Besides Cancer, Asbestos Legacy Is a Legal Morass : Litigation: Victims suffer as their claims remain in limbo. Is the court system incapable of handling cases involving tens of thousands of plaintiffs?
As thousands of asbestos victims around the country gasp for air on their way toward an agonizing death, their prospects for winning compensation remain mired in one of the worst legal messes to confront the American judicial system.
Lawyers involved in asbestos litigation and law professors who study mass lawsuits say the system has failed to deal effectively with what is estimated to be 150,000 claims for personal injury damages. State and federal courts around the country are clogged with asbestos cases filed on behalf of victims suffering from asbestosis, lung cancer and another cancer known as mesothelioma.
No two jurisdictions have the same procedures for dealing with them. Many lawyers have earned enormous fees from the cases. But most victims are unlikely to receive any compensation for years. Even when their cases are tried or settled, nothing will be paid on many victims’ claims until long after they are dead.
“If we’re going to let this thing drag on without reforming the legal procedures (for handling asbestos cases), it’s going to be a very, very serious blot on the history of American jurisprudence,” said Robert E. Sweeney, a Cleveland lawyer who represents former pipe fitters and other construction workers who were exposed to high levels of asbestos.
Asbestos is a mineral fiber that was used widely in construction, shipbuilding and industry for decades because of its fireproofing and insulating properties. Evidence obtained in the cases shows that manufacturers such as Manville Corp. knew of the health dangers from asbestos for years but hid the information from workers and consumers.
The asbestos cases, and the prospect of an increasing number of similar “toxic tort” mass lawsuits, have prompted a clamor for legal reform. An American Bar Assn. committee recently recommended changes in the legal system that will allow large numbers of cases arising from a single main cause to be merged into a single case. And some legal scholars want to abandon the traditional system of adversarial lawsuits altogether in mass cases, in favor of something closer to the workers’ compensation scheme that currently awards benefits to workers who have accidents on the job.
Peter H. Schuck, a Yale Law School professor and expert on mass lawsuits, says a 200-year-old legal system devised to resolve simple disputes between individuals just isn’t adequate for cases involving tens of thousands of plaintiffs. Schuck says cases involving multiple legal issues, dozens of defendants and a huge number of plaintiffs “can’t be effectively dealt with by a system designed to deal with assaults and batteries, with questions such as ‘Who struck John?’ ”
The asbestos situation stands alone in terms of the number of plaintiffs and complexity of issues. But Michael V. Kelly, an Ohio lawyer representing about 150 asbestos victims, says comparable mass lawsuits are looming. “As we become more sensitive to the environment and toxic substances and chemicals in the everyday workplace, we are more likely to have litigation similar to the asbestos cases for the next 30 or 40 years,” Kelly said.
Cases may arise as well from radiation exposures, such as the more than 13,000 people who apparently were exposed to high levels of radioactivity leaked decades ago from a plutonium processing plant in Hanford, Wash. Procedures worked out in the asbestos litigation inevitably will affect how these new cases are handled, plaintiffs’ lawyers say.
Already there have been several mass toxic tort and medical product liability cases with claims similar enough that judges were able to consolidate them into class actions. The most notable include the Agent Orange cases, involving the chemical defoliant used in Vietnam, and cases brought on behalf of women harmed by the intrauterine birth control device known as the Dalkon Shield. The Dalkon Shield case, for example, was relatively easy to consolidate because there was only one manufacturer.
But in addition to asbestos cases, the legal system also is wrestling with thousands of claims filed on behalf of women whose mothers used the anti-miscarriage drug diethylstilbesterol, or DES. Daughters of women who used the drug during pregnancy face a heightened risk of vaginal and cervical cancer, ectopic pregnancies, miscarriages and infertility.
A New York state court ruling has simplified the litigation by specifying that liability will be assessed against drug manufacturers in proportion to their market share of the drug when it was sold, from 1941 to 1971. A single trial to determine each company’s market share is to be held soon. But the claims of individual women will still be handled as separate lawsuits, with women having to establish that their mothers took the drug and that the women were, in fact, harmed by it.
Legal scholars say such repetitive trials, in asbestos and drug cases, are often extremely wasteful. “Many of the issues are the same, but they’re tried repeatedly instead of being disposed of simultaneously,” said Robert L. Rabin, a professor at Stanford University’s law school.
In the asbestos cases, lawyers and judges have begun an urgent search for a way out of the current chaos. In recent weeks, two federal judges have taken steps to try to consolidate the cases into a single class action and to reform the system for paying claims. It’s unclear, however, whether they will succeed.
