Whether or not asbestos fades as a mass tort subject, plaintiffs' attorneys have been searching for the next big thing for years and they're continuing to do so, say experts like David Golden, a director at the Property Casualty Insurers Association of America.
"Mold was supposed to be the next big thing," he said, adding that "thankfully, science came in" and helped the industry get the mold issue relatively under control.
Another area that was at one point billed as the "next asbestos" was welding fumes, which allegedly cause Parkinson's disease, but Mr. Golden said the defendant companies on that issue chose to fight it out in court and were ultimately successful in 16 of 17 major cases.
One area that could be growing, he suggested, is climate change and environmental issues. He pointed to a class action filed against the oil industry arguing that pollution of the Gulf Coast contributed to the damage wrought by Hurricane Katrina by eroding marshes that could have served as a buffer against the storm.
Mark Behrens, a partner for Shook Hardy & Bacon, echoed the sentiment that the search for a "new asbestos" has thus far proven largely fruitless.
"I don't think there's anything on the horizon that rivals asbestos," he said, although he noted some attorneys have turned to bringing cases for prescription drugs like Vioxx.
Romy Comiter, a senior manager for Smart Business and Advisory Consulting, noted what she called a "growing trend" of cases filed against manufacturers of products such as handguns and for environmentally troublesome products such as lead. All of these so-called "immoral products," she noted, "are or were lawful to sell and had no defects" that could be seen as a reason for action.
As a result, she noted that plaintiffs' lawyers have sought to bring cases through some unusual means. In a Rhode Island case, for example, an attorney argued that lead paint should be viewed as a "public nuisance" and a jury agreed, but the case has been appealed. Similar cases in other jurisdictions, such as Missouri and New Jersey, have not been as successful, she said.
Other areas being tested by attorneys, she noted, include such products as fast food and alcohol, for their possible unhealthy effects or potentially inappropriate marketing.
The problem for those seeking to build hype around a product or issue as the "next asbestos," explained Ms. Comiter, is they fail to comprehend just how big the issue needs to be. The industry paid out as much as $100 billion to $120 billion due to asbestos exposure claims over the past decades, she said.
By comparison, Hurricane Katrina, the largest natural disaster in U.S. history, resulted in only $56 billion paid in claims by insurers. "They need to put asbestos in perspective," she said.
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The industry paid out as much as $100 billion to $120 billion due to asbestos exposure claims over the past decades, according to Romy Comiter, senior manager, Smart Business and Advisory Consulting LLC
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