyers fabricate tens of thousands of fraudulent claims and then extract millions of dollars from poor, helpless corporations that somehow cannot defend themselves.

Consider this silliness from a law professor invited to speak before Congress:

When in the distant future, we look back at asbestos litigation, we will surely include it among the great scandals in our history along with the Yazoo land frauds, Credit Mobilier, Teapot Dome, the Savings and Loan debacles, WorldCom, Enron and the vast Ponzi schemes that have recently unfolded. In nine published articles on asbestos litigation, I have documented the existence of a massively fraudulent enterprise involving the creation of literally hundreds of thousands of bogus medical reports. These reports have been used to extract billions of dollars in settlements from defendants in the tort system and from asbestos bankruptcy trusts which have been created with the assets of the companies that were bankrupted by asbestos litigation.

It doesn’t work that way.  Consider the recent developments in the Asbestos Multi-District Litigation (MDL) — including, by the way, the summary dismissal, without trial, of every case where plaintiffs’ didn’t promptly produce a detailed medical report along with authenticated x-rays.

Asbestos exposure is “a tale of danger known about in the 1930s, exposure inflicted upon millions of Americans in the 1940s and 1950s, injuries that began to take their toll in the 1960s, and a flood of lawsuits beginning in the 1970s.” Amchem Products, Inc. v. Windsor, 521 U.S. 591 (1997)(quoting United States Judicial Conference Ad Hoc Committee on Asbestos Litigation). From an engineering standpoint, asbestos is an astonishingly useful product; it’s flame-resistant, provides exceptional insulation, and can mined in quarries throughout North America. It’s not surprising that it was used in virtually everything made from the 1940s to the early 1980s, from the Navy ships that fought World War II to the limited-print first-edition of Fahrenheit 451.

That, unfortunately, meant that three full generations of workers in the construction or heavy machinery industries were heavily exposed to asbestos, particularly if they were in the industry before the mid-1980s, when asbestos use declined in advance of the EPA’s ban in most products in 1989.  As I wrote about a couple months ago, even if you never worked in any of those industries, there is so much asbestos floating around in our world that a biopsy of your lungs would already show millions of asbestos fibers and tens of thousands of asbestos bodies. If you were directly exposed, the numbers are far higher. There’s only so much a person’s lungs can take before the odds start shifting in favor of cancer.

But mesothelioma isn’t like an ordinary injury: no one develops mesothelioma overnight. Indeed, people rarely develop it within the first decade after being exposed to asbestos, and the average patient develops it an astonishing 32 years after their initial exposure. It’s no surprise that exposure in the 1940s and 1950s created a wave of symptoms and initial cancer diagnoses in the 1960s, then deaths and lawsuits beginning only in the 1970s.

Given the magnitude of the exposure and damages, the litigation grew to proportions never before seen by the federal courts, prompting the judicial panel on multi-district litigation to consolidate as many cases as possible into the Eastern District of Pennsylvania (EDPA) in 1991, where, over time, an astounding 191,822 asbestos cases have been filed.  And that’s where we pick up the story.

We saw the end of an era on December 13, 2011, when the panel of judges that oversees the MDL accepted EDPA’s recommendation to no longer accept any more “tag-along” cases into the MDL. The MDL panel concluded, rightly in my opinion, that the enormous backlog of asbestos cases in federal courts had largely been alleviated by this point, and so future actions that did not bear any relationship to EDPA would not automatically be transferred to its jurisdiction.

Unfortunately, after more than a generation of litigation, it seems there are still many big questions to answer, and more than a few asbestos lawsuits to still be litigated. That’s where the myths about mass torts lawsuits come in. As described above, the typical mesothelioma patient takes more than 30 years to develop cancer after the time of initial exposure. Despite the sharp drop-off in asbestos use in the mid-1980s, the number of cases of malignant mesothelioma is thus expected to rise through this year, and then decline thereafter, but not declining to background levels for non-asbestos lung cancer until 2055. We could see 60,000 or more new mesothelioma cases filed over the next few decades.