There were high hopes in 1988 for victims of asbestos produced by Manville, a former leading manufacturer. In 1982, Manville filed for bankruptcy protection because it faced billions of dollars in claims from asbestos suits. Six years later, the company was reorganized under a plan meant to shift much of the company’s assets to victims and provide a system for rapidly reimbursing them.
A trust was established to benefit victims. It was given 50% of Manville’s stock, $850 million in cash, and other assets, with the prospect of getting additional stock and up to 20% of Manville’s profits later.
At least for the moment, however, the hopes raised by the reorganization plan have been dashed. The trust has run out of cash. Victims whose lawyers filed claims first have been paid off. But now nothing is left in the till to pay other victims. It may be some time before new money trickles in. And the number of claims filed has turned out to far exceed initial estimates of about 50,000.
Earlier this month, U.S. District Judge Jack B. Weinstein in Brooklyn, N.Y., ordered the trust to stop paying any claims while a plan is drawn up to reorganize its assets and change the current first-come, first-served system for paying claims. The current system provides no way of distinguishing among claimants to get money to those with the most serious symptoms or who most urgently need financial help.
Weinstein, a highly respected jurist, also intimated that he might take steps to try to consolidate all asbestos cases into a single class action. But he was beaten to the punch July 16 by a federal judge in Cleveland, Thomas D. Lambros, who issued such an order. That order is likely to be appealed, and it’s by no means certain to be upheld.
Previous efforts over the past 10 years to consolidate the asbestos cases failed. Courts held that the individual cases are too dissimilar to be treated as a single lawsuit. Victims were exposed to asbestos at different times in different circumstances. More than 400 companies produced asbestos or used it in manufacturing and construction. Illnesses vary. Some victims also were cigarette smokers, clouding the liability issue. So the courts have held that the cases must be tried individually, or at least in small clusters.
The result was that cases have been filed in hundreds of state courts and every federal district court in the country. As most cases involve a dozen or more defendants--companies that manufactured asbestos and firms that used it--more than a dozen lawyers in many jurisdictions show up to participate in each deposition and court hearing in each individual case. Sweeney said: “The result is that the transactional costs turn out to be hundreds of thousands of dollars per case.”
In recent years, judges in New York and Ohio and some other jurisdictions have issued rules to try to streamline the traditional pretrial evidence-gathering process. They simplified rules for obtaining documents, allowed videotaped interviews of plaintiffs and limited the length of depositions. But the problem, says Kenneth Feinberg, a special master appointed by Judge Weinstein in the asbestos cases, is that no two jurisdictions have adopted the same rules.
Despite these criticisms, lawyers on both sides of the asbestos cases have strongly resisted consolidation. Establishing a single class action deprives legions of lawyers of hefty legal fees. In a class action, a small committee of plaintiffs’ lawyers manages negotiations and legal proceedings for plaintiffs, freezing out hundreds of other lawyers who could have earned big fees handling their own clients’ cases individually. Defense lawyers, who bill by the hour, also lose out on the mammoth fees built up by repetitive legal work in myriad separate cases.
For their part, some trial lawyers argue against consolidation on the ground that plaintiffs have a fundamental right to bring their individual cases before a jury. “I’m very concerned that the courts are trying to sell the idea of expediency, to deprive injured people of a trial by jury in order to move cases through the system rapidly,” said Russ Herman, president of the Assn. of Trial Lawyers of America.
But the American Bar Assn. commission on mass torts recently recommended that Congress and the courts work together to change legal procedures so that most civil lawsuits involving large numbers of plaintiffs can be consolidated before a single state or federal judge. The commission’s report concluded that:
“Separate adjudication of individual tort claims arising from a single accident or use of or exposure to the same product or substance is inefficient and wasteful, seriously burdens both state and federal judicial systems, poses unacceptably high risks of inconsistent results and contributes to public dissatisfaction with the tort law system and the legal profession.”
Increasingly, some experts even advocate doing away with lawsuits in these mammoth cases and handling mass claims through administrative panels, similar to those set up under state workers’ compensation schemes.
Under workers’ compensation plans, a panel awards compensation to employees injured on the job based on the severity of their injuries and the extent of their disability. The employee doesn’t have to sue. Schuck, the Yale law professor, said the advantage of extending this system to cases such as the asbestos litigation is that “it provides payment when people need payment. They don’t have to prove fault.”
But Schuck and others say one drawback is that existing workers’ compensation systems are far from perfect. Paul C. Weiler, a Harvard Law School professor, said that workers’ compensation in many states provides benefits to too few people and that the money awarded often is inadequate. He says this is because employers who pay the bills have strong political influence with state legislatures that establish the workers’ compensation laws. “State workers’ compensation systems in a lot of states are very, very stingy,” Weiler said.
