Asbestos and the law
Litigation related to asbestos injuries and property damages has been claimed to be the longest-running mass tort in U.S. history. Since asbestos-related disease has been identified by the medical profession in the late 1920s, workers' compensation cases were filed and resolved in secrecy, with a flood of litigation starting in the United States in the 1970s, and culminating in the 1980s and 1990s. A massive multi-district litigation (MDL) complex filing has remained pending in the Eastern District of Pennsylvania for over 20 years. As many of the scarring-related injury cases have been resolved, asbestos litigation continues to be hard-fought among the litigants, mainly in individually brought cases for terminal cases of asbestosis, mesothelioma, and other cancers.
- 1 Background
- 2 Regulation
- 3 Civil litigation
- 4 See also
- 5 References
- 6 Further reading
- 7 External links
In the late 19th century and early 20th century, asbestos was considered an ideal material for use in the construction industry. It was known to be an excellent fire retardant, to have high electrical resistance, and was inexpensive and easy to use.
The dangers related to asbestos arise mainly when the fibers become airborne and are inhaled. Because of the size of the fibers, the lungs cannot expel them. These fibers are also sharp and penetrate internal tissues.
Health problems attributed to asbestos include:
- Asbestosis - A lung disease first found in textile workers, asbestosis is a scarring of the lung tissue resulting from the production of growth factors that stimulate fibroblasts (the scar-producing lung cells) to proliferate and synthesize the scar tissue in response to injury by the inhaled fibers. The scarring may eventually become so severe that the lungs can no longer function. The latency period (meaning the time it takes for the disease to develop) is often 10–20 years.
- Mesothelioma - A cancer of the mesothelial lining of the lungs and the chest cavity, the peritoneum (abdominal cavity) or the pericardium (a sac surrounding the heart). Unlike lung cancer, mesothelioma has no association with smoking. The only established causal factor is exposure to asbestos or similar fibers. The latency period for mesothelioma may be 20–50 years. The prognosis for mesothelioma is grim, with most patients dying within 12 months of diagnosis.
- Cancer - Cancer of the lung, gastrointestinal tract, kidney and larynx have been linked to asbestos. The latency period for cancer is often 15–30 years. 
- Diffuse pleural thickening 
Considerable international controversy exists regarding the perceived rights and wrongs associated with litigation on compensation claims related to asbestos exposure and alleged subsequent medical consequences. Some measure of the vast range of views expressed in legal and political circles can perhaps be exemplified by the two quotes below, the first  from Prof. Lester Brickman, an American legal ethicist writing in the Pepperdine Law Review, and second, Michael Wills, a British Member of Parliament, speaking in the House of Commons on July 13. 2006:
"A review of the scholarly literature indicates a substantial degree of indifference to the causes of this civil justice system failure. Many of the published articles on asbestos litigation focus on transactional costs and ways in which the flow of money from defendants to plaintiffs and their lawyers can be expeditiously and efficiently prioritized and routed. The failure to acknowledge, let alone analyze, the overriding reality of specious claiming and meritless claims demonstrates a disconnect between the scholarship and the reality of the litigation that is nearly as wide as the disconnect between rates of disease claiming and actual disease manifestation".
"Many of those who I see in my surgeries have worked in a number of workplaces and they could have been exposed to asbestos in each of them, but medical science is such that no one can identify which of them it is. As a result, there has been a long and complex history of legal discussion on how to apportion liability. The lawyers and the judiciary have wrestled, rightly and valiantly, with complex and difficult law, but it has created despair for the families whom we represent. Many of my constituents’ families have been riven by the consequences of litigation in trying to get some compensation for a disease that has been contracted through no fault of theirs. That is cruel and unacceptable."
Worldwide, 60 countries (including those in the European Union) have banned the use of asbestos, in whole or in part. Some examples follow.
Asbestos is listed as a category of controlled waste under Annex I of the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal . Specifically, any waste streams having asbestos (dust and fibres) as constituents are controlled (Item Y36). In general terms, Parties to the Convention are required to prohibit and not permit the export of hazardous wastes to the Parties which have prohibited the import of such wastes via the notification procedure in Article 13 of the Convention.
