One of the major issues relating to asbestos in civil procedure is the latency of asbestos-related diseases. Most countries have limitation periods to bar actions that are taken long after the cause of action has lapsed. For example, in Malaysia the time period to file a tort action is six years from the time the tort occurred. Due to several asbestos-related actions, countries such as Australia have amended their laws relating to limitations to accumulate starting from time of discovery rather than time when the cause of action accrued. The first employee claims for injury from exposure to asbestos in the workplace were made in 1927, and the first lawsuit against an asbestos manufacturer was filed in 1929. Since then, many lawsuits have been filed. As a result of the litigation, manufacturers sold off subsidiaries, diversified, produced asbestos substitutes, and started asbestos removal businesses.
Brazil In June 2008, the Brazilian
Supreme Federal Court (STF) voted to maintain the law (12.684/07) which prohibits the use of any product which utilizes asbestos in São Paulo State. It was expected then the decision would be extended to include the whole country. In August 2017, in what is known in Brazil as a "direct action for the declaration of unconstitutionality", an instrument to declare the unconstitutionality of law or federal norms, with respect to the current Constitution (the equivalent in the U.S. as a "judicial review"), the constitutionality of the prohibitive law of São Paulo was questioned. The
Supreme Federal Court considered it constitutional and even incidentally declared the unconstitutionality of Art. 2 of Federal Law nº 9.055/95, that authorized the use of chrysotile asbestos in a controlled manner. On November 29, 2017, the
Supreme Federal Court prohibited the extraction, industrialization and commercialization of asbestos throughout the country. Despite this, asbestos has continued to be extracted in
Goiás under claims that the state's asbestos is "the only one recognized worldwide as not causing any ill effects to the population". As of January 2025, the Supreme Federal Court has yet to rule on the constitutionality of the state law that allows for the extraction. Mrs Lubbe was exposed to asbestos while working for a South African subsidiary company of the UK parent company,
Cape plc. The Richard Meeran-run Cape Plc case was settled in 2003. The Richard Spoor-run Gencor case was settled in 2003.
400 Swaziland ARD victims from the Havelock mine The Havelock chrysotile mine cases were suspended in 2003 because Turner and Newall, the company that owned the mine, had filed for bankruptcy in 2001.
Swiss Eternit Group This was a voluntary agreement which was reached in 2006. The agreement enabled ex-miners of the Kuruman and Danielskuil Cape Blue Asbestos (KCBA and DCBA) mines in the Northern Cape province to apply under similar conditions as the open settlement of the ART. The Kgalagadi Relief Trust (KRT) was thus created. The terms of the trust are not clarified however in practice R136 million was paid over for compensation purposes, for payouts until 2026. The trustees of the KRT requested the ART to administer the KRT settlement as the two trusts were very similarly structured. Seventy-five percent of the claimants in the Cape Plc case came from
Limpopo province and the remaining twenty-five percent from the
Prieska Koegas area in the
Northern Cape province. The majority of the claimants in the ART settlement (around 78%) were exposed in the
Kuruman area in the
Northern Cape province, with the balance exposed at Penge in
Limpopo province and Msauli in
Mpumalanga province, which were equally proportioned. Statistically, mesothelioma and asbestos related lung cancer sufferers receiving the highest payments of R71,500 each.
Relief trusts In 2006,
Cape plc started a trust to compensate those who have suffered from asbestos related diseases as a result of Cape's historical activities. To date, this Trust has paid out over £30m to those who have become sick or to their dependents. The Scheme of Arrangement was approved by the High Court and is separately funded. Its funds being administered by two independent trustees. Asbestos Relief Trust (ART) is regarded as a model of efficient occupational disease compensation in South Africa. Gencor was a major contributor to the Richard Meeran-run Cape Plc case and the Richard Spoor-run Gencor case. Glencor provided 29% of the R138 million that went to the Cape Plc's set of claimants, and 96% of the R381 million that formed the ART. An additional sum of R35 million went to environmental rehabilitation, and about R20 million was added to the ART to contribute to supplementary and additional payments. After some time and publicity claims against The Cape Plc list had grown from 2 000 in January 1999 and to 7 500 in August 2001. The ART settlement was open, and made provision for compensation to any person who met the compensation criteria set out in the Trust deed, until the year 2028. Many companies agreed to compensate the workers which were exposed to asbestos in addition to the compensation payable under the Occupational Diseases in Mines and Works Act (ODMWA) The settlement included environmentally expose victims of ARDS. This settlement model was achieved by personal communication, Georgina Jephson, attorney at Richard Spoor Inc. Attorneys. A model by the ART estimated that about 16 800 individuals would submit claims to the Trust, of which approximately 5 036 (30%) would be successful. This was subsequently revised to 5 162. Of these, 219 (4.2%) would be environmental claimants, 150 (2.9%) would have lung cancer and 556 (10.8%) would have mesothelioma; the balance would have asbestosis and/or pleural thickening. No definitive figures were provided for the expected ARD1/ ARD2 ratio. The amounts payable for compensation vary, but the average amount of compensation since 2003 has been about R40 000, R80 000, R170 000 and R350 000 for each of the categories ARD 1-4 described above. These amounts are paid over and above any compensation that the claimants might receive under the ODMWA. In order for a case to be compensable, a victim needs to show that he/she was both exposed to asbestos from one of the operations run by the funders of the ART, and has a compensable disease.
