The “Every Exposure” Cases and the Beginning of the Asbestos Endgame

Toxic torts have life cycles.  They have a beginning, middle, and end.  Numerous toxic torts that in their time consumed a great deal of judicial energy have passed from the scene.  There are no more Bendectin cases.  There are no more cases alleging that silicone implants create autoimmune disease.  There are no more Dalkon Shield cases.  One could name many more examples, all of which came and went.  And then there is asbestos, “the mass tort that dwarfs all others.”  This “elephantine mass” of cases, as Justice Souter once described them, sometimes seems to be immortal. Following the publication of the seminal research by Irving Selikoff and his colleagues in the 1960s, it was universally accepted that asbestos posed serious health risks.  Litigation began soon thereafter.  Early litigation by injured plaintiffs met with little success.  The beginning of plaintiff success in the United States is usually traced to the 1973 United States Court of Appeals for the Fifth Circuit opinion in Borel v. Fibreboard Paper Products Corp.  Borel opened the floodgates.  In the years following, litigation involving this substance has involved hundreds of thousands of personal injury claims, and forty-plus years on, asbestos litigation continues.

There are several factors that help to account for the asbestos litigation’s longevity.  First, of course, is the clear causal connection between exposure and disease.  In the absence of a strong causal relationship, asbestos would have long since gone the way of other “failed” mass torts.  Not only is there a strong relationship between asbestos and lung cancer, but two other asbestos diseases, asbestosis and mesothelioma, are “signature diseases” that are almost uniquely associated with asbestos exposure.  An individual with these illnesses does not confront the sometimes insurmountable hurdle of proving that the substance in question, rather than some other substance, caused their illness.  A second factor is that asbestos in one form or another remained in the environment much longer than many suspect substances.  A third factor is the long latency period between exposure and disease.  Both lung cancer and mesothelioma have quite long latency periods.  For mesothelioma, the average latency period is on the order of thirty to forty years.  However, sometimes the disease develops after an even longer passage of time.

As important as these three factors are, the asbestos litigation would not have gone on for as long as it has absent two other factors:  plaintiff elasticity and defendant elasticity.  Plaintiff elasticity refers to the fact that as the number of seriously ill plaintiffs declined, a large number of other plaintiffs who were not seriously ill and, in many cases, who exhibited no clinical symptoms of illness stepped forward to take their place.  This trend was well documented in a number of articles and by a number of courts.  Defendant elasticity refers to the seemingly inexhaustible number of potential defendants who have been sued by asbestos plaintiffs.

Ironically, these two factors that have given the asbestos cases such longevity are now working to limit the future of this mass tort.  In the last few years, plaintiff elasticity has played a decreasing role in asbestos cases.  Through the use of deferred dockets and, in some jurisdictions, the enactment of medical criteria acts, a great many cases have been deferred until the individual exhibits clinical manifestations of illness.  The result has been a substantial reduction in total tort filings, primarily the result of a smaller number of noncancer cases.  To the extent that these individuals become sick in the future, they remain a source of future plaintiffs.  However, it is not clear what percentage of these individuals will eventually exhibit clinical manifestations sufficiently severe to justify the cost of litigation.

The impact of defendant elasticity is more complex.  Most, if not all, of the most culpable asbestos defendants have long since fallen into bankruptcy.  For most toxic torts, this would be the end of litigation, and the endgame would be played out in bankruptcy court.  However, because asbestos was used in a very large number of products, over the years, a large number of new defendants have been added.  Paul Carrington notes that as of 2007, more than 8,000 businesses have been named as defendants.

These defendants differ from earlier defendants in two important respects.  First, sometimes they are less culpable than earlier defendants.  Of course, this is not saying a great deal, given that many of the early defendants such as Johns-Manville Corporation and Fibreboard Corporation, at the very least, failed to follow up on suggestions that the mineral might be harmful and, according to some, actively hid evidence of the adverse effects of asbestos exposure for many years.  Neither of these allegations can be brought against later defendants who did not observe obvious adverse effects among the users of their product or cover up knowledge of asbestos’s adverse effects.  Depending on the case, exposure levels resulting from the use of products made by these defendants may be very difficult to estimate, a problem that is exacerbated by the long latency periods discussed above.  This is true both cumulatively, that is, exposure from all sources, and with respect to each individual defendant.

Partly because of problems of proof, in a number of recent cases, plaintiffs and their experts have advanced the argument that every exposure to asbestos is a factor in producing their illness.  The judicial reception has been largely negative.  This Article discusses recent “any exposure” cases and offers an analysis of why they are an indicator that we are, finally, approaching the asbestos endgame.

In Part II, I provide a short overview of the causal question in asbestos cases.  Part III reviews the judicial response to the causation issues in asbestos cases, with a focus on the recent “any exposure” cases.  Part IV summarizes the rationales the courts provide for their “any exposure” decisions and notes several additional factors that I believe play a role in the case outcomes.  In Part V, I return to the idea of life cycles and discuss why the “any exposure” cases suggest the winding down of the asbestos litigation.