Asbestos Cancer Litigation, Mesothelioma Lawsuits, and Asbestosis Lawyers

The British Government's Health and Safety Executive (HSE) has promoted rigorous controls on asbestos handling, based on reports linking exposure to asbestos dust or fibres with thousands of annual deaths from mesothelioma and asbestos-related lung cancer.

• "At least 3500 people in Great Britain die each year from mesothelioma and asbestos related lung cancer as a result of past exposure to asbestos. Annual numbers of deaths are predicted to go on rising into the next decade."
• The TUC (UK) report cites a figure of 5000 deaths per year. TUC (UK)

The mineral (asbestos) has now been banned in all of the leading European countries, and the year 2005 is the deadline for bans by countries in the European Union. Having virtually no internal market for asbestos, Canada (one of the world's largest producers) exports 97 percent of all asbestos mined (mostly to Asia).

It is generally well-accepted that mesothelioma is almost always associated with asbestos exposure. The fact that, in such cases, the disease usually only occurs between 20-40 years after exposure to asbestos, however, has lead to very real difficulties in unambiguous quantitatii;ve diagnoses and to much controversy regarding compensation and liability disputes. (It has a very poor prognosis, with most patients dying within 2-4 years of diagnosis)

There is no scientific consensus as to whether there does indeed exist a threshold of exposure to asbestos below which a person is at zero risk of developing mesothelioma. The HSE does not assume that such a threshold exists, since they consider that it cannot currently be quantified for practical purposes; they cite evidence from epidemiological studies of asbestos exposed groups to argue that any such threshold for mesothelioma must be at a very low level.

Rightly or wrongly, financial settlements have been juridically enforced at a level which has bankrupt some industrial companies and threatened some of the World's largest insurance companies (BBC report on Lloyds). Growing disputes are foreseen for the coming decades as current trends indicate that the rate at which people are diagnosed with the disease will most probably increase very significantly.

The RAND Institute for Civil Justice has recognized that asbestos litigation is the longest running mass tort in U.S. history. Recent sharp increases have been confirmed in the rate of filing asbestos claims in the United States, as have concommitant increases in the number and types of firms named as defendants, and also an escalation in the costs of the litigation to these defendants. (Analysts have estimated that the total costs of asbestos litigation in the USA alone will eventually reach $200 billion,). Research supported by RAND [3] highlights questions as to whether compensation is really distributed fairly among claimants and in proportion to their true need, and, furthermore, whether the actual responsibility for paying compensation is being allocated justly among defendants and in proportion to their percieved and/or proven degree of culpability.

The continuing controversy over asbestos-related liability issues is reflected by recent press reports on the topic:

In her article "Equitas warns on asbestosis" of 22 June 2002, Helen Dunne, The British Daily Telegraph's Associate City Editor reported; "Equitas, the reinsurance vehicle which assumed the liabilities that once threatened to overwhelm Lloyd's of London, warned yesterday that asbestosis claims were the "greatest single threat" to its existence.", and "Equitas increased gross undiscounted provisions for future asbestosis claims by £3.2 billion in the two years ending March 2001, but has decided that further reserves this year are unnecessary.". This could be considered to indicate that appropriate financial previsions have now been made to address the issue, in this case (though this is not yet universally accepted).

A more recent article reports, "Amicus, Britain's biggest private sector union, will today, 14/12/04, condemn insurers who are attempting to shirk their responsibility to compensate up to 75% of asbestos claims in a High Court challenge. Insurers are challenging the right for workers exposed to asbestos to claim compensation for pleural plaques, a calcification of the lungs that can be caused by exposure to asbestos. There are on average 14,000 pleural plaques cases a year. The test case being summed up in the High Court today involving Amicus members could have far reaching consequences for thousands of workers who have been exposed to asbestos over the past 50 years". This outlines the continuing discontent in some sectors of British society.

In the USA, key asbestos lawsuits have included; Bell v. Dresser Industries Inc., Borel v. Fibreboard Corporation, and Waters v. W. R. Grace. More information on these and other, asbestos-related issues in the USA are reviewed on the Asbestos Resouce Center website.

