Number of Issues

A second aspect of the early asbestos cases that created complications was the plethora of legal and factual issues presented that were unprecedented but likely to serve as precedents for numerous future claims. Asbestos-related diseases such as asbestosis¹⁶ and mesothelioma¹⁷ have a latency period often to twenty-five years or more from initial exposure to apparent damage.¹⁸ This delayed onset leads to factual and legal disputes about application of the appropriate statute of limitation or statute of repose.¹⁹ Evidence, including business and insurance records of the defendants, may be lost, destroyed, or rendered incapable of authentication during the lengthy latency period. On the other hand, evidence of the disease process improves.²⁰

This melange of legal and factual issues, magnified by the latency period of the disease, produced lengthy trials in the pioneer as­bestos cases. For example, in the Borel case,²¹ the court faced such issues as the standard of liability under state law and the form of instructions to the jury,²² the sufficiency of the evidence to raise a jury question,²³ apportionment of damages among joint tortfeasors,²⁴ standards and instructions regarding contributory negli­gence and assumption of risk,²⁸ and the statute of limitations,²⁶as well as several evidentiary issues.²⁷ The court concluded, however, that “though the application is novel, the underlying principle is ancient.”²⁸ Thus, a review of the Borel case—the bellwether asbes­tos case—confirms the consensus of the judges, magistrates, and clerks at the Center’s Asbestos Case Management Conference that asbestos cases have come to be like routine “comp cases” in the application of relatively fixed legal standards.

A review of current topics in asbestos litigation leads to a similar conclusion.²⁹ Although new theories of causation, such as market share liability and enterprise liability, have evolved during the past decade,³⁰ they are incremental developments in the common law of torts.

1. Asbestosis is a nonmalignant disease that involves either scarring of the lungs
   or pleural thickening and other changes in the pleural cavity. Borel v. Fibreboard
   Paper Prods. Corp., 493 F.2d 1076, 1083 (5th Cir. 1973), cert, denied, 419 U.S. 869
   (1974); Locks, Asbestos-Related Disease Litigation: Can the Beast Be Tamed?, 28 Vill.
   L. Rev. 1184, 1185 n.8 (1983).
2. Mesothelioma is a form of lung cancer that affects the mesothelial walls of
   the pleural, peritoneal, or pericardial membranes and is primarily caused by expo­
   sure to asbestos dust. Locks, supra note 18.
   1. Borel v. Fibreboard Paper Prods. Corp., 493 F.2d at 1083.
   2. Special Project, supra note 3, at 641-59.
   3. Id. at 657 & n.505.
   4. 493 F.2d 1076.
3. Id. at 1087-92. Subsumed in these issues were the questions whether the asbestos products were unreasonably dangerous because of the failure to give adequate warnings about known or knowable dangers, whether the dangers were reasonably foreseeable or scientifically knowable, whether the manufacturer should be held to possess the knowledge and skill of an expert, whether there was an independent duty to test the product, whether the utility of the product would be considered in assessing its danger, and whether the manufacturer’s duty extends beyond the in­dustrial purchaser to the ultimate consumer or user.
4. Id. at 1092-94. This set of issues primarily focused on whether there was sufficient evidence that each defendant’s product was a substantial cause of the asbesto­sis injury.
   1. Id. at 1094-96.
   2. Id. at 1096-1100.
5. Id. at 1100-02. Consideration of this issue included determination of the effect
   of prior filing of an application for workers’ compensation and application of the
   “discovery rule” to the facts of Mr. Borel’s claim.
6. 1. Id. at 1102-03.
   2. Id. at 1103.
   3. See, e.g., Special Project, supra note 3, at 573-77.
   4. Id. at 607-26.