Asbestos Litigation: A Practical Introduction
All of us, and particularly our parents, have asbestos in our bodies. At certain levels, this causes lung problems, cancers, and eventually death. The issue for plaintiffs’ lawyers is proving the source of asbestos exposure and the medical cause of the disease.
Asbestos is the name for a family of minerals. These minerals consist of multiple fibers that are so small they can only be seen with a microscope. These rock fibers are strong, durable, resist heat and friction, and are virtually indestructible. These features made asbestos the “wonder” material that was used in all types of insulation, fireproofing, certain cloth products (gloves and blankets), spackling, patching, and taping compounds, gaskets, pipes, ceiling tiles, wallboards, roofing materials, and automotive brakes and clutches.
Asbestos becomes a health hazard when these materials are cut, crumbled, fall apart, or are otherwise disturbed. When this happens, the asbestos fibers break up into even smaller particles that become suspended in the air. These particles eventually settle, but then become airborne again by sweeping, dusting, or even walking past a contaminated surface.
People can get sick when asbestos fibers are inhaled and lodge in their lungs. Whether a person gets sick depends on certain conditions called “risk factors.” The first risk factor is the concentration, or how much, asbestos is in the air. The second is the “duration” or cumulative length of all exposures. These two risk factors establish a person’s dose.
Asbestos diseases follow a “dose-response” relationship curve. The risk of contracting asbestos disease rises with each such dose. It is therefore easier to prove a disease is related to asbestos if a person has a work history with repeated doses of asbestos.
Asbestos does not impact any two people in the same manner. In addition, asbestos has a latency period of at least five to ten years and can remain dormant for up to 40 years. It therefore can be difficult to prove when the exposure occurred that caused the asbestos injury.
To prove that asbestos caused an injury, the first task is to determine each potential source of exposure. This can mean a review of over 40 years of a worker’s life. This can be accomplished by interviews, but often also involves a review of Social Security, union, tax, and other records.
Once these facts are established, the next step is to determine what asbestos products were in use at specific work sites. This can be determined by finding and interviewing co-workers, by subpoenaing work orders, invoices, and delivery documents from employers, from obtaining documents from suppliers and vendors, or in some cases, taking samples from home and work sites. Asbestos comes in three forms: amosite (brown), chrysotile (white), and crocidolite (blue). If samples from homes or employment sites can be obtained and analyzed by the appropriate labs, a determination of the type of asbestos can lead to a product identification.
As product identifications are made, potential defendants are also identified. Since asbestos injuries are caused by dosages and exposures to microscopic particles, unlike an automobile accident where the tortfeasor is often readily identified, the guilty party in an asbestos case may be one of many defendants. The process of developing a database, linking employers, products, vendors, and defendants, is the key to a successful asbestos case. It can be done on an individual case basis, but often takes years of time and effort if the injured person has a complicated work history. Developing such a database requires talking to co-workers, relatives, abatement workers, suppliers, and obtaining various records. Many such records, especially those involving abatement, can be obtained on-line at sites developed by OSHA, the EPA, and the Utah state government. The next step in an asbestos case is determining and proving the cause of the disease. Asbestos diseases are caused by the injured person inhaling or otherwise ingesting the microscopic fibers. The fibers can then be distributed throughout the body through the lymphatic system. The asbestos fibers eventually cause cancers. Mesothelioma is a rare cancer that is almost always caused by asbestos exposure. It can cause a cancer of the pleura, the membrane that lines the lungs and chest cavity, or the peritoneum, which lines the abdomen. Asbestos has also been linked to lung cancer and cancers of the digestive tract, colon, larynx, kidney, and esophagus. Lesser diseases include asbestosis, a scarring of the lung tissue; or scarring of the pleura, often called pleural thickening or pleural plaques. Such diseases can be detected by x-ray or CT scan, although it is often necessary to perform a biopsy or autopsy for a definitive diagnosis. In developing an asbestos case, it is often preferred to have such testing done by a physician who is specially certified. These physicians can then opine at trial as to probabilities, causation, and other medical facts.