The aftermath South Africa has the highest prevalence of mesothelioma in the world. Richard Spoor, a lawyer who represented the claimants against Gencor says: "The environmental scale of the disaster we are seeing unfold in the Northern Cape is on a level with the nuclear disaster at Chernobyl, in terms of impact, spread and longevity," he also says that children are particularly vulnerable to mesothelioma. Since September 2016, five of the 1 600 claimants he represents in the Northern Cape have died. Internationally renowned photographer
David Goldblatt started photographing victims after a friend died of mesothelioma despite never being in close proximity to a mine. It has been reported that she picked up the disease from rubbing a blue asbestos rock ornament that she kept in her home.
United Kingdom The Guardian reported a test-case ruling in 2005, that allowed thousands of workers to be compensated for
pleural plaques. Diffuse or localised fibrosis of the pleura, or pleural plaques, is less serious than asbestosis or mesothelioma, but is also considered a disease closely linked to the inhalation of asbestos. However, insurers claimed the plaques are "simply a marker for asbestos exposure rather than an injury." Mr Justice Holland rejected the insurers' arguments, and counsel for workers hailed the decision as a "victory that puts people before profits." However this decision was reversed by the Court of Appeal. On 17 October 2007, the House of Lords confirmed the Court of Appeal's decision. Pleural plaques no longer constitute actionable injury in England, Wales and Northern Ireland. The Scottish government introduced legislation in 2009 to preserve the status of pleural plaques as an actionable injury in Scotland and there are proposals to introduce similar legislation in Northern Ireland. Insurance companies allege that asbestos litigation has taken too heavy a toll on insurance and industry. A 2002 article in the British
The Daily Telegraph's associate quoted Equitas, the reinsurance vehicle which assumed
Lloyd's of London's liabilities, which argued that asbestos claims were the "greatest single threat" to Lloyd's of London's existence. Of note is that Lloyd's of London had been sued for fraud by its investors, who claimed Lloyd's misrepresented pending losses from asbestos claims. In May 2006, the House of Lords ruled that compensation for asbestos injuries should be reduced where responsibility could not be attached to a single employer. Critics, including trade unions, asbestos groups and Jim Wallace, former justice minister, condemned the ruling. They said it overturned the traditional Scottish law to such cases, and was a breach of natural justice. As a result of this outcry, the ruling has been overturned by section three of the
Compensation Act 2006. In February 2010 a court ruling set a new precedent for asbestosis claims. The case, in which widow Della Sabin attempted to claim compensation following her husband's death from asbestosis, hinged on the issue of how many asbestos fibers must be present in the lungs for a claim to be valid. A research team based at Llandough Hospital initially reported that the minimum amount of fibers that needed to be present for a claim to be valid was 20 million (only 7 million were found in the sample taken from Mrs Sabin's husband Leslie). However, a subsequent US study suggested that, due to the fact that Leslie had lived for more than forty years after his exposure, a large number of fibers would have cleared from his body naturally; had he died twenty years earlier the asbestos count in his lungs would have been about 35 million fibers per gram. The judge preferred this evidence, and ruled in favor of Mrs Sabin. The main appellate cases involving asbestos in the UK courts: •
Fairchild v Glenhaven Funeral Services Ltd •
Barker v Corus (UK) plc •
Johnston v NEI International Combustion Ltd [2007] UKHL 39
United States Civil lawsuits Litigation related to asbestos injuries and property damages has been claimed to be the longest-running
mass tort in U.S. history, involving more than 8,000 defendants and 700,000 claimants. Since asbestos-related disease has been identified by the medical profession in the late 1920s, workers' compensation cases were filed and resolved in secrecy, with a flood of litigation starting in the United States in the 1970s, and culminating in the 1980s and 1990s. Current trends indicate that the rate at which people are diagnosed with asbsestos-related disease will likely increase through the next decade. Analysts have estimated that the total costs of asbestos litigation in the USA alone will eventually reach $200 to $275 billion. The amounts and method of allocating compensation have been the source of many court cases, and government attempts at resolution of existing and future cases. A multi-district litigation (MDL) complex filing has remained pending in the Eastern District of Pennsylvania for over 20 years. As many of the scarring-related injury cases have been resolved, asbestos litigation continues to be hard-fought among the litigants, mainly in individually brought cases for terminal cases of asbestosis, mesothelioma, and other cancers. In June 1982, a retired boilermaker, James Cavett, won an award of $2.3 million compensatory and $1.5 million in punitive damages against Johns-Manville. These rulings addressed the 20-50 year latency period of serious asbestos-related illnesses. In 1988, the
