Asbestos Litigation Costs and Compensation: An Interim Report

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The Bankruptcy Judge relies on information obtained during extensive Johns-Manville bankruptcy proceedings.

In Re Joint Eastern & Southern Dist. Asbestos Lit., 129 B.R. 710 (S.D.N.Y. 1991)

Both judges have held exhaustive independent and joint hearings in this proceeding and are fully familiar with the voluminous record in this and related proceedings. In the more detailed analysis which follows, we have in Part II described the history of asbestos use and asbestos litigation generally to provide a context for understanding the role of Manville.

This is followed by a description of the history of the Trust and events leading to the need for this class action and for more precise projections of future asbestos claims. Part III sets forth the positions of the various parties involved in the litigation. Part IV details the law providing jurisdiction to decide the case. Part V contains an analysis of the law and facts controlling the power of a federal court to certify a national class action which does not permit its members to withdraw and proceed independently when there is insufficient money available to pay all claimants.

In Part VI the power of the courts under federal bankruptcy and state trust law to approve a Settlement after a trust has been created in a bankruptcy reorganization is analyzed. Part VII provides the factual and legal underpinnings for declaring the Settlement fair, as interpreted, between plaintiffs and codefendants; it necessarily includes an extensive discussion of federal common law and choice of law decisions since a critical issue is the extent to which federal courts can or should override state tort law. In Part IX we touch on some of the implications of the Settlement in connection with the national asbestos compensation crisis.

Part X briefly summarizes the conclusions reached in the Memorandum. A number of appendices containing relevant factual analysis and two injunctions follow. We are not relying on any of the Appendices attached to this Memorandum for their accuracy but as illustrative of the difficulties of acquiring the necessary quantitative data and of making appropriate projections. On May 16, we issued an earlier version of this Memorandum and Order, inviting those interested to point out any inaccuracies.

We are most grateful for the generous additional assistance of those who responded to the invitation. They included: Andrew T.

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Austern letter dated May 29, ; Roger E. Podesta, John D. Aldock, Andrew T. Berry letter dated May 29, ; Roberta A. Golden letter dated May 29, ; Sheila L. Birnbaum letter dated May 30, ; Mark A. Berger by telephone and Matthew Gluck by telephone.

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Asbestos is a general term given to two main varieties of natural, fibrous minerals, amphibole and serpentine, which have been used in a multitude of products for over years. Peters and B. Several properties distinguish asbestos from other minerals and explain its widespread use over a long period of time: its tensile strength, its heat and acid resistance and its flexibility. Sourcebook, supra, at A1. The seemingly magical qualities of the mineral have inspired awe:.

Bayer ed. The earliest uses capitalized on the unique fire resistant qualities of asbestos, as in lamps with incombustible wicks made by the Greeks about B. The Romans had asbestos-containing cremation cloths.

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The writings of Pliny the Elder, Dioscorides, Plutarch, Marco Polo and Charlemagne indicate that asbestos was woven into garments to shield against fire. Update, supra, at 6, 38; Sourcebook, supra, at A4. Knowledge of the potential health hazards of asbestos also dates back to ancient times. Pliny the Elder, the Roman historian, and Strabo, the Greek geographer, reported a lung disorder in slaves weaving asbestos. Update, supra, at 7. Pliny also referred to the use of transparent bladder skin as a respirator to prevent dust inhalation by slaves.

Castleman, Asbestos: Medical and Legal Aspects 1 2d ed. Modern industrial use of materials containing asbestos began in the 's. See generally Ozonoff, supra, at provides succinct but comprehensive analysis of manifold social, economic, political and moral aspects of growth of use of asbestos and failures to protect workers and others when knowledge of danger was manifest.

The first modern asbestos mine was opened in Lombardy, Italy in and the first Canadian mine in approximately Arts According to some sources, asbestos was used for heat insulation as early as Berger, Asbestos Fundamentals. Origin, Properties, Mining, Processing, Utilization The rapid expansion in the use of steam power at higher and higher temperatures in the 's greatly increased the need for efficient insulation materials. Ozonoff at Seeking to take advantage of its fire retardant qualities, Dr.

Richard Mattison decided to replace shredded hemp, which deteriorated rapidly, with asbestos fibers in reinforcing insulation materials, molded-pipe coverings, block insulation and magnesium cement. Keasbey became leading manufacturers of asbestos products. Sources of asbestos have been plentiful. The multitude of applications, many without competitive substitutes, led to its increasing presence in construction and products. Asbestos lined partitions in schools, office buildings, hospitals and ships. Writing in , one source observed "hundreds of buildings plastered with asbestic.

Other well-known uses of asbestos included: insulation around cold or hot air or liquid conductors or boilers, noise absorption in wall insulation and acoustic tile ceilings, covering of structural steelwork of large buildings to guard against fire and linings for brakes. Its dielectric properties resulted in many electrical equipment uses; it had such applications as ironing board covers, stove linings and table pads. Theatrical audiences were once comforted by the thought that huge asbestos curtains between the audience and stage protected against the spread of fire.

