The Future: New Waves of Toxic Torts?

What can be learned from this study of asbestos litigation that might be useful in dealing with other forms of litigation? Does as­bestos litigation portend a massive wave of toxic tort litigation that will overwhelm the capacities of courts, as many predict? If so, what are the features of asbestos litigation that are likely to repeat themselves in these new waves of toxic torts? If not, what are the features of asbestos litigation that render it unique?

The past decade’s wave of asbestos litigation was a unique phe­nomenon, unlikely to be repeated in the foreseeable future. Recur­rence would require the convergence of a unique combination of factors. No historical analogues to asbestos litigation have been un­covered. Nor were the judges, clerks, and lawyers interviewed in this study able to point to any equivalent type of litigation on the horizon of the landscape of contemporary litigation.

What are the factors that set asbestos litigation apart from other types of litigation?³²⁵ As discussed in chapter 2, unique features of asbestos litigation include

• a long latency period, exceeding ten years and as long as forty
  to fifty years;
• widespread use of a dangerous product during the latency
  period;
• dangers known or knowable to manufacturers who suppress
  information;
• clear capacity to cause serious injuries (general causation);
• serious injuries to users;
  • large numbers of lawsuits, concentrated in regions of more in­
    tense occupational use;

325. Our taxonomy of cases excludes those claims that result from a single event with a clear cause and relatively immediate injuries, such as the Bhopalgas leak, the MGM Grand Hotel fire, airline crashes, and the like. For a taxonomy that begins with the premise of a mass disaster and distinguishes among disasters ac­cording to causation, timing of injuries, and applicable law, see Weinstein, supra note 1, at 1-15.

Chapter X

• unclear causation-in-fact due to other potential causes, includ­
  ing similar products of other defendants;
• large numbers of defendants and cross-claims for contribution
  based on joint and several liability.

The absence of any one of these factors would have dramatically altered the number or nature of asbestos cases. A shorter latency period would have reduced the numbers of cases that could have accumulated without general awareness of the dangers of asbestos products. As it was, asbestos disease is subtle and insidious at its early stages, masking its severity. That the injuries are serious leads to two types of complications. First, serious injuries produce a high rate of litigation because the losses to the victims are large enough to provide incentives for victims to seek redress and for lawyers to accept cases on a contingent fee basis. Second, the pro­gression of the injuries raises concerns among those exposed that they may be in the early (latent) stages of developing those serious injuries. Driven by the statute of limitations, more cases will be filed and disputes about diagnoses are likely to proliferate.

A less useful and popular product would also have reduced the numbers by lessening exposure. Absence of regional concentrations and dispersion among districts would allow individual assignment systems to operate effectively and avoid delays caused by infusion of large numbers of cases into a relatively few courts and law firms.³²⁶ The long-term suppression of knowledge in the asbestos industry likewise was a key to allowing cases to accumulate. Public knowledge could have triggered preventive measures. The clarity of general causation also leads to increased numbers of cases, because the prospect of recovering damages is high and the cases are at­tractive to lawyers operating on a contingent fee system.

As to the nature of the cases, changes in any of the last two fac­tors would substantially reduce the complexities of asbestos litiga­tion. Clear causation-in-fact, which occurs when the injuries are unequivocally associated with the hazard, such as the burns from a fire or the sudden hair loss associated with MEK/29, simplifies liti­gation vastly. Where injuries have multiple causes (e.g., injuries such as lung cancer), or diagnoses are debatable, or multiple prod­ucts might have caused the injuries, disputes about any of those issues can be used to support a credible claim for separate trials for each plaintiff. All three of these factors coincide in asbestos litiga­tion, making trial a possibility and mass treatment more problem­atic.

