The large literature about liability for asbestos exposure has, for the most part, omitted gender. This omission matters. Men and women who sought redress in court fared very differently, and the two genders have shared unequally in the spoils of asbestos litigation and regulation. Here I ask: Cui bono? Cui pacat? In other words—English words—this Article investigates who has gained from and who has paid for the transfer of wealth put in motion by asbestos law.
While serving as a trial judge in the state of Delaware for twenty-nine years, I developed the habit of viewing every case, and particularly each case over which I presided at trial, as one that could always possess great potential for the unexpected or unforeseen. A seemingly garden-variety automobile accident personal injury case could easily become the vehicle for drastic amendments to the rules governing the presentation of biochemical witness testimony. An otherwise straightforward medical malpractice cause of action could trigger a movement to legislate attorney behavior. A vigorously litigated breach-of-contract case skillfully tried by competent advocates on both sides could, in the final days of trial, uncover the fraudulent withholding of highly probative and incriminating documents. And so it was for this former trial judge when I entered the courthouse on a November morning in 2011, fully prepared and expecting to try the case of Montgomery v. American Steel & Wire Corp. Little did I know that this case and the events that had transpired during the preceding weekend would place me squarely at the center of one of the most controversial national issues in the history of asbestos litigation. The saga began when my expectation of spending several weeks in a routine asbestos personal injury trial was foiled by the revelation that the plaintiff had failed to disclose to the Delaware Superior Court and defense counsel the existence of claims that had been submitted to a total of twenty asbestos bankruptcy trusts. Even more significant was the fact that the plaintiff had also withheld all of the factual circumstances that justified those claims.
Unwittingly, the case was to become a striking example of the lack of coordination and transparency between the tort system and the trust claims process, as well as the incentives that this situation presents for fraud and abuse. By virtue of this disconnect, the plaintiffs in Montgomery had been able to distort the facts to allege different theories of exposure in the tort case from those claimed in the bankruptcy court—a circumstance that resulted in cancellation of the trial, dismissal of the plaintiffs’ case, substantial and irreparable prejudice to the remaining defendant, and yet another example justifying the defense bar’s quest for reform.
The case has ultimately received national attention because it highlights the ease with which a plaintiff can use two different inconsistent fact patterns to receive maximum recovery from the trusts while seeking compensation for injuries against solvent companies in tort litigation. It ignited the growing clash between asbestos plaintiffs and defense attorneys. At issue is not just the potential for claiming as between a bankruptcy trust and the state court action, but inconsistent claiming among the various trusts themselves. Solvent defendants continue to believe that their payments in settlement are not being properly adjusted to account for compensation from the trusts and that their share of liability has substantially increased by the absence of some of the most culpable defendants from the litigation, where the focus tends to remain on the “last man standing.” Also at issue is whether trust payments to current plaintiffs will result in fewer trust resources for future claimants and whether the ability to delay trust claims to avoid disclosure distorts both the discovery record and the administration of justice in asbestos lawsuits.
The case scheduled for trial before me that Monday morning is illustrative of all of the elements of this controversy. It was and remains a powerful example of why transparency between the two systems has been the focus of legislation in several states and the United States Congress, has resulted in the passage of legislation in at least three states (Ohio, Oklahoma, and Wisconsin), and will continue to be debated for years to come. By virtue of my experience in this case and my now-retired status, I have been in the unique position to advocate for legislative action to curb the abuses that do not appear to be limited to cases like Montgomery, where the fraud was exposed by chance. Instead, it appears increasingly to be a matter of systemic concern.
In this Article, I will discuss the unfortunate details of the unethical conduct that allowed the case to proceed almost to trial, as well as the various judicial and legislative measures that have been proposed or passed to eliminate this lack of transparency and to curb the incentive to profit from it. In the final analysis, my utmost concern as a former Delaware trial judge is that the very integrity of the judicial process and its truth-finding function can be so easily compromised because of the independence of these two systems.
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.
