Asbestos and the Law
By Allan Masri
Asbestos is the name of a group of fire-resistant minerals that have naturally-occurring fibers.1 Asbestos was widely used in industry for its insulating and flame-retardant properties before its harmful effects became widely known.2 The ancient Greeks called asbestos the miracle mineral because it seemed indestructible, a quality they also attributed to their gods. 3
Scientists conducted studies on asbestos toxicity as early as 1924.4 They found that asbestos exposure led to asbestosis, an irreversible lung condition.5 Studies linked asbestos to serious diseases such as lung cancer and mesothelioma as early as 1964.6 Up to 27 million people, including shipyard workers, construction workers, and miners, were exposed to asbestos from 1940 to 1978.7 All these people were potential plaintiffs in asbestos product liability cases. The latency for mesothelioma is from 10 to 40 years, so new cases are still occurring despite decreasing use of asbestos in consumer product. By 2003, asbestos plaintiff's had filed 730,000 cases and won $70 billion in awards.8 The costs of asbestos judgments eventually could total $130 to $195 billion.9
The asbestos producing companies (“producers”) knew about the toxicity of their products since the 1930s but failed to take steps to protect users, especially their own workers, from suffering harm.10 A 1965 study of asbestos workers in New York found convincing evidence that exposure to asbestos caused mesothelioma, parenchymal asbestosis, asbestos-related pleural abnormalities, lung cancer, and cancer at some extra thoracic sites.11
In the early 1970s, asbestos workers and victims of diseases specifically associated with asbestos inhalation (“claimants”) began filing product liability law suits against producers. In response to these legal actions, producers set in motion a number of strategies to secure the continued profitability of their asbestos enterprises and reduce the sums that might be awarded to victims.
Among the producers' most successful actions were:
- Applying Political Pressure. Producers sabotaged enforcement of the Toxic Substances Control Act (“TSCA”) by applying political pressure to prevent the Environmental Protection Agency (“E.P.A.”) from enforcing the law.
- Spreading disinformation. Producers secretly funded public relations organizations to spread disinformation about asbestos. This led both to public confusion about the true risks of asbestos and also to the passage of laws to reduce damage awards generally.
- Tort Reform. Producers, allied with corporations and insurance companies, lobbied state legislatures for laws that made it more difficult and costly to sue corporations for liability.
II. Applying Political Pressure
Producers sabotaged enforcement of the law by applying political pressure on the E.P.A..12 This pressure resulted in the E.P.A.'s failure to ban asbestos completely. E.P.A.'s failure to do so will ultimately cost thousands of lives and tens of millions of dollars in medical fees and clean-up costs. Later, producers used loopholes in E.P.A. regulations to continue legally producing new asbestos products by claiming these products harmlessly small amounts of asbestos.
The TSCA gave the E.P.A. authority to regulate pollutants that harm the health of the general population.13 Subsequently, the E.P.A. began work on a study of asbestos, which it identified as a major pollutant.14 The E.P.A. completed this study in 1989 and promulgated regulations calling for the total ban on the sale or import of asbestos products in the U. S.15 This study and promulgation was the E.P.A.'s first major action under the TSCA.
In 1979 the E.P.A. released an Advance Notice of Federal Rulemaking.16 After taking testimony, the E.P.A. published three possible plans for banning asbestos outright and a rule for possible labeling of products containing asbestos.17 The E.P.A. received over 200 comments on the proposed rule.18 The E.P.A. also held a legislative hearing on the rule and permitted extensive cross-examination of E.P.A. personnel and contractors in 1986.19
Twenty asbestos producers, led by Johns-Manville, had formed the Asbestos Information Association (“AIA”) to counter scientific findings on the public health risks of asbestos.20 The AIA joined plaintiffs in Corrosion Proof Fittings v. E.P.A. (1991)(“Corrosion”) to block the E.P.A.'s proposed ban on asbestos.21 Plaintiffs charged that the E.P.A.'s rulemaking procedure was flawed.22 The court ruled that the E.P.A. should have provided similar studies of possible replacements for asbestos in the environment.23 The court held that the E.P.A.'s most serious error was that it failed to permit sufficient cross-examination of its witnesses.24
The E.P.A.'s actions were based on sound science.25 It acted to save lives and prevent further damage to the environment.26 The court rejected the results of what the E.P.A. called an “analogous” study because it contained no real world examples of asbestos toxicity.27 The E.P.A. failed to make this kind of study because mesothelioma occurs 30 or more years after exposure to asbestos.28 Scientists discovered that finding a control group of people who could certify that they had not inhaled asbestos 30 or 40 years ago was impossible.29 The court in this instance demanded evidence that did not exist because the scientific study of asbestos was still ongoing. In a similar case, another court took the position that the finder of fact must accept certain areas of uncertainty, since scientific evidence can never provide the level of certainty that courts ordinarily encounter.30 Another court ruled that the E.P.A. could not be expected to give findings of the sort familiar from the world of adjudication because it was dealing with matters on the frontiers of scientific knowledge.31
The Court may have committed reversible error by not following the administrative deference rule established in Chevron v. Natural Resources Defense Council in 1984.32 The court in Chevron ruled that it was appropriate for agencies to decide how to interpret laws made by congress, since federal judges are not experts in the field and are not part of either political branch of government.33 The court in this case ignored the conclusions of the E.P.A. and instead accepted the arguments of the producers, which the E.P.A. was required by law to regulate.34
Producers argued that the E.P.A. had not tested other materials that would be substituted to discover if they might be more toxic or less effective than asbestos.35 The E.P.A. spent $10 million and devoted 10 years to producing this study on asbestos.36 The agency did not have the resources to test every one of the tens of thousands of chemical mixtures used in commerce to determine its relative toxicity.37 The court may have committed reversible error when it failed to acknowledge that Congress had given the responsibility for collecting data on possibly toxic substances to manufacturers, not the E.P.A.38
