I keep falling off the “global” side of things. So, this week, I’ll make a special effort to be more global. This week I’m also going to try to focus more on the wide range of issues regarding “future” claims. By future claims, I mean future tort or business to business claims that possibly, likely or probably will arise as a result of past and/or current and/or future sales of products that involve risks, whether known, knowable or evolving.
Issues to Ponder: The starting point is India and its booming production of asbestos cement products. As detailed in the articles described below, there are myriad entities involved in and expanding their businesses in India producing asbestos cement products. Plainly, the manufacturing process itself sales produces risks of future physical injuries, and so do sales of the products. So, given the asbestos injury debacles still ongoing in North America, Europe and Australia, what should one think about these processes and sales in other nations. Should asbestos fiber be sold at all since, without it, there is no industry ? Should asbestos-cement sales be allowed ? Should the manufacturers be required to issue warnings in languages geared at the likely readers ? How big should the warnings be? How permanent should the warnings be – after all, someone will dismantle or cut these sheets some day in the future ?
Should the manufacturers be required to buy minimum levels of insurance in case they are wrong in their hopeful assessment that risks are low ? Is insurance even available or is there an “asbestos exclusion” of the sort put into place in the US in the early to mid-1980s? Either way, should their be minimum capital requirements for conducting a business that plainly involves some level of risk? Should these companies be allowed to do business for 20 years and then fold up and exit before cancers arise after lengthy latency periods ? Should they exit through dissolution, insolvency, or chapter 11 like proceedings? Should we judge the actions of the companies, their insurers and their customers based on what we know and have been through in the US, Europe and Australia, or should a different standard apply?
If the risks prove to be greater than stated and/or expected, how much should be paid as compensation when future cancers arise? Should legislation be put in place now that will let insurers keep down premiums and that will warn asbestos-cement users that future damages for a potentially horrible death by mesothelioma will be capped at 1,000,000 rupees? But, what happens when exposed persons migrate to new nations, start families and then become sick (or at risk) in other nations? Will those caps apply ? Will the caps apply to risks of cancer or other disease, or just an actual, manifest disease itself?
If there is much future claiming, shall we (once again) blame the lawyers involved? Shall we blame the business persons who went ahead producing asbestos-cement, knowing they were exposing others to risks and failing to confront fully some very real issues with predictable possible future consequences? Or, shall we blame government officials who let the issues go ? Or, shall we just let the topic unfold on its own, trusting that there will be an economic market-based solution ? Will that solution involve litigation funders? Multinational plaintiff’s firms?
Will science save the victims ? In 5, 10 or 20 years, will cancer be a manageable disease? Curable? Always? Sometimes ? For some genomes, but not others? For some cancers, but not others? Will it all depend on when the disease is first spotted as having started at the cellular level?
Simply put, we are now at a time where intelligent, sentient beings are not able to credibly deny the foreseeability of the future issues that may arise. Judge Weinstein and others have plainly said that we in the US have collectively done a lousy job dealing with tort law issues. “Conservatives” blame the trial lawyers. The trial lawyers blame “greed” and purportedly “heartless” business persons. Academics ponder and write, some are great but too many lack a real understanding of the real world of business, science and the litigation industries that thrive on insurance claims and tort claims. Those industries, however, do not have all the answers, and so there is the quagmire known as chapter 11
Myriad former manufacturers and sellers of risky products (not just asbestos) are now in chapter 11, some due to actual insolvency caused by product liabilities and some because chapter 11 is a great place to use legal and financial engineering to dump problems and move ahead without the burden of the past. To that end, our nation’s bankruptcy judges have issued rulings creating $ 30 billion or more of asbestos trusts. In the process, the bankruptcy judges hear evidence (very loosely speaking) and make rulings about future tort “liabilities” even though they have little or no clue about the real rules of each of the 50 state court tort systems and/or the realities of insurance claiming or paying, and also have little or no clue why state court tort claim settlements and trials turn out as they do. Too often, they do not even allow objectors to appear and they just “bless” deals cut by interested people, all making money from the outcome. Meanwhile, state court trial judges continue to march asbestos cases to trial despite having little or no idea of or regard for what may or should happen with the $ 20 billion still left in the trusts, and the billions more that will be added. And, virtually no one does or says much for companies that stay in business and are stuck paying the financial tab for deaths and injuries that in fact were caused by companies now sheltered by purportedly world-wide chapter 11 injunctions.
