Saturday, March 7, 2009
Michael Green (Wake Forest) has posted on SSRN Second Thoughts on Asbestos Apportionment. Here is the abstract:
Ordinary principles of apportionment of liability among multiple parties calls for first determining which parties caused which portions of the harm suffered by the claimant. If all parties were a cause of the same harm, then apportionment can proceed on the basis of comparative responsibility of the parties. This principle is derived from the basic requirement that parties are only liable for harm that their tortious conduct causes.
If any of the parties caused only a portion of the claimant's harm, then causal apportionment must precede apportionment based on comparative responsibility. The author had applied these two tenets of apportionment to asbestos litigation in a previous article. See A Future for Asbestos Apportionment?, 12 Conn. Ins. L.J. 315 (2006).
On reflection, this article (and author) concludes that general apportionment principles should not be applied to asbestos litigation. Because of gaps in scientific understanding about the progression of asbestotic disease and the contribution of any discrete exposure in that progression, apportionment on basic principles is highly problematic, unless artificial and unrealistic assumptions are made. Even then, such apportionment entails unacceptable inefficiencies. Instead, apportionment among multiple defendants should proceed on the basis of risk contribution, a method adopted by both the California Supreme Court and the House of Lords in England.