This Article is about the interplay between trust payments to claimants and suits against solvent defendants in the tort system and how that is affected by plaintiffs’ counsel’s effective control over the production of evidence of exposure to asbestos-containing products and their use of that control to suppress evidence of plaintiffs’ exposures to the products of reorganized companies. Defendants seek to reduce the amount of compensation they pay to plaintiffs by asserting that (1) plaintiffs have received or will receive payments from trusts that should be credited against defendants’ tort liabilities; (2) in states such as California, New York, and Pennsylvania, which allow juries to allocate shares of the liability to the bankrupts, plaintiffs were exposed to the products of the bankrupts, thus reducing defendants’ liability share and therefore its trial risk; and (3) plaintiffs’ exposures to products of the reorganized companies that funded the trusts were so much more intense and extensive than the exposures to defendants’ products that defendants’ share of the total liability to plaintiffs should be determined to be significantly less than the share accorded to the reorganized companies. Countering defendants’ efforts to reduce their share of liability, plaintiffs and plaintiffs’ counsel seek to suppress defendants’ access to evidence of plaintiffs’ exposures to asbestos-containing products manufactured, sold, or distributed by the reorganized companies that funded the trusts. This practice of suppression of evidence of exposures increases tort claim values while often denying defendants a fair trial. Judge Peggy L. Ableman, formerly the Delaware Superior Court judge responsible for all asbestos litigation in the state of Delaware, strongly denounced the practice of plaintiffs denying exposures to the products of reorganized companies when, in fact, plaintiffs and their counsel had asserted just such substantial exposures in claims submitted to trusts: In the final analysis, there can be no real justice or fairness if the law imposes any obstacles to ascertaining and determining the complete truth. From my perspective as a judge, it is not simply the sheer waste of resources that occurs when one conducts discovery or trials without knowledge of all of the facts . . . although that circumstance is indeed unfortunate and one that courts can ill afford in this day and age. . . . What is most significant is the fact that the very foundation and integrity of the judicial process is compromised by the withholding of information that is critical to the ultimate goal of all litigation—a search for, and discovery of, the truth.
After presenting evidence of suppression of exposure evidence and the corroborating views of Judge Hodges, I conclude that to provide “real justice or fairness” and restore the “integrity of the judicial process,” the many impediments erected by plaintiffs’ counsel to prevent defendants’ access to evidence of other exposures of plaintiffs to asbestos-containing products should be countered by policies to be adopted by courts and enacted by legislatures mandating the transparency of evidence of plaintiffs’ exposures to the products that make them eligible for payments from trusts.
In previous publications, I identified an “entrepreneurial” model used to generate the hundreds of thousands of nonmalignant asbestos claims that were supported by unreliable medical reports, which were not the product of good faith medical practice. My conclusion that the vast majority of these nonmalignant asbestos claims were spurious was largely corroborated by a report issued by United States District Court Judge Janis Jack who presided over a multidistrict litigation (MDL) involving approximately 10,000 silica claims and found that the medical reports supporting the claims were “manufacture[d] . . . for money.”
