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Asbestos law

Legal and regulatory issues involving the mineral asbestos

  • 36 min read
  • 3 chapters

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One of the major issues relating to asbestos in civil proceedings is the latency of asbestos-related diseases. A National Institutes of Health of 421 people reported a latency period of 14 to 72 years from exposure to asbestos to mesothelioma diagnosis. Most countries have limitation periods to bar actions that are taken long after the cause of action has lapsed. For example, in Malaysia the time period to file a tort action is six years from the time the tort occurred. Due to several asbestos-related actions, countries such as Australia have amended their laws relating to limitations to accumulate starting from time of discovery rather than time when the cause of action accrued. The first employee claims for injury from exposure to asbestos in the workplace were made in 1927, and the first lawsuit against an asbestos manufacturer was filed in 1929. Since then, many lawsuits have been filed. As a result of the litigation, manufacturers sold off subsidiaries, diversified, produced asbestos substitutes, and started asbestos removal businesses.

Worldwide, 67 countries and territories (including those in the European Union) have banned the use of asbestos. It is listed as a category of controlled waste under Annex I of the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal [1992]. This means that parties to the convention are required to prohibit the export of hazardous wastes to parties which have prohibited the import of such wastes via the notification procedure in Article 13 of the convention. In places such as India, however, there continues to be a high use of friable or dust-based asbestos in compressed asbestos fiber (CAF) gaskets, ropes, cloth, gland packings, millboards, insulation, brake liners, and other products which are being exported without adequate knowledge and information to the other countries. Asbestos use is prevalent in India because there is no effective enforcement of the rules.

Background

In the late 19th century and early 20th century, asbestos was considered an ideal material for use in the construction industry. It was known to be an excellent fire retardant, to have high electrical resistance, and was inexpensive and easy to use.

The dangers related to asbestos arise mainly when the fibers become airborne and are inhaled. Because of the size of the fibers, the lungs cannot expel them. These fibers are also sharp and penetrate internal tissues.

Health problems attributed to asbestos include:

  1. Asbestosis - A lung disease first found in textile workers, asbestosis is a scarring of the lung tissue resulting from the production of growth factors that stimulate fibroblasts (the scar-producing lung cells) to proliferate and synthesize the scar tissue in response to injury by the inhaled fibers. The scarring may eventually become so severe that the lungs can no longer function. The latency period (meaning the time it takes for the disease to develop) is often 10–20 years.
  2. Mesothelioma - A cancer of the mesothelial lining of the lungs and the chest cavity, the peritoneum (abdominal cavity) or the pericardium (a sac surrounding the heart). Unlike lung cancer, mesothelioma has no association with smoking. The only established causal factor is exposure to asbestos or similar fibers. The latency period for mesothelioma may be 20–50 years. The prognosis for mesothelioma is grim, with most patients dying within 12 months of diagnosis.
  3. Cancer - Cancer of the lung, gastrointestinal tract, kidney and larynx have been linked to asbestos. The latency period for cancer is often 15–30 years.
  4. Diffuse pleural thickening

Considerable international controversy exists regarding the perceived rights and wrongs associated with litigation on compensation claims related to asbestos exposure and alleged subsequent medical consequences. Some measure of the vast range of views expressed in legal and political circles can perhaps be exemplified by the two quotes below, the first from Prof. Lester Brickman, an American legal ethicist writing in the Pepperdine Law Review, and second, Michael Wills, a British Member of Parliament, speaking in the House of Commons on July 13. 2006:

"A review of the scholarly literature indicates a substantial degree of indifference to the causes of this civil justice system failure. Many of the published articles on asbestos litigation focus on transactional costs and ways in which the flow of money from defendants to plaintiffs and their lawyers can be expeditiously and efficiently prioritized and routed. The failure to acknowledge, let alone analyze, the overriding reality of specious claiming and meritless claims demonstrates a disconnect between the scholarship and the reality of the litigation that is nearly as wide as the disconnect between rates of disease claiming and actual disease manifestation".

"Many of those who I see in my surgeries have worked in a number of workplaces and they could have been exposed to asbestos in each of them, but medical science is such that no one can identify which of them it is. As a result, there has been a long and complex history of legal discussion on how to apportion liability. The lawyers and the judiciary have wrestled, rightly and valiantly, with complex and difficult law, but it has created despair for the families whom we represent. Many of my constituents' families have been riven by the consequences of litigation in trying to get some compensation for a disease that has been contracted through no fault of theirs. That is cruel and unacceptable."

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