The Asbestos Fight Ain't Over Just Yet

Despite favorable developments on both sides of the Atlantic, there's plenty of work left to be done in asbestos litigation.

By BRADLEY DREW, managing director of PACE Claims Services, a unit of Navigant Consulting; and MARY LYMAN, associate director of disputes and investigations/ product liability at Navigant

There has also been significant activity relating to asbestos claims in the United Kingdom over the last 10 years. As in the United States, there have been developments in a number of areas; however, unlike the United States the majority of the significant activity has involved insurers defending claims in the courts.

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There have also been significant improvements in the processes in order to speed up the handling of asbestos-related claims in the U.K. courts. These court reforms have been a positive change, though, unfortunately, the litigation has frequently seen the courts considering the very same arguments relating to the allocation of asbestos claims that the United States courts dealt with in the 1980s.

Although some of the activities have been very different in the United States and United Kingdom (e.g., state reform versus legal action), a number of the outcomes have been surprisingly similar. Unimpaired claimants, including those who have been diagnosed with pleural plaques, are no longer able to obtain compensation in the United Kingdom.

This ruling was overturned by the Scottish Parliament through the passage of legislation that allowed for pleural plaques to be compensable in Scotland. The Scottish legislation is currently under judicial review following an appeal by a number of major insurers.

There is significant pressure in the rest of the United Kingdom for government to overturn the House of Lords decision and allow compensation to be claimed for pleural plaques; however, with the recent change in government control, that action has not yet occurred.

With people unable to claim for pleural plaques, the focus is now almost entirely on those with malignant conditions such as lung cancer and mesothelioma. Thus, in this area as well, the United Kingdom is following a trend seen in the United States since the various state and tort reforms took place, with the outcome also beginning to show signs of similarity, as awards for mesothelioma in the United Kingdom are beginning to increase in some areas.

Despite some more favorable developments on both sides of the Atlantic, companies that face asbestos claims in the United Kingdom as employers or in the United States as product manufacturers need to prepare themselves for many more years of claims activity, as the end is nowhere in sight.

September 15, 2010

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