Many asbestos victims are also cigarette smokers. Smoking weakens the lungs, which contributes to the negative health effects of asbestos exposure. Either smoking or asbestos exposure alone can cause lung cancer. Taken together, they can significantly multiply the risk of lung cancer. It is therefore necessary to retain medical experts to explain the differences of each disease, and to be able to rebut the defendants’ potential claims that smoking alone caused the plaintiff’s disease.
Asbestos litigation often involves as many as 30 or 40 defendants. These defendants often conduct discovery about 40 to 50 years of the plaintiff’s life. Such cases, when filed in federal court, are almost always automatically referred to the multi-district litigation (MDL) in Philadelphia. Some of such cases filed on behalf of Utah residents by attorneys from Miami and other out-of-state law firms, have been in the MDL for as long as 10 years. The better practice is thus to find a Utah-based defendant and file in state court. The Third District Court recently established an Asbestos Division. All cases filed by the law firm of Eisenberg, Cutt, Kendell & Olson, in conjunction with Brayton Purcell, and Durham, Jones, Pinegar, in conjunction with Ness Motley, will be assigned to Judge Glenn Iwasaki. Judge Iwasaki is in the process of developing a master order that will control discovery and pretrial procedures in all such cases. This order will have an automatic trigger for standard discovery and the methods for taking depositions. It will also address asbestos-specific issues, such as automatic autopsies, e-service, and no-evidence letters.
There is little, if any, asbestos case law in Utah. Although a specific statute of limitations, U.C.A. § 78-12-48, pertains to asbestos, it is not clear how it will be applied in various cases. It is anticipated that the issue will arise as to whether the discovery standard will be applied to the statute of limitations in asbestos cases. The 10th Circuit reviewed this issue in an uranium exposure case in Maughan v. SW Service, Inc., 758 F.2d 1381, 1384 (10th Cir. 1985), it held that due to the “complexity of the scientific data concerning causation of cancer . . . and the often long latency period of the disease” justified the application of the discovery rule. In reaching its decision the court stated that asbestos, like uranium causes such cancers.
Asbestos victims often develop a lesser disease such as asbestosis before being diagnosed with a cancer such as mesothelioma. The Utah Supreme Court stated that “of course a plaintiff can file when he or she develops a serious disease, even if they have a known exposure in Hansen v. Mountain Fuel Supply Co., 858 P.2d 970 (Utah 1993) (the defendants conceded the relevance of the discovery rule; therefore, the Court did not analyze this issue). In Watkiss and Saperstein v. Williams, 931 P.2d 840 (Utah 1996), a legal malpractice case, the Court citing Wilson v. Johns-Manville Sales Corp., 684 F.2d 111 (D.C. Cir. 1981), stated that declining to allow filing of a cancer claim because of a prior diagnosis defeats the public policy of obtaining adequate compensation for latent diseases. It is my conclusion, based on the foregoing, that the discovery standard should apply in asbestos cases.
Hansen v. Mountain Fuel Supply Co., supra, is the only Utah Supreme Court decision directly applicable to asbestos cases. In that case, five employees of CCI alleged exposure to asbestos while working at the Mountain Fuel building. They alleged they experienced coughing, wheezing, shortness of breath, chest tightness, headaches, severe eye irritation, and anxiety and mental distress from fear of future cancer. One year after the alleged exposure on medical exam, not surprisingly, none of the plaintiffs was diagnosed with an asbestos-related disease. Plaintiffs’ allegations, therefore, were all they had to support their claims; thus, a summary judgment was granted to defendants, and affirmed on appeal. On appeal, the Utah Supreme Court also reviewed the dismissal of the negligent infliction of emotional distress (NIED) claims for fear of cancer. Since the plaintiffs were complaining of injuries, the Court applied Section 313(1) of the Second Restatement of Torts. (This section applies to claims involving an injury to the plaintiff, rather than such claims arising from seeing a bystander’s injuries.) The Court held that the plaintiffs could make a NIED claim if they suffered either a physical or mental injury. The Court stated that since the plaintiffs were only claiming a mental illness, they must prove that the emotional distress was severe-such that a reasonable person would be unable to adequately cope with the mental stress, The Court stated that for an asbestos case involving fear of cancer that the trial court must consider the likelihood that the disease will actually occur and the duration and nature of the exposure to the toxic substance.