The court ruled that the study was flawed because the E.P.A. had not informed the appellants that the analogous study would be the basis for their decision on whether to ban asbestos.39 The E.P.A. had provided numerous opportunities for comment and testimony, and the industry took full advantage of these opportunities.40 The appellants argued that the E.P.A. had not permitted cross-examination of some witnesses.41 The TSCA permitted the E.P.A. to limit cross-examinations, to save time, if it was clear that the testimony of the witness was similar to that of other witnesses.42
The E.P.A. argued that the estimated $459 million cost of its regulation would not be onerous to any single party, since most costs would be borne by consumers over a period of 13 years, and would therefore be hardly noticeable to them.43 The E.P.A. Contended that only the complete banning of asbestos could prevent larger concentrations from occurring, bringing with them further loss of life and high costs associated with removing toxic waste.44 The court ruled that the E.P.A. had not considered less burdensome solutions, as required by law.45 The E.P.A. announcements in the Federal Register, however, show that they did consider other solutions and received comments and testimony on them before coming to their final decision.46 The court recognized this fact but ignored the opinion of experts within the E.P.A. and replaced the E.P.A.'s regulations with its own.47
The E.P.A. had a legal duty to promulgate such regulations.48 The agency had fulfilled that duty in a study that took ten years and cost $10 million.49 The E.P.A.'s staff of expert scientists had agreed on the final regulations. Yet in the court's final ruling, the judge decided arbitrarily how the asbestos industry should be regulated, substituting his own opinion for the opinions of qualified scientists.50
Employees of the E.P.A. who had worked on the study sent many memos urging the director of the agency to appeal the ruling, stating that they believed the scientific basis for the action was valid.51 These employees believed that the analogous study was difficult to validate but easy to find fault with.52 The E.P.A.'s general counsel asked the Department of Justice to appeal the ruling in Corrosion.53 The Director of the E.P.A.'s National Program Chemical Division blamed the White House for blocking the appeal.54 The decision has yet to be appealed.
In 2001, the E.P.A. determined to declare a public health emergency in the town of Libby, Montana, where nearly 18% of 6,149 residents tested were found to have at least the initial signs of asbestos related disease (“ARD”).55 The purpose of the declaration of emergency would be to protect the citizens of Libby from enduring further exposure to asbestos.56 In a meeting with E.P.A. representatives, the White House Office of Management and Budget (“OMB”) convinced the E.P.A. not to declare a public health emergency.57 The OMB believed that such a declaration by the E.P.A. would create public hysteria.58 Instead, the OMB demanded that the E.P.A. invent some pretext to begin cleaning up the town of Libby without declaring an emergency.59 No declaration was made.
A congressional investigation in 2008 turned up an internal memo at the E.P.A. stating definitively that the agency was prevented from acting by the political influence of W. R. Grace, the company that owned the asbestos mines in Libby.60 The E.P.A.'s failure to act deprived the residents of Libby of medical care that would have been available to them in the event of declaration of a public health emergency.61
After a change of leadership, the U.S. Senate conducted an investigation into the Libby situation.62 The investigation determined that the OMB had interfered with the E.P.A.'s decision making process.63 The investigation further determined that the reason given publicly by the E.P.A. for not declaring an emergency stemmed, not from any factual basis, but from a concerted effort to avoid declaring one.64 Pursuant to the investigation, on June 17, 2009, the E.P.A. declared a public health emergency in Libby and in Troy, Montana.65 The E.P.A. estimated that it would spend an extra $125 million to deal with the health emergency in addition to the costs already incurred by cleaning up the superfund site in Libby.66
III. Spreading Disinformation
Disinformation is defined generally as false information intended to deceive or mislead.67 Producers turned to spreading disinformation as a means to reduce the public's understanding of the asbestos problem and to convince the public that claimants had few, if any, legitimate cases against the asbestos companies.68
In 1968 Johns-Manville, the largest producer of asbestos, began a secret program to discredit scientific studies of asbestos, focusing particularly on scientists working on asbestos epidemiology.69 This secret program, funded and staffed by Johns-Manville but not revealed to the public, began operation with a Johns-Manville public relations executive as co-ordinator of special projects.70 His job was to find out everything he could about the asbestos-health issue.71
Johns-Manville founded the American Asbestos Association (“AIA”) in 1970 with the ostensible objective of correcting misleading and uninformed reportage on asbestos-health problems and counteracting the effects of scientific publications detailing the health hazards of asbestos.72 A Johns-Manville executive became its Executive Secretary.73 The AIA fought against impending federal legislation and worked to prevent the words “cancer” or “danger” from being used on labels.74 In 1973 AIA's Executive Secretary declared that the purpose of the organization was to protect the interests of the asbestos industry from claims that asbestos was harmful to health.75
That same year, Johns-Manville's Vice President for Advertising and Public Relations attacked scientists who published studies which blamed asbestos for cancer claiming that they were terrorizing people who had contracted asbestos poisoning three decades earlier.76 He called the scientists cruel for revealing the illness and its cause to its sufferers when there was no longer anything they could do about it.77