A nationwide ban on importing and using all forms asbestos took effect on 31 December 2003. Reflecting the ban, the National Occupational Health and Safety Commission (NOHSC) revised asbestos-related material to promote a consistent approach to controlling exposure to workplace asbestos and to introduce best-practice health and safety measures for asbestos management, control and removal. The ban does not cover asbestos materials or products already in use at the time the ban was implemented.
Although Australia has only a third of the UK's population, its asbestos disease fatalities approximate Britain's of more than 3,000 people per year.
Western Australia' center of blue asbestos mining was Wittenoom. The mine was run by CSR (a company that had been the Colonial Sugar Refinery). The main manufacturer of asbestos products was James Hardy, which set up a minor fund for its workers, then transferred operations to the Netherlands where it would be out of reach of the workers when the fund expired.
In late 2011, Canada's remaining two asbestos mines, both located in the Province of Quebec, halted operations. In September 2012, the Parti Québécois defeated the Quebec Liberal Party in the Quebec provincial election. The Parti Québécois followed through with an election promise to halt asbestos mining. In the process, the newly elected Quebec provincial government cancelled a $58 million loan that was to be provided to one of the two mines in order to make upgrades necessary to continue operations for 20 more years. Subsequently, the Canadian federal government announced that it would no longer oppose efforts to add asbestos to the list of hazardous substances under the international Rotterdam Convention.
France banned the use of asbestos in 1997, and the WTO upheld France's right to the ban in 2000. In addition, France has called for a worldwide ban.
India has certain rules for safe usage of Asbestos products such as IS11769 Part 1, Part 2 & Part 3 as well as IS 12089 which states that Pictorial Warnings needs to be implemented at the Workplace, there is unfortunate no enforcing of the rules or the said standards. Hence Asbestos usage is prevalent without following these basic safety rules.
There is still a very high usage of Friable or Dust based Asbestos used in Compressed Asbestos Fibre (CAF) Gaskets, Ropes, Cloth, Gland Packings, Insulation and Brake Liners in Industries within India as well as exported by Equipment Manufacturers without knowledge.
On 21 January 2011, the Indian supreme court banned asbestos in India. This judgment was passed down for case filed by an NGO in 2004. In spite of the health hazards, asbestos is widely used in India without any restriction. Activists in India and abroad have tried to persuade the governments of Canada and Quebec to stop asbestos mining in Quebec since it is banned there. The Canadian government has repeatedly blocked asbestos being listed as a hazardous chemical by the UN even though it spends massive amounts of money to remove it from Canadian homes and offices. While India recognizes it as a hazardous substance and has banned asbestos mining and its waste trade, it keeps its price low through patronage.
As on 24th July 2016, The Government Position is that since there is no scientific study that collaborates all the International opinion on Asbestos, the question of banning usage of asbestos in India does not arise 
Italy fully banned the use of asbestos in 1992 and set up a comprehensive plan for asbestos decontamination in industry and housing.
Japan did not fully ban asbestos until 2004. Its government has been held responsible for related diseases.
In May 1997, the manufacture and use of crocidolite and amosite, commonly known as blue and brown asbestos, were fully banned in South Korea. In January 2009, a full-fledged ban on all types of asbestos occurred when the government banned the manufacture, import, sale, storage, transport or use of asbestos or any substance containing more than 0.1% of asbestos. In 2011, South Korea became the world's sixth country to enact an asbestos harm aid act, which entitles any Korean citizen to free lifetime medical care as well as monthly income from the government if he or she is diagnosed with an asbestos-related disease.
In 1984, the import of raw amphibole (blue and brown) asbestos into New Zealand was banned. In 2002, the import of chrysotile (white) asbestos was banned.
The British Government's Health and Safety Executive (HSE) has promoted rigorous controls on asbestos handling, based on reports linking exposure to asbestos dust or fibres with thousands of annual deaths from mesothelioma and asbestos-related lung cancer.
- "At least 4,000 people in Great Britain die each year from mesothelioma and asbestos-related lung cancer as a result of past exposure to asbestos. Annual numbers of deaths are predicted to go on rising into the next decade."
- The TUC (UK) report cites a figure of 5,000 deaths per year.
