Clear Liability (General Causation)

From the time of the Borel case to the present, there has been little or no dispute about the basic propositions that asbestos is an unreasonably dangerous product and that it can cause injuries

1. Id. at 115.
2. As of 1982, it was reported that 21 plaintiffs had been awarded a total of
   $39,468,002 in punitive damages. Special Project, supra note 8, at 707 n.853. Later,
   awards became larger and more numerous, but courts have rejected constitutional
   and policy-based challenges to such awards. See, e.g., Jackson v. Johns-Manville
   Sales Corp., 781 F.2d 394, 398-409 (5th Cir.) (en bane), cert, denied, 106 S. Ct. 3339
   (1986).

Empirical evidence suggests that juries are selective in awarding punitive dam­ages and that high awards to asbestos plaintiffs are an aberration from the norm in products liability and personal injury litigation. Studies have shown that punitive damages are rarely awarded and that awards in products liability cases are espe­cially rare. See generally Daniels, Punitive Damages: The Real Story, 72 A.B.A. J. 60 (1986). A recent study by the Rand Corporation’s Institute for Civil Justice for the American Bar Association’s Litigation Section reported that the average punitive damage award in Cook County, Illinois, and San Francisco, California, was roughly $120,000 from 1980 to 1984. Eighty-five percent of the awards were in intentional tort or business contract cases. Personal injury cases accounted for disproportion­ately few punitive damage awards. Punitive Damages: Litigation Section Study Finds No Crisis, 1 Inside Litigation 12 (1986).

29.  See, e.g., In re Johns-Manville Corp., Nos. 82 B 11,656-82 B 11,676 (Bankr.
S.D.N.Y. filed Aug. 26, 1982). The bankruptcy judge rejected objections to confirma­
tion of the reorganization plan. Id. 68 Bankr. 618 (Bankr. S.D.N.Y. Dec. 18, 1986).
See also Note, Strategic Bankruptcies: Class Actions, Classification and the Dalkon
Shield Cases, 7 Cardozo L. Rev. 817 (1986).

As of early 1987, six asbestos defendants had filed for Chapter 11 protections and reorganization under the bankruptcy code. See Standard Insulation Files Chapter 11, Intends to Liquidate, Mealey’s Litig. Reps.: Asbestos, Aug. 22, 1986, at 4,863.

Chapter II

such as asbestosis, mesothelioma, and lung and gastrointestinal cancers.³⁰ Some of the injuries claimed in asbestos litigation are di­rectly traceable to asbestos fibers; asbestosis is especially, as its name implies. On the other hand, some of the lung and gastrointes­tinal cancers can be caused by other substances or by a combina­tion of substances, resulting in potential disputes. In contrast to many other toxic tort cases, for example, those involving sub­stances such as Bendectin and Agent Orange, the issue of medical causation (that is, the capacity of the substance to cause the harms at issue) is not in doubt.³¹ This is not to say that issues of eausa-tion-in-fact (that is, whether a particular defendant’s product was a contributing cause of the specific injuries alleged by a particular plaintiff) are never in doubt. Issues of whether or not the plaintiff was exposed to a product of a given defendant, whether the defend­ant could reasonably know the dangers of asbestos and foresee its effects, and whether warnings were adequate continue to be liti­gated in those rare cases that proceed to trial.

In a sense, the uniqueness of asbestos fibers contributes to the clarity of general causation. Biopsy and autopsy tests can detect as­bestos fibers as the final residue of chemical tests that burn all other substances. Proof of causation-in-fact may be aided by this in­destructibility. In some cases, test results identify the type of fiber that was ingested. These fibers can then be compared with the types of fibers in a specific product. This capacity to trace and detect asbestos fibers distinguishes asbestos from other toxic sub­stances that are either very widely used in the environment, such as formaldehyde, or are not so easily tracked in the human body.³²

1. Borel v. Fibreboard Paper Prods. Corp., 493 F.2d 1076, 1087-92 (5th Cir. 1973).
   See generally Special Project, supra note 8, at 593-605. Questions of whether the
   dangers of asbestos were foreseeable to the manufacturer of a specific product have
   been treated as issues of fact for juries to decide. Id. at 605.
2. See generally In re “Agent Orange” Prods. Liab. Litig., 597 F. Supp. 740
   (E.D.N.Y. 1984), aff’d, Nos. 1140 et al. (2d Cir. Apr. 21, 1987) (settlement approval),
   611 F. Supp. 1223 (E.D.N.Y.  1985) (summary judgment against opt-out plaintiffs
   based on lack of causation), rev’d on other grounds, Nos. 1085 et al, (2d Cir. Apr. 21,
   1987); In re Richardson-Merrell, Inc. “Bendectin” Prods. Liab. Litig., MDL No. 486,
   Order Denying Motions for Judgment NOV and for a New Trial (S.D. Ohio Sept. 17,
   1985) (upholding jury finding of lack of general causation), Ct. App. No. 85-3858,
   argued (6th Cir. Oct. 9, 1988); Oxendine v. Merrell Dow Pharmaceuticals, 506 A.2d
   1100 (D.C. 1986) (reversing judgment NOV and reinstating jury verdict for plaintiff
   in case involving Bendectin).
3. There is scientific evidence that dioxin stores in the fatty tissue of the body.
   See, e.g., Eckholm, Highly Sensitive Skin Test Can Detect Dioxin Years After Expo­
   sure, N.Y. Times, Oct. 14, 1986, at Cl; Gardner, Answers at Last, The Nation, Apr.
   11, 1987, at 460. Some immunologists claim that they can detect damage to the
   immune system caused by toxic substances. See, e.g., Sterling v. Velsicol, No. 78-
   1100, slip op., Findings of Fact Nos. 628-642 (W.D. Tenn. filed Aug. 1, 1986). If that
   evidence proves to be reliable and is accepted by courts generally, litigation relating

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