Breaking Asbestos Litigation’s Chokehold on the American Judiciary

Asbestos, flame-retardant and insulating fibrous minerals once used and still found in many buildings, is known to cause cancer, asbestosis, and other serious illnesses. The large number of claims against asbestos manufacturers has produced a unique period of litigation in the United States courts system, characterized by hundreds of thousands of individu-al claimants and insolvent or near-insolvent defendants. According to some, asbestos litigation is an impending disaster and crisis situation due to the vast judicial resources consumed by it as well as the uncertainty underlying diagnoses of asbestos-related diseases. Even though exposure to asbestos dramatically decreased many years ago, it is estimated that between 500,000 and 2.4 million more asbestos-related claims may be filed in the future. After a brief survey of the history of asbestos litiga-tion, the author explores the status of the litigation in U.S. courts today and analyzes a range of diverse proposals that strive to improve the effi-ciency and fairness of future proceedings. The author recommends im-plementing an administrative scheme modeled after the Black Lung Benefits Act and drawing upon the FAIR Act of 2005 as the fairest way to compensate claimants with asbestos-related diseases while ensuring timely processing of claims and stability for asbestos manufacturers facing bankruptcy.

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