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).