A Global View Of Mesotheliomas And Asbestos Litigation: Both Are Many Years Away From Peaking When Looking Outside The US

A Global View Of Mesotheliomas And Asbestos Litigation: Both Are Many Years Away From Peaking When Looking Outside The US

[Editor's Note: Jessica B. Horewitz and Kirk T. Hartley are Directors with Gnarus Advisors LLC with offices in Arlington, Alexandra, Boston, Chicago, Los Angeles and Palo Alto. Dr. Horewitz holds a PhD in Economics from the University of Virginia, and is frequently involved in liability estimation, claims analysis, claim projections, and cash flow analysis in asbestos and other mass tort matters. As a trial lawyer and consultant, Mr. Hartley's almost 30 years of experience have been concentrated on mass torts and other intersections between law and science. Commentary and opinions are personal to the authors, and do not reflect the opinions of Gnarus Advisors LLC, LSP Group LLC, or any of their clients. Copyright # 2012 by Jessica B. Horewitz and Kirk T. Hartley. Responses are welcome.]

Asbestos-caused disease - and resulting personal injury litigation - are sometimes viewed as uniquely American phenomena. But in fact asbestos-caused disease is growing around the world, resulting in several nations enacting asbestos compensation funds, and various nations experiencing increasing amounts of litigation seeking compensation for asbestos-caused injuries. The rising incidence of asbestos-related disease arises from historic patterns of use of the naturally-occurring mineral fiber. And, over the recent decades, asbestos use expanded in Asia, Africa, Russia1 and South America,2 thus setting in motion events predicted to cause future disease. The global spread of asbestos compensation payments and litigation is in turn a function of increasing disease, the increasingly global nature of tort litigation, and the power of the Internet, as well as alliances between lawyers and NGOS around the world.

1. Examples of Global Claiming

   There are widespread examples of global asbestos claiming. Japan has both national asbestos compensation legislation,3 and lawsuits seeking damages for asbestos disease allegedly resulting from work at railroads and other employers.4 Korea also pays asbestos compensation. 5 The UK's Supreme Court's recently disappointed insurance companies by approving national legislation in Scotland to allow more asbestos-related litigation.6 Specifically, in Axa General Insurance Ltd. & Ors v. Lord Advocate & Ors [2011] UKSC 46,7 the court approved lawsuits to obtain compensation for pleural plaques, a condition associated with past asbestos inhalation, but which in general does not produce impairment of daily function. Elsewhere in Europe, France8 and Spain9 are experiencing increases in lawsuits seeking compensation for asbestos disease. South American workers exposed to asbestos also are increasingly involved in claiming; some have filed lawsuits in the U.S.,10 and victim's rights groups continue to emerge and grow in Brazil and other nations.11

2. Mesotheliomas

   Historic patterns of asbestos use are the root cause of today's increasing rates of asbestos-related disease, and mesothelioma tumors are generally considered a signature disease arising from inhalation of asbestos. Mesothelioma is a highly lethal cancer arising in mesothelial cells. Most mesothelioma tumors arise in the lining around the lungs, and are referred to as pleural mesothelioma. Pathology and epidemiology in both humans and animals have tightly tied most of those tumors to past inhalation of asbestos fibers. There appears to be, however, some background rate of mesotheliomas that arise for presently unknown reasons.

   Today, mesothelioma tumors increasingly arise in both men and women, and more and more of the mesothelioma tumors arise in the lining encasing organs in the abdomen. These ''peritoneal'' mesothelioma tumors are more frequently appearing in women. Some of the women suffering from the tumors plainly did inhale asbestos fibers through their own work or through ''secondary exposures,'' such as laundering the clothes of a family member who worked with asbestos fibers. But, in other instances, the women, researchers, and lawyers are able to identify few, if any, circumstances for past asbestos inhalation. Therefore, some lawyers, clinicians and researchers debate the number of peritoneal mesotheliomas actually caused by asbestos or whether the tumors arise from or are related to some other cause.12 In the United States, the vast majority of mesothelioma tumors end up in litigation (perhaps 2,000 per year), and defendants and insurers are paying claims for both pleural and peritoneal mesotheliomas.

3. Growing Frequency of...