Asbestos

Products liability cases involving asbestos include claims for personal injury, death, and property damage. Some 200,000 personal injury asbestos claims were pending in the United States by early 2003. Because of the massive number of asbestos cases, courts are continuously seeking ways to streamline the processes of litigating asbestos claims, compensating victims, and apportioning damages among defendants. One method that has been employed to serve this purpose is the appointment and use of one designated medical counsel who serves on behalf of all defendants in multi-party litigation, so that plaintiffs do not have to be separately examined by a doctor of each defendant's choosing. Federal legislation governing compensation has also been advocated, and private compensation funds have been proposed as well. In early 2005, a U.S. Senate Judiciary Committee hearing on asbestos lawsuits noted that there were 600,000 asbestos cases pending in the tort system and the number of asbestos defendants had risen sharply to more than 8,400 from about 300 in the 1980s.

It is often difficult for a plaintiff to determine who the appropriate defendants are in an asbestos case, because the plaintiff does not know who manufactured the asbestos to which he or she was exposed. The exposure could have occurred, and likely did occur, years before the plaintiff became aware of the asbestos-related disease. To counter this problem, plaintiffs' lawyers often name many asbestos manufacturers as defendants in the suit and argue under various theories that any or all of them are or could be liable. Under a theory of alternative liability, for instance, the burden shifts to each defendant to prove that it could not have manufactured the asbestos that caused the plaintiff's injuries. Some courts have rejected this theory in favor of other multi-defendant theories, such as enterprise liability, concert-of-action liability or market-share liability. In enterprise liability, the burden shifts to the defendants to establish causation if the plaintiff can show that at least one of them manufactured the injury-causing asbestos, that identification of a specific manufacturer is impossible, and that the manufacturers collectively adhered to unreasonable safety standards. The concert-of-action theory imposes liability on asbestos manufacturers if the plaintiff proves that the defendants were jointly engaged in tortious activity and that their collective conduct caused the plaintiff's injuries. Market-share liability, which has been rejected by most courts in asbestos cases, requires a sufficient number of defendants to insure that a substantial share of the market for the dangerous product is represented in the suit, with apportionment of damages among those that cannot establish freedom from liability.

Possible bases of liability in asbestos cases include strict liability, design defect, failure to warn, and civil conspiracy, among others. In order to establish strict liability, the plaintiff must prove that the defendant manufactured, sold, or distributed the asbestos; the asbestos was defective or unreasonably dangerous; the plaintiff was exposed to the asbestos; the exposure was sufficient to cause asbestos-related illness; the plaintiff suffers from such an illness; and the plaintiff has sustained damages. An asbestos manufacturer can be held liable under a design-defect theory if the plaintiff can show that at the time the defendant's product was manufactured, it was feasible to substitute other, less harmful materials for the asbestos. In a failure-to-warn case, the plaintiff must establish that the defendants either knew of should have known of the dangers of their asbestos products at the time they were sold. A civil conspiracy claim requires proof that the defendants acted in concert to deprive the consuming public of relevant scientific evidence of the harmfulness of the asbestos product and that the plaintiff was thereby injured.

Asbestos manufacturers may defend against plaintiffs' claims on the bases of sovereign immunity (if they are governmental units); the statute of limitations (although in some states the time limit for bringing the suit does not begin to run until the plaintiff is aware of the resulting illness); or a variety of other potential defenses, including the plaintiff's habits, like cigarette smoking. A lawyer with products liability law experience can advise a defendant on all potentially applicable defenses, or, of course, help a plaintiff present his or her case and receive adequate compensation.

Form: Illness & Hospitalization

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