Compensating Asbestos Victims

Asbestos is a naturally occurring mineral fiber. Because of their resistance to decay and their remarkable insulating properties, asbestos fibers have been heavily used in shipbuilding, construction, automobile, and railroad equipment industries, among others. Asbestos has also been incorporated into thousands of products and materials such as acoustic and thermal insulators, fireproofing, and other materials. Unfortunately, it is now clear that asbestos is not only a 'magical mineral' but also a 'killer dust.'[n1] In fact, exposure to airborne asbestos fibers may cause diseases such as asbestosis, lung cancer, pleural plaques, diffuse pleural thickening, and, in rare instances, mesothelioma—an extremely deadly cancer found in virtually all cases to be related to the inhalation of asbestos fibers. Asbestos exposure has resulted in several million cases of asbestos-related diseases (ARDs), especially among workers in industrialized countries.

Asbestos exposure presents difficult legal problems. Virtually every legal system provides (some) compensation to individuals affected by ARDs. Additionally, various asbestos-related lawsuits have been filed in several countries. What is the history of the legal dimension of the asbestos problem? What does the experience of asbestos litigation tell us?

In this research, I explore these questions tracing the evolution of asbestos litigation in England, Italy, and Belgium and contrasting these countries' experiences to the same in the United States. I investigate how essential features of these legal systems shape the compensation outcomes in mass injuries. Moreover, analyzing how asbestos injuries are compensated elsewhere may inform the ongoing debate over asbestos litigation in the United States.

My findings are that asbestos litigation is growing in all the countries studied. Such convergence of modern democracies toward a quest for 'total justice' (defined by Professor Friedman as 'greater expectation for justice')[fn2] is however contrasted by the empirical finding that the policy solutions that the US legal system and the European legal systems have implemented are remarkably different. While the compensation to the US asbestos victims has been provided under the paradigm of personal injury litigation, public insurance schemes have been the primary, although not exclusive, source of compensation for European claimants. Although such differences reflect the differences in the legal tools and in the institutional history of the two legal cultures, the litigation actors' preferences better explain, I argue, the different developments. In fact, European lawyers have framed asbestos claims as occupational diseases thus seeking to expand workers' rights and social benefits rather than aiming to recover damages for personal injury cases occurred to their clients. This finding shows how dispute resolution process reflect the actors' preferences and, from a more general perspective, the preferences of the society in which the conflict arises.

The dissertation consists of five chapters. Chapter 1 describes the context of the research both in terms of policy and academic debate, the research questions the study aims to answer, and the methodology adopted. Chapters 2- 4 present case study reports of the national experiences of asbestos litigation in England, Italy, and Belgium. Chapter 5 offers a comparative analysis of the findings of the empirical data. Chapter 6 concludes with a reflection on the compensation of ARDs.

[1] Geoffrey Tweedale, Magical mineral to killer dust: Turner & Newall and the asbestos hazard x-xi (Oxford University Press 2000).

[2] Lawrence M. Friedman, Total Justice 76 (Russell Sage Foundation 1994).