A History of Asbestos
Use and Asbestos Litigation
Asbestos is a fibrous mineral used in many products due
to its resistance to fire, corrosion, and acid. In the
early part of the 20th Century, asbestos was regarded as a
miracle fiber because it was versatile enough to weave into
textiles, integrate into insulation, line the brakes of
automobiles, and construct flame-retardant hulls for naval
and merchant ships. Annual asbestos production climaxed
approximately thirty years ago, and was incorporated into
thousands of products by that time.
The Senate received testimony from a number of witnesses
regarding the scope and effects of asbestos exposure.
Asbestos is ubiquitous in the environment. Although
practically all Americans are exposed to asbestos to some
degree, such everyday exposures do not usually result in
health problems. However, substantial occupational exposure
to asbestos can lead to a variety of medical conditions.
The diseases caused by asbestos can have long latency
periods, sometimes up to thirty or forty years.
The first wave of lawsuits began in the late 1960s, when
victims brought actions against asbestos manufacturers and
suppliers. These lawsuits increased significantly in 1973
when the 5th Circuit Court of Appeals decided the Borel
case, which applied strict liability in asbestos lawsuits.
Borel v. Fibreboard Paper Prods. Corp., 493 F.2d 1076 (5th
Cir. 1973).
By the early 1980s, the principal asbestos defendant,
Johns-Manville filed for chapter 11 bankruptcy in 1982. Six
years later, the Manville bankruptcy resulted in the
formation of a trust to pay asbestos claims, but after a
rush of claims on the trust in 1988-89, the trust was
forced to reorganize and reduce benefits to claimants to
ten cents on the dollar in 1995 and then was forced to
reduce the amount again in 2001 to five cents on the
dollar. Today, the Manville Trust has had to pay claims on
a sliding scale--with payments to less seriously injured
claimants reduced more than payments to more seriously
injured claimants.
Experts estimate that over seventy more companies have
followed Manville into bankruptcy in the last twenty
years--with more than a third of them filing in the last
three years alone. Some of these bankruptcies have resulted
in trusts for the payment of victims, and some have not.
None of the existing trusts pay claims at their full value.
By now, practically all of the former asbestos industry is
bankrupt. As a result, asbestos litigation today affects
companies that never made asbestos.
The heaviest asbestos exposures occurred decades ago. After
the federal government began regulating the use of asbestos
in the early 1970s, and with the sharp decline in asbestos
use towards the end of that decade, occupational exposure
to asbestos has been drastically reduced in recent years.
This has greatly reduced the incidence of significant
non-malignant disease, especially asbestosis. A leading
pathologist of asbestos diseases stated that the
"progressive lowering of standards for permitted
occupational exposure to asbestos has markedly decreased
the incidence and severity of asbestosis.'' Although
serious asbestosis cases, which still occurred in the early
1990s, have now become exceedingly rare, because of the
long latency period, there will be significant numbers of
mesothelioma and lung cancer claims for many years to come.
Asbestos claims steadily increased during the 1990s, and
then exploded during the end of the decade. The vast
majority of those claims, however, were filed by people who
claimed non-malignant diseases such as asbestosis--the very
diseases that had become less and less common during the
1990s. Many of these non-cancer claims were brought by
people with no impairment. Such a trend threatens to
deplete the amount of funds available to compensate future,
legitimately impaired asbestos victims. This is exacerbated
by the fact that parties involved and the courts have yet
to reach a comprehensive agreement regarding the settlement
and treatment of asbestos claims. Rather, “litigation
has not only persisted over a long period of time but also
continually reshaped itself, in the process presenting new
challenges to parties and courts.”