Confirmation of Asbestos Hazards Sparks Widespread Litigation

Date April 6, 1964

The establishment of a clear scientific link between asbestos exposure and disease led to the filing of thousands of lawsuits by victims and their families.

Locale United States; United Kingdom

Key Figures

• Irving J. Selikoff (1915-1992), American researcher
• Ward Stephenson (fl. late twentieth century), American attorney
• Clarence Borel (c. 1912-1970), American asbestos worker
• Charles Tomplait (fl. late twentieth century), American asbestos worker

Summary of Event

Asbestos is an industrial material that has several unique characteristics. It is fire resistant, it is an excellent insulator, it is easily incorporated into a number of substances, and, because it is mined, it is a cheap commodity. These qualities led to the incorporation of asbestos into fire-resistant ceiling tiles, pipe insulation, fire brick for boilers, and many other products. Asbestos has one major drawback: It can break easily and become dust. This leads to the dispersal of dust during each step in the mining and manufacture of asbestos materials. This dust under magnification appears needlelike and in time will lead to the scarring of lung tissue in exposed individuals. Repeated exposure to asbestos dust increases the risk of contracting the disease known as asbestosis.

The dangers of asbestos exposure had been suspected since at least 1906, when a British physician performing an autopsy discovered asbestos slivers in the lungs of an asbestos worker. Subsequent British reports indicated that the risk of lung cancer for workers in asbestos factories was thirteen times greater than that of the population at large. By 1964, it was being reported that not only miners of asbestos but also factory workers who handled the fibers were at risk.

Perhaps the most remarkable chapter in the history of asbestos-related illnesses concerns the Johns-Manville Corporation, which was for decades the world’s largest manufacturer of asbestos. In 1929, Johns-Manville and several other asbestos producers, concerned about possible liability, commissioned medical research into the link between asbestos exposure and lung diseases. The results, reported to Johns-Manville in 1931, strongly indicated that asbestos was a severe health hazard. The corporation, however, attempted to suppress the results of that and subsequent studies and did little to safeguard its workers.

By the mid-1960’s, Irving J. Selikoff, a doctor studying asbestos workers at the behest of two labor unions, had established compelling evidence of the dangers of asbestos exposure. Much of this evidence, published by Selikoff and colleagues in the April 6, 1964, issue of the Journal of the American Medical Association, was gathered from the study of workers who had been exposed to uncontrolled work environments where asbestos concentrations as high as two thousand fibers per milliliter were observed. (The best available technology can now keep exposure levels below two fibers per milliliter.) In 1963, Selikoff examined more than one thousand individuals who had worked with asbestos. Half of the population studied tested positive for asbestosis, and the longer a worker was exposed, the greater was the risk of developing asbestosis. The study population was broken into thirds: The first group had been exposed for less than ten years, the second group had been exposed for ten to nineteen years, and the last group had been exposed for more than twenty years. The average rates of asbestosis for the groups were 10 percent, 50 percent, and more than 85 percent, respectively.

In addition to the problem of workers who had been exposed to asbestos, there was the further problem of exposure of the general population. Since asbestos was thought to be safe and could be used in a number of high-temperature applications and in places where fire-resistant material was required, much of the public was also exposed to asbestos fibers. The Environmental Protection Agency (EPA) estimated that as many as fifteen million students and more than one million teachers and support staff were being exposed to the fibers in U.S. schools alone. The removal of this material posed the additional problems of safety standards during removal, landfilling of hazardous waste, and loss of facilities contaminated by asbestos.

Significance

The accumulation of evidence regarding the dangers of asbestos eventually began to spark numerous lawsuits. In December, 1961, for example, Charles Tomplait, who had worked as an asbestos insulator for twenty years, filed a landmark claim for asbestos-related injuries. With the legal help of Ward Stephenson, Tomplait asked the Texas Industrial Accident Board for compensation for his development of asbestosis and silicosis.

After a year of legal and medical examination, the Texas board denied Tomplait’s claim. Three days later, Stephenson filed a lawsuit alleging that the medical disorders that Tomplait contracted were a result of the work conditions at Armstrong Contracting and Supply Corporation. The suit asked for $14,035, the maximum amount that could be filed for under existing laws. It was not until September, 1965, that Tomplait’s chest X rays were sent to Selikoff for examination, after which Selikoff concluded that Tomplait suffered from “significant pulmonary asbestosis.” Even with this new evidence, Stephenson believed that Tomplait should settle the case out of court, and the three insurance companies that had been named in the suit settled for a total of $7,500.

