Why Is It STILL The Most Massive of Mass Torts?

By Tom Hagy*

Back in the ‘80s when I was desk-to-desk with legal journalist and publisher Mike Mealey reporting on asbestos litigation (and even Swine Flu vaccine litigation!), some smart and informed attorneys thought the litigation would be over by now, or at least winding up.

Some would joke that they hoped not. “Hey, I’ve got kids to send to college.” Well, some of those kids are now practicing law with kids of their own.

But most attorneys, when not being glib, expressed passionate beliefs that their clients were wronged (in the case of plaintiffs) or, in the case of defendants, should not be put out of business or held fully or even partially responsible in every case. And the insurance fights sparked a whole other layer litigation unto itself, resulting in landmark decisions based, in part, on something unexpected in the world of tort law: an incident and an injury that didn’t take place even remotely at the same time. Even my lame attempt to sum that up can be diced up by attorneys who know that the interpretation of every syllable can mean a billion dollars one way or the other.

There certainly have been attempts to end asbestos litigation in one fell swoop – through large settlement systems and, more recently, through federal legislation, but they have either failed or only managed to resolve a small percentage of claims.

So why is it still going on? What’s different about it? And what are the most contentious issues? Aren’t dozens of companies now in bankruptcy?

First, why is asbestos litigation still going on? According to plaintiff attorney Joseph W. Belluck of Belluck & Fox, while a lot of factors come into play, key drivers are: 1) longer life expectancies of people exposed to asbestos; 2) advances in diagnostic tools; and 3) broad awareness of asbestos-related diseases among physicians and patients.

If people live longer there is more time for mesothelioma or lung cancer to develop. With a disease that can take as long as 50 years to manifest, a 21-year-old shipyard worker in the 1950s can be diagnosed with an asbestos-related disease in his 70s or 80s, Belluck said, noting that asbestos was widely used in products even in the U.S. into the 1980s. It’s still used to some extent in the U.S. today.

Diagnostic improvements, particularly with mesothelioma, he said, and the fact that doctors and patients are now well aware of asbestos-related illnesses, means it is less likely that respiratory ailments caused by asbestos fibers will be blamed on pneumonia or mere infections.

“These things off-set any decline you might expect from the end of widespread use of asbestos products in factories,” Belluck said. “At least in my practice, there actually is an uptick in mesothelioma cases.”

And you have to add in the emergence of claims against relatively new – and solvent – defendants, he said, such as suppliers, distributors, and manufactures of pumps, valves and turbines that contain asbestos components.

Another important factor – and an important distinction from asbestos litigation during the last century – is the focus on malignancy claims.

“An ironic twist on the [defendant] companies’ efforts to limit liability for non-malignancy cases as a way to take out lower value cases they were paying money on,” Belluck said, “is that it left in the tort system the higher value, mesothelioma and lung cancer cases.” That means, he said, “almost every asbestos case being litigated has high value with multimillion dollar recovery potential. That gets everyone’s attention.” It also means plaintiff attorneys can throw more resources at fewer cases.

You have to add to this (let’s face it) the revenue asbestos litigation generates for attorneys and litigation support companies, the revenue generated in administrative fees, the number of manufacturers who are paying BILLIONS into bankruptcy trusts, the number of highly skilled “true believers” who will fight tooth and nail for their injured claimants, skilled defense lawyers who believe just as strongly in their clients’ defenses, and, of course, a tort system in which mass resolution of these claims has been rejected over individual treatment of claims – never mind the fact that asbestos is STILL used in developed countries (e.g. the U.S.) and shipped in massive quantities by developed countries (e.g. Canada) to undeveloped ones – and you have all the elements of a litigation that can still be around for another decade or two or more.

That last point surprises many, and disheartens people like plaintiff attorney Steve Kazan of Kazan, McClain, Greenwood, Lyons & Harley, who told me “we are dooming populations around the world to another epidemic of asbestos disease for another 30 to 40 years at least.”

So, that’s my way of saying “it’s big and it’s complicated.” If you like complexity, read my next post later this week.

Joe Belluck is one of three chairmen of our upcoming National Asbestos Litigation Conference, set for Sept. 23-25, 2009, at The Four Seasons Hotel in San Francisco. He will we joined by Joseph J. O’Hara, VP & Associate GC of Owens-Illinois and Michael J. Pietrykowski of Gordon & Rees. For more info, including the attendance list and participating judges,  CLICK HERE.   

* Hagy is president of HB Litigation Conferences LLC. He was once publisher and managing editor at Mealey Publications, and was a contributing editor for Mealey’s Litigation Report: Asbestos (now published by LexisNexis) and before that the Asbestos Litigation Reporter (now published by Thompson West).