Robert L. Brennan, Jr. New Classes Of Defendants

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1 Premises Liability Claims for Asbestos Exposure Increase As Plainti s' Lawyers Target Landlords and Tenants Copyright 2003 West Group. Originally appeared in the Summer 2003 issue of Real Estate Finance Journal. For more information on that publication, please visit Robert L. Brennan, Jr. In light of two important court decisions, March 2003 may well come to be regarded as the breakthrough month in the new wave of asbestos litigation led by plainti s against the owners and tenants of property alleged to have housed asbestos containing materials. In this article, Robert L. Brennan, Jr., an environmental attorney with Goodwin Procter LLP, discusses developments in this area. Mr. Brennan is an environmental attorney with Goodwin Procter LLP, Boston, Massachusetts. He practices in the rm's Real Estate Development and Land Use Litigation practice groups. On March 26, 2003, a New York jury awarded $47 million to a single plainti who had alleged that he contracted mesothelioma as a result of exposure to asbestos containing materials. While the size of the award was signi cantly larger than the average asbestos exposure verdict, the verdict awarded to plainti Robert Croteau was noteworthy because some of the defendants held liable in the case, including Consolidated Edison Company of New York and Long Island Lighting Company, were not companies that re ned asbestos or manufactured asbestos containing materials they simply owned property at which the plainti was exposed to asbestos containing materials. Also in March 2003, the United States Supreme Court issued a decision in another asbestos case, Norfolk & Western Railway Co. v. Ayers, that may have opened the door for plainti s with even minimal signs of asbestos exposure to recover for emotional damages attributable to their fear of developing cancer even though they may never develop asbestos related cancer or even su er impaired respiratory functions. In light of the precedent-setting decisions in Croteau and Norfolk & Western Railway Co., March 2003 may well come to be regarded as the breakthrough month in the new wave of asbestos litigation led by plainti s against the owners and tenants of property alleged to have housed asbestos containing materials. New Classes Of Defendants As one traditional asbestos defendant after another seeks bankruptcy protection, plainti s' attorneys who have made their fortunes through asbestos litigation are looking for new classes of defendants. Now, they THE REAL ESTATE FINANCE JOURNAL/SUMMER 2003 SESS: 1 COMP: 05/30/03 PG. POS: 1

2 Premises Liability Claims for Asbestos Exposure Increase are focusing on owners, lessees, and managers of buildings in which students, workers and the public allegedly may have been exposed to asbestos. If a company has ever owned or occupied a building in which asbestos containing material was or is present, the asbestos plainti s' bar already may have targeted it as a potential defendant. Drawing on information publicly available through state environmental agencies, plainti s' lawyers have amassed huge databases of properties known to have removed or encapsulated asbestos containing material. They are reporting these properties on the Internet, with the warning: If you or a relative has ever worked at one of the job sites listed below, you may have been exposed to high levels of asbestos. The Web site for one law rm representing asbestos plainti s names thousands of speci c facilities throughout the country. It also identi es 94 occupations and hundreds of unions, members of which may have asbestos-related claims against owners and operators of these facilities. These tactics are characteristic of plainti s' lawyers who have made a business of negotiating asbestos-related settlements. The Current Impacts And Future Prospects of Asbestos Litigation A study completed in late 2002 by the RAND Institute for Civil Justice calls attention to the recent shift in asbestos litigation toward non-traditional defendants, and documents the potential implications and costs of this new generation of lawsuits. Among the report's ndings: E Over 600,000 asbestos claims have been led against more than 6,000 defendants. E Asbestos suits have been brought against defendants in 75 of the 83 categories into which the Department of Commerce classi es all businesses. E Defendants already have spent $54 billion in defense costs and judgments in asbestos litigation. E Of the $54 billion already spent, between $20 and $24 billion was not covered by insurance. E By the late 1990s, 60 percent of all litigation costs were carried by non-traditional asbestos defendants (e.g., tertiary manufacturers, service industries and property owners). E Between 600,000 and 3,000,000 additional claims are expected over the next 20 years. E Estimates of the total cost of all claims are between $200 and $265 billion. Building Owners And Lessees As Targets Of Asbestos Lawsuits As is evident from the marketing e orts, continuing education programs, and lawsuits similar to Croteau that have been undertaken by the asbestos plainti s' bar, tort lawyers now are shifting their focus to owners and lessees of buildings that have been reported to have asbestos-containing building materials. The reasons are simple. First, most of the traditional asbestos defendants have been nearly bled dry. Asbestos litigation in the 1980s and 1990s against primary and secondary manufacturers of asbestos products have forced more than 60 companies into bankruptcy. Second, owners and operators of properties constitute a large and diverse group of solvent businesses in a wide spectrum of commercial and industrial activities. They therefore provide plainti s' lawyers with a common nucleus of potential defendants, who are both widespread and easy to nd. Third, premises liability is a basic principle of personal injury law the foundation for every slipand-fall case. Actions predicated on premises liability do not require tort lawyers to make new law, and they a ord the prospect of insurance coverage to help fund settlements or verdicts. Standards And Duty Of Care An asbestos claim led against a property owner or operator most commonly will allege that, as a result of the defendant's negligence, plainti was exposed to asbestos and therefore su ered illness or threat of future illness. Plainti 's claim, therefore, is one for premises liability breach of the common law duty to maintain the premises in a reasonably safe condition. The duty to maintain premises in a reasonably safe condition is imposed for the bene t of third parties who are lawfully present on premises. If property owners or tenants neglect this duty, and a person legally present on the property su ers injury as a result, the owner or tenant may be sued for medical expenses, pain and suffering, lost wages and, in some instances and jurisdictions, punitive damages. Historically, the standard of care owed by landlords and tenants to third parties varied according to the status of that party: invitees, social guests and licensees were treated di erently. Today, most courts have abolished such distinctions in favor of a general standard of care that is owed to all lawful entrants: possessors of real property shall exercise reasonable care in maintaining their properties and warning of known hazards. It is important to note that the Occupational Safety and Health Administration and the Environmental Protection Agency have issued regulations governing asbestos use and standards for identifying and maintaining asbestos- or suspect asbestos -containing material in workplaces and buildings. States and municipalities subsequently adopted their own asbestos regulations and ordinances. Depending on the jurisdic- 2 THE REAL ESTATE FINANCE JOURNAL/SUMMER SESS: 1 COMP: 05/30/03 PG. POS: 2