Johns-Manville and other business leaders also helped found the American Tort Reform Association (“ATRA”) in the mid-1980s.78 ATRA was especially important to the asbestos and tobacco industries.79 Both industries were engaged in combatting scientific attacks on their products.80 ATRA called for the passage of tort reform legislation to meet the threat posed by ostensibly frivolous lawsuits.81 Thousands of product liability claims were filed against producers and tobacco companies and charged that they had suffered cancers or other diseases by using defective products.82
ATRA claimed to be an independent organization dedicated to reforming civil tort litigation rules.83 In fact it was funded by the industries most affected by product liability suits.84 The amount given by producers is unknown, but some of the funding by tobacco companies has been made public. In 1995 Philip Morris, a tobacco company, budgeted $200,000 for ATRA's general support and multiple punitive damages project as recorded in a privileged and confidential memo entitled Tort Reform Project Budget.85 The same memo budgeted $2,993,770 to ATRA for Communications in 1995 and an additional $3,500,000 in 1996. 86
Citizens Against Lawsuit Abuse (“CALA”) was another part of the Tort Reform Project.87 CALA consisted of smaller, ostensibly independent groups, operating in individual states. These groups had were intended to appear to be grass roots groups favoring tort reform, but in fact they received substantial funding from large corporations in the asbestos and tobacco industry. Philip Morris's 1995 budget for Louisiana CALA was $130,000.88 Philip Morris also gave substantial funding to other ostensibly grass-roots orgnizations: Alabama Voters Against Lawsuit Abuse ($225,000); Michigan Voters against Lawsuit Abuse ($35,000); Ohio Alliance for Civil Justice ($40,000); and Oregon Litigation Reform ($10,000). Philip Morris's total budget for the tort reform project in 1995 was more than $21 million.89 These large sums spent for financing tort reform, donated by a tobacco company, suggest that ATRA and the CALA groups were not grass-roots groups as they claimed, but public relations groups that received funding from a few companies whose interests they represented.90 These companies frequently found themselves defendants in product liability suits and therefore stood to benefit from the activities of ATRA and CALA, whose main purpose was to reduce the number and size of liability suits brought against corporations.91
ATRA defined itself on its IRS Form 990 for 2009 as a broad-based bipartisan coalition supporting civil and justice reform with the goal of ensuring fairness, balance, and predictability in America's legal system.92 Its activities, however, show that it is entirely dedicated to reducing the number of product liability cases filed and the amounts awarded in compensation.
One of ATRA's important functions has been to spread disinformation about asbestos. AIA, ATRA, and their allies (“reformers”) have used this technique since 1972 to turn public opinion against victims of asbestos corporations.93 In 2002, a public relations executive with a degree in English who has been a long-time ATRA associate published a disinformative article on the internet.94 He claimed that real victims of abestos-caused diseases were being denied compensation while people who will never experience an asbestos related disease received million-dollar awards from confused and misled juries.95 This statement was an attack on the American system of justice, including lawyers, judges, juries, and the laws themselves, for which the author offered no proof.
The author claimed that asbestos litigation had driven 60 companies into bankruptcy.96 This assertion was false. Asbestos companies were not driven into bankruptcy; they used bankruptcy courts to escape liability, since liability trust funds set up by bankruptcy courts could reduce payments to claimants substantially.97 Producers declaring bankruptcy frequently reduced their liability by 75%.98
The author claimed that nearly all independent asbestos health experts agree that asbestosis occurs only after decades-long occupational exposure to asbestos fibers.99 The author further asserted that these medical facts were well-established 30 years ago and had remained true up until the present time.100
Widely respected scientists have reported, on the other hand, that some victims of mesothelioma had worked in polluted environments for as little as one month, only to succumb to the disease decades later.101 Some victims worked in mill towns but had no other contact with asbestos. 102 Others had been exposed through fibers on clothing of their husbands.103
Public relations firms, like ATRA, AIA, and CALA, funded secretly by producers, published attacks on the judicial system, which they claimed unjustly targeted the asbestos producers.104 The producers anonymously funneled millions of dollars into publicity organizations and campaigns designed to convince the public that there was a crisis in the judicial system.105 This barrage of disinformation led jurors and voters to believe that claimants were fraudulently looking for a windfall.106
One producer, W. R. Grace, took advantage of a loophole in E.P.A. regulations to introduce new insulation products made from “Monolith”, its brand name for vermiculite, which Grace extracted from its mine in Libby, Montana.107 Monolith contained at least one percent asbestos, but Grace never admitted this publicly, instead pursuing a policy of silence.108 Grace lobbied the E.P.A. to set the threshold for asbestos at just over one per cent.109
All of these efforts had their effect. The producers and their allies (including insurance companies and the tobacco industry) succeeded in convincing many people that there was a crisis of large, unjustified judgments.110 Legislators took campaign contributions and passed tort reform laws designed to reduce payments to claimants.111
A group of W. R. Grace executives were indicted for conspiring to release asbestos into the air in violation of the Clean Air Act112, and for conspiracy to defraud the United States for their part in causing the deaths of over 600 residents of Libby, Montana.113 The Department of Justice failed to make its case and the company and its executives were acquitted.114
IV. Tort Reform
The Seventh Amendment to the U. S. Constitution guarantees a trial by jury in civil cases at common law.115 Reformers have promoted tort reform laws to protect corporations from product liability law suits. The result of this tort reform has been to reduce the number of suits and to reduce the value of judgments rendered against tortfeasors. The Seventh Amendment is under attack because claimants who lack the means to sue have been denied justice, and because reduced judgments have kept attorneys from taking cases on contingency.