After describing the entrepreneurial model, I then focus on a specific application of the model to mesothelioma litigation: the systemic efforts of tort plaintiffs and their counsel to suppress defendants’ access to evidence of plaintiffs’ exposures to asbestos-containing products manufactured, sold, or distributed by reorganized companies. In cases where defendants have been able to overcome the attempts to suppress evidence of other exposures, it has become apparent that the product exposures set forth in multiple trust claims differ markedly from, and are inconsistent with, the exposures being asserted by plaintiffs in the tort system. The effects of this suppression are twofold. First, even when defendants—over the strenuous objections of plaintiffs’ counsel—are able to obtain evidence of other exposures by engaging in extensive discovery—including filing subpoenas with trusts, motions to compel, and so on—or when plaintiffs’ counsel disclose trust claims on the eve of trial, because courts limit the amount of time available for discovery, the closer to trial that the evidence is uncovered, the less time is available to follow up the evidence with new interrogatories, demands for documents, and other discovery. Defendants may therefore have to go to trial with an out-of-date trial plan and without having been able to investigate plaintiffs’ other exposures adequately and gather the necessary evidence to counter plaintiffs if they fail to disclose or deny other exposures in pretrial discovery or at trial. The denial or late acquisition of this evidence increases defendants’ litigation risks, including their potential share of liability. These extra burdens borne by defendants to overcome suppression efforts and uncover evidence of plaintiffs’ other exposures also drive up defense costs, which in a mesothelioma case can easily run $100,000 or multiples thereof. Defendants are typically willing to settle claims for amounts determined by their expectations of the outcomes of trials and also their defense costs. This calculation applies as well to claims they expect to win if taken to trial where settlement costs are lower than the cost to litigate the claim. Thus, the higher the costs to defendants to resolve claims, the greater the willingness of defendants to settle claims, including nonmeritorious claims, for higher amounts than would otherwise be the case. Second, several jurisdictions today require plaintiffs to prove not only exposure to a defendant’s asbestos-containing products but also to show that the products were a substantial factor in causing the plaintiff’s disease. If defendants responsible for relatively insubstantial exposures had timely access to evidence of plaintiffs’ exposures to the asbestos-containing products of other companies—most especially to those of the reorganized companies—in appropriate cases, they could argue that plaintiffs’ other exposures, especially if they were to products with high percentages of asbestos, were so much more extensive than the exposures to defendants’ products that the latter could not have been a substantial factor in causing the plaintiffs’ diseases. Denial of access to this evidence increases defendants’ litigation risk and, therefore, the amounts that defendants are willing to pay to settle claims. The net effect of the suppression of evidence in mesothelioma litigation is to inflate the value of tort claims.
Described as an “elephantine mass” that “defies customary judicial administration,” asbestos litigation remains the longest-running mass tort in U.S. history. More than twenty years ago, in 1991, decades after the commencement of asbestos litigation, a United States Judicial Conference Report (Judicial Conference Report) described the scope of the problem:
The most objectionable aspects of asbestos litigation can be briefly summarized: dockets in both federal and state courts continue to grow; long delays are routine; trials are too long; the same issues are litigated over and over; transaction costs exceed the victims’ recovery by nearly two to one; exhaustion of assets threatens and distorts the process; and future claimants may lose altogether.
That year, over 26,000 asbestos cases were consolidated for pretrial purposes under the multidistrict litigation statute (MDL 875). “Tens of thousands of additional asbestos cases subsequently entered the federal system and were transferred to MDL 875.” Although some cases settled, ultimately the efforts made during the next decade failed to resolve the ever-growing litigation. In 1997, in Amchem Products, Inc. v. Windsor, the United States Supreme Court quoted from the 1991 Judicial Conference Report and acknowledged the continuing magnitude of the asbestos litigation, but it declined to solve the asbestos mess. Rather, it struck down the use of a class action settlement to achieve a global resolution of all asbestos claims—those pending at the time and those of future claimants. In the wake of Amchem, dozens of asbestos defendants sought bankruptcy protection while plaintiffs continued to file claims in state and federal courts. Between 1988 and 2010, a United States Government Accountability Office (GAO) analysis of the approximately 100 bankruptcy trusts’ payment data showed that the asbestos trusts had paid about $17.5 billion to 3.3 million claimants.
The elephantine mass continued to morph in the decades following Amchem. Cases continued to flood MDL 875, which remained focused on the global resolution of cases. Indeed, very few cases were being tried in the federal courts, because the MDL judge generally was not remanding individual cases for trial. Only very sick or terminally ill plaintiffs’ cases were remanded.
Fast-forward to January 2013. I was appointed to serve as the Reporter to the American Bar Association (ABA) Tort Trial and Insurance Practice Section’s Asbestos Task Force (Task Force). One of the Task Force’s first items of business was to draft an overview of our mission for publication on our Web site. That statement began by noting that the Judicial Conference Report was over twenty years old and concluded:
Since then, much has happened but those basic problems remain. Dozens of asbestos defendants have reorganized under Chapter 11 of the bankruptcy code, with Trusts established to compensate injured parties. However, there is substantial debate as to the adequacy of compensation paid by the Trusts to Trust claimants. Moreover, latent injuries still appear, and injured parties continue to file new cases against solvent defendants. Although the nature of the litigation has changed, the result is that asbestos claiming has yet to abate.
