We learn from the wire services that the Johns Manville Personal Injury Settlement Trust, a fund set up after the 1982 bankruptcy of that departed asbestos manufacturer, has abandoned a lawsuit against six major tobacco companies in the United States.
Stifle the giggles about one carcinogen-producer suing another. The trust was seeking a judgment compelling the tobacco companies to pay into the compensation fund, on the grounds that many of the claimants it was paying out to were smokers with lung cancer. The trust made the argument that asbestos might not have been solely responsible for these lung cancer cases.
The case illustrates the lengths to which asbestos claims have gone, particularly in U.S. courts with their notoriously large settlements.
Patti Waldmeir of the Financial Times points out that, in the last year and a half, seven companies in the U.S. have sought bankruptcy protection as a direct result of asbestos-related lawsuits, and that an eighth, U.S. Gypsum, was ready to do the same. Some of the companies going bankrupt were not even asbestos producers.
The present situation is a high-stakes theatre of the absurd. Legal fees eat up two-thirds of the judgments. “Speculative” claimants — those with no detectable physical injury, but who can persuade the court (or better still, a jury) that they might one day suffer from asbestos-related injury — are receiving judgments. Punitive damages, apparently meant to deter companies from any future use of a product that is banned anyway, are assessed in the millions.
Fortunately, much of the asbestos issue in Canada was resolved before the explosion of judgment-seeking litigation on the U.S. pattern. (We should credit good luck and not good guiding, as Canadian class-action lawyers have been as extravagant as American ones in many other spheres.)
The experience of the courts shows that chasing the blameworthy is not the best way to deal with asbestos. Neither is the indiscriminate banning of asbestos and indiscriminate mandating of cleanup programs.
We have already argued in these pages that ripping out asbestos insulation that is inside intact fabric or plastic covers is both a waste of time and money and an unnecessary and foolhardy disturbance of asbestos fibre that would otherwise not find its way into the atmosphere. That is doubly true of bound asbestos in vinyl tile, concrete-asbestos board, and cemented pipe wrap, except where those materials are wearing away or decomposing.
It was a fault in the regulatory regime that asbestos, in whatever physical state, got a general recommendation for removal.
Moreover, the failure of the courts to draw a recognizable legal line between amphibole asbestos and the far-less-dangerous chrysotile — a line that science drew a long, long time ago — has served to bring even more plaintiffs and defendants, and their insurers, into this futile battle. As things stand, the courts are not even distinguishing between plaintiffs that actually came into contact with asbestos and those that did not, let alone between the relative hazards of different asbestos types and different applications.
Perhaps the clearest lesson of the forty-year asbestos affair is that the truth, told clearly and early, could have saved society a great deal of trouble. Because denial was the first line of legal defence, the asbestos industry had a direct incentive not to be forthcoming about what it knew about its product. Because claims started in extravagance and end in an out-of-court settlement, plaintiffs — or more properly their lawyers — sought out the most outlandish opinions about potential harm, even when those opinions were scientifically weak. Because regulators and their political masters accepted an iron duty to err on the side of caution, the establishment reinforced the developing public impression that asbestos was the hazard to end all hazards: with the result that every so often there are stories in the media about how a local politician, inspired perhaps by Claude Rains in Casablanca, is shocked, shocked, to find asbestos disposal taking place in public landfills.
Had the hazard been dealt with rationally in the first place, and funds set aside at the time to deal with legitimate claims, one result might have been that those genuinely injured by asbestos in their workplaces were fairly compensated at an early stage, and the more fanciful complaints would have been thrown out of the room post-haste instead of cluttering the courts today.
Another result might have been a realistic, scientifically defensible, and environmentally responsible regulatory regime to govern when, why and how to remove asbestos that had become a hazard; to set down criteria for leaving asbestos in place; and to set reasonable limits on future uses, rather than coming down with a blanket ban.
But that would have demanded thinking, and this is a society where competence is marginalized and intellectual rigor dismissed as either closed-mindedness or impractical idealism. The public is, in the main, deeply ignorant of science and has no conception of the idea of evidence. So it takes little effort to persuade the public that a new detergent additive with a long name will get their clothes cleaner; and not a lot more to persuade them, a few years down the road, that the same additive is the most frightening toxin since, well, since the last frightening toxin.
Thus it was with asbestos: when the evidence came in, fright took over. Western societies are still living with the consequences of that fright. Do we live with them because we think we owe litigation lawyers a living?
Waldmeir has suggested that, in the U.S., bankruptcy may be “the sanest way to deal with a problem that has so far defied rational treatment.” A bankrupt defendant has a measure of immunity from the more frivolous actions of the courts, such as the assessment of punitive damages and the award of liability without the plaintiff proving damages. This, at least, would be better than the capricious results now coming out of American courts. Asking what is to be done can be a great deal more constructive than asking who is to blame.
Along with that must come a balanced sense of what the risks are and how they compare to other risks we run daily. Differentiating between more and less hazardous forms of asbestos, and between the risks they present and the risks of chain-smoking and jaywalking, is a proven loser in the court of public opinion, but it is a message that needs to get through if society is to guide itself rationally when problems break out.
The public has been sold the idea of a fantasy-land in which people live with zero risk from the environment around them. That never was, and cannot be. It is better politics and easier on the mind to shout with the loudest crowd, but responsible leaders would make the truth known.
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