Reformers promised to eliminate frivolous law suits, which they claimed cost the American economy billions of dollars every year but the legal system already had a built-in ability to throw out frivolous suits. Judges can reject any case they consider pointless or a waste of time. The only means for frivolous lawsuits to get into the courts is for judges to permit them. Reformers, therefore, were not actually targeting frivolous lawsuits for their reforms, but legitimate lawsuits that cost corporations money.
Reformers have been successful in convincing legislatures and the public in general that frivolous law suits are an expensive problem that amounts to a crisis. Reformers have passed laws that act primarily to exclude plaintiffs who lack the means to prosecute their cases. They have partially succeeded, therefore, in taking away the right of less well-heeled plaintiffs to obtain a jury trial, a right supposedly guaranteed to them by the Seventh Amendment.
Producers and other corporations have funded tort reform nationwide.116 Thirty states have passed some version of reforms. All of the following have been enacted in one or more states:117
- Summary Judgment Reforms. Texas passed a tort reform act in 1997.118 The new act included a change to Rule of Evidence 166(a) pertaining to summary judgments, permitting a “no-evidence” motion for summary judgment.119 Under a no-evidence rule, the movant need not have any evidence, nor does the judge have to rule that there is no disagreement between the parties on the facts of the case.120 Instead, movant requires the other party to show evidence to convince the court that there is a basis for the case to continue.121
The summary judgment rule is intended to eliminate cases that have patently unmeritorious claims and untenable defenses.122 When the rule is applied without evidence, as in the Texas case, the effect is to eliminate cases by plaintiffs who do not have sufficient funds to prosecute a case. The summary judgment rule removes the jury from the case and lets the judge decide it. The Texas rule does not change the rules for deciding the case. It forces the plaintiff to marshal his evidence, which would generally include expert witnesses, doctors, and test records. Gathering this evidence is expensive and time-consuming, creating a strong disincentive to prosecute what might be a valid claim.
A result of summary judgment reforms in Texas has been that fewer plaintiffs can qualify to go to trial. In 2010 a federal judge, acting in accordance with Texas law, dismissed 85 cases of plaintiffs in a summary judgment.123 The plaintiffs failed to meet the Texas standard that they must be impaired to qualify for trial. This reform addresses a problem peculiar to mesothelioma. Mesothelioma does not appear until many years after exposure to asbestos.124 The law defines a statute of limitations on product liabilities, however. Those at risk from asbestos-related disease must file their claims before any symptoms appear. Many plaintiffs file claims when x-rays of their lungs show evidence of pleural scarring but before they suffer symptoms of mesothelioma. Another peculiarity of mesothelioma is that lesions may never appear on x-rays. The affliction in those cases manifests itself by metastasizing into lung cancer or, possibly, other non-thoracic cancers. Tort reformers may consider such cases frivolous as well, since they lack mesothelioma lesions.
Result of reforms: Fewer plaintiffs can afford to file cases, whether the charges are legitimate or not. This may cause those plaintiffs who cannot afford to pay for preliminary investigations and expert witnesses to lose their right to a trial by jury as guaranteed under the Seventh Amendment.
- Joint and Several Liability Reforms. Reformers recommend replacing joint and several liability rules with proportional liability.125 This would particularly benefit the asbestos industry where the long period between disease contraction and onset make it impossible to determine precisely the proportions of liability that can be assigned to each defendant. Abandonment of this rule would take American jurisprudence back to the era when the injured party had to bear the entire cost of damages because the defendant who caused the damage could not be absolutely determined.
Result of Reforms. Reformers argued against joint and several liability laws by claiming that fewer tort cases would be filed under more restricted laws. Researchers have discovered that the number of tort cases filed did not decrease after modification of these laws.126
- Collateral Source Rule. Tort reformers advocate laws that require other payments for damages (an insurance settlement, for example) to be subtracted from the total damages allotted to a defendant at trial. This change, if enacted, would sometimes reduce defendants' liability. This reform would only help defendants. Plaintiffs who receive relief from the court would find their total judgment reduced. This would reduce the deterrent value of judgments, since defendants would only be required to pay anything if the amount of the judgment is larger than payments the plaintiffs have already received. It would also limit the total amount that could be received by plaintiffs.
The court struck down the Kansas version of this reform, saying that the victim would not receive the full amount of damages from the person who harmed them.127 Additionally, the court doubted whether the act would achieve its stated purpose, which was to reduce liability premiums, and ruled that the act therefore did not substantially fulfill a legitimate legislative purpose.128
The Wisconsin Supreme Court also ruled against State Farm for refusing to pay collateral benefits on the ground that the plaintiff had already collected damages from another policy.129 The Court directed that plaintiff be paid the full amount of her medical expenses, regardless of whether part of them had already been paid by another policy, because plaintiff's insurance policy specified that she be paid the full amount and plaintiff was entitled to the coverage she paid for.130 If the collateral source rule were abolished by reformers, insurers in Wisconsin would be able to evade paying damages that they underwrote in insurance policies.
Result of Reforms: Defendants in some cases would pay lower settlements. This lower payment is not related to the severity of the tort nor to the medical needs of the victims. Its main purpose is to benefit the companies who are financing the tort reform movement.
- Punitive Damage Reform. Reformers advocate placing caps on punitive damages.131 Punitive damages are awarded as a punishment for wrongdoing, however. Juries sometimes award large punitive damages against asbestos companies who were found to have withheld information that would have protected their workers or the general public. Without punitive damages there is no incentive for tortfeasors to act more responsibly in the future.