United States Environmental Protection Agency (USEPA) issued regulations requiring certain U.S. companies to report the asbestos used in their products. Several legislative remedies have been considered by the U.S. Congress but each time rejected for a variety of reasons. In 2005, Congress considered but did not pass legislation entitled the "Fairness in Asbestos Injury Resolution Act of 2005". The act would have established a $140 billion trust fund in lieu of litigation, but as it would have proactively taken funds held in reserve by bankruptcy trusts, manufacturers and insurance companies, it was not widely supported either by victims or corporations. On April 26, 2005, Dr.
Philip J. Landrigan, professor and chair of the Department of Community and Preventive Medicine at
Mount Sinai Medical Center in New York City, testified before the US Senate Committee on the Judiciary against this proposed legislation. He testified that many of the bill's provisions were unsupported by medicine and would unfairly exclude a large number of people who had become ill or died from asbestos: "The approach to the diagnosis of disease caused by asbestos that is set forth in this bill is not consistent with the diagnostic criteria established by the American Thoracic Society. If the bill is to deliver on its promise of fairness, these criteria will need to be revised." Also opposing the bill were the American Public Health Association and the Asbestos Workers' Union. On June 14, 2006, the
Senate Judiciary Committee approved an amendment to the act which would have allowed victims of mesothelioma $1.1M within 30 days of their claim's approval. Ultimately, the bill's reliance on funding from private entities large and small, as well as debate over a
sunset provision and the impact on the U.S. budgetary process caused the bill to fail to leave committee. Since the bankruptcy filing of Johns-Manville in 1984, many U.S. and U.K. asbestos manufacturers have escaped litigation by filing bankruptcy. Once in bankruptcy, these companies typically are required to fund special "bankruptcy trusts" that pay pennies on the dollar to injured parties. However, these trusts do permit larger numbers of claimants to receive some kind of compensation, even if greatly reduced from potential recoveries in the tort system. Since 2002, asbestos lawsuits in the U.S. have included the following as defendants: • Manufacturers of machinery that are alleged to have required asbestos-containing parts to function properly; • Owners of premises at which asbestos-containing products were installed (which includes virtually anyone who owned a building prior to 1980); • Banks that financed ships or buildings where asbestos was installed (on the grounds that no rational lender would take a
security interest in an asset without studying the risks involved); • Retailers of asbestos-containing products (including hardware, home improvement and automotive parts stores); • Corporations that allegedly conspired with asbestos manufacturers to deliberately conceal the dangers of asbestos (e.g.,
MetLife, a well-known insurance company which worked with
Johns-Manville); • Manufacturers of tools which were used to cut or shape asbestos-containing parts; and • Manufacturers of respiratory protective equipment. Defendants in the first category have contested liability on the grounds that nearly all of them either did not ship asbestos-containing parts with their products at all (that is, asbestos was installed only by end users) or did not sell replacement parts for their own products (in cases where the plaintiff was allegedly exposed well after any factory-original asbestos-containing parts would have been replaced), and either way cannot be responsible for toxic third-party parts that they did not manufacture, distribute, or sell. In 2008, the
Washington Supreme Court, the first to reach the issue, decided in favor of the defense. On January 12, 2012, the
Supreme Court of California also decided in favor of the defense in ''O'Neil v. Crane Co.'' This is significant as a 2007 study found that California and Washington were the two most influential state supreme courts in the United States in the period from 1940 to 2005. In a decision from January 2014,
Gray v. Garlock Sealing Technologies had entered into bankruptcy proceedings, and discovery in the case uncovered evidence of fraud that led to a reduction in estimated future liability to a tenth of what was estimated. Some defendants raise what is sometimes called the
chrysotile-defense, under which manufacturers of some products containing only
chrysotile fibers claim that these are not as harmful as
amphibole-containing products. As 95% of the products used in the United States historically were mostly chrysotile, this claim is widely disputed by health officials and medical professionals. The World Health Organization recognizes that exposure to all types of asbestos fibers, including chrysotile, can cause cancer of the lung, larynx, and ovary, mesothelioma, and asbestosis.
