One of the American marketplace's most tragic and expensive mistakes was the touting and long-term use of asbestos in a wide range of industrial and consumer applications. Over the decades, hundreds of thousands of people have been harmed by asbestos exposure, with countless deaths resulting from mesothelioma and other types of cancers.
With so many people getting sick, it’s easy to see why asbestos lawsuits represent the largest mass torts litigation in U.S. history. Asbestos litigation began to take off in the 1970s. State and federal courts have processed hundreds of thousands of cases, but because many people won’t show any symptoms of illness until decades after exposure, tens of thousands of cases are still pending, with many more filed each year.
Even though companies were aware of the health risks of asbestos by the 1930s, litigation didn’t take off until the 1970s, soon after scientific studies began linking asbestos to cancers like mesothelioma, and conditions like asbestosis.
Perhaps the biggest factor in the asbestos litigation boom came when courts starting accepting the legal theory of "strict liability", so that plaintiffs no longer needed to show negligence on the part of asbestos manufacturers. The key case of Borel v. Fibreboard, which began in 1969 and ended in 1973, was the first significant legal victory by a plaintiff against major asbestos manufacturers using the strict liability legal argument. (Learn more about legal theories of product liability.)
After the Borel case, litigation accelerated and by the 1980s and through the 1990s, asbestos and mesothelioma lawsuits reached their peak.
A class action lawsuit is a special litigation procedure in which one court case resolves a significant number of claims all at once. Class action lawsuits are common in defective product litigation, where there may be hundreds or thousands of potential plaintiffs, but aren't really an appropriate legal remedy in cases involving significant injury or illness. That's the main reason why attempts to create an asbestos-related class action lawsuit have failed.
In the late 1990s. In Amchem Products, Inc. v. Windsor, the U.S. Supreme Court ruled that class certification was not appropriate when individual members of the class lacked substantially similar injuries. Another roadblock was the defendants' immunity from asbestos injury claims brought by new plaintiffs. Two years later, in Ortiz v. Fibreboard Corp., the U.S. Supreme Court again refused to confirm the use of a class action lawsuit in an asbestos case.
The bottom line is that even among asbestos claimants who worked in the same industry or for the same employer, there's too much disparity among individual cases (in terms of severity of illness and impact of the illness on the plaintiff's life) to make a class action appropriate. The best options for efficiently handling a large number of similar cases comes through multi-district litigation (or MDL).
In re: Asbestos Products Liability Litigation MDL No. 875 is the longest-running and largest MDL in history. Based in the Eastern District of Pennsylvania, this MDL began in 1991 and has helped resolve more than 100,000 asbestos and mesothelioma lawsuits.
But MDL No. 875 can’t resolve all lawsuits, especially those filed in state court. And for the most part, it’s also stopped taking on new cases. As a result, some states and localities have created their own rules, procedures, and courts for handling asbestos lawsuits. One of the most notable is the New York City Asbestos Litigation Court (NYCAL).
Today, most prospective plaintiffs will bring their lawsuits as individual cases. Many of these cases involve secondary exposure to asbestos, which can occur when someone exposed to asbestos at work transfers the asbestos to someone else. Imagine a construction worker transferring asbestos fibers to a spouse or child when returning home after work.
Many potential asbestos defendants (production facilities and employers) have declared bankruptcy over the years. To help protect future claimants, a number of these bankrupt entities have created special asbestos bankruptcy funds and trusts, which have distributed millions of dollars to plaintiffs so far.
Alternatively, plaintiffs can sue responsible companies directly. But there aren’t many solvent asbestos manufacturing companies and employers left.
Besides claims over asbestos illnesses that can take decades to manifest, and secondary exposure cases, many new asbestos lawsuits stem from consumer use of baby powder and other cosmetic products that contain talc. When mined, talc will sometimes contain naturally occurring asbestos fibers.
Over the last few years, a number of talcum powder asbestos lawsuits have sprung up, with plaintiffs claiming injuries such as mesothelioma and ovarian cancer. Some of these plaintiffs have obtained large verdicts, a few against Johnson & Johnson. But tens of thousands of cases are yet to be resolved, and with the removal of Johnson's Baby Powder from store shelves across North America, more lawsuits are certainly on the way.
There have been thousands of significant recoveries by plaintiffs suing for asbestos-related injuries, with median verdicts exceeding $1 million. Below are a few of the more significant recoveries.
February 2020: $750M Punitive Damages Award (reduced to $186M)
Jurors in New Jersey ordered Johnson & Johnson to pay $750 million in punitive damages (plus $187.5 million in compensatory damages) to four plaintiffs who claimed that asbestos-tainted baby powder cause them to develop mesothelioma, and that J&J hid the fact that it was selling a potentially harmful product.
Learn more about the different types of damages in product liability cases.
July 2018: $4.7B Plaintiffs’ Verdict
Almost two-dozen women obtained a jury verdict amounting to more than $4 billion in punitive damages and $500 million in compensatory damages. These women alleged that their ovarian cancers were the result of asbestos in baby powder manufactured by Johnson & Johnson.
March 2003: $250M Plaintiff’s Verdict
Diagnosed with mesothelioma in 2001, the plaintiff claimed his cancer came from more than 30 years of exposure to asbestos, and showed that there was asbestos in the insulation in the plant where he worked. The verdict against U.S. Steel consisted of $50 million in compensatory damages and $200 million in punitive damages.
December 2002: $4.0B Settlement
Halliburton agreed to settle more than 300,000 claims alleging personal injuries from asbestos exposure. A few of Halliburton’s subsidiaries declared bankruptcy, and much of the settlement amount went to the funding of an asbestos bankruptcy trust.