- Noneconomic Damage Reform. Reformers argue that the award of noneconomic damages is the single greatest cause of inequity in the tort liability system.132 They prescribe caps to the amount that juries can award for pain and suffering and other economic damages. A Federal Appeals Court struck down Alabama's noneconomic damages cap.133 The court ruled that jury damages could only be reduced for certain specific reasons, such as bias, prejudice, or corruption, under Alabama's Constitution. The law additionally violated the state constitutional right to equal protection by creating a favored class of tortfeasor and balanced the direct burden of catastrophically injured victims against indirect and speculative benefits of reducing health care costs.
Result of Reforms. Caps on payments to plaintiffs, when they are reached, benefit defendants at the expense of plaintiffs. Congress passed the Amtrak Reform and Accountability Act in 1997 with a provision that limited the total amount of liability for negligence in any single instance to $200 million.134 On Sep. 12, 2008, two trains collided near Chatsworth, California.135 Twenty-four people were killed and more than 100 were injured.136 The plaintiff's attorney's estimated that there were approximately $320 to $350 million in damages to their clients.137 Because of the congressional limitation, only $200 million could be awarded.138 The railway companies and insurance companies benefitted from this limitation, leaving the victims and their families with 57-67% of what the judge would otherwise have awarded.139
The Supreme Court of Georgia ruled Georgia's limit on noneconomic damages unconstitutional because the statutory limit undermined the jury's basic function as finder of fact.140 The Court also found that the existence of the caps on noneconomic damages, in any amount, violated the right to trial by jury.141
- Prejudgment Interest. Reformers consider interest paid on damages to be unfair to defendants because it may penalize them for delays they did not cause, and impede settlement, meaning that the plaintiff will refuse a settlement if he believes that the amount of the settlement will be increased by interest more if he refuses to settle longer.142 Reformers also charge that overly generous interest rates may result in over-compensation.143 Reformers always look at problems from the viewpoint of defendants, which is not surprising since they have historically been funded by Producers. Prejudgment interest provides a check against defendants delaying trials to force plaintiffs, who have limited funds, to accept inadequate settlements. Defendants have no incentive to accelerate the case if they suffer no penalty from doing so.
Results of Reforms. Plaintiffs may accept smaller settlements than they deserve from fear that they will not have sufficient funds to prosecute their case adequately. Defendants, who are usually corporations, generally have much deeper pockets than plaintiffs.
- Class Action Reform. Reformers argue that class actions have become a means of defendant distortion.144 Class actions are often the only means for large numbers of plaintiffs to sue large defendants, when a single plaintiff could not afford the cost of prosecution. Texas passed a stringent anti-class action law that permits attorneys to receive fees only on time and cost-expended basis. This limitation makes it difficult for attorneys to take on class-action cases because they must bear the entire costs of these cases, sometimes for years, before receiving any compensation. The risk in these cases would often outweigh the reward.
- Result of reforms. Class-action suits are one of the few ways for consumers or employees to receive remedies for torts committed by large corporations. The suits are also a check to the tortious actions of corporations. Without the ability to file these suits, consumers will find themselves powerless. Conversely, corporations will find they risk little by their tortious actions.
Reformers give numerous reasons for the necessity of reform. They claim that there is a great crisis in the courts caused by overzealous and unscrupulous plaintiffs and their attorneys.145 They accuse these attorneys of filing frivolous lawsuits and filling the courts with cases without merit.
Reformers have used funds from producers and their allies to blanket the nation with stories about frivolous law suits. They have publicized widely extreme cases, such as the case where a jury awarded a MacDonald's customer $6.2 million. With this and other examples of seemingly astronomical awards, producers have succeeded in convincing the public that the courts are in fact filled with frivolous lawsuits and that these lawsuits are costing the public millions of dollars. Largely as a result of their efforts, numerous tort reform laws have been passed in the last 20 years.
Reformers argue that frivolous lawsuits cause two major consequences: high malpractice insurance premiums and subsequently high medical costs; and unemployment, caused by the resources that companies must expend to contest the suits. These effects however, are theoretical, not proven. Where tort reforms have been adopted, as in Ohio, the cost of medical care continues to rise.146 Further, employment in Ohio has worsened significantly since tort reform, although this cannot be conclusively attributed to anything but a weak economy.147
Reformers have published a story of massive fraud in the asbestos litigation industry.148 The fraud consisted of thousands of individuals seeking recovery for alleged injuries, 60 percent of whom had already recovered from lung injuries caused by asbestos.149 Scientific studies, however, have shown that asbestos fibers can never be removed from the lungs, so victims will never recover fully from their injuries.150 There are recorded cases where a person may have worked in unsafe conditions for as little as a month, yet still contracted mesothelioma decades later.151 A person can never recover from lung injuries even though evidence of their existence may vanish from their x-rays.152
Reformers also claim that plaintiffs who show no injuries are filing frivolous cases. Plaintiffs must file their cases before the statute of limitations, usually five years, expires for them. At that point they may show no symptoms other than characteristic abnormal x-rays and their awards, either from an insurance trust or from results of a class action suit, are generally small. These same plaintiffs may find themselves suffering from cancer in 5, 10, or 20 years. At that point, they can refile their claims and receiver larger settlements. Calling the original filing a frivolous suit is false. Without the original filing, they could never recover the actual amount due them.