3 tion, violation of these regulatory standards may constitute evidence of negligence, or may be considered negligence per se. Typically, asbestos premises liability suits allege that the presence of asbestos containing materials at a property presents a dangerous condition. To constitute a dangerous condition, the state of the property must pose an unreasonable and unanticipated risk of harm to the individual. Additionally, an injured plainti is required to prove one of three elements: (i) the defendant created the dangerous condition; (ii) the defendant knew of the condition and negligently failed to correct it; or (iii) the condition existed for such a length of time that the defendant should have discovered and remedied it. In response to an asbestos claim grounded in premises liability, owners and tenants should consider challenging all allegations as to duty and breach. In addition, a rmative defenses such as the plainti 's own negligence and failure to mitigate injury may be su cient in many states to prevent or reduce a plainti 's recovery. The existence of a duty on the part of a defendant does not absolve a plainti from all responsibility, especially with respect to conditions that should have been obvious to the individual. Plainti s' lawyers are actively recruiting boiler workers, plumbers and other individuals in the building trades because the nature of their work typically brings them to the areas most likely to contain asbestos. However, it is arguable that such tradespeople are in a better position than building owners or tenants to recognize asbestos and avoid exposure. Asbestos Injuries And Causation In addition to alleging breach of a duty of care, asbestos premises liability claims also require that the plainti su ered injuries and that the injuries were the result of exposure to asbestos on the defendant's property. Although circumstances will vary, the limited duration of exposure or, indeed, the paucity of evidence of any exposure, may warrant mounting a defense based on lack of causation. Plainti s' lawyers, by contrast, typically will try to shift the focus of the case away from the speci c facts of the case to the more generic science, and the more sinister reputation, of asbestos disease. Several medical conditions have been attributed to asbestos exposure. It has been suggested that 20 to 40 years may lapse between rst exposure to asbestos and disease manifestation. Asbestos-linked illnesses for which plainti s have recovered damages entail varying degrees of impairment. Mesothelioma is a cancer of the lining of the chest or abdomen. The disease is generally regarded as fatal within two years of diagnosis. Mesothelioma claims are the most successful and have received the largest awards. The 2002 RAND study reported that the mean mesothelioma plainti 's award is in excess of $6 million, and 75 percent of all mesothelioma claims received an award. The $47 million verdict in Croteau is not unprecedented in terms of size. In August 2001 a Texas jury awarded a single mesothelioma plainti $55.5 million in damages. Because asbestos is the only demonstrated cause of mesothelioma, it is often dif- cult to challenge causation of the injury if exposure to asbestos at the defendant's property is shown. Plainti s have also alleged that a number of other cancers (including leukemia and cancers of the lung, larynx, esophagus, mouth, breast, stomach, prostate, colon, thyroid and pancreas) have also been caused by asbestos exposure. However, with the exception of lung cancer, there is little evidence linking many of these cancers to asbestos exposure, and factors such as genetics, smoking and diet are shown to greatly increase the risk of these cancers. Claims based on nonmesothelioma cancers often can be aggressively defended by challenging causation. Asbestosis is the scarring of lung tissue as the result of asbestos ber inhalation. Asbestosis claims represent the largest portion of all asbestos lawsuits. Clinical diagnosis of asbestosis requires decreased pulmonary function. However this condition, not usually fatal, covers varying degrees of functional impairment. Pleural plaques are thickenings or scarrings of the membrane that lines the chest cavity and covers the outside of the lungs. Pleural plaques are attributed to asbestos exposure but do not necessarily cause any diminished pulmonary function and individuals with signs of the condition may never su er any functional impairment in their lifetime. Thus, pleural plaques can constitute an injury without a harm. The latency period of asbestos-related illnesses creates unique challenges for the courts. Because most statutes of limitation run from the discovery of injury not impairment from injury a signi cant percentage of asbestos suits (94 percent as estimated by one study of the claims led in 2000) claim injuries in the form of pleural plaques or asymptomatic asbestosis. The damages incurred by such unimpaired claimants are speculative at best. Fear Of Developing Cancer The Supreme Court's recent decision in Norfolk & Western Railway Co. has also buoyed the availability of recovery for a plainti 's fear of developing cancer in the future as the result of asbestos exposure. In the context of a claim led in West Virginia state court under the Federal Employer's Liability Act ( FELA ), applicable to personal injury cases against interstate common carriers, the Court upheld the trial court's jury instruction that allowed the award of damages if the plainti established a reasonable fear of can- THE REAL ESTATE FINANCE JOURNAL/SUMMER 2003 SESS: 1 COMP: 05/30/03 PG. POS: 3