Criminal prosecutions Adamo Wrecking Company On February 20, 1973, a federal grand jury in
Detroit, Michigan, indicted Adamo Wrecking Company for violating provisions of the
Clean Air Act by knowingly causing the emission of asbestos by failure to wet and remove friable asbestos materials from demolitions. Adamo was one of a number of demolition contractors indicted throughout the country for the alleged violation of the Clean Air Act. The
United States District Court for the Eastern District of Michigan dismissed the criminal indictment on the ground that it was not an "emission standard," but a "work practice standard," which under the terms of the statute, did not carry criminal liability. The government appealed and the
Sixth Circuit Court of Appeals reversed the decision of the trial court, stating that it erred in determining that it had jurisdiction to review the validity of the standard in a criminal proceeding. Adamo's attorneys appealed to the
Supreme Court. On January 10, 1978, the Supreme Court ruled in favor of Adamo when it held that the trial court did have jurisdiction to review the standard in a criminal proceeding and also agreed with the trial court that the requirements in the act were "not standards" but "procedures" and therefore the proceedings were properly dismissed.
W. R. Grace and Company A federal
grand jury indicted
W. R. Grace and Company and seven top executives on February 5, 2005, for its operations of a
vermiculite mine in
Libby, Montana. The indictment accused Grace of
wire fraud, knowing endangerment of residents by concealing air monitoring results, obstruction of justice by interfering with an
Environmental Protection Agency (EPA) investigation, violation of the Clean Air Act, providing asbestos materials to schools and local residents, and conspiracy to release asbestos and cover up health problems from asbestos contamination. According to the Baltimore Sun the
Department of Justice said 1,200 residents had developed asbestos-related diseases and some had died, and there could be many more injuries and deaths. According to the Baltimore Sun
W. R. Grace and Company faced fines of up to $280 million for polluting the town of
Libby, Montana. Libby was declared a
Superfund disaster area in 2002, and the EPA has spent $54 million in cleanup. Grace was ordered by a court to reimburse the EPA for cleanup costs, but the bankruptcy court must approve any payments. On June 8, 2006, a federal judge dismissed the
conspiracy charge of "knowing endangerment" because some of the defendant officials had left the company before the five-year statute of limitations had begun to run. The wire fraud charge was dropped by prosecutors in March.
Unsafe abatement Post Office sealed off for asbestos removal Asbestos abatement (removal of asbestos) has become a thriving industry in the United States. Strict removal and disposal laws have been enacted to protect the public from airborne asbestos. The Clean Air Act requires that asbestos be wetted during removal and strictly contained, and that workers wear safety gear and masks. The federal government has prosecuted dozens of violations of the act and violations of
Racketeer Influenced and Corrupt Organizations Act (RICO) related to the operations. Often these involve contractors who hire undocumented workers without proper training or protection to illegally remove asbestos. On April 2, 1998, three men were indicted in a conspiracy to use homeless men for illegal asbestos removal from an aging Wisconsin manufacturing plant. Then-US Attorney General
Janet Reno said, "Knowingly removing asbestos improperly is criminal. Exploiting the homeless to do this work is cruel." On December 12, 2004, owners of New York asbestos abatement companies were sentenced to the longest federal jail sentences for environmental crimes in U.S. history, after they were convicted on 18 counts of conspiracy to violate the Clean Air Act and the
Toxic Substances Control Act, and actual violations of the Clean Air Act and Racketeer-Influenced and Corrupt Organizations Act. The crimes involved a 10-year scheme to illegally remove asbestos. The RICO counts included obstruction of justice, money laundering, mail fraud and bid rigging, all related to the asbestos cleanup. On January 11, 2006, San Diego Gas & Electric Co., two of its employees, and a contractor were indicted by a federal grand jury on charges that they violated safety standards while removing asbestos from pipes in
Lemon Grove, California. The defendants were charged with five counts of conspiracy, violating asbestos work practice standards and
making false statements. ==See also==