The Importatation of U.S.-Style Asbestos Litigation to the United Kingdom: A Report on Recent Trends

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1 The Importatation of U.S.-Style Asbestos Litigation to the United Kingdom: A Report on Recent Trends Terry Budd Jane Harte-Lovelace Chris Michael Temple BOSTON DALLAS HARRISBURG LONDON LOS ANGELES MIAMI NEWARK NEW YORK PALO ALTO PITTSBURGH SAN FRANCISCO WASHINGTON

2 Kirkpatrick & Lockhart Nicholson Graham LLP (K&LNG) has approximately 1,000 lawyers and represents entrepreneurs, growth and middle market, capital markets participants, companies and leading FORTUNE 100 and FTSE 100 global corporations nationally and internationally. K&LNG is a combination of two limited liability partnerships, each named Kirkpatrick & Lockhart Nicholson Graham LLP, one qualified in Delaware, U.S.A. and practicing from offices in Boston, Dallas, Harrisburg, Los Angeles, Miami, Newark, New York, Palo Alto, Pittsburgh, San Francisco and Washington, and one incorporated in England, practicing from the London office. This publication/newsletter is for informational purposes and does not contain or convey legal advice. The information herein should not be used or relied upon in regard to any particular facts or circumstances without first consulting a lawyer. Data Protection Act We may contact you from time to time with information on Kirkpatrick & Lockhart Nicholson Graham LLP seminars and with our regular newsletters, which may be of interest to you. We will not provide your details to any third parties. Please if you would prefer not to receive this information KIRKPATRICK & LOCKHART NICHOLSON GRAHAM LLP. ALL RIGHTS RESERVED.

3 The Importatation of U.S.-Style Asbestos Litigation to the United Kingdom: A Report on Recent Trends By TERRY BUDD, JANE HARTE-LOVELACE, and CHRIS MICHAEL TEMPLE* Introduction A number of commentators have recently speculated that the United Kingdom ( U.K. ) may see a significant rise in asbestos-related lawsuits over the next few years. These predictions have been supported by varying levels of evidence, and are usually delivered as warnings with varying levels of alarm. When an alarm is sounded, one must assess the true level of danger and respond with a reasonable and measured course of action. For U.K.-based companies facing the prospect of asbestos litigation, concerns about the possible importation of U.S.-style aggressive litigation and rising claim rates may well be legitimate. Undue alarm should, however, be avoided in favor of a reasonable approach to the risk of this new litigation. Medical data developed in the European Union ( EU ), as well as recent legal and social developments in Great Britain, suggest that concerns over a rise in asbestos litigation are well-taken. Indeed, it seems probable that rates of asbestos-related lawsuits will rise in the near future. The extent of the increase is difficult to predict, but it will likely be substantial for certain types of companies. This probability presents a risk not only to the insurance and heavy manufacturing industries (the groups typically addressed by the recent speculation), but also to enterprises which historically had only slight or incidental contact with asbestos or asbestos-containing products including, for example, enterprises such as equipment manufacturers, product manufacturers, and product and equipment suppliers. These more remote users (indeed, customers ) of asbestos may not currently face any asbestos-related claims, and thus may not appreciate that the prospect that claims may arise in the future is a risk they face as well, if perhaps on a lower order of magnitude than heavy industrial users. All such companies are well-advised to consider taking steps now to deal with potential future problems. The most critical of these steps is the initial evaluation of past interactions with asbestos, however slight. By carefully and strategically conducting such an evaluation now, companies can begin to position themselves to answer future claims effectively and confidently should they materialize. BACKGROUND Asbestos is a generic name for any one of approximately six fibrous, naturally-occurring minerals. These minerals, prized for their thermal properties and chemical stability, were used extensively in industrial applications through most of the twentieth century. It has been estimated that asbestos * Terry Budd and Chris Michael Temple are partners in the Pittsburgh office and Jane Harte-Lovelace is a partner in the London office of the law firm of Kirkpatrick & Lockhart Nicholson Graham LLP ( K&LNG ). The authors wish to thank Michael J. Ross for his substantial contributions to this article. K&LNG serves as a national coordinating counsel and trial counsel in a wide variety of mass product liability and toxic tort engagements, including asbestos litigation matters. This article is for informational purposes only and does not contain or convey legal advice. The information herein should not be used or relied upon in regard to any particular facts or circumstances without first consulting with a lawyer. 1

