Pervasive, Insidious Use

Asbestos fibers perform their functions of insulation and fire re­tardation almost miraculously, being almost indestructible. Asbes­tos occurs naturally and sources have been plentiful. As a result, its properties have enticed businesses to produce thousands of prod­ucts serving household, commercial, and, ironically, public safety (fire prevention) purposes.19 In the years between 1934 and 1964, the world’s use of raw asbestos per year increased from 500,000 tons to 2,500,000 tons.20

This period of expanding usage coincided with increasing aware­ness by leaders in the asbestos industry of the harmful effects of inhaling asbestos fibers. Industrial leaders, however, suppressed in­formation about the dangers of asbestos. A few of the more striking examples of industry knowledge, actual and potential, of the health dangers associated with exposure to asbestos fibers illustrate some of the causes of the asbestos litigation explosion. Extensive pretrial

IT. See G. Eads & P. Reuter, Designing Safer Products: Corporate Responses to Product Liability Law and Regulation (Rand Corp. 1983); see also Hensler, supra note 1, at 110-12 (tort system deters careless manufacture of dangerous products).

  1. B. Castleman, supra note 8, at 97, referring to a California study of California
    asbestos workers that would require “at least five years” of additional time for
    follow-up, Dunn, Linden & Breslow, Lung Cancer Mortality Experience of Men in
    Certain Occupations in California,
    50 Am. J. Pub. Health 1475 (I960); see also P.
    Schuck, Agent Orange on Trial 234-44 (1986) (Agent Orange case was brought
    before the latency period could run its full course).
  2. Special Project, supra note 8, at 578 n.7. Some of the uses include a wide
    range of building and insulation materials, fire retardant curtains and drapes, pro­
    tective clothing, gaskets, brake linings and other friction products,  paints and
    sealants, and floor tiles. Id.

    1. Selikoff, supra note 8, at 142.

 

Chapter II

discovery during the 1970s, narrated dramatically in a book by Paul Brodeur, uncovered documents showing that major manufac­turers of asbestos products knew of the dangers of asbestos expo­sure at least as early as the 1930s.21 Now known as the “Sumner-Simpson” papers, these writings detailed the knowledge of the ex­ecutives and attorneys of Johns-Manville (now Manville Corp.) and Raybestos-Manhattan (now Raymark) about the dangers of asbestos and their efforts to suppress its publication in the industry’s trade journal.22 Litigation against Johns-Manville by eleven asbestos workers raising claims of damage to health can be seen as formal notice of injuries alleged by plaintiffs; those cases were settled, ac­cording to the minutes of the board of directors’ meeting of April 24, 1933, under terms that prohibited plaintiffs’ attorney from bringing similar claims against Johns-Manville.23

Knowledge of the dangers of asbestos fibers dates back at least to the first century.24 In this century, public knowledge of the dan­gers of asbestos appears to have developed earlier and more fully in Europe than in the United States. A report written by a factory inspector in Great Britain in 1899 referred to the “easily demon­strated danger to the health of [asbestos] workers” and to “ascertained cases of injury to bronchial tubes and lungs medically attributed to the employment of the sufferers.”25 Transfer of knowledge across the Atlantic was likely to have been inhibited by attitudes like that expressed by one American asbestos industry trade representative: “this foreign disease . . . should be left in Europe where it belongs and not brought to our local communities and create hysteria and fear amongst the families of our contented workmen who are now enjoying good health and living to a ripe old age.”26 As early at 1928, however, life insurance representatives

  1. P. Brodeur, Outrageous Misconduct: The Asbestos Industry on Trial 97-131
    (1985). See also Hensler, supra note 1, at 18-20 (evidence of suppression prompted
    punitive damage awards).
  2. Brodeur, supra note 21, at 116-17. For the text of the correspondence with the
    editor of the trade journal Asbestos, see B. Castleman, supra note 8, at 651-64. For
    Manville’s interpretation, see Hearings before the Subcomm.  on Compensation,
    Health, and Safety of the House Comm. on Education and Labor, 95th Cong., 2d
    Sess., conducted Nov. 14, 1978, at 637-46 (1979) (testimony of Francis H. May, Execu­
    tive Vice President, Johns-Manville Corp.), reprinted in B. Castleman, supra note 8,
    at 655-76.

    1. Brodeur, supra note 21, at 113-14.
    2. B. Castleman, supra note 8, at 1. The Roman historian Pliny the Elder (A.D.
      23-79) is reported to have referred to “diseases of slaves,” one of which resulted
      from weaving asbestos fibers. Transparent bladders were used as respirators to pre­
      vent inhalation of asbestos dust. Id.
    3. Id. at 2, citing Annual Report of the Chief Inspector of Factories and Work­
      shops for the Year 1898, 171-72 (1899).

      1. Brodeur, supra note 21, at 117.

 

Unique Characteristics

recommended higher rates and more restrictive screening for work­ers exposed to large quantities of asbestos dust, basing these recom­mendations on three studies of pulmonary asbestosis that had ap­peared in the British Medical Journal. In the words of a physician who conducted major studies for the asbestos and insurance indus­tries, “[s]ilicosis and asbestosis burst upon the amazed conscious­ness of American industry during the period 1929-1930.”27

Working together, substantial increases in the use of asbestos products, the long latency period, and the evidence of prior knowl­edge of asbestos hazards by industry leaders supplied a volatile fuel for the asbestos litigation explosion that followed. Inflamed by evi­dence of the suppression of information, juries awarded punitive damages in a significant number of cases.28 Financial pressures prompted filings of bankruptcy petitions, including the Manville Corporation’s petition for a reorganization pursuant to Chapter 11 of the bankruptcy code.29