Wednesday, September 5, 2007
Jane Stapleton of U. Texas, always a thoughtful observer of the U.S. tort system, has posted a paper on SSRN entitled Two Causal Fictions at the Heart of U.S. Asbestos Doctrine, published in Law Quarterly Review. Here's the abstract:
The “elephantine mass of asbestos cases... defies customary judicial administration” (Ortiz v. Fibreboard Corp., 527 U.S. 815, 821 (1999)) and US courts have been forced to create novel handling techniques. This Note deals with two under-appreciated but dramatic accommodations US courts have made to causation doctrine in the asbestos area which are extraordinary to foreign eyes. Both stem from the decision in Borel v. Fibreboard Paper Prods. Corp., 493 F.2d 1076 (5th Cir. 1973), cert. denied, 419 U.S. 869 (1974). First, US courts since Borel have not generally made any distinction between the causal issue in asbestosis and in mesothelioma claims: regardless of which condition has been contracted, a US asbestos plaintiff is entitled to get to the jury on the issue of factual cause merely by showing a suitable exposure to asbestos by the defendant. As applied to mesothelioma and other asbestos cancers this “substantial factor” approach rests on the radical fiction that asbestos cancers have a threshold contraction mechanism. This extraordinary fiction has gone virtually unremarked: astonishingly even the Reporters of Restatement (Third) of Torts: Products Liability sanguinely state, with no reference to Borel's case or even to asbestos, that “traditional notions of causation retain their vitality in products liability” (88 Geo.L.J. 659). Even when it is acknowledged, as in Rutherford v. Owens-Illinois, Inc. 941 P.2d 1203 (Cal. 1997), little if any rationale for its adoption is provided. Under the second fiction the cumulative asbestos disease of asbestosis is treated as if it were dose-independent and accordingly the liability of asbestos defendants is held to be in solidum. For example, in Norfolk & Western Ry. Co. v. Ayers, 538 U.S. 135 at 143 (2003) one asbestosis plaintiff had been exposed by the defendant for only three months and had worked with asbestos elsewhere as a pipe fitter for 33 years. The defendant was held liable for his total condition. This is in stark contrast to the approach of the United Kingdom: see Holtby v. Brigham & Cowan (Hull) Ltd.  3 All ER 421 (CA). The Note then speculates about the reasons for the extreme departures from orthodoxy represented by the twin asbestos fictions in the US: their creation, their apparent continuing acceptance even by beleaguered defendants, the uncertainty of their boundaries and their general neglect by academic commentators.