4 Premises Liability Claims for Asbestos Exposure Increase cer related to proven physical injury from asbestos exposure. The Court rejected arguments made by the defendant and by the United States in an amicus brief, that sought to preclude recovery for fear of cancer on the grounds that the likelihood of a plainti progressing from asbestosis to mesothelioma or other form of cancer was too remote and, in the event that the plainti did develop cancer in the future, recovery for emotional damages could be recovered in a subsequent lawsuit related to that cancer under a separate disease rule. The Court's decision in Norfolk & Western Railway Co. makes clear that asbestosis, irrespective of the degree of pulmonary impairment or likelihood of progression to cancer, constitutes a su cient predicate injury to recover for fear of cancer. Unresolved is whether the lesser asbestos-related condition of pleural plaques, though causing no impairment of pulmonary functions, may similarly constitute an injury and support recovery for fear of cancer. However, the Court's reasoning suggests that medical proof of pleural plaques may justify a reasonable fear of cancer on the part of a plainti. Notwithstanding the Norfolk & Western Railway Co. decision, which is technically limited to suits led under FELA, claims by unimpaired plainti s may be challenged by motions to dismiss. Depending on local laws, however, many courts have allowed asymptomatic plainti s to proceed. Indeed, several states, including New York, New Jersey, Maryland, Ohio and Texas, actually allow plainti s to le two separate lawsuits for the same exposure one suit for recovery of the non-malignant condition, and a second suit if and when a malignancy is diagnosed. In contrast, Massachusetts and several other states have implemented pleural registries by which claims triggered by diagnosis of pleural plaques can be placed on le within the statute of limitations period, but the claims are delayed in processing unless and until the plainti 's injuries proceed further. Occupants May Be Insured Against Premises Liability Claims Asbestos claims made under a premises liability cause of action may be covered under premises operations or comprehensive general liability insurance policies. In this regard, the fact that a mesothelioma claim against an occupant is essentially an asbestos slip-and-fall may be advantageous to the defendant. The availability of such coverage is, in fact, one of the reasons that plainti s are now bringing claims against property owners. Because the lapse between asbestos exposure and manifestation of injuries may be as long as 40 years, coverage may depend upon historic policies. Immediately upon learning of an asbestos claim, owners and occupants should therefore review all policies that have been in place for the duration of their occupancy and provide written notice of the claim to all insurers. Claims By Employees Are Generally Limited To Worker's Compensation The worker's compensation system operates to preclude employees from ling asbestos exposure suits directly against employer-owners or employeroccupants in most instances. However, employees of tenants may generally le suit against the property owner or management company, and employees of the building owner may likewise le suit against tenants or managers. In addition, family members of employees may be able to bring suit directly against employerowners or -occupants if the family members allege exposure to asbestos brought home by the employee. Reform Proposals Currently, the majority of asbestos claims (including premises liability suits) are still brought in a handful of states with legal provisions uniquely favorable to plainti s. For instance, liberal joinder and venue provisions in Mississippi allow out-of-state plainti s to join suits brought by Mississippi residents against outof-state defendants. The result is that Mississippi asbestos suits can easily balloon into cases akin to class actions but without uniform allegations and potentially involving exposure that is alleged to have occurred at properties in dozens of states. Other states such as Texas are particularly attractive because of the availability of punitive damages. Still others like New York provide an expedited trial schedule for plainti s with malignant illnesses. Some states employing the mechanisms of the type described above also allow for the consolidation of hundreds, in some instances thousands, of cases for trial in a single lawsuit (including both impaired and unimpaired plainti s) against scores of defendants. The resulting unwieldy and unpredictable trial dockets in ate litigation costs and create an incentive to settle cases with decreased concern over the merits of individual claims. Legislation to reform the asbestos claim process has been proposed by a coalition of business interests, employers and insurers. The Asbestos Alliance is lobbying Congress for passage of a bill that would establish objective medical criteria for asbestos claims, liberalize statutes of limitation in order to dissuade unimpaired plainti s from ling suit, restrict the mixture of impaired and unimpaired plainti s into consolidated cases for trial and tighten venue requirements in order to prevent the ling of cases in jurisdictions that have no connection to the particular claim. While the proposed reforms now before Congress are generally intended to curtail asbestos litigation, the adoption of more stringent venue requirements would only impact where, not whether, litigation suits could be led. As a consequence, states in which a relatively small number of asbestos cases have been traditionally 4 THE REAL ESTATE FINANCE JOURNAL/SUMMER SESS: 1 COMP: 05/30/03 PG. POS: 4

