A Stitch in Haste

I have a lengthy comment here to a brief post at The Commons blog regarding this article on asbestos litigation, an excruciatingly difficult subject for legal theorists to get their arms around.

The Commons is a most excellent blog that, in this case, just didn't do quite all its homework. I endorse it nonetheless -- good stuff.

P.S. Asbestos litigation is something I know a bit about thanks to my old Torts (and Advanced Torts, and Remedies) professor, Anthony Sebok, who has some outstanding commentary on the subject here and here.

The original post:

"Most asbestos lawsuits in the United States are being brought by claimants who are probably not sick," according to a new study, Nature reports. According to the study, expert witnesses in asbestos cases are vastly overstating the extent of alleged asbestos-related harms.

My comment:

The Nature article, while damning, mixes two completely unrelated issues.

Just because someone is not "sick" from asbestos exposure does not necessarily mean they have no cause of action or are not entitled to compensation. The real debate regarding asbestos litigation is whether the aggregate assets of the defendants, which are finite and inadequate to satisfy all actual and potential claims, should be pooled now for something approaching an equitable distribution to those who suffered either actual present harm or the risk of future harm (i.e., medical monitoring costs or even a probabilistic recovery based on their chances of contracting pleural thickening, asbestosis or mesothelioma in the future) -- or, as is presently the case, should the money only go to the first plaintiffs who win the race to get to the courthouse and win full recoveries, until the last of the defendants is finally bankrupt, leaving future plaintiffs with no one to sue?

Meanwhile, using questionable expert testimony is a phenomenon that potentially exists in any litigation. I'm sure that defense attornies are well aware of this abuse (or soon will be), and will try their best to screen out such unreliable evidence at trial.

UPDATE #1: Tech Central Station has a related article -- with related flaws. The author spends most of the article bemoaning questionable (i.e, pro-plaintiff) radiology interpretations, but then mysteriously ends with this paragraph:

I did once have a patient who certainly suffered from asbestos exposure. He handled it all of his adult life, first in the shipyards of Norway, then later in an automotive factory here in the States. He died of mesothelioma, a rare form of cancer that's known to be associated with asbestos exposure. His widow has been trying to get compensation, but so far has been unsuccessful. The lawyers say they can't prove which was responsible for his health problems -- the shipyards or the auto plant. Whatever that is, it isn't justice.

Under an aggregation fund for present and future claims, her patient would had found at least some justice. But under the current "every plaintiff for himself" paradigm, she'll see many many more patients denied compensation (i.e., justice) in the future.

UPDATE #2: An asbestos settlement fund bill is working its way through the Senate. The $140 billion fund would be structured pretty much along the lines this post suggests.

(Cross-linked at Outside the Beltway).