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12 Conn. Ins. L.J. 255 (2005-2006)
Asbestos Litigation in the United States: Triumph and Failure of the Civil Justice System

handle is hein.journals/conilj12 and id is 263 raw text is: ASBESTOS LITIGATION IN THE UNITED STATES: TRIUMPH AND FAILURE OF THE CIVIL JUSTICE SYSTEM Deborah R. Hensler INTRODUCTION Over the past several years, asbestos litigation has become the poster child for the tort reform movement in the United States. Asbestos litigation is frequently described as an entirely non-meritorious litigation, driven by greedy plaintiff attorneys who seek only to line their own pockets and by greedy plaintiffs who have crowded onto the gravy train to easy money. This view is expressed with varying degrees of hyperbole by prominent editorialists, legal scholars, and judges, and has fuelled calls for congressional action to remove asbestos litigation from the courts.' The portrayal of asbestos litigation as a symbol of the failures of the civil justice system has crowded out an earlier view of asbestos litigation as the culmination of a long, hard battle to remove asbestos from the workplace and compensate workers who had been injured by asbestos, in some instances as a result of deliberate decisions by manufacturers to withhold information about the potential harmful effects of working with asbestos products. To those who celebrated asbestos litigation, the plaintiff lawyers who nurtured it through hard-fought adversarial battles were heroic * Judge John W. Ford Professor of Dispute Resolution, Stanford Law School. This paper draws heavily on research that I have conducted previously in collaboration with my former colleagues at the Rand Instiiute for Civil Justice, especially STEPHEN CARROLL ET AL., ASBESTOS LITIGATION (2005) and DEBORAH HENSLER ET AL., ASBESTOS IN THE COURTS: THE CHALLENGE OF MASS Toxic TORTS (1985). Those monographs, in turn, drew on a rich literature of asbestos litigation and disease, which is detailed in the monographs' bibliographies. In this article, I cite the leading non-Rand research on asbestos, but for brevity, I rely heavily on the Rand monographs, rather than the underlying works that those monographs cite. Unless otherwise indicated, my Rand collaborators and I collected and analyzed the numerical data on asbestos filings, costs and outcomes that are reported here and the descriptions of litigation strategies and procedures are based on our qualitative data collection and analyses. In assessing those findings, readers may find it useful to know that all Rand monographs are peer reviewed. Although I draw on Rand publications in this article, the interpretations of the data and perspectives on asbestos litigation are my own and not those of Rand or its supporters. 1. See, e.g., Editorial, Asbestos ofAll Possible Worlds?, WALL ST. J., July 2, 1999, at Al; Editorial, Screening for Corruption, WALL ST. J., Dec. 2, 2005, at Al.

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