Asbestos Lawsuits Continue To Mount With Secondhand Exposure Claims And Sicker Plaintiffs

Reuters news recently posted a special report on “The long, lethal shadow of asbestos,” arguing:

Half a century after the first wave of lawsuits were filed for illnesses linked to exposure to asbestos and 40 years after new regulation sharply curtailed use of the insulating and fire-resistant mineral, the asbestos-litigation business is booming.

Some of the country’s biggest and best-known law firms — many of them handling asbestos cases almost exclusively — say the number of lawsuits filed annually, after falling off from a peak, has picked up in recent years. More important, they say, is that payouts for plaintiffs who win their cases have soared.

As plaintiffs’ lawyers, we were dismayed to see this sort of sensationalism in the beginning of the article, which strongly implies that asbestos lawyers are somehow manufacturing these claims and that damages awards are rising for improper or unethical reasons. The rest of the article is far more thoughtful, as are the videos accompanying the article. As Beasley Firm attorney Max Kennerly explained in a post on his blog, “The Future Of Asbestos Litigation And The 60,000 Mesothelioma Patients Yet To Be Diagnosed,”

[T]he typical mesothelioma patient takes more than 30 years to develop cancer after the time of initial exposure. Despite the sharp drop-off in asbestos use in the mid-1980s, the number of cases of malignant mesothelioma is thus expected to rise through this year, and then decline thereafter, but not declining to background levels for non-asbestos lung cancer until 2055. We could see 60,000 or more new mesothelioma cases filed over the next few decades.

That’s the real reason we’re seeing more and more mesothelioma lawsuits filed, and why the payouts are getting larger. Many of the prior payouts were for plaintiffs alleging that they would develop mesothelioma, whereas the payouts now are almost all to plaintiffs who have developed mesothelioma.

The two most quickly growing areas of asbestos litigation involve friction products, like brake pads, and claims involving secondhand exposure, such as the wives and children of workers who brought home asbestos fibers on their clothing. The Reuters report, however, doesn’t point out the challenges facing most of these victims. Unfortunately, in late February of this years the United States Supreme Court eliminated an entire segment of asbestos claims – i.e., claims involving brake pads on locomotives and train cars – in the Kurns v. Railroad Friction Products case, holding that these claims were “pre-empted” by the Locomotive Inspection Act.

Further, a number of courts have decided that secondhand asbestos victims generally can’t bring any lawsuits at all. In March, the Illinois Supreme Court held in Simpkins v. CSX Transportation that companies didn’t normally have any responsibility to secondhand victims at all, but allowed the plaintiff to try to re-file their complaint with more specific allegations. Unfortunately, many other courts have precluded secondhand lawsuits. See, for example, Riedel v. ICI Americas Inc., 968 A.2d 17 (Delaware 2009); CSX Transportation, Inc. v. Williams, 608 S.E.2d 208 (Georgia 2005); Adams v. Owens-Illinois, Inc., 705 A.2d 58 (Maryland 1998); In re Certified Question From the Fourteenth District Court of Appeals of Texas, 740 N.W.2d 206 (Michigan 2007); In re New York City Asbestos Litigation, 840 N.E.2d 115 (New York 2005); Alcoa, Inc. v. Behringer, 235 S.W.3d 456 (Texas App. 2007). We thus believe the bigger problem is that victims might not be compensated, rather than, as Reuters worries, that insurance companies might have to pay more than they expected to pay.

If you or a loved one have been diagnosed with mesothelioma, contact The Beasley Firm for a free, confidential consultation. For fifty years, we have fought for Pennsylvania, New Jersey and Delaware personal injury victims, including the victims of workplace injuries, resulting in over $2 billion in verdicts and settlements.