Dispelling the Myths of Asbestos Litigation: Solutions for Common Law Courts
After the Berlin wall fell in 1990, it appeared that the term "cold war" had outlived its usefulness. But thirteen years later, another "cold war" is being fought -- not between apprehensive armies in Berlin, but in our nation's courts as they struggle to resolve hundreds of thousands of asbestos claims filed against American industry. Like the first "cold war," the present one involves a great deal of action that takes place below the "radar screen." Thousands of cases are filed annually, lawyers line up on both sides and spend billions prosecuting and defending them. Then for various reasons, including unacceptable risks to company coffers and shareholder value, and the risk of large scale damage inflicted by appellate review, all but a few cases are settled -- often for far less than the parties have spent developing them for trial.
This "voluntary" process of case disposition, which occurs with minimal judicial intervention, resembles the first "cold war" because it is also an economic struggle, not merely a struggle between competing ideas. Unlike the economic struggle that characterized the first "cold war," however, where one side ultimately triumphed, both sides in the asbestos conflict are losing. The resources available to compensate the injured are not unlimited. To date, over sixty companies have defended and settled themselves into bankruptcy, often without a single reported appellate decision dealing with critical legal issues underlying their controversies. More can be expected. Unless Congress, state legislatures, or courts take action to elevate the interests of justice over "judicial economy" and economics, both plaintiffs and defendants in asbestos litigation face a bleak future.
Certainly, everyone involved in the process -- litigants, lawyers, judges, and legislators -- must share responsibility for creating the current morass. Of these groups, however, courts have the greatest opportunity to change the controversy's stagnant paradigm. Like other torts, asbestos claims are creatures of common law principles, principles that are designed to resolve problems on the basis of experience. But despite decades of experience, the courts have generally failed to adapt their procedures and common law principles to address asbestos litigation effectively. Instead, they have regularly declared themselves incapable of solving the crisis their own ingenuity has created. Hence, when judges have the opportunity to make a difference, they often defer to outdated traditions or, worse yet, defer to the legislature as though the common law restrained change, rather than enabled adaptation and flexibility. This article frankly suggests that we dispel the myths of asbestos litigation that have caused the asbestos litigation crisis, and that they be replaced with a fresh look at jurisprudential and scientific reality. It examines the depressing current state of affairs and suggests judicial solutions that can be used to restore fairness to asbestos litigation by enabling and encouraging trial and appellate courts to consider the merits of cases. Adapting the common law system to restore fairness will, in turn, encourage litigants to seek summary and trial dispositions that promise meaningful appellate review. Once that review takes place, the asbestos litigation controversy may truly mature into a process based on a struggle of modern ideas, modern resources, and modern rationales, as opposed to the system currently in effect. As will be seen below, common law courts are in a unique position to make these adaptations, assuming, of course, that the litigants are willing to bring these opportunities to their attention.
Richard O. Faulk. "Dispelling the Myths of Asbestos Litigation: Solutions for Common Law Courts" South Texas Law Review 44.No. 4 (2003): 945-979.
Available at: http://works.bepress.com/richard_faulk/4