• Mesothelioma & Asbestos

    Mesothelioma & Asbestos

    Virtually no product or other single issue has generated as much litigation as asbestos. Asbestos is a naturally occurring mineral. Due to its highly useful nature it became a common material in a variety of industries throughout the 19th and 20th centuries, and millions of people were exposed it. One of the harmful side effects of exposure is mesothelioma, which is a rare and largely incurable form of cancer. Mesothelioma typically causes death within two years of prognosis. The majority of mesothelioma cases has been attributed to exposure to asbestos.

    Not all exposures to asbestos lead to mesothelioma, but it can often lead to other types of injury. The sheer volume of exposure and its attendant injuries has lead to hundreds of thousands of suits against over eight-thousand defendants. This volume of litigation has become seriously problematic for seriously ill claimants whose recovery is delayed by backlogged courts. This is especially true in jurisdictions that are seen as ‘favorable’ by plaintiff’s lawyers. The problem is widely recognized, but a federal solution is not yet forthcoming so the states have been left to manage a national problem.

    To counter the massive numbers of asbestos claims, states have adopted a variety of solutions. Many jurisdictions now require that a plaintiff provide a diagnosis of impairment from specially qualified doctors. This helps reduce the number of potentially fraudulent claims, thus reducing the overall number of claimants and preserving funds for those who are truly sick.

    Some jurisdictions have imposed medical criteria for filing claims. Under these regimes persons who have suffered exposure, but not physical impairment are placed in ‘deferred’ dockets. These claimants are placed into the regular dockets if their exposure matures into an actual impairment of their health. This solution provides two benefits. First, it allows courts to proceed with the claims of people who are already sick or dying. Second, these laws frequently toll the statute of limitations on claims where the plaintiff may not be able to prove an impairment. This helps to preserve the claims of people who have no impairment, but which may manifest itself later. Consequently, this reduces the number of hasty settlements which reduce the current available funds for plaintiffs who are presently impaired. In any event, courts and states are very busy trying to ensure that people harmed by asbestos products are compensated for their injuries.

    Asbestos manufacturers are strictly liable for the harms caused by their products. Such liability for asbestos manufacturers has traditionally rested in their failure to warn about the possible dangers associated with exposure to their products. Many claims against asbestos manufacturers proceed using this theory. Difficulties arise, however, if the plaintiff is unable to identify the specific manufacturer of the asbestos they were exposed to. This occurs often enough where the impairment materializes years after the exposure and there is no reliable record indicating the specific source of the asbestos.

    Because of the identification problem states have contemplated various schemes for imposing liability on the manufacturers of asbestos. Because of the number of manufacturers and the differences in the standards of production, courts do not use enterprise liability. Because the facts concerning exposure are widely varied, and because the products themselves are so different, courts have rejected imposing market-share liability. This has lead courts to impose joint and several liability upon the manufacturers of asbestos. Joint and severable liability means that that defendants are each responsible for paying 100% of the damages, even if they were only partially liable for the plaintiff’s injury. In some instances, a defendant may actually be precluded from introducing evidence that others are liable. Depending on the circumstance and the jurisdiction, this can lead a solvent defendant wholly responsible for paying damages caused by a bankrupt, and absent, manufacturer.

    There are some jurisdictions that have adopted less severe forms of joint and several liability. In some states a defendant will only be liable for the proportion of the harm that they caused. Under this approach a defendant may mitigate their liability by presenting evidence that other parties are actually responsible, but only if those parties are not present in the litigation by reason of bankruptcy. Another approach is a sort of ‘hybrid’ joint and several liability. Under these schemes a defendant who is less than 50% liable may only be responsible for actual economic damages (physical harm, lost wages, etc…), and not for non-economic damages (punitive damages).

    In all cases a plaintiff must, of course, still prove causation. A plaintiff must show that the defendant’s products actually caused their injury. This phase of litigation necessarily occurs before the apportionment of damages through the joint and several liability mechanism. Plaintiffs generally have to show that the product was capable of causing the impairment, which is a material issue given that not all of the different types of asbestos are generally considered capable of causing mesothelioma. The plaintiff must also show that the defendant’s product was the actually the direct cause of the harm. Given the rarity of mesothelioma it is not terribly difficult to prove, but there are other known to causes. Exposure to zeolite or thorium dioxide are both known to carry a risk of causing mesothelioma; though neither of these chemicals is in wide use. It may also be possible that a risk of mesothelioma may be inherited.
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