The necessarily patchwork system of plaintiffs claiming in federal and state courts, as well as the separate administrative claiming before bankruptcy trusts, raises complicated issues about how injured persons can be properly compensated while assuring that defendants are not assessed damages that are not warranted. Other issues of importance include how to protect trusts from fraud and erroneous payments and how to preserve trust funds for future meritorious claimants.
I looked forward to serving as Reporter both because I had experience in dealing with the resolution of other mass torts and because of a long-standing academic interest in mass torts, class actions, and complex litigation. Although my writing touched on the asbestos litigation, I had only generally been following current asbestos developments. The assignment would enable me to catch up and, together with the other members of the Task Force, hopefully help contribute to the fair resolution of the asbestos litigation.
This Article focuses on how the Task Force went about its work and developed a record. Because the Task Force has not yet met to look at the record it has developed or to analyze all the issues presented, it would be inappropriate to predict how our Report and Recommendations will appear once published. However, I will present some brief thoughts in the last Part of this Article that bring together my long-standing academic interest in how mass torts ought to be resolved and the realities of the current asbestos litigation. What I have learned thus far has led me to question my once zealous advocacy of aggregated mass tort claims resolution.
As shown in this World War II magazine advertisement, asbestos was indeed a “precious mineral” that was “vital in this war—for tanks and trucks, ships and planes.” Asbestos was a staple of the machine age in insulating from the effects of heat. And America’s war adversaries—represented by the caricatures of a despondent Hitler, Mussolini, and Tojo—were at a distinct disadvantage for not having any to mine. Thousands of tons of asbestos were used in World War II ships to insulate piping, boilers, steam engines, and steam turbines. Because of its tensile strength, resistance to fire and heat, absorption of sound, and low cost, asbestos became not only the all-purpose solution to the heat generated in the transport and weaponry of the new warfare, but also an indispensable product in manufacturing and building. This Symposium addresses the legal problems associated with the scourge of asbestos after its “breaking bad” in the second half of the twentieth century. Professor Paul D. Carrington has provided an historical account of the gradual growth of awareness of the danger of asbestos to humans, a story that covers many decades and reflects regrettable failures of industry and government to warn and protect against the risks. Even before World War II, there were indications that asbestos was harmful to humans if the fibers were breathed in. The prolonged inhalation of asbestos fibers can cause serious illnesses, including malignant lung cancer, mesothelioma, and asbestosis. By 1935, there was published evidence that asbestos exposure correlated with lung cancer, but it would still be decades before the full scope of the danger became apparent to all. In World War II, large numbers of service members and civilians were exposed to asbestos in boiler rooms. Despite industry touting what asbestos meant to the war effort, for every thousand workers, out of the 4.3 million shipyard workers in the United States during World War II, about fourteen died of mesothelioma and an unknown number of asbestosis.
The asbestos manufacturing industry in the United States was long dominated by the Johns-Manville Corporation. It had mines and then fabricated asbestos for many uses, often also selling to intermediate companies to use in their products. In 1952, Dr. Kenneth Smith, Johns-Manville’s medical director, recommended (unsucces-sfully) that warning labels be attached to products containing asbestos. Later, Smith testified:
[I]t was a business decision as far as I could understand. . . . [T]he corporation is in business to make, to provide jobs for people and make money for stockholders and they had to take into consideration the effects of everything they did and if the application of caution label identifying a product as hazardous would cut into sales, there would be serious financial implications.
The use of asbestos continued to spread to new products and locales in the 1950s and 1960s. Building materials were a major use. As a result, many Americans were exposed in their homes, offices, or shopping areas, as well as in the workplace. Asbestos was also often an integral part of products, such as automobile and railroad brakes, and other parts that would bring new liability to those industries at a later date.
