Changes in Asbestos Litigation Since 2001

Six years ago, the American Academy of Acturaries Mass Torts Subcommittee published a report on the “litigation environment” regarding asbestos claims. At this time, the number of claims was on the rise. The number of claims subsequently peaked in 2003. By 2005, Congressional Budget Office figures indicated that there were approximately 322,000 asbestos-related tort actions pending in courts across the nation; at least one company in virtually every industry was a defendant in an asbestos action according to a RAND Institute for Civil Justice report published the same year. While the problem of justice in the case of mesothelioma victims, and others suffering from asbestos-related disease, is a very real one, the temptation of multi-million dollar awards, combined with the practice of grouping large numbers of claimants into single legal actions has caused problems and eroded credibility in some of the cases. This problem has been further exacerbated by the dubious practice of “mass screenings.”

All of this has made it quite expensive and time consuming for defense lawyers to examine and assess the validity of individual cases. While it is true that in the matter of asbestos, corporate behavior has been reprehensible, the fact that the accused should be afforded every possible opportunity to prove innocence (or in the case of litigation, non-liability) is still a bedrock principle of American jurisprudence. Recently, many diagnoses made on the basis of x-rays taken at mass screenings have been called into question. A study was undertaken at the Johns Hopkins University Hospital in which 500 chest x-rays, taken at mass screenings, were made available to independent, third-party radiologists. Each of these x-rays had been entered into evidence by plaintiff’s counsel and examined by medical witnesses for the defense. The independent radiologists found signs of asbestos disease in less than 5% of the x-rays. It is an unfortunate state of affairs when the courts are used as a means for generating revenue, particularly when it impedes justice sought by injured parties. Such action on the part of a few creates extra hardship for those with legitimate cases.