45 Wake Forest L. Rev. 1157 (2010)
Taking Duty Home: Why Asbestos Litigation Reform Should Give Courts the Confidence to Recognize a Duty to Second-Hand Exposure Victims

handle is hein.journals/wflr45 and id is 1165 raw text is: COMMENT

TAKING DUTY HOME: WHY ASBESTOS LITIGATION
REFORM SHOULD GIVE COURTS THE CONFIDENCE
TO RECOGNIZE A DUTY TO SECOND-HAND
EXPOSURE VICTIMS
INTRODUCTION
Ever since American courts began recognizing claims against
asbestos manufacturers in the early 1970s,l litigation in the field of
occupational asbestos exposure has been one of the most divisive
arenas in tort law. On the one hand, exposure to asbestos in the
workplace has spawned what has justifiably been called the worst
occupational health disaster in U.S. history.2 According to one
widely cited study, occupational exposure before 1980 was projected
to cause almost a quarter-million cancer-related deaths between
1985 and 2009 alone.3 This level of damage clearly warrants
compensation through tort law's role as a corrective justice
mechanism.
On the other hand, asbestos litigation has become so rampant
that many judges and commentators have long since concluded that
the courts simply cannot handle these claims.' As former U.S.
Attorney General Griffin Bell has written, In the history of our
legal system, no other type of litigation has been as profuse, long-
standing, and difficult to resolve.' Several opinions of the United
States Supreme Court have even acknowledged this problem,
famously referring to the asbestos-litigation    crisis6 and the
elephantine mass of asbestos cases that defies customary judicial
1. See Mark A. Behrens, What's New in Asbestos Litigation?, 28 REV.
LITIG. 501, 501-02 (2009) (noting that Borel v. Fibreboard Paper Products Corp.,
493 F.2d 1076 (5th Cir. 1973), was one of the earliest cases in which a court
allowed an employee to sue an asbestos manufacturer for on-the-job exposure).
2. Dennis Cauchon, 'Nobody Can Plead Ignorance'. At Least 1 Million
Likely To Die Over 30 Years in Poor Nations, USA TODAY, Feb. 8, 1999, at Al.
3. William Nicholson et al., Occupational Exposure to Asbestos: Population
at Risk and Projected Mortality 1980-2030, 3 AM. J. INDUS. MED. 259, 304
tbl.XXV (1982) (projecting annual death rates in five-year increments and
showing an annual rate of 8206 deaths in 1982, rising to a peak annual rate of
9739 deaths in 1992, and declining to 7975 deaths annually by 2007).
4. See infra Part I.
5. GRIFFIN B. BELL, ASBESTOS LITIGATION AND JUDICIAL LEADERSHIP: THE
CouRTs' DuTY To HELP SOLVE THE ASBESTOS LITIGATION CRISIS 2 (2002).
6. Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 597 (1997).

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