The Asbestos Litigation Master Narrative: Building Codes, Engineering Standards, and “Retroactive Inculpation”

“Asbestos litigation is a quintessential example of the expansion of the scope of liability by retroactive inculpation”

—Lester Brickman, Lawyer Barons (Cambridge University Press, 2011, 154).

Sociologist of science Sheila Jasanoff tells us that “A master narrative is a compelling and frequently repeated story about the way the world works that takes hold of our imaginations and shapes the ways in which we perceive reality, as well as our possibilities for collective action.”¹ The asbestos litigation master narrative, versions of which are available on hundreds of plaintiff-firm websites, has been spectacularly successful in generating billions of dollars in revenue for plaintiffs, attorneys, and expert witnesses since 1973.² As of December 31, 2009, the US District Court E.D. Pa. MDL 875 (Multi-District asbestos Litigation) docket included 42,076 cases “consisting of 2,337,692 individual claims (all diseases).” In that year, there were a little over one thousand nine hundred new filings in state courts as well.³ More than eight thousand entities have been named as asbestos defendants since 1976.⁴ The RAND corporation found in 2005 “that 75 out of a total of 83 different [U.S.] industries in the SIC [Standard Industrial Classification] system at the two-digit level included at least one firm that had been named as an asbestos litigation defendant.”⁵ Christopher O’Malley quoted Lester Brickman in 2008 to the effect that

no litigation in American history has involved as many individual claimants, been predicated upon the severity of injury, consumed as many judicial resources, resulted in as much compensation to claimants, compelled the number of defendant’s bankruptcies, or been as lucrative to lawyers as asbestos litigation.⁶

The number of asbestos claims is not correlated with the incidences of mesothelioma and asbestosis. For example, more than forty thousand claims were filed in the period September 30, 2006–September 30, 2007, but there were only about two thousand five hundred cases of mesothelioma and about three hundred deaths from asbestosis per year in 2006.⁷ Because mesothelioma was not separately classified as a reportable disease until 1999, we do not have reliable figures on its US incidence before that date. The reported mortality rate for this disease, however, is thought to have risen slightly between 1990 and 2005, but the rate per million population was stable, and may now be declining.⁸

As Cardozo Law School professor Lester Brickman correctly observes, most asbestos claims “were the result of defendant’s retroactive inculpation for acts committed decades earlier that were not wrongful at the time.”⁹ I concur with Brickman in this but go beyond him in arguing here that the vast majority of current asbestos claims result, in fact, from past efforts to enable compliance by property owners and building contractors with building codes and engineering standards at the Federal, state, and local levels that specified and approved asbestos in code-compliant assemblies. In many cases, the use of asbestos was required by law; no asbestos-free assemblies were approved in, for example, cathodic wrap for underground steel gas pipe, hot-air register insulating paper, and electrical insulation for conductors in switchboards.¹⁰ There is still no equivalent-performance substitute for asbestos in high-temperature gaskets and some types of high-performance motor vehicle brakes.¹¹

The asbestiform minerals are a group of naturally occurring silicates, of which three (chrysotile, crocidolite, and amosite) were widely used between the late nineteenth century and the mid-to-late 1980s for their resistance to heat, acid, alkalis, and electricity. Building codes across the United States included specifications for asbestos in building construction, electrical assemblies, plumbing, underground and process pipe, theater safety curtains, and dozens of other types of service.¹² Developed by the technical committees of about two hundred different US and international engineering and safety organizations, these standards continued to specify asbestos through the 1980s in approved assemblies for which alternative materials failed the tests specified in the standard.¹³

In effect, the tort law system that has supported asbestos litigation since 1973 drove much older and well-established...