Issues in Asbestos Litigation
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Between 1940 and 1979, 27.5 million individuals were exposed to
asbestos while working in the United States.1 As a result of this expo-
sure, approximately 8,200 cancer deaths now occur annually.2 These
deaths have led to a flood of litigation. At least 16,000 asbestos-related
lawsuits have been filed in state and federal courts,3 and the case load
continues to expand.4 These actions constitute the largest, and poten-
tially most costly, block of products liability claims ever to confront
American industry.5
1. ASBESTOS LITIG. RPTR. 5,176 (July 9, 1982). This is a maximum figure. Another
estimate is that 13.2 million individuals were exposed. Id. at 4,679 (Mar. 12, 1982).
2. Id. at 5,176 (July 9, 1982). The number of annual deaths due to asbestos-related
cancers will increase to approximately 9,700 by the year 2000. Id. The figures do not in-
clude deaths from asbestosis, another asbestos-related disease. See infra notes 15-19 & ac-
companying text.
One study has concluded that 2.15 million American workers will die of asbestos-re-
lated cancers (67,000 annual deaths, representing 13-17% of all cancers in the United States).
See NAT'L CANCER INST., NAT'L INST. OF ENVTL. HEALTH SCI. & NAT'L INST. FOR OCCUP.
SAFETY AND HEALTH, ESTIMATES OF THE FRACTION OF CANCER INCIDENCE IN THE
UNITED STATES RELATED TO OCCUPATIONAL FACTORS (1978).
All but two of the co-contributors to the National Cancer Institute (NCI) study have
expressed doubts as to its correctness. ASBESTOS LITIG. RPTR. 5,177 (July 9, 1982). The
study also has been seriously criticized by independent experts. See Doll & Peto, The Causes
of Cancer: Quantitative Estimates ofA voidable Risks of Cancer in the United States Today,
66 J. NAT'L CANCER INST. 1191, 1240-41, 1305-08 (1981) (concluding that there is at least a
10-fold exaggeration in the NCI estimates of the cancer hazards of asbestos exposure).
Nevertheless, the NCI estimates continue to be widely cited by courts, legislators and
commentators. See, e.g., Hardy v. Johns-Manville Sales Corp., 509 F. Supp. 1353, 1354
(E.D. Tex. 1981), rev'd, 681 F.2d 334 (5th Cir. 1982);Asbestos Health Hazards Compensation
Act of 1980: Hearings on S. 2847 Before the Senate Comm. on Labor and Human Resources,
96th Cong., 2d Sess. 170 (1980) (statement of Sen. Gary Hart) [hereinafter cited as 1980
Hearings]; Comment, An Examination ofRecurring Issues in Asbestos Litigation, 46 ALB. L.
REV. 1307, 1308 n.4 (1982).
3. Winter, Asbestos Legal 'Tidal Wave' is Closing In, 68 A.B.A. J. 397, 397 (1982).
4. The Manville Corporation, the nation's largest manufacturer of asbestos products,
estimated that as of June 30, 1982, new suits against it were being filed at the rate of 425 a
month. A study commissioned by Manville estimated that the company ultimately could
face 52,000 suits. ASBESTOS LITIG. RPTR. 5,397 (Aug. 27, 1982). Manville has filed a peti-
tion to reorganize under chapter 11 of the Bankruptcy Reform Act, I I U.S.C. §§ 1101-1174
(Supp. V 1981). See infra notes 127-28 & accompanying text.
5. N.Y. Times, July 3, 1981, § 1, at 1, col. 1. Estimates of the amount of damages
involved in asbestos litigation have varied widely. See ASBESTOS LITIG. RPTR. 4,616 (Feb.
26, 1982) ($39 billion to $74 billion over the next 25 years); Schechter, Untangling the Asbes-
tos Mess, 51 OCCUPATIONAL HEALTH & SAFETY 30, 31, 39 (Feb. 1982) ($24 billion involved
in suits already fied); Toxic Time Bombs, 67 A.B.A. J. 139, 159 (1981) ($100 billion in-
volved in present and future suits); Vagley & Blanton, Aggregation of Claims: Liability for
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