4 found its way into over 3,000 commercially manufactured products, including various types of thermal insulation, vinyl flooring, textiles, packings and gaskets, paints, sealants, electrical switchboards, paperlike products, and rather more unusual applications such as asbestos socks and dental floss. Exposure to asbestos has been potentially linked to five primary medical conditions: pleural plaques, pleural thickening, asbestosis, asbestos-related lung cancer, and mesothelioma. Pleural plaques (areas of thickening on the chest wall and diaphragm that typically give rise to no symptoms and do not impair normal lung functioning) is the least severe, while mesothelioma (a tumor on the outer lining of the lung and typically fatal within two years of diagnosis) is the most severe. All of these conditions typically have long latency periods, ranging from fifteen to approximately fifty years from the date of first exposure. The level of asbestos exposure necessary to give rise to each can, however, vary dramatically. It is widely asserted that mesothelioma can be caused by relatively brief, low-level exposures to certain forms of asbestos. Asbestosis, on the other hand, is associated with substantial exposure to asbestos dust over a long period of time. Further, the type of asbestos mineral to which one is exposed may influence the severity of any resulting disease. It is generally accepted that asbestos minerals of the amphibole variety pose a greater risk than minerals of the chrysotile variety. In the late 1800s, the U.K. began importing asbestos for use in a multitude of industrial applications. Asbestos consumption in the U.K. rose and fell somewhat sporadically through the 1900s until roughly the mid-1940s. At this point, in the post-world War II reconstruction, U.K. asbestos consumption grew exponentially, reaching its peak in the mid-1960s and remaining at a very high level until the early 1980s. 1 Since that time, the U.K., along with its fellow EU member nations, has recognized the potential hazards posed by asbestos and has taken measures in response. In 2003, for instance, all EU states participated in the Dresden European Asbestos Conference held in Germany. The Conference participants, convinced that protection against asbestos will remain a key challenge in Europe s work on occupational health and safety, adopted a revised Asbestos Directive designed to decrease accidents at work, enhance occupational disease prevention, improve asbestos risk awareness, and promote innovative approaches to managing and controlling asbestos problems. 2 Given the U.K. s historic pattern of asbestos use and the long latency periods of asbestos-related illnesses, asbestos-related illnesses emerge in varying numbers each year among the U.K. population. At the current time, asbestos-related diseases are reported to cause over 3,500 deaths per year in the U.K. 3 Current Asbestos Claim Rates A study recently completed by a private industry group surveyed eleven U.K. companies which receive a substantial number of the asbestos-related claims currently made in the U.K. Indeed, the study estimated that the asbestos claim data collected from these companies represented roughly 80% of all asbestos claims being made at the time. 4 The study concluded that insurance claims for asbestos-related illnesses have been steadily rising since the 1960s, with a rather dramatic rise since Disease by disease, the study found that mesothelioma claims have increased steadily over the past few decades, claims involving asbestosis and asbestos-related lung cancer have generally decreased in the same period, and claims for pleural plaques and pleural thickening have risen exponentially from roughly 1997 onward. 5 2