Cement products constituted the single largest service for asbestos in the United States; asbestos-containing cement was utilized as filler in resins, plastics, grouts and even cosmetics. Asphalt surfaced roads occasionally contained asbestos fibers as well. These wide-ranging applications plus ample and accessible supplies of asbestos account for its pervasiveness in many sectors of the American economy during the twentieth century.

In the years between and , the world's annual use of raw asbestos increased from , tons to 2,, tons. Massive and unrestrained use of asbestos in industrial, commercial and household contexts has exposed millions of people to its insidious dangers. The main groups at risk were those in the plants which shaped and wove asbestos products and those who cut and installed it in the field as insulators, boilermakers or those in other trades laboring in close proximity to asbestos workers. In the naval shipyards, for example, workers of all trades in small compartments breathed the heavy asbestos dust created by insulators and boilermakers and brought it home on their clothing.

Carpenters and metal workers who may not have worked directly with asbestos were nonetheless heavily exposed to its hazards. Workers in the oil fields of Texas, the tire factories of the mid-West and the shipyards of our coasts as well as in building construction in all parts of the country were at some degree of risk.

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Exposure is not limited to those employed in the mining of asbestos or in the manufacture or use of asbestos products, but it affects those removing in-place asbestos, consumers who used asbestos-containing products such as hair-dryers and persons exposed to a family member's contaminated clothing. See, e. Residents of communities near asbestos mines and manufacturing facilities have an increased chance of illness from exposure to airborne asbestos fibers.

Sourcebook, supra, at A4-A Every resident in New York and other urban areas breathes small amounts each day.

An independent study performed for the Department of Labor estimated that the number of Americans significantly exposed to asbestos is 21 million. Code Cong. Yet, as a consequence of the long latency of asbestos diseases, some experts have predicted asbestos-related deaths will peak in the s and early twenty-first century. Insidious asbestos is slowly working in the lungs of millions of workers and others.

Before the crisis subsides, some experts suggest that more than one half million asbestos-exposure deaths will occur. See I. Their estimates for morbidity are in the millions, many times that for mortality.

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Other experts sharply dispute these projections, claiming that the death and disability rates will be far lower. As noted below, because it is necessary to project future claims in assessing the fairness of the Settlement and in executing it, the district courts have authorized a study under Rule of the Federal Rules of Evidence to assess the likelihood of future diseases and claimants. See Part II. I, infra. Beginning in the early part of this century, medical and scientific communities revealed growing persuasive evidence of the health hazards associated with asbestos.

Proof of asbestos risks initially emerged in scattered reports published between and in Europe, Canada, and the United States. These case studies discussed the danger of airborne asbestos fibers.

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Update, supra, at 7; Castleman, supra, at ; Ozonoff, supra, at The first detailed account in the modern era of a worker's death from asbestosis was reported in England by Dr. Montague Murray, a pioneer in the use of x-rays for medical diagnosis, in See Castleman, supra, at ; Update, supra, at 7.

Hoffman who conducted the study concluded that the industry was a "considerable dust hazard" and noted "the practice of American and Canadian life insurance companies [to generally decline] asbestos workers. More extensive evidence began to accumulate in the 's with reports of asbestosis in widely-circulated medical journals, including the British Medical Journal and the Journal of the American Medical Association "JAMA". Twelve separate British medical publications between and contained research on the hazardous effects of asbestos.

Castleman at A memorandum by the Market Analysis Section, Sales Promotion Department of the Johns-Manville Corporation entitled "Pulmonary Asbestosis" discussed several papers published in Great Britain between and , including an analysis of a report by a British clinician, A. Haddow, in which he reported four fatal cases of asbestosis.

This evidence of knowledge was eventually produced in discovery by Johns-Manville. Castleman, at 9, Because a central controversy in asbestos cases concerns when manufacturers knew or should have known of the health hazards associated with exposure to asbestos dust, the existence of these medical reports significantly undermines contentions of lack of knowledge of Manville and the co-defendants.

Asbestos Litigation Costs and Compensation: An Interim Report Asbestos Litigation Costs and Compensation: An Interim Report
Asbestos Litigation Costs and Compensation: An Interim Report Asbestos Litigation Costs and Compensation: An Interim Report
Asbestos Litigation Costs and Compensation: An Interim Report Asbestos Litigation Costs and Compensation: An Interim Report
Asbestos Litigation Costs and Compensation: An Interim Report Asbestos Litigation Costs and Compensation: An Interim Report
Asbestos Litigation Costs and Compensation: An Interim Report Asbestos Litigation Costs and Compensation: An Interim Report
Asbestos Litigation Costs and Compensation: An Interim Report Asbestos Litigation Costs and Compensation: An Interim Report

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