Asbestos
and the Law
By Allan Masri
I.
Introduction
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
IV.
Conclusion
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.
2Id.
3The
Unfortunate History of Asbestos, The Miracle Mineral, Metal
Technology Roofing (2012),
http://www.mtr.net.au/miracle_mineral_asbestos
.
4Borel
v. Fibreboard Paper Prod. Corp., 493 F.2d 1076, 1083 (1973).
5Id.
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.
9Id.
10Unfortunate
History ¶3.
11Robert
Sherrill, Asbestos,
the Saver of Lives, has a Deadly Side,
N.
Y. Times
(Jan. 21, 1973),
http://legacy.library.ucsf.edu/tid/axr4aa00/pdf.
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.
19Id.
20"Profile
of the AIA/NA",
Bates THKP0004989, c.
1972.,
http://legacy.library.ucsf.edu/tid/tnr96d00/pdf.
http://legacy.library.ucsf.edu/tid/tnr96d00/pdf.
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.
28Asbestos
Toxicity.
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.
36
Schneider.
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).
49Schneider
¶22.
50Corrosion
at 1230 (ON MOTION FOR CLARIFICATION).
51Id.
¶30.
52
Powell at 311.
53Schneider
¶33.
54Id.
¶35.
55EPA’s
Failure to Declare a Public Health Emergency in Libby, Montana, U.
S. Senate Committee on the Environment and Public Works (Sept.
2008),
http://epw.senate.gov/public/index.cfm?FuseAction=Files.View&FileStore_id=15e86e5e-b501-41aa-9928-6f0de1b64d3b .
http://epw.senate.gov/public/index.cfm?FuseAction=Files.View&FileStore_id=15e86e5e-b501-41aa-9928-6f0de1b64d3b .
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.
64Id.
65Public
Health Emergency Declared ¶1.
66Id.¶3.
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
.
71Id.
72
Profile
of the AIA/NA, UCSF Legacy Tobacco Documents Library (1972),
http://legacy.library.ucsf.edu/tid/tnr96d00
.
73Id.
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.
76Id.
77Id.
78Matthew
M. Swetonic.
79Id.
80Id.
81Id.
82Kearse.
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.
89Covington
& Burling, Tort Reform Project Budget (Oct. 3, 1995), Bates
No. 2047648299/8307, http://legacy.library.ucsf.edu/tid/khu28d00/pdf
.
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
.
91Id.at
1.
92Id.
93Kearse.
94Matthew
M. Swetonic, Taming the Asbestos Monster, Heartland Institute (Nov.
5, 2002),
http://heartland.org/newspaper-submission/2002/11/05/taming-asbestos-monster
.
95Id.
¶1.
96Id.
¶3.
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
.
99Swetonic
¶11.
100Id.
101
Robert Sherrill, Asbestos, the Saver of Lives, has a Deadly Side, N.
Y. Times
(Jan. 21, 1973), http://legacy.library.ucsf.edu/tid/axr4aa00/pdf
.
102
Id.
103
Id.
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
.
109
Id.
110
Deal at 7.
111
Deal at 10.
114
Id.
116
Deal at 3.
117
ATRA Tort Reform Record, ATRA,
http://www.atra.org/sites/default/files/documents/record_12-22-11.pdf.
118
Kurt Kuhn, AN OVERVIEW OF SUMMARY JUDGMENT PRACTICE IN TEXAS STATE
COURT, APPELATE BOOT CAMP,Chapter 6, State Bar of Texas 3 (Sep. 8,
2004), http://www.tex-app.org/articles/57986_01.pdf
.
119
Id.
120
Tex. R. Civ. P. 166a(i) as cited by Kuhn at 3.
121
Id.
122
David Hitner & Lynn Liberato, Summary Judgments in Texas, 47 S.
Tex. L. Rev. 409
(2006),
http://www.haynesboone.com/files/Publication/26f32be0-b3a9-4051-a4d3-13b0430df404/Presentation/PublicationAttachment/5860a00a-5ba6-4a8f-87ae-5afa4bd7796e/04_04_2006_Summary%20Judgments%20in%20Texas_Liberato.pdf
http://www.haynesboone.com/files/Publication/26f32be0-b3a9-4051-a4d3-13b0430df404/Presentation/PublicationAttachment/5860a00a-5ba6-4a8f-87ae-5afa4bd7796e/04_04_2006_Summary%20Judgments%20in%20Texas_Liberato.pdf
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).
128
Id.
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.
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.
136
Id.
137
Id. ¶12.
138
Id. ¶3.
139
Id. ¶9.
141
Id. at 736.
142
Tort Reform Record at 42.
143
Id.
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
149
Id.
150
Robert
Sherrill, Asbestos,
the Saver of Lives, has a Deadly Side, N. Y. Times (Jan. 21,
1973)(quoting Irving Selikoff),
http://legacy.library.ucsf.edu/tid/axr4aa00/pdf
..
151
Id.
152
Id.
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
.
154
Id.
155
Id.
156
Id.
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
.
159
Id.