5 The Case for Rising Claims Rates Because claim rates have been rising does not necessarily mean that they will continue to do so. The only way to predict whether and to what extent claim rates will rise in the coming years is to first predict whether the number of people who both become ill and are willing to sue will continue to increase. If more people are going to be able to sue, willing to sue, or both, it is reasonable to assume that claim rates will continue to rise. Based on current trends, the number of people who will be able to sue for asbestos-related illnesses in the future will be greater than the number who can do so now. The conclusion that the number of mesothelioma deaths experienced in the U.K. each year has yet to reach its peak has been a constant in seemingly all major studies addressing the issue. 6 The most recent study on the matter estimated that yearly mesothelioma deaths will continue to rise and eventually peak at a level between 1950 and 2,450 deaths per year between the years 2011 and It is estimated that between the years 1968 and 2050 there will have been approximately 90,000 deaths from mesothelioma in Great Britain, 65,000 of which will occur after Translating much of this medical data into a claim projection, a recent study estimated that the U.K. will see anywhere from 80,000 to 200,000 new insurance claims for asbestos-related illnesses over the next thirty years. 9 A number of different factors combine to determine an individual s willingness to sue. Among these factors, the difficulty of suing is particularly relevant. Simply put, over the past decade, it has become much easier to both bring and win an asbestos-related lawsuit in the U.K. This means that the possibility exists that if, hypothetically, five out of every ten people with an asbestos-related illness decided to sue in the past, seven out of every ten may decide to sue in the future. This could conceivably represent a significant number of claims. In a 2001 decision, the England and Wales Court of Appeal issued a ruling that makes a personal injury claim for negligence easier to prove for claimants alleging exposure to asbestos before extensive knowledge of asbestos-related risks had developed. 10 Specifically, the Court of Appeal validated a lower court, holding that even though the specific risks of mesothelioma and lung cancer were not known before the mid-1950s or early 1960s, a general health risk of asbestos was known at earlier times. Thus, the court ruled, an employer could be liable to a mesothelioma claimant alleging exposure prior to the mid-1950s or early 1960s for failing to take steps to respond to or inquire about this general risk. This ruling, simply put, made recovery for an asbestos claim easier to achieve. In a 2002 decision, the House of Lords issued a significant new ruling that makes the legal element of causation easier to prove for mesothelioma claimants faced with proving which period of asbestos exposure among a number of such periods triggered the disease. Specifically, where a claimant cannot prove the precise source of his or her illness, but can prove that that illness was solely employmentrelated, the multiple defendant employers may be held jointly and severally liable. 11 This ruling, in effect, opened new doors of recovery for asbestos claimants. In a related development, the 1999 Access to Justice Act ushered in a new legal chapter for an increase in personal injury suits generally by effectively endorsing two litigation financing arrangements which tend to increase a person s willingness to sue conditional fees and after-the-event insurance. Specifically, the Access to Justice Act provides for the recovery of success fees and after-the-event insurance premiums from a losing defendant. Together, these arrangements and their treatment under 3

6 the Act have led one commentator to observe that they have given rise to an extraordinary situation in which a client win or lose, typically pays nothing at all for his litigation. 12 These arrangements carry the promise of great reward and little risk or cost, and this is precisely the message being broadcast to potential claimants by solicitor firms. 13 U.S.-styled class action suits create another new potential asbestos litigation avenue in the U.K. The U.K. has not historically had a class action mechanism. However, the year 2000 witnessed the introduction of the Group Litigation Order. Such an Order can be made in any claim where there are multiple parties or claimants to the same cause of action. 14 The arrangement has already been used in the context of asbestos litigation; in 2000, a group litigation order concerning asbestos-related diseases allegedly caused by Cape PLC was entered by Master Turner of the Queen s Bench Division. The introduction of group litigation, in and of itself, in the asbestos context could lead to an increase in overall asbestos-related claims for at least three reasons. First, group litigation makes bringing suit easier as it is generally more cost-effective than litigation undertaken on an individual basis. Second, group litigation produces substantial media attention and raises the profile of the purported problems giving rise to such cases. The presence of such cases in the media can demonstrate to an asbestos claimant who is not sure whether to sue that many similarly-situated people are suing or that there is, in fact, an underlying circumstance that should make a potential litigant feel aggrieved. Third, class actionstyle suits are generally considered fertile ground for potential abuse. A recent monograph discussing U.S. and European class suits noted that the benefits of the American class suit accrue primarily to lawyers who bring them. 15 Such incentives may lead solicitors to follow the American example where lawyers actively recruit or farm claims. A final factor that may tend to increase asbestos claimants willingness to sue is of a social nature and more difficult to measure than the factors previously discussed. There is an increasing perception that American asbestos litigation tactics and lawyers are being exported to the U.K. In 1994, a doctoral candidate studying differences between American and British perceptions of litigation concluded that a vast pool of uncompensated asbestos victims then lived in the U.K. The paper further concluded that a distaste among British solicitors for the tactics utilized by U.S. plaintiff firms in the context of asbestos litigation (such as operating both as individual lawyers and as a network) was partially responsible for this phenomenon. 16 Since these observations in the early 1990s, the landscape in the U.K. has dramatically changed. 17 Recently speaking on the subject of a commercial class action suit, a partner in a London law firm contended that European litigation started to become Americanized in the late 1990s. The commentator went on to attribute this phenomenon, in part, to a growing number of small law firms with young, ambitious lawyers who have learned a lot from the U.S. 18 It is uncertain to what extent these developments may drive future claim rates, but given the American experience with asbestos litigation, it is not a development that bodes well for potential asbestos defendants in the U.K. Recently completed research found that U.S. nonmalignant asbestos litigation mainly consists of a massive client recruitment effort accounting for 90% of all claims currently being generated. 19 A Case Against Rising Claim Rates? Although the trend in U.K. asbestos law, and U.K. personal injury law in general, has been one towards lowering both financial and legal hurdles to bringing suit, there is one recent significant asbestos-related development with the opposite impact. 4

