Asbestos litigation: background

I’m happy to see that my initial post — which doesn’t really include any details of yet — has already begun to spark debate in the comments. I have thoughts on the views expressed, but I’ll begin with some background. This information might be old hat to those familiar with the asbestos mess, but it’s essential for those with little knowledge. This summary largely follows the account from the introduction to our Trial Lawyers, Inc.: Asbestos report.

Asbestos manufacturing in the United States was ubiquitous. At one point, asbestos-related industries employed as many as 2.5 million Americans. Asbestos commercial mining began in the U.S. in 1874, and after the Johns-Manville corporation was founded in 1890 with a patent for a process that blended short asbestos fibers with magnesia, asbestos manufacturing exploded: “asbestos consumption went from only 956 metric tons in 1890 to a peak of 803,000 tons in 1973.”

While asbestos ultimately proved deadly, it was originally thought to be a “magic mineral,” as it was dubbed at the 1939 World’s Fair. The word asbestos itself is derived from the Greek for “indestructible,” and the product is an incomparable flame retardant: it insulated generations of schoolchildren from fire and indeed fireproofed our World War II Pacific fleet.

But asbestos has also long been known to be dangerous when inhaled–as far back, perhaps, as the days of Pliny the Elder. In the early 20th century, asbestos was deemed as dangerous as lead and mercury (two products that have themselves spawned much litigation). In 1918, the U.S. Department of Labor declared that there was an “urgent need for more qualified extensive investigation” into the harms of asbestos, and in 1938, the U.S. Public Health Service issued a “good-practice” guideline for Threshold Limit Values of asbestos exposure.

Thus, asbestos was known publicly to be dangerous when virtually everyone suffering from asbestos-related illness was exposed. The extent of the danger, however, was not known definitively until 1964, when a seminal study by Mount Sinai Hospital’s Irving Selikoff established a definitive link between asbestos exposure and lung cancers and asbestosis.

Subsequently, evidence indicated that asbestos manufacturing companies knew more about asbestos’ dangers than they originally let on, and indeed in some cases hid that information from the public. Still, as my colleague Peter Huber pointed out in his review of Paul Brodeur’s Outrageous Misconduct, a much-cited book that harshly criticizes the asbestos industry, the asbestos companies’ early knowledge about asbestosis–asbestos-related lung injury that is rarely fatal, and was generally known–should not be confused with knowledge of the deadly lung cancer mesothelioma, which was exposed by the Selikoff study: “In his account of who knew what when–the core of his cover-up theory–Brodeur systematically obscures the difference between asbestos-related cancer and asbestosis, usually a much less serious disease, and understood and discussed in the Manville boardrooms much earlier.”

In any event, the original asbestos manufacturers like Johns-Manville have long been bankrupt due to litigation exposure. (Johns-Manville, ranked 181 on the Fortune 500 with over $2.2 billion in sales, declared bankrupcty in 1982 due to its looming caseload of 16,500 cases, and projections of up to 200,000 in the future.) The story of how that litigation evolved will be the subject of my next post.


  • While some of the manufacturers may have equivocated on the dangers of asbestos, many USERS of asbestos products had no particular knowledge about the dangers. Thus, metals manufacturers, brake pad manufacturers, boiler manufacturers, etc. continued to use asbestos-containing products in accordance with then-existent H&S standards. But when the plaintiffs’ bar bankrupted most of the primary asbestos manufacturers, they simply turned their gun sights on secondary users. These secondary user cases should have been tossed out, but the “let everything go to the jury” mentality of our modern judiciary rarely allowed issues of knowledge and culpability get in the way of the asbestos litigation machine.

  • If you really want to get upset, read this April 2008 law review on secrecy in the administration of bankruptcy trusts and their claim payment practices. The authors have published it on their firm’s website too. The mass filings have moved out of the tort system, for now.