There is a great crisis in the courts, but it was caused by the asbestos companies, whose actions resulted in 730,000 claims filed by plaintiffs at risk of mesothelioma and other asbestos-related disease. This number is not irrationally high considering that there may be 27 million potential plaintiffs. Tort reform has reduced the number of claims filed and has lowered awards but this does not serve justice.153
Ohio has been passing tort reforms for several years. Records of Ohio court filings before reforms (2002) show that 629 products liability cases were filed, just 0.10% of all civil cases filed in that year.154 Similar records for 2009, gathered after tort reforms passed the Ohio legislature, showed 263 products liability cases filed, 0.03% of all civil cases.155 Reformers have asserted that this reduction in court cases should have resulted in higher employment in Ohio, but it has not.156 Employment in Ohio was much worse in 2009 than in 2002. The small number of actual cases tends to refute the idea that product liability tort cases (along with professional torts and civil torts) could possibly be costing the U.S. economy $265 billion a year (or whatever Tillinghast-Towers Perrin estimates for the current year).157 These figures show that many victims of corporate tortfeasance in Ohio have been unable to afford lawsuits that might give them a measure of justice. Others may have found their awards substantially reduced.
The Governor of Minnesota recently vetoed a law that would have explicitly limited the liability of corporations that acquired companies that had liabilities from asbestos production.158 The Governor stated that he did so because it would shift the costs of injuries from Asbestos manufacturers to taxpayers and others.159
The health of the American people is too important to entrust to the political process alone. Elected officials who swore to uphold the laws have subsequently refused to enforce them, due to the influence of powerful lobbies. The body politic can be persuaded of almost anything by clever arguments repeated ad infinitum, but those arguments cannot change the scientific facts. Those facts need to be recognized and acted upon when necessary.
The tort reform movement, supported by the asbestos industry and their insurers, has caused great harm to our liability laws. Producers have used political pressure to thwart corrective action by federal agencies, like the E.P.A. Producers have also spent millions of dollars spreading disinformation that has poisoned the jury pool and created an electorate willing to countenance irrational changes to tort law.
Appropriate measures should be taken to reverse these actions:
- State Attorneys General should examine tort reform laws and challenge the constitutionality of those that cannot pass scrutiny. Some of these laws have already been struck down by the courts. Others may be ruled unconstitutional in the future.
- State legislatures should pass laws that reinstate strong punitive verdicts to punish tortfeasors and deter others from following their bad example.
- State legislatures should extend statutes of limitation in cases where disease symptoms may not appear for decades. New Jersey recently passed a law eliminating such statutes entirely in certain cases.
- Congress should increase the funding and independence of the E.P.A. by giving it autonomy like that enjoyed by the Federal Reserve Board. This will prevent cases critical to the well-being of the nation from being unduly influenced by political factions.
- Congress should strengthen the ability of regulatory agencies like the E.P.A. to fulfill their legislative mission under the Clean Air Act and the Toxic Substances Control Act. This task may entail making interference with these agencies punishable by fine, imprisonment, or both.
- Pamphlets, advertisements, and other publications attempting to influence public opinion about scientific findings should reveal the sources of their funding. An article funded by the asbestos industry claiming that asbestos is not harmful must contain a disclaimer naming its sponsors, not merely the innocuous-sounding name of the organization that the industry has funded.
The Asbestos Industry, in alliance with its insurers and others, created a number of organizations that convinced the American people of the need for tort reform. For the industry, tort reform meant decreasing the awards made by judges and juries against them in product liability suits. The industry deserved these adverse verdicts, however, because it chose to ignore workplace safety for its miners and workers for decades. The industries and its allies funded a network of groups that allowed them to campaign for verdict reductions under the guise of tort reform. They used their political influence to interfere with the congressionally mandated activities of regulatory agencies. Their actions led to the deaths of thousands and the suffering of thousands more.
From an ethical standpoint, the worst result of these actions is the unnecessary infliction of disease and death on thousands of people. From a legal standpoint, the worst result of these actions has been the steady erosion of the average citizen's right, guaranteed by the Seventh Amendment, to trial by jury. The tort reform laws passed by state legislatures have traded payments to victims for profits to corporations. These reforms should be reversed. Measures should be taken to protect plaintiffs from unethical practices in the future.
1What Is Asbestos?, American Cancer Society (Nov. 11, 2010), http://www.cancer.org/Cancer/CancerCauses/OtherCarcinogens/IntheWorkplace/asbestos.
4Borel v. Fibreboard Paper Prod. Corp., 493 F.2d 1076, 1083 (1973).
6Mesothelioma Statistics & Facts, Asbestos.com (Feb. 20, 2012), http://www.asbestos.com/mesothelioma/statistics.php .
7Asbestos Toxicity, Case Studies in Environmental Medicine, Agency for Toxic Substances and Disease Registry 20 (Aug. 18, 2010), http://www.atsdr.cdc.gov/csem/asbestos/docs/asbestos.pdf .
8 Stephen J. Carroll et al., Asbestos Litigation, RAND Institute for Civil Justice 6 (2005) , http://www.rand.org/content/dam/rand/pubs/monographs/2005/RAND_MG162.pdf.
10Unfortunate History ¶3.
12 Andrew Schneider and Carol Smith, Asbestos -- It’s the killer that won’t die: Failure to ban fiber in U.S. imperils more lives, Seattle Post-Intelligencer (Feb. 11, 2000), http://www.commondreams.org/headlines/021100-01.htm.
13 15 U.S.C. §2601 et seq. (1976).
