From the late 1970s through the 1990s, nonmalignant asbestos-related claims dominated the New Jersey asbestos docket. Thousands of these cases were filed and resolved. The management of the asbestos docket served as the model for the development of how New Jersey would handle other mass tort cases in the future. Cases were consolidated and resolved with global settlement values predicated on worksite and disease information, and the overwhelming majority of plaintiffs lived beyond the resolution of their cases
Over the last five years, the complexion of the New Jersey asbestos litigation has changed. The majority of new case filings involve malignancies, most of which are mesotheliomas, a cancer of the lining of the lung and abdomen primarily caused by exposure to asbestos. These cases are rarely consolidated, causing the plaintiffs to compete for the limited resources of the court.1 As a result, mesothelioma cases are aggressively litigated in a manner similar to medical malpractice cases, with as many as 10 to 20 defendants in a single case. Mesothelioma plaintiffs must wait in line for trial dates, hoping their cases will be heard before they die.
A recent article published in the Journal of Occupational & Environmental Hygiene predicts that the asbestos-related death rate in the United States will rise from 3,500 annually to 5,000 annually over the course of the next 10 years.2 It is expected that New Jersey will bear more than its fair share of these deaths, since historically the state’s incidence of mesothelioma is much higher than in most other states.3
The number of new mesothelioma cases in New Jersey continues to increase despite the fact that asbestos has been removed from industrial and consumer products for many years.4 More troubling, the last five years have witnessed a dramatic increase in mesothelioma diagnosed in nonindustrial-exposed asbestos victims, such as doctors, lawyers and teachers, who had no direct exposure to asbestos through their employment.5 The New Jersey Supreme Court has been compassionate to the plight of plaintiffs, and is in the forefront of allowing family members the right to pursue compensation.6
During the last two years, mesothelioma cases that have settled or been tried in New Jersey’s superior courts included a teacher, an appliance repairman, a telephone worker, the daughter of a boiler maker, the daughter of a laboratory scientist, a jewelry maker, a college student, a warehouseman, the wife of an oil refinery worker and numerous factory and construction workers.7 Why is this happening, and can any thing be done about it? The short answer is that asbestos exposure still continues today. The National Institute for Occupational Safety and Health (NIOSH) reports that “many asbestos products remain in use and new asbestos-containing products continue to be manufactured in or imported into the United States.”8
Despite all of the publicity surrounding the dangers of asbestos, most of the public is unaware of the many potential sources of exposure that still exist, even in their own homes. It is generally accepted that the primary cause of mesothelioma is asbestos. When someone is diagnosed with mesothelioma, the doctor will invariably ask, “Do you have any idea how you were exposed to asbestos?” Asbestos exposure today can result in mesothelioma developing and being diagnosed 15 to 40 years from now. While sustained exposure to asbestos is necessary to cause asbestosis or lung cancer, most respected medical, toxicology and industrial hygiene authorities believe that brief, intermittent and lowlevel exposure to asbestos can cause mesothelioma.
Generally, the lower the exposure the longer the latency period in developing and manifesting the disease.9 In the early 20th century, cases of mesothelioma were virtually nonexistent. As asbestos began to be incorporated into more and more industrial, construction and consumer products, the number of mesothelioma cases began to increase. Asbestos exposure that occurred in the 1930s and 1940s produced numerous mesothelioma cases in the 1960s.10 By the 1960s, asbestos use was ubiquitous, since the mineral was incorporated into thousands of products even though published medical literature had been sounding the alarm about the dangers associated with inhaling asbestos since at least the 1930s.
Corporate records in numerous and various industries are rife with discussions about the health dangers and risks associated with using or being exposed to asbestos.11 From the 1930s through the 1950s, asbestos cases were litigated in relative obscurity in workers’ compensation courts, with no jury and little fanfare.12 In 1957, Frederick Legrande brought the first modern day asbestos case against Johns Manville in New Jersey Federal Court. Halfway through the trial, the case was settled with a confidentiality agreement. The official record, by agreement, thus never reflected the fact that Legrande died from asbestos poisoning.13 Beginning in the mid-1960s, a handful of asbestos cases were filed in trial courts around the country, again with very little public awareness.
By the late 1960s, accounts of asbestos poisoning and cancer involving uncontrolled industrial or workplace exposure began appearing in the popular press, including The New York Times.14 Leadership in certain unions became concerned with the issue as they learned of the dire health consequences of asbestos exposure, although the general membership continued to remain largely uninformed of the risks and dangers. By the late 1960s, however, worker health and safety in general became a hot button political issue that led to the establishment of the Occupational Safety and Health Administration (OSHA) in 1970. The creation of OSHA and its investigation and regulation of asbestos in the United States were pivotal events in beginning to bring to public awareness the tremendous health risks of asbestos exposure, which for decades business corporations and their industry advocacy groups had been aware of and concealed. Its ultimate regulation of asbestos in the workplace, however, arguably stands as an object lesson on how federal agencies, despite good intentions, can be co-opted and rendered ineffective in protecting the public by the regulated industries’ lobbyists and advocacy groups.15 In 1971, OSHA asbestos regulations were enactedwith many planned changes through 1976.16 These regulations addressed the use of asbestos in the workplace, and were the product of intense debate and negotiation with industry.
