Implications of New Research on Asbestos as a "Cause" of "Disease"

An online article published April 10, 2008 in ScienceNOW provides an overview of detailed research published in Science indicating that asbestos fibers stimulate production of a form of interleukin (IL-1β), which promotes inflammation. I've not yet read the article and so cannot say whether the article addresses asbestos fibers in the generic sense or if it distingushes between fiber types.

The article and commenters quoted in it suggest there will be future efforts to determine whether anti-inflammatory drugs can limit the biologic processes (disease, one might say), and that it may in the future become possible to test for increased levels of the implicated form of interleukin. (Wikipedia offers a nice article on interleukin, including striking color illustrations.)

So, how is this article relevant to asbestos litgation in particular and tort litigation in general? For asbestos litigation, the relevance is that scientific discoveries of this sort may lead to new tests that asbestos claimants could use to try to recover for increased future risk of contracting "disease," or for the defense side to try to use to show that a particular person person is not at "meaningful" risk of suffering from a "disease" deemed appropriate for compensation.

The research also may make its way into the factual proofs that have historically been part of the legal rationales for the "triple trigger" rationale for defining the "injuries" that courts decide are sufficient to "trigger" traditional CGL insurance coverage that was often but not always purchased by manufacturing firms prior to the advent of the so-called "asbestos exclusion" that became fairly common around 1985. The U.S. law on insurance coverage for asbestos claims is quite developed, but insurance coverage remains a wide open topic in many countries where asbestos litigation is just starting to take shape. And, depending on the scope and results of this and future research, it may add new grist for arguments about the "chrysotile defense" and/or whether a "low dose" exposure actually plays a legally meaningful role in the onset of what we define as "disease."

For tort litigation in general, this is an illustration of the type of issues that courts and lawyers will have to confront as science pushes forward at ever increasing speed. Over the coming years, it seems inevitable that courts and lawyers will spend increasing amounts of time thinking about how "disease" occurs on a biologic basis, and what can be done to prevent a biologic process from resulting in a tumor that actually causes "physical impairment." The answers may have a profound impact on the scope of new and old legal rationales for tort law claims (e.g. fear of cancer claims), and on the scope of recoverable damages.

Legislative and regulatory bodies also will have opportunties to consider and apply new science, and might even come to sensible conclusions to avoid the "wastes" inherent in litigation. But we've gone for decades without much sensible action from federal U.S. legislators, and the states have taken various approaches, mainly but not always after the federal legislators failed to act. It remains to be seen how legislators and regulators will respond in other nations. Legislative and regulatory actions related to asbestos are picking up speed outside the US, but that topic must wait for another day.

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Set out below is an excerpt from the ScienceNOW article as to the biologic process investigated:

"Tschopp and colleagues exposed to asbestos human and mouse immune cells that lurk in the lungs. They found that the material stimulated an inflammasome called Nalp3 to release interleukin-1β (IL-1β), a chemical that incites inflammation. But the real proof came from mice that were bred to lack Nalp3. When these mice were exposed to asbestos for 9 days, they produced lower levels of IL-1β and less lung inflammation than did mice with Nalp3, confirming that the inflammasome is key to triggering at least some of the negative effects of the fiber, the researchers report online today in Science. Tschopp speculates that because asbestos fibers lodge in the body, prolonged exposure causes chronic inflammation that over time could result in lung scarring and cancer. The details still need to be worked out, but the researchers note that IL-1β has been linked to other cancers."

Japanese Company Voluntarily Pays Asbestos Claimant

I'm often told that asbestos litigation is essentially just a U.S. issue because our culture is said to be so litigious. However, even the reputedly nonlitigious Japanese culture has produced asbestos claims and payments. A Japanese website reports that a Japanese corporation recently voluntarily paid compensation to a person claiming to suffer from mesothelioma. The claimant was aided by a victim's rights group based in Japan. The victim worked at a manufacturing plant reported to have used crocidolite fibers.

Science, Cancer and Law - New Studies Link Genes and Lung Cancer

Science moves much faster than does "the law," and the changes in science over time will have a profound impact on the framing and resolution of legal issues.