The amazing part to me, however, is that, after nearly 40 years of asbestos litigation, we still don’t have any uniform system of compensation (except, sort of, the asbestos bankruptcy trusts that are constantly under attack). We don’t even have any solid law to apply. When a trial lawyer agrees to represent one of these 60,000 future asbestos exposure victims, they have little way of predicting whether the case will succeed or fail.

In discontinuing new actions in the asbestos MDL, the MDL panel implicitly acknowledged the absence of any clear appellate guidance, noting, “The judges presiding over [the new lawsuits filed elsewhere] will almost certainly find useful guidance in the many substantive and thoughtful rulings that have been issued during the lengthy course of the Multi-District’s proceedings,” and then left a whopper of a footnote:

 A non-exhaustive list of such rulings includes:  Administrative Order No. 12 (requiring each plaintiff in the MDL promptly to submit, inter alia, a medical diagnosing report or opinion “upon which [he/she] now relies for the prosecution of the claims as if to withstand a dispositive motion”) (available on the highly informative MDL website); In re Asbestos Prods. Liab. Litig. (No. VI), — F. Supp. 2d —, 2011 WL 5555615 (E.D. Pa. Nov. 14, 2011) (granting, in part, and denying, in part, motions to dismiss predicated upon purported noncompliance with Administrative Order No. 12); Willis v. BW IP Int’l Inc., — F. Supp. 2d —, 2011 WL 3818515 (E.D. Pa. Aug. 29, 2011) (denying motions for summary judgment made pursuant to the government contractor defense); Conner v. Alfa Laval, Inc., — F. Supp. 2d —, 2011 WL 3101810 (E.D. Pa. July 22, 2011) (concluding that maritime law applies to asbestos claims of plaintiffs who were sea-based Navy workers where the allegedly defective product was produced for use on a vessel, but that such law does not govern where the claims stem from predominantly land-based Navy work, even if the allegedly defective product was produced for use on a vessel); and Hagen v. Benjamin Foster Co., 739 F. Supp. 2d 770 (E.D. Pa. 2010) (holding that removal pursuant to the federal officer removal statute, 28 U.S.C. § 1442(a)(1), is proper where the defendant has identified facts which, viewed in the light most favorable to the defendant, entitle him or her to a complete defense).

Most of those opinions (the bulk are available here) are not even a year old, and they are all from the District Court, which means they haven’t even been reviewed on appeal. The first order listed, for example, involves the district court dismissing plaintiffs’ claims entirely if they had not filed detailed medical reports and authenticated x-rays within a certain timeframe. But even that ruling isn’t certain to survive: whatever the policy merits of an aggressive approach to docket management, dismissing a plaintiff’s case merely for not filing an x-ray on time conflicts with existing sanctions law — consider the Third Circuit’s opinion from just two weeks ago, in which the Third Circuit held that a plaintiff’s case can only be dismissed as a sanction if the court found bad faith on the part of the plaintiff.

It thus seems that asbestos and mesothelioma litigation will continue to be a hotly disputed and heavily litigated area of the law for as long as every practicing lawyer today stays in the industry. Although many will see that as a comment on the litigiousness of our society and the inefficiencies of the court system, I see it as something else entirely: the failure of our society to come to grips with the reality of the industrial world and our society’s failure to ensure appropriate compensation for associated harms.

There shouldn’t be a need for someone to hire a lawyer like me to fight tooth and nail and advance tens of thousands of dollars just to get their claim for something obvious like asbestos exposure in front of a jury. We need our legal system to more fairly and efficiently address the fact that, every now and then, a mechanical failure on an oil well will cause billions of dollars of damage, or an improperly tested medical implant will injure nearly 100,000 patients, or an entire class of medical devices will be found to be unsafe, or an everyday prescription drug causes cancer.

Unfortunately, the lobbying powers that hold sway with our politicians, along with certain politically-motivated jurists, are fighting a winning battle to move us in the wrong direction.  “Tort reform” claims to “solve” the problem of mass torts by outright denying claimants their day in court, leaving the innocent victims to bear the brunt of the harm when greed and carelessness strikes them down.

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