Asbestos Litigation: A Short Guide

Asbestos has a long, complicated history around the world. The mineral has been in use for hundreds of years because of its notable properties. Its fire and chemical resistance led to a booming asbestos industry, one that is still worth millions of dollars each year in certain parts of the world.

Despite its touted benefits in construction materials, fireproof clothing, and other goods, the dangers of asbestos were recognized back even in the 1920s. People who worked with asbestos directly or experienced secondhand asbestos exposure began to get sick years afterward, which brought about questions of the safety of asbestos. Around this time, some of those who became sick with asbestos-related diseases – like mesothelioma, asbestosis and pleural plaques – began to take legal action against the companies responsible.

Even with such a long history, asbestos remains a dangerous problem today, and without an effective ban in place, more people are at risk of exposure. Throughout its long past, litigation has been an important avenue for victims to not only recover lost wages and the expenses of treatment for asbestos disease, but help hold these companies responsible.

The Start of Asbestos Litigation

The first well-known claim against an asbestos company actually came from England, though helped set the stage for the start of asbestos litigation in the U.S. In 1924, Nellie Kershaw sought compensation from her employer, Turner Brothers Asbestos. The company owned a factory where she spun asbestos into yarn. By the time she was 29 years old, she was experiencing health problems from inhaling the asbestos fibers every day at work.

By 1922, Kershaw was too sick to continue working, which also harmed her family’s financial wellbeing. She sought benefits through England’s workers’ compensation act of the time, though Turner Brothers Asbestos denied any liability. Kershaw unfortunately passed away at only 33, and there is no record of her ever receiving any compensation from her work. A few years later, however, her medical report was detailed in the British Medical Journal, with her condition listed as “pulmonary asbestosis.” Her health and claim would eventually help result in the first asbestos industry regulations for England in 1931.

In 1929, Johns-Manville Corporation faced a similar asbestos claim in the United States from one of their workers, Anna Pirskowski. At the same time, at least 10 other claimants filed against the company in the Newark Federal Court. Pirskowski’s lawsuit was thrown out in 1934, but was just the beginning of many similar lawsuits against Johns-Manville and many other manufacturers of asbestos-containing products.

Asbestos Mass Torts and Creation of an MDL

As America continued to increase its consumption of asbestos from the 1930s through the 1970s, more Americans faced exposure and the serious diseases it could cause. In the 1960s and 1970s especially, the health risks of asbestos became indisputable. Even large news organizations, like The New York Times, were reporting on the link between asbestos and cancer, including mesothelioma and lung cancer. Around the same time, more claims were filed and asbestos companies finally began to face more liability.

Though workers’ compensation laws had been in place for most states by the 1930s, around the 1960s many updated their statutes of limitations to begin after discovery or diagnosis of the disease, rather than limited time after exposure occurred. This made many more eligible to file asbestos claims. In addition to this legislative change, in 1966, the Federal Rules of Civil Procedure was also updated with a new rule that established better requirements for class action lawsuits. These new guidelines ultimately allowed much bigger lawsuits from large groups of people.

With these changes to class action lawsuits, as well as more leniency in updated statute of limitations, the number of asbestos cases rose rapidly. One important case that further helped fuel other asbestos victims to bring forth lawsuits was Borel vs. Fibreboard Paper Products Corporation. Borel was not part of a mass tort, however, his case is considered a landmark decision in asbestos litigation.

Borel developed mesothelioma after working as an insulator for many years. His attorneys filed lawsuits against several companies that made asbestos products, including Johns-Manville Corporation, for $1 million worth of damages. Though Borel sadly passed away from mesothelioma before his trial concluded, the Texas jury awarded his widow a verdict of over $79,000 in 1971. The victory in the case is considered to be the first mesothelioma lawsuit to rule in favor of the plaintiff.

Borel’s lawsuit along with legislation updates, led to more and more mesothelioma and asbestos lawsuits. For some companies, like Johns-Manville Corporation, the number of claims and payouts led to an abrupt end. In 1982, the asbestos company filed for bankruptcy, and many others followed suit as time went on. As part of the bankruptcy proceedings, these companies had to establish asbestos trust funds to allow compensation for victims into the future. These bankruptcy trusts are still an important aspect of litigation today.

Another change in the courts helped make the lawsuit process easier for some claimants. In 1991, the federal courts decided to help streamline the process by creating a multidistrict litigation (MDL) transfer of federal asbestos injury claims to the U.S. District Court for the Eastern District of Pennsylvania. MDL 875 has handled over 180,000 compensation claims since its formation.

Asbestos Litigation Moving Forward

Between 1982 and 2002 alone, reports show the number of asbestos-related claims grew staggeringly from around 1,000 to over 730,000. A lot of cases were centered in places with lots of industrial jobs (such as shipyard workers) or military bases (especially the Navy), such as California, New York, and Virginia, though other states saw an increase as well. Several cases even made it to the U.S. Supreme Court, including two in the late 1990s that dealt with class action lawsuits – both of which required settlements to include provisions for future claimants who suffer from asbestos-related injuries.

Analysts have estimated that the number of mesothelioma lawsuits will peak in 2020, though they are not expected to die out completely any time soon. Although the Environmental Protection Agency (EPA) and other government agencies have various regulations in place to help protect against asbestos, citizens still face exposure every day.

Asbestos companies should be held liable for their wrongdoings. Mesothelioma victims have legal options to potentially receive compensation to assist with medical expenses, lost wages, and for their pain and suffering caused by such a diagnosis. As long as asbestos remains unbanned and legal in the United States, and its old uses continue to linger, asbestos litigation will continue to be necessary.