All these abstract issues really do matter and need better answers than we have today. But, the answers are not arriving. Why ? In part because the issues quickly become moot for a person dying from (avoidable) cancer. All they may want to do is try to live, or to die gracefully, perhaps leaving some money behind to support a dependent spouse or children. So, they victims say very little, and their lawyers include some good people, but they are busy looking for the next case and in any event are not really the spokespersons for the future victims.
Who really speaks for these foreseeable future claimants? No one, because their interests are in fact not well-served by today’s “future’s representatives.” Why is that so (in my opinion), when the ranks of the futures representatives include some genuinely good, smart and compassionate individuals? The realistic answer includes many factors. One is that futures representatives are hopelessly conflicted between really sick people and the not so sick. (On this topic, see the Amchem decision, the many law reviews after it, and this great article by Plevin, Epley (now Davis) and Elgarten on the specifics of futures representative conflicts in asbestos bankruptcies) The futures representatives also hit conflicts due to the desire to reach certainty, today or “soon,” despite the changes science will bring tomorrow. They also are outnumbered and out muscled. And, finally, the bankruptcy code gives them far too little power, and pays far too little attention to current or future science.
Global Context for Why the Issues Matter: On the last two Sundays, The Toronto Star has published an extended pair of articles (here and here) that are well worth reading as they cover in some detail the topics of increasing use of asbestos in India as a “developing country,” and plans to export more asbestos fiber from Canada’s Jeffrey Mine. The first article focuses on the growing use of asbestos cement to provide less expensive and “better” housing for people living in massive slums in India. The author, Jennifer Wells, candidly confronts the disparities between the “talking points” offered by the manufacturers and government as compared to the reality of actual working conditions in factories and the reality that there are no safeguards on use in the slums. She also points out that all of the warnings on the products are in languages other than Hindi. Ms. Wells also identifies the manufacturers and fiber suppliers.
The second article focuses on the issues regarding Canada’s continuing export of chrysotile fiber, and plans to expand the exports from the Jeffrey Mine. The mine was formerly owned by Johns-Manville and has been in use for decades. According to the article, the open pit phase of mining is drawing to a close, but an underground mining phase is perhaps approaching fruition. The article includes some of the needed dialogue regarding the distinctions between the different asbestos fibers. Unfortunately, the article does not report on whether the “new” fiber to be mined has or has not been tested for “contamination” with amphibole fibers.
These article are yet another example of the issues that evolve as “developing” countries face opportunities and choices. In part, they face choices between current and future health risks, and the demands/pressures of industry and a vast population. They also face choices between the financial and health costs and risks encountered by people aspiring to “better” living conditions.
For those interested in more on the topic of banning asbestos, consider Laurie Kazan-Allen’s website that documents her many years spent campaigning with others to ban asbestos use around the world. Ms. Kazan-Allen works through an organization known as the International Ban Asbestos Secretariat (IBAS). Ms. Kazan-Allen is the sister of an American asbestos plaintiff’s lawyer, Steve Kazan. She has accomplished a great deal to limit the harms that can arise from asbestos use. She also has organized many groups of victims seeking medical care. legislation and/or compensation. The website contains a vast amount of information and is well worth the time to browse for anyone interested in the issues. The website also highlights a paper on and an upcoming conference opposed to asbestos use in Asia. In addition, Steve Kazan provides a website known as the World Asbestos Report.
Others, of course, would say IBAS goes too far in seeking to ban all use of all forms of asbestos. That position is well laid out in the Toronto Star’s second article.
Unfortunately, there is no website focused on those who will have the future risk or disease, or the interests of the companies that will in the future pay bills for other companies.