Key Features of Asbestos Litigation
- Multiple defendant cases typical: exposure to multiple asbestos products during their careers -> name a large # of defendants in lawsuits.
- Forum Shopping: large # of claims filed in pro-plaintiff jurisdictions
- Plaintiff groups: plaintiffs with dif injuries come together to file claims
- Peripheral Defendants: major defendants bankrupt and claims shifted to peripheral (asbestos were encapsulated) - jointly and several
Why is the litigation system inefficient - Asbestos
- Large portion of the cost goes to lawyer rather than to injured
- Grouping plaintiffs with dif injuries -> greater overall settlement and overcompensating less severe
Asbestos - Why Defense costs could increase in the future
- More defendants in the litigation, and defense no longer on joint basis
- Many defendants abandoned settlement strategies
- Newer defendants incur sig discovery costs to understand their exposure and defenses
Asbestos - Reasons for the increased filing rate during 2000-2003
- Greater medical awareness
- Greater propensity to sue from efforts of attoneys
- Claimants' expedited action as unsure of future
Seriously injured claimants - Concerns
- Wants quick resolution due to short life expectancy, but difficult in current legal environment
- High system costs diminish funds avail
- Manufaturers go bankrupt and unable to compensate those who will dev serious illness
Nonseriously injured and unimpaired claimants - Concerns
If they don't proceed with lawsuit today,
- statute of limitation may bar recovery of damages for serious conditions dev'd in the future. Addressed thru inactive docket
- money not avail to compensate if dev serious injury later.
Plaintiffs' Attorneys - Concerns
Those who represent seriously injured support legislative changes to litigation system
Judges - Concerns
- Trial docket pressures force trial to speed up and potentially produce less equitable results.
- Inequities when claims of dif injuries consolidated, or time allowed to conduct discovery shortened
Major defendants - Concerns
- Cannot get a fair trial
- Consolidation of claims of dif injuries may result in excessive awards to nonseriously injured
- Paying what should be funded by other parties, e.g. synergistic effect btw exposure to asbestos and smoking
- Wants finality by putting this behind them.
Peripheral asbestos defendants - Concerns
whose products encapsulated asbestos products
- Should not be liable
- Taking on a share from now bankrupt manufacturers (joint-and-several)
- Unfair to be held accountable for same knowledge of risks as major defendants
- Wants by putting this behind them.
Insurers and Reinsurers - Concerns
- Settlements with claimants with no identifiable injury
- Wants finality and put this behind them
Employees/retirees of firms with asbestos liabilities - Concerns
Bankruptcies led to job loss
Fed reform - trust fund, concerns
no-fault trust to compensate those meeting criteria (exposure and med). Concerns:
- Is fund be sufficient?
- Are awards appropriate?
- Would the medical criteria id injured parties?
- Is allocation of funding from various contributors adequate (insurers, defendant and existing bankruptcy trust)?
Potential reforms to mitigate cost of litigation system for asbestos
- Restrict Forum Shopping
- Restrict class actions (crazy lawyer fees)
- Amend collateral rule
- Bar joint and several liability for non-eco loss
- Medical exam for claim
- No fault trust - to allocate funds to those meeting criteria
- Inactive dockets: allow currently unimpaired plaintiff right to sue without statute of limitations -> reduce the # of unimpaired claimants: only sue when it gets serious