Taming the Asbestos Monster

Published November 5, 2002

The nation’s courts are being flooded with lawsuits alleging health effects or the possibility of health effects from exposure to asbestos. Real victims of asbestosis (a scarring of the lung similar to “Black Lung” from coal dust), mesotheliona and other asbestos-related cancers are being denied compensation while people who are unlikely to ever experience an asbestos-related disease receive million-dollar awards from confused and misled juries.

Asbestos litigation has driven nearly 60 companies into bankruptcy, and many more are in danger. An ever-widening circle of businesses is being sucked down the litigation drain, some with only tangential connections to asbestos and unable to afford expensive litigation.

The Supreme Court has refused to intervene, saying it is up to Congress to fashion a remedy. In September, Chief Justice Rehnquist, without comment, refused to issue a stay on a massive “bet the company” 8,000-plaintiff, 250-defendant case in West Virginia that had the potential to force a score or more additional bankruptcies. Within days of Rehnquist’s decision, more than 200 of the companies settled out of court for an amount some say could reach $3 billion.

(On October 24, the jury found Union Carbide liable for maintaining “unreasonable dangerous premises due to the presence of breathable asbestos fibers.” Phase two of the trial, to determine whether about 1,000 plaintiffs suffered injuries or health problems due to asbestos exposure at Union Carbide facilities, begins on December 2.)

Congress has failed to take action primarily because of fierce opposition from trial lawyers, who are major beneficiaries of the current system as well as major donors to the Democratic party. The Bush administration has kept silent on the issue, perhaps fearing that any proposal would be viewed as a bailout for Halliburton, Vice President Cheney’s old company, which is engulfed in asbestos litigation.

Clearly, for businesses and victims alike, a new approach is needed. Science courts may hold the answer.

Many of the suits being filed today are based on purported relationships between asbestos exposure and disease that are scientifically implausible if not downright nonsense. Yet these cases sometimes go to trial and result in multi-million-dollar awards. Some critics place the blame on judges, who they claim are in thrall to the trial lawyers, but a simpler explanation exists. Most judges have a very limited grasp of the scientific literature on asbestos and health. They simply don’t know enough about asbestos to keep “junk science” out of the courtroom.

In 1993, the U.S. Supreme Court in its Daubert v. Merrill-Dow decision required judges to act as gatekeepers to protect jurors from misleading and factually incorrect testimony. To help judges play this role in asbestos litigation, one or more “science courts” could be convened where impartial, non-affiliated health experts could review the existing scientific data on asbestos and present their findings to a judge or panel of judges. The judges could then develop standards setting forth the minimal medical criteria that must be met before an asbestos claim could be made in court.

In the mid-1990s, federal judges in Oregon and Alabama did precisely this in response to out-of-control breast implant litigation. Besides reviewing the available scientific evidence, both plaintiffs and defense were allowed to call expert witnesses to testify in front of the “science court” with the judge presiding. After the scientists submitted their assessments of the evidence from their various areas of expertise, attorneys from both sides were permitted cross-examination.

The scientists in the breast implant cases universally concluded there was no link between breast implants and the various diseases they had been accused of causing. While the conclusions of the two science courts were not binding in other jurisdictions, the intellectual force of their unbiased determinations, coupled with the national publicity they received, spelled the beginning of the end of the breast implant litigation.

If science courts were convened on asbestos, what might they likely conclude? For one thing, nearly all independent asbestos health experts agree that asbestosis occurs only after decades-long occupational exposure to air-borne asbestos fibers of a certain diameter and length, such as those found in an asbestos product manufacturing operation or during the installing or ripping out of asbestos insulation in buildings and ships. Merely handling or working near asbestos-containing products, especially those in which plastic or other binders lock in the fibers, such as in brake lining pads, is highly unlikely to result in asbestosis, or any other asbestos-related disease.

These medical facts were well-established 30 years ago, and they remain true today. Yet in courtrooms across the country, judges allow pseudo-experts to claim the most scientifically implausible links between asbestos and disease, and juries are regularly persuaded to reward “victims” with astronomical sums.

Asbestos certainly can cause disease, and persons who now suffer the consequences of decades-long exposure in workplaces deserve compensation. In the absence of Congressional action, the science court approach is the most promising route to justice. It could help clear our courts of tens, perhaps hundreds of thousands of cases of dubious scientific validity and focus benefits on those who have been truly harmed.

Matthew M. Swetonic is a Principal at The Dilenschneider Group in New York City and a former Executive Director of The Asbestos Information Association of North America, an industry trade group dealing with asbestos health and regulatory issues.

For further information, contact Heartland Public Affairs Director Greg Lackner at 312/377-4000, 773/489-6447, email [email protected].