326, Hensler, supra note 2, at 86-87. 122

Finally, the number of defendants in asbestos litigation has been a major source of complexity, beyond the paperwork. Failure of de­fendants until recently to establish formulas among one another for allocation of damages caused delays and complication in settle­ments and pretrial rulings. Insurance disputes multiplied and mag­nified into massive litigation. Had the claims involved a single de­fendant, they would have been simplified and perhaps treated in a mass forum, probably a bankruptcy court.

How does the asbestos experience and identification of these fac­tors apply to other cases? Table 13 (see page 124) illustrates the ap­plication of the characteristics of asbestos litigation to some cur­rent and historical candidates for special treatment by the courts.

A lengthy latency period produces two complicating effects: It allows a large number of cases to accumulate, and it makes infor­mation about exposure relatively inaccessible and difficult to dis­cover. Cases involving products on the market for a brief time, with immediate claims, such as Bendectin or MER/29, tend to gen­erate a modest, more manageable number of cases than those with long latency periods.

Widespread occupational or consumer use of a product is another key ingredient of mass litigation. Chemicals like formaldehyde that are used extensively in such common products as plywood and wash-and-wear clothing are prime candidates. For formaldehyde litigation to approach the complexity of asbestos litigation, how­ever, at least four additional conditions would have to be met: (1) serious injuries resulting from those common uses of formalde­hyde; (2) clear expert evidence of general causation; (3) evidence of suppression of safety information; and (4) multiple products manu­factured by different defendants contributing to those injuries. These contingencies have not materialized to date, and it seems un­likely that they will. In fact, reports of serious injuries are rare. More importantly, early litigation has served to alter manufactur­ing practices to prevent dangers, for example, by reducing formal­dehyde-treated wood in mobile home construction.

Another essential element of a litigation explosion is the clarity of general causation, that is, the capacity of the substance to cause the injuries alleged. General causation is essential to finding a legal right. Without this critical determination, as in Agent Orange cases to date and the major Bendectin consolidation in the South­ern District of Ohio, plaintiffs see no point in pursuing large num­bers of cases. Lack of proof of the ability of most other toxic prod­ucts to cause serious injuries, or of the ability of science to detect any causal relationships, limits potential litigation. Among contem-

TABLE 13

“Allen v. United States, 588 P. Supp. 247 (D. Utah 1984), rev’d on other grounds 816 F.2d 1417 (10th Cir. 1987). ^bProduct use is limited to a discrete popula­tion. “There is no single product associated with radiation dangers. ^dMost of the cases resulted from marketing this product in Europe. ‘Approximately 500 cases have been reported. ^fThere are large numbers of potential eases without any regional concentrations, ^sAllen v. United States involved 1,192 claims. ^h5,000 injuries and 1,500 cases are the estimates in Rheingold, supra note 126. “The clarity of causation varies from case to case. ^JThe identity of the defendant whose product caused the injury is often traceable. ^kThere were seven defendants at the conclusion. See infra note 330. “A large number of defendants is possible in radiation cases; Allen v. United States did not involve large numbers of defendants.

porary cases or activities, only sand-blasting (silicosis), high levels of radiation (which tend to be single-event disasters such as at Chernobyl), and Dalkon Shield injuries fit this criterion.³²⁷ The latter has produced claims in excess of 300,000 during the bank­ruptcy process, but the presence of a single defendant, coupled with the capacity of the bankruptcy court to consolidate the claims, re­sults in a single massive case in contrast to the tens of thousands of scattered asbestos cases.³²⁸

MER/29 is a historical example of a case with clear evidence of general causation, but the total number of cases filed was about 1,500 because the product was only marketed for two years and the injuries were patent, Pneunaoconiosis (black lung) might have been seen as a historical analogue. Like asbestos workers, miners had widespread occupational exposure resulting in a disease attribut­able to dangerous working conditions. However, there was no third-party liability of suppliers of raw materials or products as in the asbestos industry. In the absence of a clear right of recovery in the courts or under workers’ compensation laws, the victims and their unions channelled their energies into creation of a legislative remedy and an administrative claims procedure.³²⁸