The final OSHA regulations represented a watered down version from those originally proposed. They omitted references to cancer, and did not address proper warnings related to the sale of asbestos-containing products. The asbestos industry and its advocacy groups applauded their accomplishments and what they thought would be the continued ability to sell asbestos to consumers and industrial concerns. At one meeting in 1973, the head of the industry lobbying group, the Asbestos Information Association, reassured its members that, “despite all the negative publicity about the dangers of asbestos and the projections of the number of people that would die,” very few people have been paying attention.17
Although the asbestos mining and products industry was reassured that it would be able to continue to sell asbestos, some of the more sophisticated industrial customers using asbestos began to disfavor it because of the restrictions and requirements imposed by even the minimal OSHA regulations that had been enacted. As a result, insulation products containing asbestos were generally discontinued in the early to mid-1970s. The Environmental Protection Agency (EPA) eventually banned molded insulation products such as pipe covering and block for sale.18 Even though asbestos was removed from most insulation products by the mid-1970s, decades of asbestos installed in factories, offices, schools and homes remained in place, providing further opportunity for exposure.
In addition, many other industrial products continued to contain asbestos, including gaskets, lab equipment, talc products, and friction products, which liberated asbestos fibers during installation or repair.19 Often the presence of asbestos, let alone its health risks, was not recognized by the user of the products or anyone working in proximity to them. The responses by those companies that decided to continue to sell asbestos after OSHA was enacted varied from passive to aggressive. Some companies went so far as to use OSHA offensively in the marketing of asbestos-containing products, telling customers its products were “OSHA approved” or “OSHA compliant.” In a recent deposition taken in 2011, the former safety director of one company admitted that company literature claiming its products were OSHA approved was a “lie.”20
In reality, OSHA never ‘approved’ any asbestos products; instead, its regulations left open the ability to sell asbestos-containing products if the manufacturer’s testing could prove the asbestos was “locked in” and would not be released through normal use.21 Many savvy asbestos product producers used this regulation loophole to justify selling asbestos products with no warning whatsoever.22 Manufacturers justified selling their asbestos products because the new offthe-shelf products were allegedly “not friable” and did not release any dust visible to the naked eye.23
The problem was that installation or use of these products often required cutting and abrasion capable of releasing asbestos fibers in excess of OSHA limits.24 Even worse, the removal of the products required destruction and scraping, which would similarly release large quantities of asbestos fibers. Tests of these exposures were rarely if ever conducted, and workers and consumers were scarcely ever warned about the exposure that would occur from what looked like a new encapsulated product. In some instances, inquires from consumers regarding asbestos were sidestepped or responded to by manufacturers or sellers with false information.
In 1977, a father undertaking a home renovation job wrote to one large multinational company that made spackle (joint compound) containing asbestos and asked if it was safe to use in his house. “I have small children who were living in our home while I was remodeling and I am concerned about their welfare,” he wrote.25 A company representative wrote back assuring him there was no risk whatsoever, stating: “I assure you that you need not concern yourself over the possibility of harm due to the asbestos fiber content of the joint cement product you recently used.”26 In 1978, a group of seventh graders wrote another company and asked if it was safe to use its asbestos products in their science lab?
Discovery in a New Jersey asbestos case in 2010 uncovered that after a number of high-level meetings, the company wrote back to the children referring to OSHA regulations and sidestepped the question.27 In the same year, another manufacturing company was made aware that a product similar to the one it sold had caused a dentist who was using asbestos for making molds for crowns to develop mesothelioma. The company made the decision to sell off all its inventories of asbestos-containing product rather than recall the products. Discovery in asbestos cases in New Jersey in 2009 revealed that this inventory sell off was made to universities for use by students, and to dentists for use in making crowns and fillings.28
Taking into account 30- to 40-year latency for this kind of exposure, one may expect many mesothelioma cases occurring in family members, students and dentists exposed to these products being diagnosed well into the next decade. Even after OSHA regulations were enacted, industrial exposures continued. For the first two decades after it was created, OSHA proved to be a toothless tiger with the best intentions and limited resources. A recent interview conducted with the former regional director of OSHA illustrated OSHA’s past limitations.29 During the interview, the former director explained that in the 1970s he had a total of just two industrial hygienists and a handful of safety engineers available to police industry sites located throughout five states. These individuals were not just charged with handling asbestos matters, but were responsible for all hazards under the purview of OSHA. Systematic enforcement inspections were impossible given the available resources.
Limited resources meant that OSHA inspections were generally a function of reacting to complaints. Where there were no complaints, there were no inspections. Consequently, OSHA compliance was largely left to the safety culture of individual companies. Accordingly, significant occupational exposures continued well into the 1980s, and perhaps beyond. According to recent OSHA estimates, 1.3 million U.S. workers continue to be exposed to asbestos on an annual basis.30 These exposures, in turn, could produce mesotheliomas for at least another three decades. While enforcing compliance with OSHA regulations was an ongoing problem, there were some regulations that governed the workplace, and later on exposures related to schools. Exposures inside homes, on the other hand, is an entirely different story. At the home level, asbestos exposures are probably happening even today. In individual residences, there is no threat of OSHA inspections and fines.
Compounding the problem, the vast majority of the public is unaware that asbestos is present in their houses and apartments. These exposures come from numerous sources. Many homes and apartments were contaminated from work-related exposures for decades. Workers would wear their clothing home to be laundered by family members, and this asbestos-laden clothing contaminated entire households, giving rise to asbestos-related mesotheliomas in occupants with no industrial exposure. Unless properly abated, those homes remain contaminated at some level for years. It is impossible to predict the legacy of disease this kind of exposure could cause.