It’s not been a good run of days for asbestos defendants and other current and former sellers of alleged toxins. Yesterday, under the new TSCA legislation, EPA issued its required list of its top 10 substances to investigate for a possible ban or other action. “Asbestos” made the top 1o list. Not crocidolite. Not amosite. Just “asbestos.”
Some will claim this new action is a black swan. Not so. The EPA’s action was well more than foreseeable. Indeed, back in December of 2009, I was pointing out the ongoing revolution in molecular biology logically would lead to new regulation, and the same post provided extensive quotes from remarks by regulators who were making the same point, but with far more scientific knowledge. And of course this year the outcome became certain.
Now what happens? At least for the next couple of years, plaintiff’s lawyers will have a field day with this topic, in multiple ways. Over the longer haul, defendants that invest in real molecular science actually might be able to turn EPA’s action around the other way. It certainly would not be easy, but the issues are out there and are going to get attention from EPA, and conclusions will be written up and published, with or without useful input from insurers and other defense-side stakeholders. It is at least possible that defendants who do invest in molecular science might be able to turn a negative into at least a partial positive. But, as some of us know too well, 99% of the insurers and defendants fail to invest in real molecular science, and have no idea what is happening with molecular science and cancer in general, much less as to asbestos in particular. Many plaintiff lawyers also fail to invest in molecular science and understanding.
Kudos to the few who are are way out ahead of the pack and will be most able to weigh in effectively and shape the future.