Injuries caused by dioxin, as in the Agent Orange case or in liti­gation involving polychlorinated biphenyls (PCBs), come closest to asbestos litigation in terms used in table 13. Products such as Agent Orange had widespread use, leading to large numbers of

1. Toxic shock syndrome may also fit this category, but the cases are relatively
   few, the latency period short, and the warning relatively promptly heeded. See
   Weinstein, supra note 1, at 9; see also T. Riley, The Price of a Life: One Woman’s
   Death from Toxic Shock (1986).
2. Prior to the bankruptcy, at least one court separated all Dalkon Shield cases
   for special treatment, resulting in delays. Other courts continued to treat the cases
   in the normal fashion and avoided special delays.
3. Federal legislation to provide compensation for victims of pneumoconiosis
   arose out of the failure of state worker’s compensation programs to compensate
   miners who were victims of the disease. Ramsey & Haberman, The Federal Black
   Lung Program—The View From the Top, 87 W. Va. L. Rev. 575, 575 (1985). Unlike
   asbestos workers, coal miners had little or no opportunity to sue third parties based
   on products liability theories. Excluded from state workers’ compensation programs
   and barred from suing their employers, coal miners had no legally recognized right
   to compensation for their injuries until Congress enacted the Federal Coal Mine
   Health and Safety Act of 1969, Pub. L. No. 91-173, 83 Stat. 792 (1969). The statute
   has been amended three times (in 1972, 1977, and 1982) and is codified at 30 U.S.C.
   §§ 901-962 (1982). Congressional efforts to simplify eligibility determinations by cre­
   ating liberal presumptions caused complaints from industry. Eligibility definitions
   have come “almost full circle” as a result of restrictions on eligibility in the 1982
   amendments. Ramsey & Haberman, supra, at 578.

Those who champion administrative alternatives to litigation of asbestos cases should be aware of the difficulties in the black lung program. Randresearchers con­cluded that the black lung program’s “history has not been encouraging.” Hensler, supra note 1, at 118.

Chapter X

claims of serious injuries, even presuming a relatively short la­tency period. If the latency period exceeds the time preceding the litigation, or if the court of appeals reverses the dismissal of the “opt-out” cases, there may yet be claims for injuries that manifest themselves at a later time. If dioxin products are found to be capa­ble of causing distinctive and serious injuries, proliferation of the litigation is likely to follow.

Two other features distinguish Agent Orange cases somewhat. First is the presence of a more manageable number of defendants, starting with five.³³⁰ Second is the use of multidistrict litigation (MDL) procedures and a nationwide class action to manage the liti­gation, following a strategic decision by plaintiffs’ counsel to con­solidate cases and by lawyers for Dow Chemical Co. and for plain­tiffs to petition jointly for MDL treatment.³³¹ The contrast with as­bestos litigation is stark. All of the Agent Orange cases were man­aged by two judges in succession (assisted, of course, by magistrates and special masters), whereas it is likely that hundreds of judges will be involved with asbestos litigation.

Knowledge of dangers and suppression of that information limits the degree to which litigation about a product will expand to the proportions of asbestos litigation. One expects that the very occur­rence of the asbestos litigation explosion will modify corporate be­havior in that regard. There is some evidence that such deterrent effects have occurred,³³²

Cigarette litigation has some of the ingredients that might spawn an outpouring of cases. A favorable ruling on liability is likely to produce a national flood of litigation. Individual injuries and dam­ages would have to be proved on a case-by-case or formulaic basis. Each case, however, would probably target the one or two manufac-