The HSE does not assume that any minimum threshold exists for exposure to asbestos below which a person is at zero risk of developing mesothelioma, since they consider that it cannot currently be quantified for practical purposes; they cite evidence from epidemiological studies of asbestos exposed groups to argue that even if any such threshold for mesothelioma does exist, it must be at a very low level.
Previously it was possible to claim compensation for pleural plaques caused by negligent exposure to asbestos, on the grounds that although it is in itself asymptomatic, it is linked to development of diffuse pleural thickening, which causes lung impairment. It has been highly contentious, however, as to the probability of pleural plaques developing into pleural thickening or other asbestos-related illnesses. On October 17, 2007 this point was clarified by the Law Lords' ruling that workers who have pleural plaques as a result of asbestos exposure will no longer be able to seek compensation as it does not in itself constitute a disease. This ruling was, however, superseded, so far as sufferers of pleural plaques in Scotland are concerned, by the passing of the Damages (Asbestos-related Conditions)(Scotland) Act 2009, which provides that in Scots law pleural plaques are to be considered an actionable type of personal injury.
The Control of Asbestos Regulations were introduced in the UK in November 2006 and are an amalgamation of three previous sets of legislation (Asbestos Prohibition, Asbestos Licensing and the Control of Asbestos at Work Regulations) aimed at minimising the use and disturbance of asbestos containing materials within British workplaces. Essentially this legislation bans the import and use of most asbestos products and sets out guidelines on how best to manage those currently in situ.
Dutyholders of all non-domestic properties within the UK must establish an asbestos register and a management plan. The definition of "non-domestic" is "a property or structure (commercial, domestic or residential) where work is carried out" the obligation of the dutyholder is that such operatives are not exposed to any asbestos-based materials during the course of the work, the Asbestos Register states the presence or non-presence of asbestos related to the inside and outside of the structure. The exception is where the property age (post-1999 when chrysotile asbestos was banned) would indicate that such products will not have been used during the construction of the building.
The removal of high-risk asbestos products from non-domestic properties is tightly controlled by the HSE and high-risk products such as thermal insulation must be removed under controlled conditions by licensed contractors. Further guidance on which products this applies to can be found on the HSE website along with a list of licensees.
The Control of Asbestos Regulations were amended and came into force on 6 April 2012 to take account of the European Commission's view that the UK had not fully implemented the EU Directive on exposure to asbestos (Directive 2009/148/EC). These changes were relatively minor and included additional requirements for non-licensed asbestos work. These changes mean that some non-licensed asbestos work now requires notification, and has additional requirements for managing this work (e.g. record keeping and health surveillance).
According to the Environmental Working Group Action Fund, 10,000 people die each year from asbestos-caused diseases in the United States, including one out of every 125 American men who die over the age of 50. The Environmental Protection Agency (EPA) has no general ban on the use of asbestos. However, asbestos was one of the first hazardous air pollutants regulated under Section 112 of the Clean Air Act of 1970, and many applications have been forbidden by the Toxic Substances Control Act (TSCA). The United States has extensive laws regulating the use of asbestos at the federal, state, and local level.
The first lawsuits against asbestos manufacturers were brought in 1929. Since then, many lawsuits have been filed. As a result of the litigation, manufacturers sold off subsidiaries, diversified, produced asbestos substitutes, and started asbestos removal businesses. In June 1982, a retired boiler-maker, James Cavett, won a record award of $2.3 million compensatory and $1.5 million in punitive damages.
The Manville Corporation, formerly the Johns-Manville Corporation, filed for reorganization and protection under the United States Bankruptcy Code in August 1982. At the time, it was the largest company ever to file bankruptcy, and was one of the richest. Manville was then 181st on the Fortune 500, but was the defendant of 16,500 lawsuits related to the health effects of asbestos. The company was described by Ron Motley, a South Carolina attorney, as "the greatest corporate mass murderer in history." Court documents show that the corporation had a long history of hiding evidence of the ill effects of asbestos from its workers and the public. One of many examples is a memo from Manville's medical director to corporate headquarters:
- The fibrosis of this disease is irreversible and permanent so that eventually compensation will be paid to each of these men. But, as long as the man is not disabled it is felt that he should not be told of his condition so that he can live and work in peace and the company can benefit from his many years of experience.
