The Role of Asbestos Registries in Asbestos Litigation

Asbestos Registries play a vital role in Asbestos Litigation aimed at delivering justice worldwide, and could be used more extensively for asbestos victims in the US.

Hazards of Asbestos Exposure

El ill-effects of asbestos have been documented quite extensively throughout the world through various research studies. Taking cognizance of the research findings,69 countries have banned the substance. However, the rest of the world continues to use asbestos in some form or the other. The US is also one of them and it continues to use asbestos under strict laws and regulations.

There is certainly danger from the future use of asbestos and therefore risk of asbestos exposure, but as awareness of asbestos-related disease (ARD) increases, pressure will be on governments to ban asbestos in the country. 

However, the danger is greatest from the exposición al asbesto experienced by people working in buildings and ships, which were built during the century between the 1880s and the 1980s. 

The danger from asbestos is still real from these buildings and ships still in service, which would have been built using a number of asbestos-containing materials (ACM) like floor and ceiling tiles, piping, false ceilings, soundproof boards, asbestos cement, sealants, insulation, roofing shingles, sidings, sprayed coatings and firefighting equipment.

How does asbestos present a danger?

The danger from asbestos manifests in two ways. One is intrinsic to asbestos, which has a long latency, meaning that the time between first asbestos exposure and diagnosis of an ARD could be as high as 50 years in the case of an ARD like mesothelioma. The second is the presence of buildings and ships built during the 20^° century that have ACMs in them. 

When people work in these buildings to undertake repairs, renovation, refurbishment or demolition, they are exposed to asbestos if they don’t follow asbestos removal y disposal safety precautions as prescribed by current asbestos laws and regulations.

These can also create scope for secondary asbestos exposure for the families of such workers if they don’t follow safety regulations. Even the public can be subject to secondary exposure if safety precautions are not taken.

Asbestos exposure is truly hazardous to people and all stakeholders must endeavor to minimize asbestos exposure as much as possible. 

One way of minimizing asbestos exposure is to let people know where the hazard from asbestos exposure exists and this can be done effectively by maintaining an asbestos registry, which records the presence of asbestos in buildings and other places, including ships.

The Absence of an Asbestos Registry in the United States

Asbestos registries do exist in countries like the UK through the UK National Asbestos Register, which hopes to populate its register with at least 80% of all public sector buildings that contain asbestos by December 2027.

Australia maintains two registers. One is the workplace asbestos register that records the presence of asbestos by identifying its location in the workplace and identifies the type of asbestos and the ACMs present there. The second one is the National Asbestos Exposure Register that registers people who have been exposed to asbestos so that they can have ready access to the information whenever the exposure results in an ARD. 

New Zealand too has a similar register – the Asbestos Exposure Database

Unfortunately for the US, there is no role for the asbestos registry in the United States simply because there is no registry. The RAND Corporation – a non-profit research organization dedicated to public service – said in 2002 that “there is no national registry of asbestos claimants” in the United States. 

RAND Institute Reports on Asbestos Litigation

Earlier in 1985, RAND, which traces its history to 1948, published a study, in which it examined the compensation paid for claims in respect of personal injury caused by asbestos and the costs involved in the asbestos litigation. It found that only 37% of the total cost incurred on asbestos litigation was paid to claimants, while the remaining went to meet the expenses incurred by plaintiff and defense attorneys.

Since then, RAND has published an updated report in 2005 on the costs and compensation of asbestos litigation.

This report found that in US mass tort history, asbestos-related litigation is continuing to have the longest run. Over the years, the number of cases filed for asbestos-related injuries has increased. Obviously, the number of firms as defendants has also increased. Besides, the costs incurred by defendants has more than proportionately increased. 

Some of the key findings of the RAND study are as follows:

• Number of claimants exceed 730,000 through 2002 end
• Claimants from asbestos litigation have received about 42% of expenditure on asbestos litigation, while 31%has been spent on defense and 27% of the cost has been spent by plaintiffs’ attorneys and other associated costs
• Non-malignant injury claims have increased
• Five states of Mississippi, New York, Ohio, Texas and West Virginia accounted for 66% of filings between 1998 and 2000 as compared to only 9% prior to 1988
• Number of defendants exceed 8,400 and they comprise a mix of firms from 75 out of 83 different types of industries in the US
• Bankruptcies have increased from 16 in the 1980s to 22 between January 2000 and Spring 2002
• Asbestos litigation costs have totaled $70 billion, out of which more than 50% is accounted for by transaction costs
• Non-malignant claims have accounted for about 90% of compensation 
• Mesothelioma claim compensation has increased substantially since 1993
• Although estimates of the number of claims is between 20% and 50% of people affected, total estimated cost of asbestos litigation is between $200 and $265 billion in the future

The report further conducted an analysis to understand the tort system’s ability to manage asbestos claims efficiently given the absence of sufficiently documented information on asbestos claims litigation. Typically, this information is discrete and not easily shared.

The closest to any federal registry in the US is the Reporting and Recordkeeping Requirements Under the Toxic Substances Control Act (TSCA) for Asbestos, which became a rule from 24 August 2023. This is for the future use of asbestos in the US.

World Trade Center Health Registry

Efforts to track asbestos exposure and dangers after 9/11

As mentioned earlier, information on asbestos-related incidents is discrete and not shared easily. However, after the World Trade Center (WTC) 9/11 attack in New York, the World Trade Center Health Registry was created with the help of the NYC Health Department in November 2001 to track health effects that may arise from the toxins released by such a disaster. 

The healthcare professionals were concerned with the effect of inhalation or ingestion of dust from the dust cloud that was generated from the fall of the WTC towers. Authorities were also worried about the impact the disaster would have on the mental condition of survivors, bystanders, people living in the vicinity of the WTC area and first responders who were on the spot to help. 