Some idea of the scale of the American problem is indicated by the fact that, regarding just one of many cases, on January 7, 1991 Eagle-Picher Industries also sought bankruptcy protection by filing Chapter 11 proceedings in the US Bankruptcy Court for the Southern District of Ohio in Cincinnati. The company cited in its bankruptcy petition past payments totalling $600 million issued to 65,000 asbestos claimants and the inability to pay an additional $45 million in negotiated settlements. It is one of several dozen American companies that have gone bankrupt from asbestos liability.

In the United States, the average mesothelioma-related settlement was $1 million; for cases that go to trial awards averaged $6 million, according to a study by the RAND Corporation. Only a small fraction of the thousands of asbestos-related lawsuits in the United States every year are related to mesothelioma. In 2004, a bill in the United States Senate aimed a asbestos litigation reform failed to reach a floor vote. In January of 2005, Senate Judiciary Committee Chairman Arlen Specter announced he would again try to pass an asbestos litigation reform bill.

"Asbestos litigation today is, for the most part, a massively fraudulent enterprise that can rightfully take its place among the pantheon of such great American swindles as the Yazoo land frauds, Credit Mobilier and Teapot Dome," said Lester Brickman, a professor at Cardozo Law School, in a recent speech on the phenomenon.[5] For example, Baron & Budd, P.C., a renowned Dallas plaintiff's firm, is alleged to have coached clients how to provide winning testimony against asbestos defendants. One of its founders, Fred Baron, served as President of the Association of Trial Lawyers of America during 2000-2001. In recent years, there have been many scandals over asbestos litigation because of the number of cases involving plaintiffs who had suffered no injury other than asymptomatic pleural plaques. An investigation into claims filed for alleged silicosis found that a large percentage of the plaintiffs claiming to be suffering from silicosis had previously recovered from asbestos defendants by alleging that they had asbestosis. Many attorneys, including Peter Angelos, have become rich because they established lucrative relationships with unions that steered potential asbestos plaintiffs to their law firms.

Asbestos-related cases were a rare sight on the U.S. Supreme Court docket prior to 1980, but since then, the Court has dealt with asbestos-injury cases in 2002, 1999, 1997, 1995, 1993, and 1986. The 1999 and 1997 cases both involved giant settlement class actions that were designed to stabilize the liability of the largest defendants. Both settlements were ultimately overturned by the Court because they resolved the rights of future claimants who, because they were currently unknown, could not be given the notice that due process requires.

Texas passed a reform bill requiring neutral medical screening in asbestos claims, and Congress is considering legislation, the Fairness in Asbestos Injury Resolution Act of 2005, that would establish a $140 billion trust fund to supplant litigation as a means to compensate victims of asbestos. This law seeks to ensure a set amount of compensation dependent on the symptoms of the victim. The range is from Medical Monitoring for victims with Asbestosis or Pleural Disease to $35,000 for victims with Mixed Disease With Impairment all the way to over $1,000,000 for Mesothelioma victims and nonsmoking Lung Cancer victims. Trial lawyers protest that the trust fund would undercompensate injured workers, while some conservatives argue that the trust fund does not do enough to prevent fraud and would be too "leaky" to prevent future litigation problems.

Care should be taken to distinguish between several forms of relevant diseases. According to the World Health Organisation (WHO), these may defined as:

• asbestosis (which is a slowly developing fibrosis of the lung caused by the inhalation of high concentrations of asbestos dust and/or long exposure)
• lung cancer, or “bronchial carcinoma” which can result from occupational exposures to certain substances, including asbestos fibres (even without co-existing asbestosis)
• mesothelioma which is a malignant tumour of the pleura or peritoneum

The latter is normally a very rare type of cancer (typically less than 0.04% of all deaths in the general population). A higher incidence of mesothelioma has nearly always been related to the inhalation of mineral fibres, and in the majority of cases to occupational asbestos exposure.