For decades, claimants have sued over alleged injuries from exposure to silica, asbestos, mold or lead paint. Eye-popping verdict amounts in such cases garner media attention, such as the $250 million award for a 70-year-old mesothelioma plaintiff in Madison County, Ill., in 2003 or the $32 million jury verdict for mold claims in Texas in 2001.

Although the total amount ultimately paid to the plaintiffs in these cases was much lower than the verdict amount (due to post-verdict settlements), the publicity alarms had already rung.

While new types of mass tort claims are brought (for alleged injuries relating to ephedra, Vioxx and even obesity), many asbestos, silica, mold and lead paint claims continue to be filed or remain pending. Some of these “familiar” claims may evolve, reflecting a changing legal and public policy landscape. During the past year, increased media, court and congressional attention has focused on the fraud allegedly associated with many mass screenings in asbestos and silica cases.

Yet new litigation trends are also evident for mold and lead claims, where classes of defendants and theories of liability are expanding.

In June 2005, a Texas federal district court judge issued a scathing 249-page order in a silica multidistrict proceeding involving more than 10,000 silica claimants.

Judge Janice Jack noted that:

o Many of the silica claimants had also previously filed asbestos claims, despite the low probability that the same person would develop both asbestos- and silica-related diseases.

o Many of the same attorneys had filed both silica and asbestos claims on behalf of the same plaintiffs.

o Most of the silica claims involved the same medical screening companies utilized by the asbestos plaintiffs.

o 99 percent of the silica claims were diagnosed by the same nine doctors, with one doctor allegedly diagnosing 1,239 patients in 72 hours.

Judge Jack opined that the vast majority of the diagnoses “were about litigation rather than health care” and had been “manufactured for money.” Finding that she lacked jurisdiction to hear most of the cases, Judge Jack dismissed the silica claims to various state courts where many have been subsequently dismissed.

Judge Jack's ruling has had ramifications across the country. For example, a federal grand jury in New York is reportedly investigating issues associated with the fraud suggested by Judge Jack's MDL ruling.

In addition, on March 8, the House Energy and Commerce Committee's Subcommittee on Oversight and Investigations convened a hearing to probe the issue. Three of the doctors who diagnosed silica plaintiffs in Judge Jack's MDL refused to answer many questions posed in the hearing, invoking their constitutional right against self-incrimination. One House member present remarked that the situation seemed to be a “story of medical mercenaries who allege cases of disease for the purpose of legal action and great financial gain.”

The silica litigation “story” continues to receive publicity and scrutiny, with all eyes watching to see how the next chapter unfolds.

Since Sen. Orrin Hatch first introduced the Fairness in Asbestos Injury Resolution Act in 2003, federal and state legislators have grappled with legislative solutions to the asbestos litigation issue.

On the federal level, the FAIR Act suffered a setback in February when supporters failed to secure enough votes to overcome a parliamentary point of order. While efforts to revive the FAIR Act are ongoing, its fate is unclear.

On the state level, Florida, Georgia, Ohio and Texas have enacted medical criteria laws applicable to asbestos and silica claims that require claimants to produce evidence of an actual physical impairment. If a claimant is unable to produce such evidence, the claim is dismissed without prejudice to refile at a later time if an asbestos- or silica-related injury develops.

This year, asbestos and silica medical criteria bills are pending in Louisiana, Kansas, Michigan, Missouri and South Carolina. Whether these laws will be enacted and how such laws will impact pending and future asbestos and silica claims remains to be seen.

After a jury issued a $32 million verdict in a 2001 Texas case, many observers labeled mold “the next asbestos.”

Mold claims received heightened mainstream media attention, especially when lodged by celebrities such as Ed McMahon, Lou Ferrigno, Michael Jordan and Erin Brockovich. By 2003, more than 10,000 mold cases were reportedly pending in courts across the country, despite the lack of a conclusive scientific link between mold and health claims.

Insurers quickly responded by educating claims handlers on mold issues and writing policies with sublimits for mold coverage or exclusions. While bad faith claims against insurers for handling mold claims have declined, mold claims continue to plague many companies associated with the construction and building management industries.

In 2003, a Florida real estate development trust settled a class action mold lawsuit brought by 1,000 residents of an oceanfront apartment building for up to $25 million.

As recently as October 2005, a California case involving a child's alleged mold-induced brain injury settled for $23 million, with a lumber company paying $13 million of the total amount.

While there's no conclusive data on the number of mold suits pending at present, today's mold claims seem to involve broader types of defendants, such as lumber companies and wood sealant manufacturers. The trend toward more diverse categories of defendants may continue if the settlement value of mold claims increases.

Lawsuits against paint manufacturers are gaining momentum in California, New Jersey, Rhode Island and Wisconsin.

In addition to alleging personal injury, many recent complaints also charge paint makers with having knowingly sold harmful products. Such sales are alleged to constitute a public nuisance, negligence and fraud.

The suits seek millions of dollars for costs to remove lead paint, medical treatment and other monetary compensation, including punitive damages.

In February, a Rhode Island jury ruled that three paint manufacturers had created a public nuisance by selling lead paint decades ago. The Rhode Island judge rejected plaintiffs' request for punitive damages, finding no reckless or willful conduct in marketing the paint. But the costs to clean up the paint could run in the billions.

In March, a California state appeals court reinstated a similar class action, and the New Jersey Supreme Court is expected to rule on an appeal in a similar case.

In 2005, the Wisconsin Supreme Court issued a ruling in which Wisconsin became the first state to adopt the expansive “risk contribution” theory in the context of a lead paint pigment case.

Under the “risk contribution” theory, a plaintiff's burden of proof to establish causation in negligence and product liability claims is relaxed. The theory allows that a plaintiff need not prove that any single manufacturer produced the product that caused their injury. Rather, the plaintiff need only establish that he or she suffered damage from a product of the type manufactured by the defendant. Thus, the public nuisance and risk contribution theories tend to require little to no proof by the plaintiff of culpability by defendants.

If the lead paint cases prove successful to plaintiffs attorneys, the “public nuisance” and “risk contribution” theories may be expanded to other types of claims.

While new types of claims always loom on the horizon, familiar claims involving silica, asbestos, mold and lead paint remain. As legal or legislative obstacles arise, these “old” claims are ripe for “new” applications. It would not be surprising if the plaintiffs' bar adapts to unfavorable rulings or laws by devising new ways to plead or restyle their cases. In the world of mass torts, it seems that everything “old” has the potential to become “new” again.

Art caption:

Special Reports /

New Variations On Old Themes May Spell Different Outcomes For Mass Tort Cases

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