5 been led, such as Massachusetts, are likely to see a dramatic increase in lings. Moreover, regardless of whether venue reforms are passed by Congress, individual states are sure to see an increase in lings with respect to in-state property owners who may not be subject to the jurisdiction of courts outside the state in which the property is located. In addition to the long-proposed reforms that would restructure how asbestos law suits can be led, lawmakers and industry leaders have recently engaged in discussions about the possibility of establishing a national privately nanced trust, similar to the 1998 national tobacco settlement. The trust would settle all pending litigation and future asbestos claims by awarding compensatory damages without the need for trial. However, as of the date of this article, the details of these discussions have not disclosed the extent to which claims against property owners would be covered under any such proposal. A settlement trust of this nature would also require the approval of Congress and the President and would likely face opposition by plainti s' advocates fearful of less-than-fair compensation. Conclusion Proposed legislative reforms may change where and when asbestos suits are brought against property owners and occupants. However, unless a national trust is established for the wholesale settlement of all asbestosrelated claims, it is nearly certain that for the foreseeable future an increasing number asbestos claims will continue to be brought on premises liability grounds. Building owners and tenants who have not yet received notice of claims should determine if their properties have been targeted by the asbestos plainti s' bar. Documents related to asbestos abatement or encapsulation measures should be reviewed in order to measure the time frame of potential exposure. Counsel should also be consulted to discuss the availability of other defenses should an asbestos liability suit be led. In addition, companies should review all policies to determine if coverage is available for asbestos exposure claims. Properties anticipating signi cant exposure, but with limited or questionable coverage, may wish to consider securing insurance for past exposures. THE REAL ESTATE FINANCE JOURNAL/SUMMER 2003 SESS: 1 COMP: 05/30/03 PG. POS: 5

6 @MAGNETO/VENUS/PAMPHLET02/ATTORNEY/REFJ/BRENNCPY SESS: 1 COMP: 05/30/03 PG. POS: 6

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