1. P. Sehuck, supra note 18, at 45 (1986). Ultimately, seven defendants were
   before  the court in the Agent Orange  litigation. Weinstein, Foreword: Modern
   Teaching at Brooklyn Law School—The Example of Toxic Torts, 52 Brooklyn L. Rev.
   329, 331 (1986).
   1. P. Schuck, supra note 18, at 48-50.
   2. Evidence of a possible link between fiberglass products and lung cancer
      sparked corporate reports of intent to investigate the dangers and take appropriate
      action. Shabecoff, Evidence Grows on Possible Link of Fiberglass and Lung Illnesses,
      N.Y. Times, Mar. 15, 1987, at 1. Data filed with regulatory agencies have been modi­
      fied to disclose the risk of lung cancer. Representatives of the manufacturers stated
      that the changes were made “because of their policy of keeping the public informed
      and because it was the law. But they also conceded that it was necessary to protect
      themselves against possible future lawsuits.” Id.

Similar reports have emanated from corporate law departments. Efforts to pre­vent products liability litigation through safer designs and more adequate warnings have been reported. See, e.g., Profile: Preventive Law a Major Priority at Emerson Electric Co. in St. Louis, 5 Alternatives to the High Cost of Litigation 35 (March 1987).

turers of products that plaintiff regularly used. Proof of exposure would also be far simpler than in asbestos litigation. The enormity of the liability might trigger recourse to bankruptcy remedies.

Groundwater chemical pollution cases have similarities to asbes­tos litigation, yet also exhibit major differences. While there are predictions that thousands of these cases will reach the courts,³³³ that claim seems exaggerated. Groundwater cases will inevitably be dispersed among various jurisdictions. To date, only single cases against the main sources of pollution in a given locale have been attempted. These cases are technically very complex and expensive to litigate, both factors that are likely to limit the number of law­yers who become involved. Each involves different chemicals, dif­ferent issues of liability, and different geological patterns—all idio­syncratic factors that leave the courts little choice but case-by-case litigation, with each case managed by a single judge. Once liability is established, large numbers of claimants could present difficult claims to the courts, requiring use of mass procedures like those used in some districts for asbestos litigation.

Finally, radiation claims have some similarity to asbestos in that general causation can be clear and individual injuries must be evaluated on a case-by-case basis.³³⁴ The numbers of cases have not been high, but that could change if a major source of high doses of radiation is found. For example, if the radon gas found to seep into homes in some parts of the country becomes linked to solid waste materials, cases like the groundwater cases could mate­rialize. Other instances of radiation contamination would be likely to be connected with a mass disaster, likeChernobyl, which limits

333.  Weisskopf, Toxic-Waste Settlement Reached, Washington Post, Sept. 23, 1986,
at A3, col.4. (“Environmental lawyers predicted that the agreement [in the Woburn,
Massachusetts, groundwater pollution case] will invite thousands of similar lawsuits
nationwide by demonstrating to those who believe they are victims of toxic waste
that damages can be won”); see also Changing Times, March 1987, at 114 (“A novel
argument [immune system damage] may make it easier to recover damages for dis­
eases and medical problems caused by toxic wastes that pollute water”).

In another recent case involving groundwater pollution, Ayers v.TownshipofJackson, 55 U.S.L.W. 2620 (N.J. Sup.Ct.May 7, 1987), the New Jersey Supreme Court upheld a claim for damages filed by residents of a township for damages caused by groundwater contamination. The court ruled that the residents could re­cover for damages to their “quality of life” and for the cost of medical surveillance. The court rejected claims for damages for intentional infliction of emotional distress and for “unquantifled enhanced risk of diseases that had not manifested them­selves.” Medical surveillance could, of course, lead to large numbers of individual claims.

334.  Allen v. United States, 588 F. Supp. 247, 404-06 (D. Utah 1984), rev’d on other
grounds, 816 F.2d 1417 (10th Cir. 1987). Allen involved a consolidation of the individ­
ual claims of 1,192 plaintiffs. Twenty-four of the claims, selected by counsel for
plaintiffs and defendants, served as bellwether cases for the group. Id. at 258. The
court found liability and awarded compensation to ten of the twenty-four. Id. at 443.