7 In a 2005 decision in Grieves, Mr. Justice Holland of the High Court of Justice Queen s Bench Division permitted recovery of damages for pleural plaques. 20 Mr. Justice Holland ruled that the development of plaques, the possible onset of future symptoms, and the anxiety associated with the condition together represent a compensatable injury. However, in February of 2006, the England and Wales Court of Appeal ruled to overturn the ruling of Mr. Justice Holland in Grieves by a 2:1 majority. 21 The Court reasoned that since none of the three injuries alleged in Grieves alone is compensatable, the sum of the three, likewise, is not compensatable. This ruling from the Court of Appeal ( Grieves II ) is promising news for companies facing asbestos claims, as estimates suggest that as many as 14,000 cases of pleural plaques develop each year. 22 However, these same companies must keep the decision in a proper perspective. While Grieves II means that pleural plaques is not a compensatable injury in the U.K., it may not be the final decision on this issue. The Court of Appeal granted leave to appeal its decision to the House of Lords, stating that the difficult issues of principle and the very large number of claims involved in the case warranted the rare course of giving permission to appeal. 23 Further, it is important to note that the pleural plaques claims eliminated by Grieves II are great in number, but not necessarily in value. Mesothelioma claims, on the other hand, are both great in number and in value, and they are being made, as stated above, at an increasing rate. The ruling has no effect on such claims. The Possibility of an Asbestos Defendant Shift The rising tide of asbestos claims in the U.K. must go somewhere. To date, the U.K. has primarily seen three types of asbestos claimants (employees, relatives of employees, and individuals exposed through living near a factory) and one type of asbestos defendant (heavy industrial suppliers or users of asbestos, such as the major U.K. asbestos product producer/fiber supplier, Turner & Newall Ltd.). These are precisely the sorts of actors that were involved in the first wave of U.S. asbestos litigation in the 1970s and 1980s. During this period, claimants sued companies that either supplied asbestos or used it extensively as a major component of products such as textiles, pipe insulation, and dry mix coatings. The target industries were shipbuilding, railroad, and insulation production. The typical claimant was an employee who had handled extremely large quantities of asbestos during his career. The newest wave of U.S. asbestos litigation began around five years ago when, essentially, more remote plaintiffs began suing more remote defendants. These defendants had used asbestos in an incidental manner in their facilities or manufacturing processes or had made or supplied products that contained small amounts of asbestos encapsulated in a matrix that thwarted the release of respirable asbestos fibers. The new target industries were, among others, paper, automobile, wet coatings, architectural, industrial equipment, and electrical products. Today, many U.S. claimants have never handled asbestos, but claim to have been incidentally exposed to it on the job site or through someone else s handling of a product that contained a small amount of it. There are three principal reasons to believe that the asbestos defendant shift that occurred in America could eventually occur in the U.K. First, companies faced with massive numbers of asbestos claims become increasingly unattractive targets as they are gradually, but inexorably, drained of capital. Quite simply, this is happening already. Turner & Newall Ltd., the major historic U.K. asbestos product producer/fiber supplier, is, along with its U.S. parent company, bankrupt. In its 2005 Interim Report, 5

