AAA.Asbestos

Asbestos injury compensation is still unresolved, even after many yrs of litigation. It has been very expensive & many people have suffered significant personal injury. Here, the Mass Torts Subcommittee of the AAA discusses litigation issues arising from asbestos injury claims.

Pop Quiz

1. Define J&S liability. (Joint & Several liability)
2. Define Several liability.

Keywords

asbestos, litigation

In Plain English!

Intro

• Asbestos was considered a "miracle" building material because it is fire resistant and abundant, and was used widely until the 1970s. There is now strong evidence that asbestos exposure is associated with mesothelioma, a type of cancer with a long latency period (30-40 yrs). Prior to 1973, asbestos claims fell under WC (Worker's Compensation). In 1973, however, in the case of Borel v Fibreboard, it was ruled that manufacturers are liable.

• Because of the 30-40 year latency period for mesothelioma, an asbestos manufacturer from 1940 may no longer be in existence when claims are made post-1973. This is often due to insolvency from large settlements. But if the original manufacturer cannot pay, who is held liable?
  • peripheral asbestos defendant: a defendant who used, but DID NOT MANUFACTURE, asbestos-containing products
  • Such a defendant would be less likely to know of the health risks, but in a J&S jurisdiction (Joint & Several Liability), they could be liable for the entire amount of damages anyway.

• Asbestos litigation can be both expensive (due to many plaintiffs) and inefficient (due to high legal fees.) It can also be difficult to assess the validity of claims due to confounding factors and high assessment costs. A plaintiff may have had several different employers, so it's difficult to know which employer was the cause of the injury. There is also the potential for fraudulent claims.

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Reforms

• This reading is 41 pages, but you aren't responsible for the material in the exhibits. That leaves only 11 pages. Read the Executive Summary and the Summary and Conclusions. This reading concerns asbestos issues in the U.S., but Canada has similar issues with asbestos, and I don't know why the syllabus ignores the Canadian experience. My strong feeling is that the details in this reading are not important. For the sake of completeness, I've included old exam questions from 2013 and 2014 in the BattleQuiz below. But it seems unlikely these would be asked again, especially since this material is from way back in 2007, and the proposed federal reforms were never enacted.

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BattleCodes

• Memorize:
  • more imortant:
    • defn of peripheral defendant, and reason that peripheral defendants may bear majority of asbestos costs
  • less important
    • reasons for high cost & inefficiency of U.S. asbestos litigation
    • reasons that asbestos injury is difficult to asses

• Conceptual:
  • Asbestos is like, totes bad for you.

• Calculational:
  • none

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POP QUIZ ANSWERS

1. J&S liability means:
   • Plaintiff may recover ANY or ALL damages from ANY or ALL defendants regardless of share of liability
2. Several liability means:
   • Each party is responsible for their own obligations. (If one party can't satisfy their obligations, it does NOT pass to the other parties)