October 17, 2011

asbestos litigation law

Asbestos is a mineral previously used in numerous applications and found to cause diseases including lung cancer. According to information provided by Bernstein Liebhard LLP, asbestos litigation began in the 1970s and is the "longest running mass tort litigation in U.S. history." It is a huge area of personal injury and wrongful death litigation, with entire law firms devoted entirely to prosecuting or defending asbestos lawsuits. 


Asbestos litigation history

In Ortiz et al. v. Fibreboard Corporation et al., 527 U.S. 815 (1999), the Supreme Court stated that one of the first asbestos cases was filed in eastern Texas in 1967 and that in the 1970s and 1980s, plaintiff's attorneys "honed the litigation of asbestos claims to the point of almost mechanical regularity, improving the forensic identification of disease caused by asbestos, refining theories of liability, and often settling large inventories of cases". The Supreme Court in Anchem Products Inc. et al. v. Windsor et al., 521 U.S. 591 (1997), said "a flood of lawsuits" related to asbestos exposure began in the 1970s. According to Bernstein Liebhard LLP, as of 2002, approximately 730,000 plaintiffs had sued more than 8,400 companies for asbestos-related injuries or death.

Product Identification

The Supreme Court in Celotex Corp. v. Catrett, 477 U.S. 317 (1986), clarified product identification requirements necessary to recover damages from asbestos-containing product manufacturers, sellers and distributors. The Supreme Court affirmed the trial court's decision of the case in Celotex's favor based on the documents produced and depositions taken stating the plaintiff failed to produce enough credible evidence to prove her husband was exposed to any Celotex asbestos-containing product that caused his death. Because of the amount of time that normally passes between exposure and disease diagnosis and the multitude of asbestos containing products used over the years, proving this definitive identification can be difficult.

Asbestos litigation Coverage Issues

An area of litigation closely entwined with asbestos litigation is insurance coverage litigation because of the variety of language in insurance policies and the fact the time periods for which insurance policies may cover defense costs may date back several decades,. In the Ortiz case, the Supreme Court referred to Fibreboard's coverage cases in California, which ruled Fibreboard's insurers were required to cover amounts related to Fibreboard's defense of claims related to asbestos exposure that occurred prior to the policies' expiration dates. As a result, finding potential insurance coverage for asbestos claims is sometimes a major part of asbestos litigation for defendants. 

Global Settlement

At times, plaintiffs, defendants and insurance companies have attempted to settle all current and future asbestos claims through a global structured settlement agreement. The Supreme Court in Anchem Products Inc. et al. v. Windsor et al. 521 U.S. 591 (1997), found the global agreement at issue could involve hundreds of thousands to millions of people and upheld the lower court's action to nullify the trial court's approval of the settlement class action. The court opined that there were enough legal differences between potential plaintiffs to render the proposed settlement unconstitutional under the due process clause of the U.S. Constitution.

Fear Damages

A development in asbestos litigation is the issue of recovery of emotional distress damages or damages related to a plaintiff's fear he may develop an asbestos-related disease in the future. One such case decided by the Supreme Court was Norfolk & Western Railway Co. v. Ayers et al., 538 U.S. 135 (2003). This decision elaborated on previous opinions in Metro-North Commuter Railroad Co. v. Buckley, 521 U.S. 424 (1997) and Consolidated Rail Corporation v. Gotshall, 512 U.S. 532 (1994), wherein the Supreme Court ruled damages related only to emotional distress or fear of developing asbestos-related disease is generally prohibited but such damages included in suits regarding actual physical injury is permitted as part of the pain and suffering claim. An example of this situation is when a plaintiff is diagnosed with asbestosis and is emotionally distressed at the prospect of contracting the more severe disease of mesothelioma.