By the mid-1970s, health concerns had surfaced sufficiently that businesses began to use alternative products, and the first government prohibitions on asbestos use arose. Today most products manufactured no longer contain asbestos. In the industrialized world, asbestos was phased out of building products mostly in the 1970s, with most of the remainder phased out by the 1980s. However, the continuing effects of the wide use of, and exposure to, asbestos left large numbers of victims suffering or dying from a variety of asbestos-related conditions.
The Fifth Circuit held that as long as Grutter remained good law, UT's use of race-conscious measures in admissions decisions complied with the Equal Protection Clause of the Fourteenth Amendment because it was narrowly tailored to achieve a critical mass of minorities despite its simultaneous use of the Ten Percent Law. Fisher v. University of Texas at Austin, 631 F.3d 213, 246-47 (5th Cir. 2011), cert. granted, 132 S. Ct. 1536 (2012).
The constitutional right to privacy is a doctrinal mess. The United States Supreme Court appears incapable of articulating a coherent underpinning to this important line of cases, or--more likely--is simply unwilling to do so. And yet there is an obvious candidate for that job: the philosophy of liberalism. But liberalism is a notoriously complicated and contested philosophy. Thus, this Article proposes a succinct and functional articulation of liberalism, which it then applies to Supreme Court cases dealing with the right to privacy. As we shall see, the Court's failure to follow liberal principles lies at the heart of its inconsistencies. Greater understanding of liberalism, and greater willingness to respect this political theory so deeply rooted in American history and tradition, could bring much needed coherence to this body of constitutional law.
Per curiam—literally translated from Latin to “by the court”—is defined by Black's Law Dictionary as “[a]n opinion handed down by an appellate court without identifying the individual judge who wrote the opinion.” Accordingly, the author of a per curiam opinion is meant to be institutional rather than individual, attributable to the court as an entity rather than to a single judge. The United States Supreme Court issues a significant number of per curiam dispositions each Term. In the first six years of Chief Justice John Roberts's tenure, almost nine percent of the Court's full opinions were per curiams. The prevalence of issuing unattributed opinions raises questions of its impact on judicial accountability and the development of the law. This Article argues that the per curiam is a misused practice that is at odds with the individualized nature of the American common law system, frustrating efforts to hold individual judges accountable and inhibiting the development of the law. Thus, the use of the per curiam in courts of last resort, including de facto courts of last resort, should be limited to a narrow class of opinions in which the use of formulaic, boilerplate language has already extinguished any sense of individuality. Opinions containing language that is more expansive must be attributed in order to serve as a check on judges' fidelity to the law and to enable the public and the legal profession to formulate an accurate understanding of the law.
The Supreme Court decision in Camreta v. Greene is revealing. The Court first issues an opinion authorizing appeals by prevailing parties in qualified immunity cases, even though doing so entails the issuance of an advisory opinion that is not necessary to resolution of the dispute between the parties. And the Court then declines to reach the merits of the underlying constitutional claim in the case, because doing so would entail the issuance of an advisory opinion that was not necessary to the resolution of the dispute between the parties. The Court's decision, therefore, has the paradoxical effect of both honoring and violating the Article III jurisdictional limitation on advisory opinions at the same time. The Camreta paradox illustrates a problem that makes our current conception of judicial review incoherent. We insist that the Supreme Court avoid separation of powers problems by confining itself to the retrospective adjudicatory activities envisioned by the Marbury v. Madison dispute-resolution model of judicial review. But what we really want the Court to do is participate in the prospective formulation of governmental policy, as if it were part of a tricameral legislative process. These dual conceptions of judicial review reflect a tension inherent in liberalism itself. We want both to advance our own self-interests in an unflattering pluralist political process, but simultaneously we wish to think of ourselves as other-regarding adherents to loftier civic republican virtue. We ask the Supreme Court to mediate this tension for us by making our liberal political victories look as if they are rooted in deeper communitarian principles. But this mediation can be successful only to the extent that the Court can mask for us the underlying incoherence of the judicial review function that we ask the Court to perform. In Camreta, this incoherence is so close to the surface that, hopefully, we will be forced to confront it. Without the camouflage that we ask judicial review to provide for our baser instincts, perhaps we will come to treat each other less harshly, and with more empathy.