14Asbestos; Manufacture, Importation, Processing, and Distribution in Commerce Prohibitions, 54 Fed. Reg. 29,460 (July 12, 1989) (to be codified at 40 C.F.R. pt. 763).
15Anne McGinnis Kearse, Decades of deception: secrets of lead, asbestos, and tobacco, Trial ¶23 (Oct. 1, 1999), http://www.thefreelibrary.com/Decades+of+deception:+secrets+of+lead,+asbestos,+and+tobacco.-a056909661 .
1644 Fed. Reg. 60,061 (Oct. 17, 1979).
1754 Fed. Reg. 29,460 (July 12 1989).
18Id. at 29,461.
21 Corrosion Proof Fittings v. E.P.A., 947 F. 2d 1201 (1991).
22Corrosion at 1211.
23Corrosion at 1211.
24 Corrosion at 1212.
25Andrew Schneider and Carol Smith, Asbestos -- It’s the killer that won’t die: Failure to ban fiber in U.S. imperils more lives, Seattle Post-Intelligencer ¶22(Feb. 11, 2000), http://www.commondreams.org/headlines/021100-01.htm .
2654 Fed. Reg. 29,460.
27Corrosion at 1213.
29Reserve Mining Co. v. E.P.A., 514 F.2d 492 n.27 (1975).
30Id. at 507.
31Amoco Oil Co. v. E.P.A., 501 F.2d 722, 741 (1974).
32 Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984).
33Id. at 865.
3415 U.S.C. § 2601(b)(2).
35Corrosion at 1221.
37Mark R. Powell, Science At E.P.A.: Information In The Regulatory Process, Resources for the Future Press 311 (1999), http://books.google.com/books?id=4XSv-9ow4osC&pg=PA311&lpg=PA311&dq=E.P.A.+analogous+exposure+data&source=bl&ots=m9ikPB_3L8&sig=N9UtZkXoV2sKcCVAn8UvAoxJqAQ&hl=en&sa=X&ei=fgIWT_PJC8L10gGyqdW9Dg&ved=0CDsQ6AEwAg#v=onE.P.A.ge&q=E.P.A.%20analogous%20exposure%20data&f=false
3815 U.S.C. § 2601(b)(1).
39Corrosion at 1213.
4054 Fed. Reg. 29,461.
41Corrosion at 1211.
4215 U.S.C. § 2601(c)(3)(A)(ii).
4354 Fed. Reg. at 29,468.
45Corrosion at 1229.
4654 Fed. Reg. at 29461.
47Corrosion at 1213.
4815 U.S.C. § 2605(a).
50Corrosion at 1230 (ON MOTION FOR CLARIFICATION).
52 Powell at 311.
55EPA’s Failure to Declare a Public Health Emergency in Libby, Montana, U. S. Senate Committee on the Environment and Public Works (Sept. 2008),
56Id. at 21.
57Id. at 25.
58Id. at 24.
59Id. at 25.
60Public Health Emergency Declared, The Montanian (Libby, Montana) ¶16 (Jun. 24, 2009), http://www.scn.org/~bh162/asbestos_libby.html#update81 .
61E.P.A.'s Failure at 38.
62EPA's Failure to Declare a Public Health Emergency.
63Id. at 3.
65Public Health Emergency Declared ¶1.
67Collins English Dictionary - Complete & Unabridged 10th Edition, HarperCollins, http://dictionary.reference.com/browse/disinformation .
68Carl Deal & Joanne Doroshow, The CALA Files: The Secret Campaign of Big Tobacco and Other Industries to Take Away Your Rights, Center for Justice and Democracy and Public Citizen (2000), http://www.centerjd.org/content/cala-files-secret-campaign-big-tobacco-and-other-major-industries-take-away-your-rights .
69Sherill at 4.
70Matthew M. Swetonic, Sourcewatch, Center for Media and Democracy (Apr. 30, 2009), http://www.sourcewatch.org/index.php?title=Matthew_M._Swetonic .
74Anne McGinnis Kearse, Decades of deception: secrets of lead, asbestos, and tobacco, Trial (Oct. 1, 1999), http://www.thefreelibrary.com/Decades+of+deception:+secrets+of+lead,+asbestos,+and+tobacco.-a056909661 .
75Id at 9.
78Matthew M. Swetonic.
83Deal at 2.
84Deal at 2.
85 Tort Reform Project Budget, Legacy Tobacco Documents Library, UCSF 1 (1995), http://legacy.library.ucsf.edu/tid/khu28d00/pdf .
86Id at 8.
87Deal at 1.
88Tort Reform Project Budget at 4.
90Carl Deal & Joanne Doroshow, The CALA Files: The Secret Campaign of Big Tobacco and Other Industries to Take Away Your Rights, Center for Justice and Democracy and Public Citizen 5(2000), http://www.centerjd.org/content/cala-files-secret-campaign-big-tobacco-and-other-major-industries-take-away-your-rights .
94Matthew M. Swetonic, Taming the Asbestos Monster, Heartland Institute (Nov. 5, 2002), http://heartland.org/newspaper-submission/2002/11/05/taming-asbestos-monster .
97Asbestos Bankruptcy Trusts: The Good The Bad And The Ugly, Mesothelioma Empowerment ¶1 (2010), http://www.mesothel.com/asbestos-cancer/mesothelioma-attorney/bankruptcy/index.html .
98Id. ¶22 (Citing a RAND study, Stephen J. Carroll et al., Asbestos Litigation, RAND Institute for Civil Justice, RAND Foundation (2005) , http://www.rand.org/content/dam/rand/pubs/monographs/2005/RAND_MG162.pdf .
