Asbestos Litigation—What's the Holdup?

October 11, 2011, 8:00AM. By Jane Mundy

New York, NYA former D-Day Veteran's family recently settled an asbestos lawsuit—the defendant admitted "a breach of duty of care." In 2008, just two weeks after Ken Hoggett was diagnosed with mesothelioma, he succumbed to the disease. Many victims of asbestos-related disease can wait years to reach a settlement; many of them have passed away before their day in court, leaving their families to soldier on. LawyersandSettlements asked attorney Steve Knowlton of Locks Law Firm why asbestos victims have to wait so long to litigate.

Knowlton explains that one reason people get settlements so late is because of mesothelioma's latency period; sometimes the disease doesn't manifest for 30 or even 40 years. That explains why most people acquire this fatal lung disease typically in the seventh decade—you seldom see young people diagnosed with it. But it also takes a long time for asbestos lawsuits to move through the judicial system.

"The wheels of justice do grind slowly," says Knowlton. "This is particularly true in litigations like asbestos where there are so many claims. And another reason has to with mechanisms that were put in place across the country to manage claims. Other times it simply depends on how many cases are on the docket."

Perhaps another reason is that you don't have to be diagnosed with mesothelioma to file an asbestos case. "If you have lung cancer, chronic pulmonary disease, pleural plaques or various types of other cancers that are related to asbestos exposure, you may have a case," Knowlton says. "Asbestos exposure of sufficient duration and intensity has been associated with multiple diseases of the lungs and other tissues. These claims may be compensable in any individual case."

Even if you smoked cigarettes you could have a case. "If the asbestos exposure is of sufficient duration and intensity it exacerbates the carcinogenic affects of cigarette smoking and vice versa," Knowlton explains. "It's like putting gasoline on a fire: it doesn't matter whether the fire is asbestos or cigarettes."

Over the past few years, LawyersandSettlements has interviewed a number of younger people diagnosed with asbestosis that hasn't developed into mesothelioma. Do they have a case, and if so, would they have to wait years for their day in court? Knowlton says that asbestosis and mesothelioma are two separate disease processes related to asbestos exposure. "A young man with asbestosis may not have a compensable claim and that depends on whether or not the asbestosis is causing a physical limitation and in which jurisdiction the claim would potentially be brought in.

"Different jurisdictions have put into place different mechanisms to deal with a higher amount of claims. Some have put into place a docket where people can file claims for asbestos exposure that results in diagnosable disease that results in an asymptomatic condition, e.g., no shortness of breath, etc. Those cases generally don't move anywhere. They are put in a holding pattern and not litigated so as to relieve the burden of an overloaded docket on the court system. For instance, there is a docket in NY where the cases like these lie fallow."

Asbestos litigation has been ongoing for 40 years and the biggest change has been the docket management mechanisms put in place by the courts. "These mechanisms have been placed over that time to deal with the vast number of claims," Knowlton noted.

Does that mean a claimant may wind up waiting longer, depending upon where the case is filed? "The claimant doesn't have a choice, generally, about where his claim can be filed," explains Knowlton. "There are rules where the claim can be filed and you cannot shop around." But you can shop around for an attorney…