8 Cape PLC stated that it is uncertain precisely what it will have to pay for asbestos claims in the future, but it expects that in aggregate [such claims] are likely to exceed the amount of the net assets included in the current Group Balance Sheet. 24 Second, as noted above, an increasing amount of American-style tactics and players have been observed in the context of U.K. asbestos litigation. In the U.S., the defendant shift turned out to be an effective way to substitute fresh sources of recovery funds for sources which had been exhausted. This is a fact that American plaintiff lawyers, and anyone studying their tactics, would understand. Third, there is no insurmountable legal barrier to such a shift. Although the vast majority of British asbestos-related claims have involved employment or environmental exposure, there have been some cases where the maker of an asbestos-containing product has been found liable to a non-employee third party. 25 As early as 1999, the London High Court found that a worker employed by Irish Rail who used an asbestos cement product supplied by JW Roberts Ltd. could recover not only against Irish Rail, but against JW Roberts Ltd. as well. Specifically, JW Roberts Ltd. was found to be negligent for failing to warn the worker s employer of the dangers of its product and assigned 70% of the liability for the worker s injury. 26 Responding to the Problem For companies in the heavy manufacturing industry which currently face asbestos claims, none of this information should be new. If there is a message here for such companies, it is to not disregard future claims while litigating current ones. Such companies should strongly consider discussing with counsel the possible implications that current litigation strategies and trends may have for future claims and filing rates. For U.K. companies which made no extensive use of asbestos, the best way to respond to the possibility of rising claim rates and a defendant shift is to reevaluate the potential for future asbestos-related liability with these considerations in mind. Following this reevaluation, companies can take further steps designed to lay the groundwork for an effective response to future asbestos-related suits. Evaluating the potential for future asbestos-related liability means obtaining the right legal counsel and asking the right questions about past asbestos usage. The correct question to pose is not one that asks whether a company ever manufactured, mined, or otherwise extensively used asbestos. Over the past few decades, the answer to such a question could only accurately predict whether a British company would face traditional asbestos claims (just as it could only accurately predict whether an American company would face traditional asbestos claims for many years). If, however, asbestos claimants and their barristers shift their focus to new classes of nontraditional defendants in the future (as has happened in the U.S.), many companies which can answer no to such a question may, nonetheless, face significant claims. This is a critical realization for a U.K. company to make. The question that a company must now pose to itself in order to accurately identify possible future claim exposure is one that asks whether the company had any interaction, however slight, with asbestos. If this question seems overly broad, that is the point. It is impossible to determine how remote an asbestosusing entity a future claimant may target. By asking a broadly framed question, a company will be able to determine whether it could ever face any potentially meritorious asbestos-related claims. 6

9 In order to determine whether a company had any interactions with asbestos in its past, a company must consider relatively slight interactions such as producing, supplying, carrying, handling, or using in an industrial process any product or component part which contained asbestos in any quantity. Where there is doubt about whether a component part contained asbestos, a company should consider the possibility of identifying the supplier and obtaining information about that supplier s manufacturing process and the inputs associated with it. A company may also want to consider whether it owned, rented, operated, or in any way managed a facility that contained asbestos in its structural material. Conducting this analysis both for itself and for any subsidiaries (and, indeed, defunct subsidiaries) or acquired entities controlled at any time over the last several decades may also make sense, depending upon the circumstances. Obviously, exploring all of these issues may take much time and effort. However, the return on this investment of time and effort would be immeasurable should a company face asbestos-related claims in the future. A company simply cannot strategize, litigate, or negotiate effectively if it has no sense for its history with this material. Once a company completes its evaluation of potential future liability based on past use, it will then be positioned to take further steps to lay a groundwork for responding to potential asbestos claims. If a company determines that it had no interactions with asbestos-containing products, components, or materials, that company should seemingly never have to face a meritorious asbestos-related claim. However, non-meritorious claims still pose a business cost and risk. Bearing this in mind, even if a company finds no asbestos interaction in its history, that company may consider taking additional measures relating to its investigation and findings. For various business and strategic reasons, involving counsel experienced in asbestos litigation will provide added protection and valuable insight. If a company determines that it may have had interactions with asbestos-containing products, components, or materials in its history, that company should consider a careful and customized approach to compiling and assessing the impact of such interactions. There is no standard approach for such a review; instead such inquiries must be custom tailored to the circumstances and facts applicable to each company. The overarching strategic objective in this exercise must be the proper and efficient preparation for possible litigation. Conclusion Recent medical data developed in the EU, as well as recent British legal and social developments, strongly suggest that asbestos-related lawsuit rates are likely to rise in the U.K., and this rise may be substantial. As claims rise, the possibility exists that new claims may begin to target nontraditional asbestos defendants. Given the possibility of rising claim rates and a shift to a new group of defendants, many U.K. companies must consider rethinking their approach to potential asbestos-related problems. In particular, U.K. companies may need to consider beginning to look back over their history with an eye towards both heavy and slight asbestos use. By identifying and responding to potential problems before claims arise, U.K. companies can position themselves to answer claims effectively and confidently should they come. Once having done so, such companies can justifiably ignore the sounding of future alarms. 7

