From the beginning, asbestos lawsuits were like an air raid, a single defendant strategically strafed under a “shock and awe” type attack by hundreds of thousands of plaintiffs filing lawsuits against it.
As asbestos litigation looks ahead to its fifth decade of growth, the attacks have changed to more resemble a wild-eyed soldier filling the air with bullets from a rapid-fire assault weapon in hope some will find a target.
While there is no doubt as to the effectiveness of “shock and awe” – by 2002 asbestos lawsuits had already cost $54 billion in defense costs and judgments, according to a RAND Corp. study – the new trend in asbestos lawsuits has the potential to be even more lucrative to plaintiffs attorneys.
Whereas the brunt of that $54 billion was borne by the roughly 80 major companies that filed for bankruptcy protection citing asbestos lawsuits as a primary factor, the new-and-improved asbestos lawsuits no longer concentrate on a single defendant.
Instead, hundreds, even thousands of defendants are named in a single case, opening the threat of what one attorney called “the potential for limitless liability” for businesses that once never dreamed that they too would be embroiled in asbestos litigation.
Ironically, the shift comes at a time when increased attention is growing over common place practices a decade ago to grossly inflate the number of plaintiffs in asbestos litigation.
A West Virginia case involving CSX Transportation has exposed the common use of bogus medical diagnoses handed out in an assembly-line fashion by what the company’s lawsuit asserts was a completely fraudulent scheme to pry even more money from companies already paying asbestos lawsuits.
Forged documents, secretaries signing for doctors who had never seen the patient and cash advances paid to potential plaintiffs all helped create a roster full of plaintiffs who were not sick with asbestos-related disease, according to court documents.
As tort reform professionals try to fully unearth the amount of fraud and abuse from past cases, plaintiffs have moved on in search of new defendants. If the recent cases filed on asbestos dockets — like some filed recently in Madison County — are any indication, they have no shortage of new targets.
By going back into the history of how businesses operated, potentially thousands of more defendants are becoming the subject of new lawsuits.
In a case filed on April 2 in Madison County, a husband and wife listed as plaintiff seek damages for exposure to asbestos from an A to Z list of defendants that runs a full seven pages long.
The defendants start with A.W. Chesteron, Inc., a Florida-based industrial machine supplier, and ends with Zurn Industries, L.L.C., a Pennsylvania company that manufactures plumbing products. In between are hundreds of companies from parts North, South, East and West, each a target for damages in the lawsuit.
Another case filed the same week on behalf of a single plaintiff targets three pages of defendants. A.W. Chesteron, Inc. is again listed, but after 3M Company and A.O. Smith Corporation. Zurn Industries again ends the list.
The list of defendants in both cases includes the infamous and the unknown alike. Defendants like Federal-Mogul — an asbestos trust established to represent a company crushed entirely under the weight of asbestos settlements — are such prominent asbestos defendants that cases bearing their names define precedent. Garlock Inc. Borg-Warner Corp., and General Electric Company are others involved in high-profile cases, and are each listed on both Madison County cases.
Scattered among these well known companies are dozens upon dozens of smaller, lesser known companies, including suppliers, manufacturers and trade companies, from various industries like automotive, construction and chemical.
Even Indiana University is named in the first case. The second includes the Pep Boys, an automobile supply ritual chain store known in California years ago for its commercials about “Manny, Moe and Jack.”
Some of the country’s largest employers are named, like Ford Motor Company, Shell Oil, Mobil Oil and even John Deere, renowned maker of American tractors for a century.
The pair of cases filed by different plaintiffs firms — Gori and Julian of Edwardsville and the O’Brien firm in St. Louis — are similar beyond the lengthy lists of defendants. The plaintiffs in both cases allege decades of work in various trades and various places led to asbestos exposure, which resulted in the deadly disease of mesothelioma.
One, an Indiana volunteer fireman who worked in various jobs contracted the disease in January. The other, a Kentucky-based Air Force veteran who worked in various jobs at a tire company, in pool installation, and as a bricklayer, contracted mesothelioma in March.
Several points in the court documents from both cases use the same language.
“The Plaintiff’s exposure to and inhalation, ingestion or absorption of the asbestos fibers emanating from the above-mentioned products was completely foreseeable and could have been anticipated by the Defendants,” both filings state.
Both cases assert that their respective long list of defendants “failed to exercise ordinary care and caution for the safety of the Plaintiff.”
The growing target of defendants
This new wave of defendants has more to do with their business and practices, than the particular defendant. The court documents make plain that the plaintiffs, through various jobs, used any number of products in any number of locations that, all told, left them sick with asbestos disease.
“If a company has ever owned or occupied a building in which asbestos-containing material was or is present, the asbestos plaintiffs’ bar already may have targeted it as a potential defendant,” a 2003 report in The Real Estate Finance Journal stated.
As the Real Estate Journal article points out, courts no longer designate between classes of people – invitees, special guests licenses, etc. — on a given property.
“Today, most courts have abolished such distinctions in favor of a general standard of care that is owed to all lawful entrants: possessors of real property shall exercise reasonable care in maintaining their properties and warning of known hazards,” the story stated.
In some cases the defendant is discovered first, and then through advertising, plaintiffs are recruited to bring suit.
“Asbestos litigation now often ensnares defendants who did not make or sell anything that contained asbestos but who merely owned a facility where outside workers installed or encountered asbestos-containing building materials,” a 2006 article in Los Angeles Lawyer stated.
A central aspect of assigning fault to this diverse list of defendants is determining how much companies knew about the dangers of asbestos, and when they knew it. These cases are likely to focus more on the defendants’ practices and procedures, as opposed to explaining how their specific plaintiff was actually exposed.
A March conference that brought in asbestos professionals from across the country detailed this “emerging trend” in asbestos litigation. Presenters, both defense attorneys and plaintiff attorneys, explained that cases will seek out what was known about workplace safety over the years.
While defense attorneys often point to 1972 when OSHA issued protocols to be followed regarding asbestos exposure, plaintiff attorneys argue responsibility can be proven much earlier.
“There’s a lot of information out before OSHA,” plaintiff attorney Ann Kearse said, starting with a report in 1937 that talks about safety policies related to asbestos.
“It was known and knowable how dangerous this was to work with,” she said.
DuPont, a major plant in West Virginia, was “one of the companies that had early knowledge” of the harmful effects of exposure, Kearse said. One of DuPont’s own documents, according to Kearse, said “asbestos use is ubiquitous” at their location.
A DuPont report in 1964 documents in detail the safety hazards.
The burden of defense attorneys is to painstakingly chronicle the company’s safety practices related to its property going back decades.
Atlanta-based defense attorney Scott Masterson, who also spoke about premise liability at the asbestos conference, said defending these types of cases is “a pretty big challenge.”
“But I think they are defensible,” he said. He also noted that they are very long and expensive cases to try.
Masterson said that a defense attorney must learn everything about a client’s premises, including the relationship of the plaintiff to the defendant.
This involves knowing the premises “from the inside out,” he said, including the history of the building, the safety standards and protocols, the job descriptions of every employee and the work procedures for independent contractors.
The defense also must ascertain “what the owner knew, when they knew it and should have known it,” he said.
This checklist required to mount a defense must be done by each of the hundreds of defendants listed in a given case. The costs involved, and the high risk of losing the case even after the expense of trying it, is again proving to be an effective motivator for companies named in suits to settle in the hopes of saving money.