Posted on 05/15/2002 1:59:15 AM PDT by JohnHuang2
By now most observers are accustomed to America's tort theatre. We know all the players: the swaggering trial lawyers, the sheepish corporations that are forced to empty their deep pockets, the Robin Hood juries that hand out cash as a form of redistributive justice.
But for sheer unpredictability and scale, nothing can thrill like asbestos. In what other tort drama do the actors reach out and collar unsuspecting members of the audience (Halliburton, the energy services company, being the flamboyant example)?
Even though asbestos, the mineral, has disappeared from new buildings and products - the government banned its use decades ago - cases are proliferating. Last year about 90,000 new claims were filed against companies, three times the rate just a couple of years ago. Defendant companies that have had little or nothing to do with asbestos routinely go bankrupt after being hit with a penalty. And much of the cash is going to lawyers and people who are unimpaired.
The history of asbestos jurisprudence is worth recalling, if only for what it tells us about the common law. This system, with its incremental establishment of precedent through case law, is part of the Anglo-American tradition of freedom. Yet here it has been revamped into a monster with a tyranny all its own.
Just decades ago, asbestos seemed a manageable problem. On the one hand there were the visibly injured - those who suffered from mesothelioma, a fatal cancer, and asbestosis, an emphysema-like condition - whose illness was caused by asbestos. These were mostly workers who had substantial exposure over years - wartime dock workers and pipefitters. On the defendant side, only a few companies were vulnerable: the 300 or so US companies that mined asbestos or sold asbestos products. As with other law regarding toxic substances, state statutes of limitations applied: cases had to be filed within two or three years from the time of injury.
But asbestos disease has a latency period that can run into decades and so some of the injured were unable to sue. Most states thus altered their statutes, so that the clock began running only when people became aware of their disease.
This sounded logical but in turn begat a second problem: plaintiffs began to flood the legal system. What is more, the body of plaintiffs was no longer confined to those with evident physical impairment from asbestos. Now many of the litigants - and soon the majority - were unimpaired or only mildly impaired. Courts and juries began to grant large injury awards merely on the basis of smaller exposure, thus enriching many who will never experience asbestos disease.
Meanwhile, plaintiff lawyers, with acquiescence from judges, began doing what they could to expand the theory of what constituted injury. The US Supreme Court has just agreed to review another such case: Norfolk & Western Railway Co v Freeman Ayers, in which a West Virginia jury awarded six retired railway workers $5.8m because of "emotional distress" over fear of cancer after exposure to asbestos.
What a contrast to the UK, where the House of Lords is deliberating whether Edwin Matthews, a plaintiff, may recover anything if it is not clear which company was responsible.
Desperate to stanch the flooding of their dockets, judges in the US took yet another unusual step: they began to allow a form of mass consolidation that is not permitted in most classic tort categories in the US. "Bananas go with bananas" was the old rule of class action, says Victor Schwartz, co-author of the classic tort text,Prosser, Wade and Schwartz. Now judges were grouping apples (unimpaired possible casualties) with oranges (workers with diagnosed mesothelioma) in the same suit.
In order to stave off even larger settlements for the dying plaintiffs, judges and juries allowed awards to the entire group. By making litigation efficient, they encouraged more of it.
On the companies' side, the law likewise shifted. The traditional defendants that mined asbestos and sold asbestos product were almost all gone. So the plaintiffs' Bar began to take advantage of "the joint and several liability" doctrine that is especially strong in certain corners of the US. In those venues, a company need only to be proven responsible for a small share of an injury in order to be fully liable for its costs. Soon nearly any company with a connection to asbestos found itself ensnared.
It would be easy to blame this tragedy on the tort shark lawyers, who, often unscrupulously and perhaps sometimes illegally, profit from the suits. Lester Brickman, a professor at Yeshiva University's Cardozo School of Law, has pushed for the aggressive prosecution of some of these fellows (the charge would be suborning perjury). The judges are responsible, too: in a public "Letter to the Nation's Trial Judges", Mr Schwartz beseeched judges to drop their "pass them through" mentality.
A share of the blame likewise lies with Congress, which can bring the curtain down on mass asbestos actions but has declined to do so. This is notwithstanding earnest bleating and begging by the Supreme Court.
The third problem, though, is cultural: that attitude that sees big awards as compensation for all life's other wrongs. It is not the juries alone that I blame here but also the press and politicians who support the attitude that personal injury trials are a lottery. In a recent article, author Nicholas Lemann wrote that the personal injury suit may well have become, for America, "the metaphor that does the political work for liberalism".
A Common Law system, after all, is not theatre but a national privilege; it allows courts and citizens the right to make law, instead of faraway authorities. To retain that privilege, though, we have to recall that good common law is based on good common sense.
Scams, Scalawags, and an all-too-gullible Public...famous frauds sold to America
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