Asbestos Litigation

Newsletter Type: Product Liability

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For over 40 forty years, asbestos litigation has been a part of the American judicial landscape. Asbestos is a naturally occurring fibrous material that has been used in building materials for many years, often for insulation. While nearly everyone in the United States has been exposed to asbestos at some time, many people who were exposed to asbestos over a long period of time have become ill. According to the U.S. Food and Drug Administration, malignant pleural mesothelioma, a type of cancer that affects the inside lining of the chest cavity, is associated with asbestos exposure. Other effects of asbestos exposure can be a lung disease called asbestosis, build-up of scar tissue in the lung, pulmonary hypertension, and compromised immunity.

It is estimated that more than 200,000 asbestos claims are pending in the U.S. courts. Over $70 billion has been spent in paying claims, attorney fees and other costs associated with asbestos claims, with remaining costs expected to reach up to $250 billion. Asbestos claimants range from those with debilitating effects of exposure to those with little or no medical consequences of exposure. There have been more than 8,000 defendants named in asbestos cases, ranging from manufacturers of asbestos to automakers, shipbuilders, textile mills, retailers, insurers, shipbuilders, electric utilities and other industries that have used asbestos. As asbestos manufacturers became bankrupt from paying claims, plaintiff attorneys sought out other defendants.

Because asbestos litigation is based on the theory of strict liability, a plaintiff needs only to show exposure to asbestos and a resulting injury in order to succeed. However, because the great majority of asbestos cases are settled out of court, often plaintiffs are not required to prove any injury as a result of asbestos exposure. The American Bar Association committee on asbestos litigation is recommending a plan that imposes medical standards on the ability of plaintiffs to recover in asbestos cases. Under the proposed plan, plaintiffs (or their families) alleging non-malignant asbestos-related disease claims would be required to meet certain medical standards prior to filing suit in state or federal court. The plan would extend the statute of limitations so that taking time to qualify under the medical standards would not jeopardize plaintiffs’ claims. Congress is considering bills to adopt this plan. Plaintiff advocates and plaintiff attorneys are opposed to the proposal, arguing that it would deprive injured plaintiffs of their day in court. The U.S. Supreme Court has repeatedly asked Congress to pass legislation to deal with the asbestos litigation problem.

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