The Legacy of Asbestos

In his essential "Golden State" column, the excellent Michael Hiltzik puts asbestos in perspective:

Golden State: Golden State Column: The Legacy of Asbestos : Even within the specialized world of mass tort litigation, asbestos stands alone. Victims of tobacco, the dangers of which have been widely and clearly disseminated, are arguably if partially complicit in their own disease. The women who were injured by silicon implants and the Dalkon shield necessarily comprise a limited population.

But asbestos could hurt anybody. Although its miners and manufacturers and their insurers knew of its hazards as far back as the 1930s, and possibly the 1910s, no alarms were sounded for the general public and no warnings appeared on the packaging until usage ceased in the 1970s. The victims were in many cases unaware that the material they were exposed to was asbestos and to the extent they were employees in refineries and shipyards, they wouldn't have had the option to avoid it even if they knew.

The Rand Corp. survey of the litigation landscape is deeply mistrusted by the asbestos bar, which views it as an argument to shutter the courthouse doors against innocent victims. This is a misreading. It does document the diversion of resources to legal expenses on a massive scale, but it shows that the money comes out of the pockets of defendants and plaintiffs alike, and it weighs the effect of every alternative on victims' access to justice. As its main author, Stephen Carroll, told me, the fact that more than 60 cents of every dollar spent on the process gets eaten up by the process "doesn't tell you what you should do instead, but shows there's a powerful argument that there should be an instead."...

This floating, glittering nuisance was asbestos. In April 2005, nearly 50 years later, McCann visited a doctor to determine why he was experiencing knife-like pains in his lungs after a lifetime hewing to a fanatical fitness regime. That was when he learned that the cascades of silvery flecks had bestowed upon him an incurable disease called mesothelioma. A few months later, McCann, 71, became an asbestos plaintiff in Los Angeles Superior Court, where he sued 21 manufacturers and marketers of asbestos or their corporate successors. Eight were later dropped from the case, and 12 reached confidential settlements. Opening statements in the trial of the sole remaining defendant, Burns International Services Corp., are scheduled for Wednesday.... Since the 1960s, more than 750,000 people have filed legal claims resulting from asbestos exposure, according to a study by the Rand Corp., and the growth rate has been picking up steam. Cases of mesothelioma, an aggressive lung malignancy of which asbestos is the only known cause, have been increasing by more than 2,500 a year.

The Rand study estimated that defendant companies and their insurers had spent more than $70 billion through 2002, including $21 billion on their own legal expenses and $49 billion in settlements and court awards, of which the plaintiffs received $30 billion. Meanwhile, more than 70 defendant companies have filed for bankruptcy protection (not all because of their asbestos liability).

Asbestos plainly presents an unprecedented challenge to the U.S. court system. Although insurers and manufacturers knew of its health dangers by the 1930s, asbestos products were used extensively in industrial, commercial and residential construction through the 1970s, exposing people in all walks of life. Because its effects can appear 40 years after exposure, the size of the claimant pool is incalculable.

Litigation in state courts, where most asbestos cases are filed, can have wildly varying outcomes: The average California jury award for mesothelioma is $5 million, says McCann's attorney, Roger Worthington, who specializes in such cases. But one of his clients was recently awarded $34 million. The process also imposes an intolerable burden on plaintiffs who may be terminally ill; one of McCann's depositions was a six-hour ordeal in the presence of 16 squabbling attorneys.

Every attempt to find a solution has fallen short. Consider the 1982 bankruptcy of Johns-Manville Corp.... The bankruptcy resulted in the creation of a settlement trust whose billions of dollars in assets seemed to be comfortably adequate to pay the 100,000 claims anticipated over its lifetime. But the trust was quickly overwhelmed. The number of claimants breached the 100,000 threshold in about a year. Soon after, the trust was forced to conserve its resources by slashing payments to 10 cents on the dollar.... Just last week, a Senate plan to create a $140-billion trust fund with money from manufacturers and insurance companies was killed in a procedural vote. The plan had bipartisan support -- and bipartisan opposition. Plaintiffs and their lawyers were concerned that its built-in payment cap of $1.1 million per claimant would leave many victims impoverished by medical costs.... Worthington and other attorneys prefer an approach being pushed in the House, which leaves the courtroom doors open to those with the most severe disease and defers lawsuits by those who can't show significant injury, even if they can prove exposure. But that bill could itself render many worthy claims too costly to interest lawyers....

Seated on the couch in his Dana Point home next to Lucille, his wife of 52 years, McCann can still seem the picture of vigor. When he stands upright, his 5-foot-4 frame projects the compact power that won him his gold medal as a 125-pound wrestler at the Rome Games in 1960. It's only when one sees him shamble painfully from one room to the next that the effects 12 courses of chemotherapy have had on his body become outwardly detectable.... He doesn't conceal his bitterness toward the industry that poisoned him. "I was taught that you run your business in an ethical manner," he says. "If I hadn't seen the documentation that these companies knew what they were doing, I wouldn't have pursued this. But I'm angry."