The Puzzle of Mass Torts:
A Comparative Study of Asbestos Litigation

Andrea Boggio
Stanford Law School
May 2001

Asbestos has remarkable insulating properties but a damaging impact on human health. In the last two decades, asbestos has also become a challenge for the United States judicial system, where the number of asbestos-related claims has reached staggering proportions. By comparing asbestos litigation in several countries, my research aims to explain “how” and “why” various legal systems cope differently with the same problem.

Asbestos is a naturally occurring mineral fiber. Asbestos fibers, because of their resistance to decay and their remarkable insulating properties, have been incorporated into thousands of products and materials: acoustic insulators, thermal insulation, fireproofing and in other building materials. Unfortunately, it is now clear that exposure to airborne asbestos fibers can cause diseases, such as asbestosis, lung cancer, and especially mesothelioma, an extremely deadly cancer in virtually all cases related to the inhalation of asbestos fibers. As a consequence of exposure, several million people, especially workers of industrialized countries, have experienced the kinds of diseases related to asbestos.

Affected individuals are entitled, as a matter of law in virtually every legal system, to compensation for injuries related to their occupational exposure, and, therefore, many have commenced lawsuits. In the United States alone, several hundred thousand workers have filed lawsuits against asbestos manufacturers, and more than 150,000 asbestos-related claims are currently pending in the tort system, with tens of thousands of new cases filed every year. This mass of civil claims is known as the asbestos litigation. Litigation has proved to be an extraordinarily costly means of resolving claims of asbestos-related disease, and the number of lawsuits pending in the court system is not falling. Thus, asbestos has become a real challenge to the civil justice system, which has showed its incapability of coping with the problem.

Taking part in the debate on the challenge of asbestos litigation, my research addresses the issue from a comparative perspective by describing the experiences of asbestos litigation in several countries (i.e. the United Kingdom, Australia, Italy and Japan), and comparing them to the U.S. experience.

More specifically, the research focuses on the “dynamics” of asbestos litigation: how does the litigation arise, who are the key actors and how do they choose their strategies, and how does the system cope with these cases. The underlying questions are complex and involve several elements: attorneys' roles and fees, damages, procedural devices, legal standards, scientific evidence, settlements and class actions, to name a few.

My research is empirical, and falls within the notion of a comparative case study. As a research strategy, I will collect data from multiple sources within the different countries: by contacting and interviewing knowledgeable people (academics, professionals, advocates, victims' relatives, etc.), and by reading written materials (legal, medical, and newspaper articles, legislation, court opinions, etc.). The resulting data will be presented in individual sections analyzing “how” and “why” the legal systems solved the issues raised by asbestos litigation. Finally, I will analyze the findings, summarizing the common features and explaining the variations among legal systems.

Even though conducting detailed research of mass torts is a difficult task due to the complexity of the factual events and of the legal questions involved, asbestos is a particularly promising area of research for several reasons:

Asbestos has affected the lives of a mass of individuals in the civilized world in similar ways:

• The asbestos problem, its medical and social dimensions, has been experienced in virtually all industrialized countries
• Exposure data and health effects trends are readily available
• Scientific evidence of asbestos-related diseases is uniform around the world
• All legal systems recognize some sort of compensation to injured individuals
• Asbestos litigation involves basic legal issues: dispute resolution, access to justice, scientific evidence, compensatory schemes, judicial decision-making, group litigation, and many more.
• Data on asbestos litigation are accessible

The research is original from several angles.  First, although relatively recent, empirical research is an accepted strategy of conducting legal and policy-oriented research in the United States but not in many foreign countries, especially in Europe, where traditionally legal research is generally more abstract and theoretical. Second, comparative research on mass torts has never been done systematically, but only by looking at small pieces of the litigation, such as attorneys' fees or damages awards.

Comparative analysis promotes communication and knowledge of different legal systems, based on the premise that understanding others helps us to understand ourselves, and consequently helps to shape the policy debate surrounding mass torts. Certainly, a look to alternative dispute resolution mechanisms of mass torts may provide elements to assess the experience of asbestos litigation in the United States and to guide the development of the litigation in future mass torts.