For a new example, consider that respected medical journals Nature and Nature Genetics this month published articles from three research teams asserting identification of one or more genes they say are materially related to an increased risk of contracting non- small cell lung cancer, which comprises about 80% of lung cancers. Having one copy of the gene is said to be a characteristic of about 50% for persons of European descent, and far lower among persons from Asia and Africa. According to the authors, inheriting one copy of the gene raises the risk by about 28%, and inheriting two copies of the gene raises the risk by 70-80%. Some of the authors suggest the gene may be tied to the tendency to smoke. The press articles indicate that the research teams made the usual prediction that tests for the two genes will be available in the future.

The implications for law in general are profound when one considers all of the societal and legal issues related to health itself, and the obligations of insurers, governments or individuals for the expenses of treating (or, some day, preventing) a non small cell tumor in the lung. Those many issues are far beyond the scope of this blog. Here, the focus will remain on the potential tort litigation issues that may flow from these studies, and the other studies that surely will follow.

For example, many asbestos claimants with "lung cancer" attibute the disease in whole or in part to inhalation of asbestos fibers and/or cigarette smoking. In such cases, what difference should it or does it make if the claimant has one or more copies of the identified genes, and has the non small cell tumor? Defendants may ask for genetic testing and if they find the presence of one or two copies of the gene said to be relevant, they may argue that their presence breaks the legal causation chain and so precludes liability. Defense counsel also may invoke Daubert principles and seek to bar expert testimony from plaintiff's experts if the testimony is not focused in persons with two copies of the gene - will that tactic be allowed to work ? How soon?

Plaintiffs' counsel, on the other hand, may be expected to argue that the "two copies" claimant is just like the "eggshell skull" plaintiff we all heard about in law school. We were taught that the general rule is that a liable defendant cannot avoid financial responsibility simply because a particular person had an especially thin skull. Will that rule continue in force in the age of genomic testing? Should it stay in force as is, or does it need modification?

Plaintiffs also may use the presence of two copies of the gene to try to meet legal standards they cannot meet today for some claimants advancing fear of cancer claims or other claims. For example, some state law opinions (e.g Havner in Texas) will for the most part refuse to permit a claim unless the plaintiff proves that there is a relative risk of a specific disease created by "exposure" to a substance that is at or exceeds 2.0. Will science over time allow plaintiffs' lawyers to meet the 2.0 standard for claimants with the "two copies" even if the 2.0 standard could not be met for a person without the two copies of the "lung cancer" gene?

These and many other issues are arriving fast. For press articles with more details on the lung cancer studies, see:

http://news.bbc.co.uk/2/hi/health/7325971.stm; http://www.latimes.com/features/health/medicine/la-sci-lung3apr03,1,483181.story

What's in a Name - Why GlobalTort ?

Why GlobalTort? From the lawyer's perspective, the name was chosen for multiple reasons.

One reason for the name GlobalTort is that it succinctly identifies the reality of most of today's mass tort litigation. Due to the globalization of manufacturing supply and distribution chains, and the information sharing power created by the Internet, "mass tort" litigation is rapidly evolving into a truly global industry that will expand and prosper until societies find new, consensus ways to reasonably balance the competing interests inherent in tort litigation. Globalization also means that plaintiff and defense firms are now starting to act in a truly global fashion, with offices and affiliates around the world. "Mass tort" claims also are now being drawn from and/or filed in a wide range of nations.

The GlobalTort name also was chosen because each group of so-called "mass tort" cases almost invariably raises addtional issues that cross a variety of lines. For example, all or most of the cases within a particular group of cases likely will include issues that plaintiff's lawyers like to say are "global" issues (e.g. when did "the ____ industry know ____.") In addtion, the underlying cases should not be looked at in a vacuum, and instead they raise a wide range of issues that include disclosure obligations, financial accounting rules, issues regarding indemnification rights and obligations, and insurance coverage issues, including issues regarding "shared insurance," meaning historic insurance available to multiple members of corporate families.

The name also was chosen because our three founders practice in divergent substantive areas, and so we hope to identify and offer comments on a wider than usual range of the of the private and public issues related to tort litigtion. In addition, we intend to go beyond just the cases and to comment on notable legislation, regulation and policy issues. And, finally, we hope the blog will over time evolve to the point that it includes comments from other nations and other professionals, thus furthering a global view of tort litigation.