A Brief History of Asbestos Litigation

Legal // July 27, 2016

Asbestos has been in use for millennia. The earliest known uses go back nearly 4,500 years to ancient Finland, where anthophyllite – a particular form of asbestos – was mixed with clay to protect pots and utensils from the flames of cooking fires. Even the name “asbestos” comes from an ancient Greek word meaning “inextinguishable,” due to the mineral’s fire-resistant properties.

Despite the long history of asbestos, however, it is only relatively recently that the naturally occurring mineral has become the subject of legal actions. In fact, before asbestos was scientifically linked to the deadly cancer mesothelioma, it was used widely with few legal repercussions whatsoever.

Bringing Asbestos Before the Courts (1920s – 1930s)

Ironically, asbestos was already in the courts long before it was ever brought before the courts. That is to say, asbestos was used ubiquitously to make construction materials that were used in building courthouses, legislative chambers, and municipal offices all over.

The first well-known attempt to make asbestos companies pay compensation for asbestos exposure is the 1924 case of 33-year-old Nellie Kershaw, who lived in Rochdale, England. At the age of 26, Kershaw started working at a factory where she spun asbestos fibers into yarn. Her close contact to asbestos quickly led to medical issues, which she started experiencing only a few years later. Kershaw and her husband tried to persuade the company she worked for (Turner Brothers Asbestos) to pay for treatments, but they refused. By the age of 33, Kershaw passed away due to “fibrosis of the lungs,” which the death certificate specifically tied to the inhalation of “mineral particles” (i.e., asbestos).

Unfortunately, Kershaw and her family never received recompense for her asbestos-related problems during her lifetime. However, after her death, a report appeared in the British Medical Journal by Dr. William Edmund Cooke, who called Kershaw’s disease “pulmonary asbestosis,” a name that still describes the same condition today. (Asbestosis is different from mesothelioma, but the two are closely related as asbestos-caused conditions.) Dr. Cooke’s writeup prompted a formal inquiry by the British Parliament, and Kershaw’s case became the basis on which the first asbestos regulations were passed in England in the 1930s.

In the U.S., the earliest known asbestos-related lawsuit was filed by Anna Pirskowski in 1929 in the Newark (NJ) Federal Court. The action was brought against her employer, Johns-Manville Corporation – a company that would become infamous later with respect to asbestos litigation. Little is known about Pirskowsi’s case today, but we do know that she was not the only person trying to get compensation for asbestos-related injuries. Pirskowski’s lawyer, Samuel Greenstone, also file lawsuits for at least 15 other individuals with asbestos-related claims. Unfortunately, Pirskowsi’s lawsuit was thrown out in 1934.

Around the same time, the Massachusetts Industrial Accidents Board settled a number of workers’ compensation claims related to asbestos. However, in most cases, people had few, if any, legal rights when it came to asbestos until decades later.

The Beginning of Asbestos Mass Torts (1960s – 1980s)

Although there is evidence that employers knew about the dangers of asbestos as early as the 1920s (and possibly even earlier), the asbestos industry kept this information out of the hands of public eye as much as possible. Even the government had a hand in suppressing information: In the 1940s, the U.S. Navy and Maritime Commission were aware of the necessity of protecting shipyard workers from asbestos exposure, but they did not share this information widely.

Regardless of the attempt to keep the deadly nature of asbestos contained, by the 1960s and 1970s, too many correlations had been made between asbestos and illnesses like mesothelioma, asbestosis, and lung cancer. Stories about this correlation started appearing in major national publications, including newspapers like The New York Times, whereas previously they had been limited to small industry newsletters or medical journals. This spread of knowledge, and the awareness that at least some employers had tried to hide connections between asbestos and certain diseases, led to the filing of claims in court.

From an administrative perspective, one big change that took place in 1966 was the amendment of Rule 23 of the Federal Rules of Civil Procedure (FRCP). In addition to other things, this change established a number of requirements for class action lawsuit, which had previously been vague or nonexistent. The effect of this was to allow much bigger lawsuits than had previously been permitted – a tool which could be used not only to help large groups of people affected by dangerous substances or unsafe business practices, but which also could help force social change.

Due to both the increased awareness about the dangers of asbestos and the new rules around class action lawsuits, the number of asbestos-related claims skyrocketed in the late 1960s and into the 1970s. One of the biggest companies targeted by these lawsuits was Johns-Manville Corporation – the company that Anna Pirskowski had sued way back in 1929 due to asbestos-related disease.

In fact, Johns-Manville was forced to settle so many claims that in 1982 the company filed for bankruptcy. At the time, it was the largest bankruptcy ever in the history of the United States, and it caused a certain amount of panic among some financial analysts. Given the extent to which asbestos had been used over the preceding hundred years (or longer), the fear was that many large companies would be forced into bankruptcy the way Johns-Manville was.

In some respect, this turned out to be true. As part of its bankruptcy proceedings, Johns-Manville was forced to create an asbestos trust in 1988 that set aside money to pay future claims from asbestos exposure. The Manville Trust, which has paid out hundreds of millions of dollars in claims in its 30 years of operation, is still actively paying settlement claims today.

Johns-Manville Corporation became a cautionary tale for other asbestos companies who were faced with a barrage of lawsuits during the same period. Today, there are at least sixty asbestos trust funds established by companies that have gone bankrupt – some of which have gone completely out of business – due to the legal actions brought against them by victims of asbestos exposure.

Asbestos Litigation Today

Based on the increasing use of asbestos into the 1970s – until the Occupational Safety and Health Administration (OSHA) and Environmental Protection Agency (EPA) started regulating the substance – medical experts expect cases of mesothelioma and other asbestos-related diseases to peak sometime around 2020. Until then, the expectation is that an increasing number of people will be diagnosed with the disease. And even after 2020, cases are expected to go down, but not disappear altogether, especially considering that asbestos still is not banned in the United States.

Given the correlation between asbestos and mesothelioma, that means many of the people diagnosed (or their families) will be able to bring claims against companies that mined, manufactured, or used asbestos and asbestos-containing products. This includes not only employees of asbestos companies, but also their families, as well as anyone who may have been exposed to asbestos at home, at school, or in a public building.

The purpose of asbestos litigation today is to help victims of asbestos exposure to receive compensation. Diseases like mesothelioma cost a lot of money, not just in medical bills but also in lost wages (many people with the disease are unable to work), travel expenses, and secondary conditions that can develop.

If you or a loved one has been diagnosed with mesothelioma, getting information about the right way to receive legal help and financial assistance is important. To learn more about your legal rights with respect to asbestos exposure, sign up for a free mesothelioma guide here.