104 Carl Deal & Joanne Doroshow, The CALA Files: The Secret Campaign of Big Tobacco and Other Industries to Take Away Your Rights, Center for Justice and Democracy and Public Citizen 1 (2000), http://www.centerjd.org/content/cala-files-secret-campaign-big-tobacco-and-other-major-industries-take-away-your-rights .
105 Id. at 2.
106 Id. at 3.
107 Asbestos cleanup 'emergency' declared in Montana town, CNN U. S. (Jun. 17, 2009), http://articles.cnn.com/2009-06-17/us/montana.asbestos_1_les-skramstad-libby-area-baucus?_s=PM:US
108 Michael Moss & Adrianne Appelm, Protecting the Product / A special report: Company's Silence Countered Safety Fears About Asbestos, N. Y. Times (Jul. 9, 2001), http://www.mindfully.org/Industry/WR-Grace-Fears-Asbestos.htm .
110 Deal at 7.
111 Deal at 10.
113 United States v. W. R. Grace, 504 F.3d 745,749 (2009).
116 Deal at 3.
117 ATRA Tort Reform Record, ATRA, http://www.atra.org/sites/default/files/documents/record_12-22-11.pdf.
120 Tex. R. Civ. P. 166a(i) as cited by Kuhn at 3.
122 David Hitner & Lynn Liberato, Summary Judgments in Texas, 47 S. Tex. L. Rev. 409 (2006),
123 Id. at 413.
124 What is Asbestos?
125 Tort Reform Record at 4.
126 Han-Duck Lee, Mark J. Browne, and Joan T. Schmidt, How does Joint and Several Tort Reform Affect the Rate of Tort Filings, 61 J. of Risk and Insurance No. 2, 295-316 (Jun. 1994), http://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=9&ved=0CG8QFjAI&url=http%3A%2F%2Fwww.jstor.org%2Fstable%2F253712&ei=A5BrT6_NEsuMsAL45o2CBg&usg=AFQjCNEY4WGhddlrf721evD_MYXskdB7hA&sig2=L0ZRLt4lQtZ3TTN7mTznTQ.
127 Farley v. Engelken, 241 Kan. 663 (1987).
129 Lindy Orlowski v. State Farm Mut. Auto. Ins. Co.,Sup. Ct. Wis., Case No. 2009AP2848 (March 7, 2012),http://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=1&ved=0CGsQFjAA&url=http%3A%2F%2Fwww.wicourts.gov%2Fsc%2Fopinion%2FDisplayDocument.pdf%3Fcontent%3Dpdf%26seqNo%3D79240&ei=YFlqT8igG6WlsAKwv5GZCQ&usg=AFQjCNGC3fZ1MZvBARn78TN4YjJEbUREng&sig2=eK7j3jHwbZGxLYMFR17xJg
130 Id. at 11.
131Tort Reform Record, American Tort Reform Association 19 (Dec. 22, 2011), http://www.atra.org/sites/default/files/documents/record_12-22-11.pdf .Tort Reform Record at 19.
132Tort Reform Record at 33.
133 Moore v. Mobile Infirmary Ass'n, 592 So.2d 156.
134Andrew Cohen, The Real Victims of 'Tort Reform', TheAtlantic.com ¶3 (Jul. 18, 2011), http://www.theatlantic.com/national/archive/2011/07/the-real-victims-of-tort-reform/242030/1/ .
135 Id. ¶5.
137 Id. ¶12.
138 Id. ¶3.
139 Id. ¶9.
140 Atlanta Oculoplastic Surgery, P.C. v. Nestlehutt, 286 Ga. 731,735 (2010).
141 Id. at 736.
142 Tort Reform Record at 42.
144 Tort Reform Record at 53.
145 Asbestos: A Report on the Asbestos Litigation Industry, 2008, Trial Lawyers Inc., http://www.triallawyersinc.com/asbestos/asb01.html
146 Stephen Koff, Ohio's tort reform law hasn't lowered health-care costs, Cleveland.com(Cleveland Plain Dealer)(Mar. 20, 2010), http://www.cleveland.com/open/index.ssf/2010/03/ohios_tort_reform_law_hasnt_lo.html
147 Justinian Lane, No jobs in Ohio after tort reform, Tortdeform.com(Jan. 15, 2011), http://www.tortdeform.com/archives/2011/01/no_jobs_in_ohio_after_tort_ref.html
148 Asbestos: A Report on the Asbestos Litigation Industry, 2008, Trial Lawyers Inc., http://www.triallawyersinc.com/asbestos/asb01.html
153 Brian Wilson, The Chamber, Lawsuits, and Jobs: If only the Truth Mattered, Nicodemo & Wilson Bulls-Eye Blog, (Jan. 12, 2011), http://nwbullseye.blogspot.com/2011/01/chamber-lawsuits-and-jobs-if-only-truth.html .
157 See Richard Posner, Is the Tort System Costing the United States $865 Billion a Year?, Becker-Posner Blog (Apr. 1, 2007), http://www.becker-posner-blog.com/2007/04/is-the-tort-system-costing-the-united-states-865-billion-a-year--posner.html .
158Beth Hawkins, Asbestos-bill veto was Dayton's 7th related to ALEC efforts, MinnPost (Apr. 10, 2012), http://www.minnpost.com/politics-policy/2012/04/asbestos-bill-veto-was-daytons-7th-related-alec-efforts .