10 EndNotes 1 Peto, J., et al., The European Mesothelioma Epidemic, British Journal of Cancer (1999) 79, BGAG/European Asbestos Conference 2003, (last visited Feb. 27, 2006). 3 Health & Safety Executive, Asbestos (Jan. 10, 2006), disease.htm. 4 ASBESTOS WORKING PARTY, ACTUARIAL PROFESSION, U.K. ASBESTOS THE DEFINITIVE GUIDE, (2004). 5 U.K. ASBESTOS THE DEFINITIVE GUIDE, supra note 4, at U.K. ASBESTOS THE DEFINITIVE GUIDE, supra note 4, at 5-5.9; J.T. Hodgson, et al., The Expected Burden of Mesothelioma Mortality in Great Britain from 2002 to 2050, British Journal of Cancer (2005) 92, Hodgson, supra note 6, at Hodgson, supra note 6, at See Press Release, The Actuarial Profession, Total U.K. asbestos-related costs 8-20bn: New Research from the Actuarial Profession (1 November 2004), available at html. 10 See Jeromson v Shell Tankers, [2001] EWCA 101 (CA). 11 See Fairchild v Glenhaven Funeral Services Ltd., [2002] U.K.HL 22 (HL). 12 Michael Zander, Where are we heading with the funding of civil litigation, Civil Justice Quarterly, Jan. 2003, at See The Compensation Shop, (last visited Feb. 26, 2006). 14 Her Majesty s Court Service, Group Litigation Orders (Mar. 18, 2005), 15 See Linda A. Willet, U.S.-Style Class Actions in Europe: A Growing Threat?, in BRIEFLY... PERSPECTIVES ON LEGISLATION, REGULATION, AND LITIGATION 2005, at 5 (National Legal Center for Public Interest Monograph Series Vol. 9 No. 2, June 2005). 16 Thomas E. Durkin, Constructing law: comparing legal action in the United States and United Kingdom (1994) (Ph.D. Dissertation), quoted in Laurie Kazan-Allen, Asbestos Compensation in Europe, International Ban Asbestos Secretariat, May 30, 2000, 17 U.K. ASBESTOS THE DEFINITIVE GUIDE, supra note 4, at 8.6 (describing the public feeling that the difference between the litigious and compensation-oriented U.S. culture and the non-litigious U.K. culture is narrowing all the time ). 18 Corrina Budras, Deutsche Telekom Case s 15,000 Claims Swamp Court, Bloomberg News, Nov. 23, 2004, available at quote.bloomberg.com/apps/news?pid=nifea&&sid =aozaf0v_yamu. 19 Lester Brickman, Ethical Issues in Asbestos Litigation, 33 Hofstra L. Rev. 833, 836 (2005). 20 See Grieves v F.T. Everard & Sons, [2005] EWHC 88 (QB). 21 See Rothwell, Grieves, et al. v Chemical & Insulating Co. Ltd., et al., [2006] EWCA 27 (CA). 22 U.K. s Amicus Decries Insurers Opposition to Asbestos Claims; Ambulance Chasers, Insurance Journal, Dec. 12, 2004, available at /2004/12/14/48610.htm. 23 Asbestos claims ruling overturned, BBC News, Jan. 26, 2006, available at 24 Cape PLC, 2005 INTERIM REPORT 15 (2005). 25 Richard Best, Liability for Asbestos Related Disease in England and Germany, 4 German Law Journal 7 (2003), available at 26 O Toole v Irish Rail, British Rail, and JW Roberts Limited, unreported, High Court, 19 February 1999, discussed in Asbestos victim s family awarded 150,000, The Irish Examiner, Feb. 20, 1999, available at irishexaminer/1999/02/20/ihead.htm. 8

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