AAA Mass Torts Flashcards
Why will residual exposure occur even if asbestos is banned?
- Previously manufactured asbestos-containing products that have not been replaced or discarded
- Dust/other waste in envs from previous use or incomplete disposal of those products
- Erosion of naturally occurring deposits in asbestos containing rocks
Why defense costs for asbestos may increase in the future?
- Multiple defendant cases typical, and defense is no longer handled on a joint basis
- Peripheral defendants incurring significant discovery costs as they work to understand their exposure
- Many defendants have abandoned settlement strategies
- Coverage disputes between defendants and their insurers as well as between insurers and their Re may increase
Concerns of seriously injured asbestos claimants
- Due to short life expectancy, need for quick resolution of their claims which is often difficult
- High transaction costs diminish the funds available to meet this group’s greater needs
- As defendants become bankrupt, compensation may not be available to those who develop serious illnesses in future years
- Nonmalignancy claims may exhaust funds available for more serious asbestos-related diseases
Concerns of non-seriously injured asbestos claimants
- If they do not proceed with a lawsuit today, a statute of limitations issue may prevent them from being eligible to recover damages for more serious conditions that may develop in the future. (can be resolved through inactive dockets or pleural registry)
- Availability of money in the future if they develop a serious injury later
- Faces future health uncertainty and continuing expenses
Concerns of major asbestos defendants
- Consolidation of claims of seriously/nonseriously injured claimants may result in disproportionately high awards to the nonseriously injured.
- Awards should be funded, at least in part, by other parties. There is a material synergistic effect between exposure to asbestos and smoking
- Uninjured plaintiffs are being compensated
- Wants to achieve finality
Concerns of peripheral asbestos defendants
- Should not be held liable for asbestos-related injuries because the asbestos in their product was encapsulated and thus should not have contributed to the injury
- It will bear a share of liability that was previously borne by the now-bankrupt manufacturers
- Majority of case have been brought to trial in venues they perceive to be favorable to plaintiffs
- Held responsible for liability that should be borne by non-US cies
Concerns of insurers/Re of asbestos defendantsConcerns about i
- Interpretation of contract and possible liabs that may arise
- Settlement with claimants who currently do not have any injury
What is a federal reform targetting asbestos litigation?
Fairness in Asbestos Injury Resolution (FAIR) Act
• Never brought before senate for debate
• Proposed to establish no-fault trust fund from which claimants meeting asbestos exposure and medical criteria are compensated
• Funded with $140 billion from corporate defendants, insurers, and existing bankruptcy trusts
What are the federal reform concerns?
- How many claims of various disease types will be filed? • Will medical criteria appropriately identify victims?
- Are proposed awards appropriate?
- Is funding adequate?
- Will the allocation of funding to contributors be fair?
- Should fed gov contribute?
- Will it be operated efficiently?
- Will it withstand constitutional challenges?
State reform initiatives for asbestos litigation
- Inactive dockets: Preserve the right of those who do not currently meet the specific medical criteria to pursue litigation in the future
- Medical criteria statutes: Claimants must satisfy certain medical criteria to bring a claim
- Restrictions of Case Consolidation and Venue Rules
- Other state reforms include: Limiting successor liability, innocent sellers, and caps on punitive damages
List the changes in the litigation environment since 2001 in regards to asbestos claims
- Some jurisdictions now restrict nonmalignancy claims
- Restriction on the extent to which claims may be combined in a single lawsuit
- Joint and several liability reform in some states
- Inactive dockets
- Emerging info that has challenged the validity of some chest X-rays used to justify nonmalignancy claims
*Combined effect of heightened scrutiny of nonmalignancy claim in conjuction with stricter medical criteria legislation and inactive dockets has led to fewer mass settlements of pending claim
List Key features of asbestos litigation
- Workers suffering from asbestos-related injuries were originally compensated through the WC system
- In 1973, plaintiff in the landmark case of Borel v. Fibreboard were successful in holding manufacturers of asbestos-containing products strictly liable for the failure to warn of an unreasonable dangerous product
- # asbestos claims severely challenged state court syst
- Many worked at a large #sites with asbestos-containing products. Large #defendants in their lawsuits
- Typical for plaintiffs’ attorneys to join several plaintiffs to file their claims against several dozen defendants
- “Forum shopping” where disproportionate #asbestos claims are filed in state courts in perceived proplaintiff jurisdictions
- Peripheral defendants: Manufactured products in which it was encapsulated, distributed products containing it, or owned premises that contained asbestos
