Lung cancer claiming continues to surge in asbestos litigation. The claims are increasing for a variety of reasons, including the increased use of low dose CT scans to increase early detection of lung tumors and nodules, and the impact of payments for lung cancers by asbestos trusts and non-asbestos trusts (e.g. the Zadroga – 9/11 fund). And low dose CT scans will only become more useful and popular because smart researchers recently published data on a new, non-invasive biomarker test that can be used after a low dose scan (or perhaps instead of scan) to determine if nodules are malignant.
That said, the elephant in the lung cancer room is smoking – one has to wonder when or if insurers will have the courage and brains to pull big tobacco into the asbestos lung cancer litigation. Some insurance coverage lawyers for former manufacturers suggest that some insurers commonly fail to implement useful defense strategies. Certainly cynics have time and again noted insurer conflicts of interest on defense fees, and a cynic might think insurers refuse to take on big tobacco because they are happy to pay out lung cancer settlements in order to exhaust policy limits sooner rather than later in order to avoid paying decades of defense fees. If that’s so, it could be an example of a bad short-term choice – with 220,000 lung cancers per year, even the insurance float group at Berkshire/Resolute could be hurt by future tidal waves of lung cancer claims. And policy-holder lawyers who understand the obligation of good faith and fair dealing might start pursuing discovery on why it is that insurers are not taking on big tobacco. After all, there certainly is precedent suggesting that insurers in fact do game settlement decisions to minimize their loss. On the other hand, Berkshire maintains it’s doing a fine job on asbestos defense and that criticism is not accurate.
The conversation will continue on December 12, 2013 at the Perrin Litigation conference in New York. The agenda is online and includes multiple panels with speakers focused on lung cancer and smoking issues.