By the early 1990s, "more than half of the 25 largest asbestos manufacturers in the US, including Amatex, Carey-Canada, Celotex, Eagle-Picher, Forty-Eight Insulations, Manville Corporation, National Gypsum, Standard Insulation, Unarco, and UNR Industries had declared bankruptcy. Filing for bankruptcy protects a company from its creditors."
One of the major issues relating to asbestos in civil procedure is the latency of asbestos-related diseases. Most countries have limitation periods to bar actions that are taken long after the cause of action has lapsed. For example, in Malaysia the time period to file a tort action is six years from the time the tort occurred. Due to several asbestos-related actions, countries such as Australia have amended their laws relating to limitations to accumulate starting from time of discovery rather than time when the cause of action accrued.
Asbestos litigation is the longest, most expensive mass tort in U.S. history, involving more than 8,000 defendants and 700,000 claimants. Current trends indicate that the rate at which people are diagnosed with the disease will likely increase through the next decade. Analysts have estimated that the total costs of asbestos litigation in the USA alone will eventually reach $200 to $275 billion. The amounts and method of allocating compensation have been the source of many court cases, and government attempts at resolution of existing and future cases.
The controversy over asbestos-related liability issues is reflected by recent press reports and the position taken by the American Bar Association.
Guardian Unlimited reported a test-case ruling in 2005, that allowed thousands of workers to be compensated for pleural plaques. Diffuse or localised fibrosis of the pleura, or pleural plaques, is less serious than asbestosis or mesothelioma, but is also considered a disease closely linked to the inhalation of asbestos. However, insurers claimed the plaques are "simply a marker for asbestos exposure rather than an injury." Mr Justice Holland rejected the insurers' arguments, and counsel for workers hailed the decision as a "victory that puts people before profits."  However this decision was reversed by the Court of Appeal. On 17 October 2007, the House of Lords confirmed the Court of Appeal's decision. Pleural plaques no longer constitute actionable injury in England, Wales and Northern Ireland. The Scottish government introduced legislation in 2009 to preserve the status of pleural plaques as an actionable injury in Scotland and there are proposals to introduce similar legislation in Northern Ireland.
Insurance companies allege that asbestos litigation has taken too heavy a toll on insurance and industry. A 2002 article in the British Daily Telegraph's associate quoted Equitas, the reinsurance vehicle which assumed Lloyd's of London's liabilities, which argued that asbestos claims were the "greatest single threat to Lloyd's of London's existence." Of note is that Lloyd's of London had been sued for fraud by its investors, who claimed Lloyd's misrepresented pending losses from asbestos claims.
In May 2006, the House of Lords ruled that compensation for asbestos injuries should be reduced where responsibility could not be attached to a single employer. Critics, including trade unions, asbestos groups and Jim Wallace, former justice minister, have condemned the ruling. They said it overturned the traditional Scottish law to such cases, and was a breach of natural justice. As a result of this outcry, the ruling has been overturned by section three of the Compensation Act 2006.
In February 2010 a court ruling set a new precedent for asbestosis claims. The case, in which widow Della Sabin attempted to claim compensation following her husband's death from asbestosis, hinged on the issue of how many asbestos fibres must be present in the lungs for a claim to be valid. A research team based at Llandough Hospital initially reported that the minimum amount of fibres that needed to be present for a claim to be valid was 20 million (only 7 million were found in the sample taken from Mrs Sabin's husband Leslie). However, a subsequent US study suggested that, due to the fact that Leslie had lived for more than forty years after his exposure, a large number of fibres would have cleared from his body naturally; had he died twenty years earlier the asbestos count in his lungs would have been about 35 million fibres per gram. The judge preferred this evidence, and ruled in favour of Mrs Sabin.
In June 2008, the Brazilian Supremo Tribunal Federal (STF), voted to maintain the law (12.684/07) which prohibits the use of any product which utilizes asbestos in São Paulo State. It is expected that the decision will be extended to include the whole country.
