What's New in Asbestos Litigation?
Behrens, Mark A., The Review of Litigation
Asbestos litigation is the "longest-running mass tort" in U.S. history.1 Since asbestos litigation emerged over three decades ago,2 lawyers who bring asbestos cases have kept the litigation going by adapting to changing conditions. Now, the litigation appears to be evolving once again.
In the earlier years of asbestos litigation, most cases were filed by people with cancer and other serious conditions.3 From the late 1990s until recently, the vast majority of claimants were not sick.4 The mass recruitment of non-malignant claims has ceased, and the litigation is re-focused on people with mesothelioma (a type of cancer) and other serious conditions.
The target defendants have changed too. First, the litigation was focused on companies that made asbestos-containing products.6 Then, when most of those companies went bankrupt, the litigation spread to premises owners in claims brought by independent contractors. Now, new companies and industries are being targeted, and new theories are being raised.
New forums are also emerging. Plaintiffs' lawyers are actively seeking out new jurisdictions in which to file their claims, largely driven by the desire to avoid reforms adopted in states that were once favored jurisdictions, such as Texas.9
This Article discusses these civil case trends and forecasts the types of claimants, places, and theories that are likely to dominate the civil court asbestos litigation landscape for the next several years.10
II. THE ASBESTOS LITIGATION ENVIRONMENT HAS CHANGED
A. Impacts Affecting Mass Screenings and Unimpaired Filings
The asbestos litigation environment has changed significantly in the past few years.1 Until recently, a substantial majority of claims were brought on behalf of unimpaired claimants diagnosed largely through plaintiff-lawyer-arranged mass screenings.12 It is estimated that over one million workers have undergone attorneysponsored screenings.13
The problem, as policy-makers, judges, and lawyers for the truly sick recognized, was that mass filings by unimpaired claimants were creating judicial backlogs and exhausting defendants' resources.14 As discussed below, various legislative and judicial reforms have greatly diminished the economic incentive for plaintiffs' lawyers to conduct mass screenings and file claims on behalf of the non-sick.
1. Medical Criteria Laws
Beginning in 2004, state legislatures in some key jurisdictions began to enact "medical criteria" laws requiring asbestos (and silica) claimants to present credible and objective medical evidence of physical impairment in order to bring or proceed with a claim.15 Medical criteria procedures for asbestos cases were enacted in Ohio in 2004,16 Texas17 and Florida18 in 2005, Kansas19 and South Carolina20 in 2006, and Georgia21 in 2007.22 These laws "set forth rigid criteria for the claimant diagnoses."
2. Courts Have Given Priority to Sick Claimants
Courts also have helped to curb filings by the non-sick. For instance, a number of courts have implemented inactive asbestos dockets (also called deferred dockets or pleural registries) to give trial priority to the sick.24 Under these docket management plans, the claims of the non-sick are suspended and preserved;25 they also are exempt from discovery.26 Claimants may petition for removal to the trial docket when credible medical evidence of impairment is shown.27
Since 2002, the list of jurisdictions with inactive asbestos dockets has grown to include: Cleveland, Ohio (March 2006);28 Minnesota (June 2005) (coordinated litigation);29 St. Clair County, Illinois (February 2005);30 Portsmouth, Virginia (August 2004) (applicable to cases filed by the Law Offices of Peter T. Nicholl);31 Madison County, Illinois (January 2004);32 Syracuse, New York (January 2003);53 New York City, New York (December 2002);34 and Seattle, Washington (December 2002).35 In 2005, the RAND Institute for Civil Justice called the "reemergence" of inactive dockets one of "the most significant developments" in asbestos litigation. …