Latency Period

There are three distinct disease processes associated with expo­sure to asbestos fibers:7 asbestosis,8 mesothelioma,9 and cancers (including lung, gastrointestinal, and other cancers).10 Each has a

  1. Plaintiffs’ attorneys argue that there is a fourth distinct process, involving the
    thickening or calcification of the pleural tissue, resulting in pleural plaques. The
    relationship of pleural plaques to the development of asbestosis and lung cancer is
    disputed. See, e.g., Kiviluoto, Meurman & Hakama, Pleural Plaques and Neoplasia
    in Finland, in Health Hazards of Asbestos Exposure, 330 Annals N.Y. Acad. Sci. 31
    (1979) [hereinafter Health Hazards]; see also Selikoff, Lilis & Nicholson, Asbestos
    Disease in United States Shipyards, id. at 295, 304 (limited X ray changes often pre­
    cede lung cancer, mesothelioma, and extensive asbestosis).
  2. Asbestosis refers to a pulmonary insufficiency caused by a destruction of air
    sacs in healthy lung tissue. Sec Selikoff, Churg & Hammond, Asbestos Exposure and
    Neoplasia, 188 J. A.M.A. 22, 25 (1964) [hereinafter Selikoff]; Special Project, An
    Analysis of the Legal, Social, and Political Issues Raised by Asbestos Litigation, 36
    Vand. L. Rev. 573, 579 n.10 (1983). Exposure to asbestos dust is the sole known cause
    of asbestosis, as the name implies. B. Castleman, Asbestos: Medical and Legal As­
    pects 302 (2d ed, 1986).
  3. Mesothelioma is a type of cancer, once rare, that affects the mesothelial cells
    that make up the pleural, pericardial, and peritoneal membranes enclosing the
    lungs, heart, and abdomen, respectively. B. Castleman, supra note 8, at 98-99. As­
    bestos exposure is a primary cause of mesothelioma, and its occurrence has been
    documented among individuals with only casual exposure to asbestos dust, such as
    spouses who cleaned the clothes of asbestos workers or visited them at work. Id. at
    98-103, 447-49, 457-60. See also Special Project, supra note 8, at 579 n.ll.

10.  Pulmonary and bronchogenic cancer are most commonly associated with as­
bestos exposure. Dr. Selikoff and his colleagues at Mount Sinai Hospital concluded
that “far more deaths from cancer of the lung and pleura occurred among the asbes­
tos workers than would have occurred had their death rates from these diseases
been the same as for all US white males.” Selikoif, supra note 8, at 144. Lung can­
cers associated with asbestos are often found in the lower lobes of the lung. Special
Project, supra note 8, at 579 n.12. Exposure to asbestos and cigarette smoking have
a synergistic effect, resulting in drastically higher rates of cancer than occur when
only one of the factors is present. Hammond, Selikoff & Seldman, Asbestos Expo-

 

Chapter II

lengthy latency period, that is, a period between exposure to the harmful product and manifestation of the related disease. During this period the disease process is dormant and undetectable by rou­tine examination. Authorities estimate a latency period for asbesto-sis of ten to forty years after exposure to significant quantities of asbestos fibers.11 Asbestosis and cancer may develop simulta­neously. For workers with asbestosis, the average time from expo­sure to asbestos to development of lung cancer is twenty-five years and for peritoneal cancer, thirty years. Many workers die from as­bestosis before cancers develop. *2 Generally, the range of time for development of lung cancers is fifteen to thirty-five years.13 La­tency periods in excess of twenty years are reported for cases of mesothelioma among household members of asbestos workers, some of whom had extremely limited and casual contact with asbestos.14 Latency periods of ten to forty years create distinct problems of fact-finding in the legal system. The plaintiff generally has the burden of proving causation-in-fact—that a product of the defend­ant was a substantial cause of plaintiffs injury.15 Plaintiffs need to uncover records of product use or produce testimony of co-workers to show exposure to a particular defendant’s product.16 Any expo-

sure, Cigarette Smoking and Death Rates, in Health Hazards, supra note 7, at 473; Frank, Public Health Significance of Smoking-Asbestos Interactions, id. at 31.

Selikoff also found that asbestos insulation workers suffered surprisingly higher death rates from cancers of the stomach, rectum, and colon. Selikoff, supra note 8, at 145. Epidemiological studies have shown that asbestos insulation workers also have excess risks of cancer of the kidney, larynx, pharynx, and mouth. B. Castleman, supra note 8, at 99.

  1. Special Project, supra note 8, at 579 n.10 and authorities cited therein. The
    latency period varies with the level (amount) of exposure and the age of the worker.
    For example, exposure of a young worker for a brief period of time is likely to
    result, on the average, in a relatively long latency period. On the other hand, heavy
    exposure in an older worker (“of cancer age”) is likely to be associated with a brief
    latency period. Seidman, Selikoff & Hammond, Short-term Asbestos Work Exposure
    and Ixmg-term Observation,
    in Health Hazards, supra note 7, at 31.

    1. B. Castleman, supra note 8, at 43, 97.
    2. Special Project, supra note 8, at 579 n.12.
    3. B. Castleman, supra note 8, at 417.
  2. For the most part, courts have rejected market-share theories of liability for
    damages caused by exposure to asbestos. See Special Project, supra note 8, at 607-26.
    But cf. Goldman v. Jchns-Manville Sales Corp., Nos. L85-016, CU82-0794 (Ohio Ct.
    App. Lucas Cty., June 30, 1986) (Westlaw, Ohio Caaes Library) (market-share theory
    applicable to mesothelioma victim whose employer’s building and records were de­
    stroyed by fire years before the claim was filed); Hardy v. Johns-Manville Sales
    Corp., 509 F. Supp. 1353 (E.D. Tex. 1981) (market-share liability preferable to joint
    and several liability because of fairness to small producers).
  3. See, e.g., Tippens v. Celotex Corp., 805 F.2d 949 (Uth Cir. 1986) (reversing dis­
    trict court grant of summary judgment because product identification witness failed
    to remember specific times, places, and situations in which defendant’s product was
    used).

sure to an asbestos product during the latency period may be rele­vant.

Lengthy latency periods produce another dramatic effect that distinguishes asbestos litigation from most products liability cases and some toxic tort cases. Because the victims have not discovered their injuries, latency periods delay the lawsuits that, in turn, trig­ger the deterrent effects that might otherwise produce changes in business practices,17 The result is that a ten to forty year span of workers may suffer the same injuries before economic deterrents in the form of verdicts or settlements become evident. Long latency periods also inhibit the development of epidemiological evidence that may be a necessary element of plaintiffs proof of medical cau­sation.18