Asbestos-related cases increased significantly on the U.S. Supreme Court docket after 1980. The court has dealt with several asbestos-related cases since 1986. Two large class action settlements, designed to limit liability, came before the court in 1997 and 1999. Both settlements were ultimately rejected by the court because they would exclude future claimants, or those who later developed asbestos-related illnesses. These rulings addressed the 20-50 year latency period of serious asbestos-related illnesses.
In 1988, the United States Environmental Protection Agency (USEPA) issued regulations requiring certain U.S. companies to report the asbestos used in their products.
Several legislative remedies have been considered by the U.S. Congress but each time rejected for a variety of reasons. In 2005, Congress considered but did not pass legislation entitled the "Fairness in Asbestos Injury Resolution Act of 2005". The act would have established a $140 billion trust fund in lieu of litigation, but as it would have proactively taken funds held in reserve by bankruptcy trusts, manufacturers and insurance companies, it was not widely supported either by victims or corporations.
On April 26, 2005, Dr. Philip J. Landrigan, professor and chair of the Department of Community and Preventive Medicine at Mount Sinai Medical Center in New York City, testified before the US Senate Committee on the Judiciary against this proposed legislation. He testified that many of the bill's provisions were unsupported by medicine and would unfairly exclude a large number of people who had become ill or died from asbestos: "The approach to the diagnosis of disease caused by asbestos that is set forth in this bill is not consistent with the diagnostic criteria established by the American Thoracic Society. If the bill is to deliver on its promise of fairness, these criteria will need to be revised." Also opposing the bill were the American Public Health Association and the Asbestos Workers' Union.
On June 14, 2006, the Senate Judiciary Committee approved an amendment to the act which would have allowed victims of mesothelioma $1.1M within 30 days of their claim's approval. This version would have also expanded eligible claimants to people exposed to asbestos from the September 11, 2001 attacks on the World Trade Center, and to construction debris in hurricanes Katrina and Rita. Ultimately, the bill's reliance on funding from private entities large and small, as well as debate over a sunset provision and the impact on the U.S. budgetary process caused the bill to fail to leave committee.
Since the bankruptcy filing of Johns-Manville in 1984, many U.S. and U.K. asbestos manufacturers have escaped litigation by filing bankruptcy. Once in bankruptcy, these companies typically are required to fund special "bankruptcy trusts" that pay pennies on the dollar to injured parties. However, these trusts do permit larger numbers of claimants to receive some kind of compensation, even if greatly reduced from potential recoveries in the tort system.
Since 2002, asbestos lawsuits in the U.S. have included the following as defendants: (1) manufacturers of machinery that are alleged to have required asbestos-containing parts to function properly; (2) owners of premises at which asbestos-containing products were installed (which includes virtually anyone who owned a building prior to 1980); (3) banks that financed ships or buildings where asbestos was installed (on the grounds that no rational lender would take a security interest in an asset without studying the risks involved); (4) retailers of asbestos-containing products (including hardware, home improvement and automotive parts stores); (5) corporations that allegedly conspired with asbestos manufacturers to deliberately conceal the dangers of asbestos (e.g., MetLife, a well-known insurance company which worked with Johns-Manville); (6) manufacturers of tools which were used to cut or shape asbestos-containing parts; and (7) manufacturers of respiratory protective equipment.
Defendants in the first category have contested liability on the grounds that nearly all of them either did not ship asbestos-containing parts with their products at all (that is, asbestos was installed only by end users) or did not sell replacement parts for their own products (in cases where the plaintiff was allegedly exposed well after any factory-original asbestos-containing parts would have been replaced), and either way cannot be responsible for toxic third-party parts that they did not manufacture, distribute, or sell. In 2008, the Washington Supreme Court, the first state supreme court to reach the issue, decided in favor of the defense. On January 12, 2012, the Supreme Court of California also decided in favor of the defense in O'Neil v. Crane Co. This is significant as a 2007 study found that California and Washington were the two most influential state supreme courts in the United States in the period from 1940 to 2005.
In a decision from January 2014, Gray v. Garlock Sealing Technologies had entered into bankruptcy proceedings, and discovery in the case uncovered evidence of fraud  that led to a reduction in estimated future liability to a tenth of what was estimated.