During the three years in which the Tomplait suit was being dragged out, revisions to existing laws made it possible for manufacturers to be held liable for defective or dangerous products. On December 10, 1966, therefore, Stephenson filed a lawsuit in federal court on behalf of Tomplait against eleven companies, asking for damages of $500,000. These companies included Owens-Corning Fiberglass , several units of Johns-Manville, and Fibreboard Paper Products. Over the next two years, as the defense and prosecution gathered information, the number of defendants dwindled to six, and Stephenson reduced the claim to $100,000. Every company in the suit was willing to settle except Fibreboard Paper; each of the other five settled for $15,000 apiece or a total of $75,000. Even with the wealth of evidence, however, the jury found Fibreboard Paper not guilty.

The trial ended in failure for Stephenson and his client. The next case, which would define the scope of future litigation, was filed in October, 1969, by Stephenson on behalf of Clarence Borel, an asbestosis sufferer who had worked with asbestos-containing materials for thirty-three years. One million dollars in damages was sought against the defendants, some of whom were the same manufacturers who had been named in the Tomplait case.

In January, 1971, two of the defendants settled for $3,000 each. The trial date was set for September 21, 1971, and as the date approached, two more manufacturers settled, this time for $5,000 each. One of the manufacturers was dismissed from the proceedings because of a lack of evidence, which left six manufacturers, including Johns-Manville and Fibreboard Paper. During the course of the trial, it was revealed that both the manufacturers and Borel had been negligent in the handling of the asbestos products, but the jury returned a verdict of guilty. They also decided that the award should be $68,000, to which the judge added medical and funeral costs, as Borel had died before the trial had started.

The manufacturers appealed the verdict, and on November 14, 1972, the case was heard before a panel of three circuit court judges. Stephenson himself died before the results of the trial and its appeal were known, but in September, 1973, the circuit court announced a verdict in favor of Borel.

The volume of litigation continued to mount; by the late 1970’s, Johns-Manville alone was facing more than fifteen thousand asbestos-related lawsuits. Faced with staggering potential liability, the corporation in 1982 took the unprecedented step of filing for bankruptcy, even though it held more than $2 billion in assets. The successful bankruptcy petition had the effect of protecting the company from lawsuits; eventually, Johns-Manville agreed to a compromise, setting up a $2.5 billion fund to pay future claims. The terms of the settlement ensured the corporation’s financial survival, but it also meant a substantial reduction in payments to victims, who were expected to receive, on average, from $30,000 to $50,000 apiece for future successful claims.

Since the threat of litigation scared most customers away from products containing asbestos, substitutes had to be found. Already in use were fire-retardant-treated paperboard, fiberglass, a magnesia-type material used to insulate pipes, and graphite. All these products are safer than asbestos, but they do not perform as well.

Bibliography

Brodeur, P. Outrageous Misconduct: The Asbestos Industry on Trial. New York: Pantheon Books, 1985. An excellent history book that reads like a detective novel. Brodeur presents the inner workings of the asbestos industry and its legal and moral machinations.

Carroll, Stephen J. Asbestos Litigation. Santa Monica, Calif.: RAND, 2005. Analyzes the health effects of asbestos; the nature extent of asbestos-related injuries in the United States; and the dynamics, participants, outcomes, and effects of litigation. Bibliographic references.

Castleman, Barry I. Asbestos: Medical and Legal Aspects. New York: Harcourt Brace Jovanovich, 1984. This textbook on asbestos is filled with tables, patents, and bibliographies. Of particular interest is chapter 9, which details company knowledge of problems with the use of asbestos.

Scheppers, G. W. The Veterans Administration’s Asbestos Abatement Program. New York: New York Academy of Sciences, 1991. The Veterans Administration has more than one thousand buildings under its control. This book describes the program developed by the Veterans Administration for removing the threat of asbestos while protecting patients and health-care providers.

Selikoff, Irving J., and E. Cuyler Hammond, eds. Health Hazards of Asbestos Exposure. New York: New York Academy of Sciences, 1979. Excellent book on the health effects of asbestos. Reports cover many different countries and industries, as well as the smoking-asbestos connection, abatement, and future problems.

U.S. Congress. House. Committee on the Judiciary. Asbestos Litigation Crisis in Federal and State Courts. Washington, D.C.: Government Printing Office, 1993. Because of the success that the legal community has had in winning judgments against asbestos manufacturers, the federal government held hearings to see if a nonlegal solution could be reached to allow all sufferers of asbestosis monetary relief. This publication is a government document and should be available at most large libraries.

White, Michelle J. Explaining the Flood of Asbestos Litigation: Consolidation, Bifurcation, and Bouquet Trials. Cambridge, Mass.: National Bureau of Economic Research, 2002. Brief paper detailing the causes behind and effects of U.S. asbestos trials. Bibliographic references.