Finally, the Supreme Court reviewed the plaintiffs’ claim for future medical monitoring expenses. It held that if the plaintiffs could prove eight elements (1, exposure; 2, to a toxic substance; 3, which exposure is caused by the defendants’ negligence; 4, resulting in an increased risk; 5, of a serious disease, illness, or injury; 6, for which a medical test for early detection exists; 7, and for which early detection is beneficial, meaning that a treatment exists that can alter the course of the illness; and 8, which test has been prescribed by a qualified physician according to contemporary scientific principles), it was appropriate to establish a trust fund for such expense.
Courts in other jurisdictions, such as California, have developed substantial case law on asbestos issues. With respect to liability, plaintiffs in such jurisdictions often argue their cases on a theory of product liability. They generally use one of three theories: (1) a consumer expectation test; (2) a risk benefit test; or (3) a failure to warn. Arena v. Owens-Corning Fiberglass Corp., 74 Cal. Rptr. 2d 580 (Cal. App. 1st Dist. 1998). The consumer expectation test is a claim that the product failed to perform as safely as an ordinary consumer would expect when used as intended. The risk benefit test balances the risk of inherent danger vs the feasibility, cost, and adverse consequences of an alternative design. The failure to warn is a Restatement-based claim for failing to warn of known or knowable inherent dangers.
In a consumer-expectation failure-to-perform case, courts have recognized that it is not always necessary to present expert testimony. Instead, the plaintiffs can argue that based on the plaintiffs’ everyday experience with a product, that the jury can apply its own common sense to determine if the defendant violated a minimum safety standard. S parks v. Owens-Illinois, 32 Cal. App. 4th 461, 38 Cal. Rptr. 2d (Cal. App. 1st Dist. 1995).
The 10th Circuit, has applied Oklahoma law to find no liability in failure to warn cases. Of note are two cases involving women who suffered mesothelioma which was allegedly caused by laundering their husbands’ asbestos-filled clothes. In each case, the court held that since the deceased woman had not been a user of the asbestos product or present where the asbestos product was used, they had no basis on which to make a duty-to-warn claim. Carel v. Fiberboard Corp., 74 F.3d 1248 (10th Cir. 1996), Rohrbaugh v. Celotex Corp., 53 F.3d 1181 (10th Cir. 1995).
Defendants often raise the issue of the state-of-the art/science when defending asbestos cases. A California court held that a state-of-the art/science defense was not relevant to an ordinary consumers’ expectations in Morton v. Owens-Corning, 33 Cal. App. 4th 1529 40 Cal. Rptr. 2d 22 (Cal. App. 1st Dist. 1995). The state-of-art defense was deemed admissible and relevant in a failure-to-warn case, on the theory that the defendant must have state-of-the art knowledge to be in a position to warn. Anderson v. Owens-Corning, 810 P.2d 549, 53 Cal. 3d 1987 (Cal. 1991). Finally, it has been successfully argued to a California court that in an asbestos case involving multiple manufacturer and suppliers, where it is impossible to determine which is responsible, that an alternative liability theory stating the burden shifts to defendants should be submitted in a jury instruction. Coughlin v. Owens-Illinois, 950 P.2d 57, 27 Cal. Rptr. 2d 214 (Cal. App. 1st Dist. 1993). Although the facts are clearly distinguishable, this may be an issue that could be argued successfully in Utah, based on the Utah Supreme Court’s decision, Tingey v. Christensen, 987 P.2d 588 (Utah 1999), an automobile case involving two distinct injuries.
Asbestos litigation, although somewhat new to Utah, has been a successful area of practice for plaintiffs’ lawyers in other jurisdictions. It is my belief that with a strong product and medical investigation, Utah lawyers can enjoy the same kind of success.
Robert G. Gilchrist is a shareholder in the firm of Eisenberg, Cutt, Kendell & Olson and of counsel to the California firm of Brayton Purcell. Eisenberg, Cutt, Kendell & Olson and Brayton Purcell represent a large number of Utah plaintiffs suffering from asbestos-related injuries.