Asbestos Wars: In Three Parts

Table of ContentsI. Introduction 759II. Asbestos: Tort As Information Forcing 764III. The Courts and the Scope of Liability 772IV. Asbestos, the Courts, and Legislatures 784V. Conclusion 788I IntroductionAsbestos liability has challenged the tort system since it became clear that exposure to asbestos caused serious, often fatal diseases. Professor Fraley in her Comment has, among other trenchant observations, nicely shown how information on the causal link was established.* 1 In my Comment, I wish to make three short points that will add some context to Flinn's fine Note.2First I make a few general reports from the battlefield on the asbestos litigation wars described in the Note. The term "war" is appropriate. Battles have been waged in the courtrooms and legislatures over decades on behalf of claimants with devastating diseases that are associated with exposure to asbestos fibers. Multiple manufacturers employing the mineral have been sued. In the ensuing imbroglio of asbestos claims, along with other high-impact claims, medical devices, pharmaceuticals, motor vehicles, and other toxic substances have formed the rich tapestry of modern torts law.3 These high-impact claims constitute the bulk of actions and most of the damages sought by the persons in the tort system. Tort law would be a quiet backwater except for litigation around these high-impact claims.Flinn shows us the high incidence of asbestos litigation, its claim frequency, and claim severity.4 She demonstrates that after years of battles, settlements, and the establishment of trusts designed to afford compensation, it looked as though the war was coming to an end.5 It may have been surmised that asbestos litigation would yield its place in the pantheon of high-impact tort claims. But the energy of the claims had not run its course. Like Napoleon returning from Elba, the war is resumed. Flinn would like to declare a Waterloo through her suggestion for quiet in these claims.6 After these decades of litigation, it is perfectly understandable that peace has its value and that claims coming from exposure to asbestos brought to the home need to be brought to a resolution.Flinn documents that courts, when faced with these claims, have been divided in finding liability.7 Some have decided that liability is a step too far; others have determined that the claims are meritorious. Flinn has stepped into the breach. Noting carefully and exhaustively the struggles of the courts in drawing boundaries to liability, she sees that a national legislative response is fraught with problems.8 Acutely, she perceives that the states have different problems in different degrees of severity.9 Congress too has shown a penchant for logrolling10 and catering to special interests in the high-stakes game of regulating the asbestos claims process.* 11 A state-by-state solution accounts for regional differences and can measure more accurately the issues of the class of persons who merit recovery. The federal system, which allows states to experiment and test models for recovery that may inspire fellow states, also supports this solution.12 Removing of claims from state dockets is of public importance in the context of tight public revenues. State courts ought, in a sensitive manner, to be able to weigh claimants' legitimate demands for compensation against the public interest in quieting claims for asbestos-related diseases. Legislatures have an institutional competence to regulate claims. They may cut the Gordian knot of litigation and come to a solution that weighs the interests more broadly. As elegant as Flinn's solution may be, one last gauntlet must be run. I have no doubt that some claimants will be aggrieved and seek to mount a constitutional challenge to the legislation. …