While the immediate impact was there for all to see, the healthcare professionals were keen to track rare cancers among those who were near the WTC. They also wanted people to become aware of the availability of NYC’s programs on health screening and those enrolled in the registry to learn about the health programs for any 9/11-health-related conditions.

The WTC asbestos registry determined that an estimated initial 400,000 people were eligible for enrollment in the registry. The registry received federal funding in July 2002 to commence its work.

Although the registry’s work involved all kinds of health effects, the effect of asbestos exposure on firefighters, rescue and search workers, first responders, cleanup workers, firefighters and survivors was of particular interest to the asbestos industry. The people being enrolled in the registry also included citizens residing within a radius of 1.5-miles of the WTC.

Half a million people may have been exposed to asbestos on 9/11.

Subsequently, it was estimated that 523,000 were eligible to be on the registry. This comprised 360,000 building occupants and others in the area, 91,000 recovery/rescue workers and volunteers, 57,000 residents south of Canal Street and 15,000 children and staff in schools south of Canal Street.

This was necessary because the dust cloud dispersed contained 0.8% of asbestos when the WTC collapsed. The latency factor associated with asbestos is important when asbestos is involved. 

This latency aspect was evident from the data revealed by the registry, which recorded at least 352 asbestosis cases and 444 possible cases of pulmonary fibrosis induced by asbestos exposure. While the registry tracked 8% cancer cases in 2007, the figure rose to 16% in 2016.

Thankfully, the World Trade Center Health Registry will now be able to track the fate of 523,000 or more people who are enrolled in the registry.

Worldwide Asbestos Research Database

Although there is no official registry for the United States, some enterprising attorney firms have taken it on themselves to provide as much documented information as possible. 

El Worldwide Asbestos Research Database (W.A.R.D.) is one such resource, which is a rich resource for all matters related to asbestos. It is maintained by the Law Offices of Justinian C. Lane, Esq – PLLC.

W.A.R.D. can help victims of asbestos exposure to find information on the source of asbestos exposure and the type of ARD it can cause. This database is a rich source of information that will come in handy while claiming compensation from companies that caused the asbestos exposure. 

W.A.R.D. is a repository of information on sources of asbestos exposure dating back to the 1930s, including companies that have shut shop.

Navigating Asbestos-related Litigation

In the absence of a registry in the US, any asbestos litigation has to depend on self-collected information and acumen of the plaintiffs and their attorneys to prove the negligence of the firms involved in producing or marketing asbestos products. 

According to one school of thought, proving is not that essential as much as offering a preponderance of the evidence. This would have been made simpler for plaintiffs if there was a registry. However, the combined efforts of the plaintiffs and their attorneys has been able to overcome the absence of a registry and still obtain compensation for the victims.

Asbestos causes many types of diseases, including cancer. Mesothelioma is one cancer that is almost exclusive to asbestos. When trying to claim compensation for mesothelioma suffering, the latency factor and the poor survival rates of mesothelioma victims coupled with the lengthy litigation process often sees the victim die before any settlement. Further, laws of limitation also affect the claim process. Perhaps, a registry could help in resolving claims for mesothelioma.

Compensation for a mesothelioma diagnosis

Often, mesothelioma patients die a quick death, as the survival can last up to four years after diagnosis. Therefore, claims that may start as personal injury may have to be converted into wrongful death claims.

While it is a challenging task to attempt litigation to claim compensation for victims to claim what they are entitled to because of the negligence of an asbestos industry constituent, it is not insurmountable. Of course, a registry in the US like the one in Australia or in New Zealand would have been very helpful. However, the W.A.R.D. can help and hiring a competent and expert asbestos attorney firm like www.asbestosclaims.law would help victims secure compensation. 

Asbestos makes cigarette smoking more likely to cause cancer, and even lifelong smokers can collect compensation for asbestos exposure.

Another aspect of asbestos litigation refers to the effect of smoking on ARDs. Typically, lung cancer is attributed to smoking, but asbestos is also known to cause lung cancer. While the effects of smoking on an asbestos worker is yet to be quantified, extensive research shows that the effect is more than additive of risks but less than multiplicative of risks. 

Proving this in court would depend on the selection of an expert witness who is competent enough to show attribution of disease to asbestos.

Thus, navigating asbestos-related litigation is fraught with challenges but with a carefully chosen asbestos attorney and expert witnesses it is possible to make a successful claim.

The Role of Asbestos Registries in Asbestos Litigation

Registries have been used frequently for a variety of purposes. They serve as a repository of specialized information that could be referred to in the future. In the US, an asbestos registry is a dire necessity for the use of stakeholders in the asbestos industry. 

Although asbestos is surely and steadily being discontinued throughout the world, it is still a danger to people because millions of buildings and ships in the US contain ACMs and people will be exposed to asbestos when they undertake repairs in the buildings and ships containing ACMs. More people will be at risk of asbestos exposure when they demolish buildings or break ships. 

Further, workers who are involved in handling ACMs do have the potential to carry asbestos fibers on their person when they return to their homes every day after work. This would serve as a source of secondary asbestos exposure to the families of such workers.

Therefore, asbestos exposure is still a clear and present danger to people all over the world and especially in the US. 

The RAND Corporation estimates the total cost of asbestos litigation to be between $200 and $265 billion in the future.

With a registry in place helping to reduce other transaction costs, more of the total cost expended on asbestos litigation could be made available to victims, meaning more claimants can get compensation and more per capita compensation can be paid to claimants.

Referencias:

http://www.ibasecretariat.org/alpha_ban_list.php

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