Another area of dispute remains the so-called chrysotile-defense. Manufacturers of some products containing only chrysotile fibers claim that these are not as harmful as amphibole-containing products. As 95% of the products used in the United States historically were mostly chrysotile, this claim is widely disputed by health officials and medical professionals. The World Health Organization recognizes that exposure to all types of asbestos fibers, including chrysotile, can cause cancer of the lung, larynx, and ovary, mesothelioma, and asbestosis.
Adamo Wrecking Company
On February 20, 1973 a federal grand jury in Detroit, Michigan indicted Adamo Wrecking Company ("Adamo") for violating provisions of the Clean Air Act by knowingly causing the emission of asbestos by failure to wet and remove friable asbestos materials from demolitions.
Adamo was one of a number of demolition contractors indicted throughout the country for the alleged violation of the Clean Air Act. The United States District Court for the Eastern District of Michigan dismissed the criminal indictment on the ground that it was not an "emission standard," but a "work practice standard," which under the terms of the statute, did not carry criminal liability.
The government appealed and the Sixth Circuit Court of Appeals reversed the decision of the trial court, stating that it erred in determining that it had jurisdiction to review the validity of the standard in a criminal proceeding. Adamo's attorneys appealed to the Supreme Court.
On January 10, 1978, the Supreme Court ruled in favor of Adamo when it held that the trial court did have jurisdiction to review the standard in a criminal proceeding and also agreed with the trial court that the requirements in the act were "not standards" but "procedures" and therefore the proceedings were properly dismissed.
W. R. Grace and Company
A federal grand jury indicted W. R. Grace and Company and seven top executives on February 5, 2005, for its operations of a vermiculite mine in Libby, Montana. The indictment accused Grace of wire fraud, knowing endangerment of residents by concealing air monitoring results, obstruction of justice by interfering with an Environmental Protection Agency (EPA) investigation, violation of the Clean Air Act, providing asbestos materials to schools and local residents, and conspiracy to release asbestos and cover up health problems from asbestos contamination. The Department of Justice said 1,200 residents had developed asbestos-related diseases and some had died, and there could be many more injuries and deaths.
On June 8, 2006, a federal judge dismissed the conspiracy charge of "knowing endangerment" because some of the defendant officials had left the company before the five-year statute of limitations had begun to run. The wire fraud charge was dropped by prosecutors in March.[when?]
On April 2, 1998, three men were indicted in a conspiracy to use homeless men for illegal asbestos removal from an aging Wisconsin manufacturing plant. Then-US Attorney General Janet Reno said, "Knowingly removing asbestos improperly is criminal. Exploiting the homeless to do this work is cruel."
On December 12, 2004, owners of New York asbestos abatement companies were sentenced to the longest federal jail sentences for environmental crimes in U.S. history, after they were convicted on 18 counts of conspiracy to violate the Clean Air Act and the Toxic Substances Control Act, and actual violations of the Clean Air Act and Racketeer-Influenced and Corrupt Organizations Act. The crimes involved a 10-year scheme to illegally remove asbestos. The RICO counts included obstruction of justice, money laundering, mail fraud and bid rigging, all related to the asbestos cleanup.
On January 11, 2006, San Diego Gas & Electric Co., two of its employees, and a contractor were indicted by a federal grand jury on charges that they violated safety standards while removing asbestos from pipes in Lemon Grove, California. The defendants were charged with five counts of conspiracy, violating asbestos work practice standards and making false statements.
Environmental - asbestos removal and cleanup
Asbestos abatement (removal of asbestos) has become a thriving industry in the United States. Strict removal and disposal laws have been enacted to protect the public from airborne asbestos. The Clean Air Act requires that asbestos be wetted during removal and strictly contained, and that workers wear safety gear and masks. The federal government has prosecuted dozens of violations of the act and violations of Racketeer Influenced and Corrupt Organizations Act (RICO) related to the operations. Often these involve contractors who hire undocumented workers without proper training or protection to illegally remove asbestos.
W. R. Grace and Company faces fines of up to $280 million for polluting the town of Libby, Montana. Libby was declared a Superfund disaster area in 2002, and the EPA has spent $54 million in cleanup. Grace was ordered by a court to reimburse the EPA for cleanup costs, but the bankruptcy court must approve any payments.
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