The first asbestos product lawsuit was brought by Claude Tomplait in the year 1966. Tomplait lost his claims against eleven manufacturers of asbestos containing insulation products. However, the suit filed by Tomplait’s co-worker Clarence Borel[1] in 1969 marked the turning point of future asbestos litigation when an amount of approximately $80,000 (Eighty Thousand Dollars) was awarded in favor of Borel.
Traditionally, employees had to depend on worker’s compensation claims against their employers in cases of asbestos related injuries.[2] But the decision in Borel’s case enabled workers who were injured by asbestos to file product liability lawsuits against their employers as well as the original manufacturers of the asbestos product.[3] This decision thus “expanded the scope of liability from employers to suppliers and installers of asbestos building material.[4] Thus Borel changed the face of asbestos litigation as legal battles against manufacturers on behalf of asbestos victims began to spread to other parts of the United States.
Similarly, the California Supreme Court’s ruling dated August 1980, in a civil suit filed by Reba Rudkin alleging fraud and conspiracy against the Johns-Manville company enabled workers injured by asbestos exposure to sue their employers if the companies conspired to suppress knowledge regarding the health hazards caused by asbestos.[5] Evidence of such fraud and conspiracy emerged in Johns-Manville’s case when letters disclosing the company’s attempts to suppress knowledge about the hazards of asbestos were produced.[6] From this, it became evident that Johns-Manville and its associated companies had conspired to suppress knowledge regarding these health hazards as early as the 1930s. Subsequently, Johns-Manville became the primary target of asbestos-related lawsuits owing to its position as the leading manufacturer of asbestos containing products in the United States at the time. In 1982, overwhelmed by the burden of approximately 11,000 pending asbestos exposure claims, Johns-Manville filed for bankruptcy.[7]
During this time, many courts lowered the legal standards required in claims for asbestos related injuries and thereby made it easier for plaintiffs to recover on these claims. Many courts allowed recovery even in cases where no medically cognizable asbestos related injury existed and even relaxed the standard of proximate cause for proving exposure.[8] In addition, courts also created procedural rules allowing consolidation of claims, thus giving rise to massively voluminous asbestos-injury law suits.[9] These modified rules of procedure, often called “special asbestos laws,[10]” led to an increase in the number of baseless asbestos claims. Even persons who were affected with mild asbestosis but did not exhibit any symptoms or impairment throughout their lifetime could claim for recovery under these modified rules of procedure.[11] Such a standard of recovery led attorneys to pursue large scale recruiting of unimpaired claimants and promoted meritless claiming.
On October 5, 2000, Owens Corning, one of the largest manufacturers of roofing and insulation material in the United States, was forced into bankruptcy due to a $7 billion tort liability faced by the company.[12] Although Owens Corning and Fireboard Corporation did not produce any material composed of asbestos for over twenty-five years, their asbestos liability continued to mount owing to the long latency period of certain asbestos induced diseases. Ultimately, Owens Corning was unable to settle the various claims and sought protection under bankruptcy law.[13]
Beginning with Johns-Manville, asbestos litigation has till date forced more than 78 companies into bankruptcy and this trend continues.[14] The extraordinary volume of asbestos cases imposes a heavy strain on the state and federal courts and has resulted in the loss of 50 to 60 thousand jobs. The employees of companies hit by such litigation lost an average of twenty five percent of the value of their company-sponsored retirement savings. Asbestos litigation is costly for both plaintiffs as well as the defendants, and it imposes great strains upon the resources of the nation.
[1] Borel v. Fibreboard Paper Products Corp., 493 F.2d 1076 (5th Cir.-OLD 1974)
[2] Christopher J. O’Malley, “Breaking Asbestos Litigation’s Chokehold on the American Judiciary” University of Illinois Law Review, [hereinafter O’Malley, Asbestos Chokehold], at p. 1107
[3] Borel supra
[4] Id.
[5] Johns-Manville Products Corp. v. Superior Court of Contra Costa County, 27 Cal. 3d 465 (Cal. 1980)
[6] O’Malley, Asbestos Chokehold, supra.
[7] O’Malley, Asbestos Chokehold, supra
[8] Id. at p 1108
[9] Id.
[10] Lester Brickman, “Asbestos Litigation: Malignancy in the Courts?” available at www.manhattan-institute.org/pdf/cjf_40.pdf
[11] Id.
[12] Industry Week “Owens Corning Files For Bankruptcy To Resolve Asbestos Liability,” Oct. 6, 2000; available at http://www.industryweek.com/ReadArticle.aspx?ArticleID=5220. See also http://www.owenscorning.com/finre/release.html
[13] Id.
[14] Am. Acad. of Actuaries, “Overview of Asbestos Claims, Issues and Trends,” August 2007 at p. 32
