Playing Hide the Substantial Factors in Asbestos Litigation

In previous posts, I have noted that Dr. Selikoff, who did so much to shine light on the health hazards of asbestos, did much to keep fiber type differential causation in the dark.  Selikoff was a “crocidolite denier,” who went so far as to deny that American workers had crocidolite exposure at all.  SeeSelikoff and the Mystery of the Disappearing Amphiboles.”

Dr. Selikoff’s extreme positions on crocidolite are difficult to explain in terms of the data known to him.  In addition to some of the data already presented, consider the following statistical tables from the 1965 volume of the Annals of the New York Academy of Science, edited by Dr. Selikoff:

US Dept. of Commerce statistics on imported amosite and crocidolite

year           amosite              crocidolite

1957            14,197                   17,820

1958            16,994                   19,690

1959            16,614                   18,006

1960            19,581                   14,899

1961            15,501                   14,978

1962              9,602                   20,235

App. 3, Statistical Tables – Asbestos, prepared by T. May, United States Bureau of Mines, in I.J. Selikoff & J. Churg, eds., “Biological Effects of Asbestos,” 132 Ann. N.Y. Acad. Sci. at 753, Table 17 (1965).

Blue wins by about 13,000 short tons, over these 5 years.  Dr. Selikoff presided over the Academy meeting that gave rise to this publication, and he edited the volume that was contained these statistics.  Why did Selikoff deny the obvious?

A fair historical hypothesis, to be investigated, would posit that Dr. Selikoff was well aware of the fiber type differential, but he was also aware that the Canadian mining concerns were poised to play up the difference in mesothelioma potency, both in regulatory and litigation contexts.  We have seen how Dr. Selikoff was in close touch with plaintiffs’ advocates, such as Barry Castleman.  The hypothesis is that people like Barry Castleman and his principals, the plaintiffs’ asbestos bar, encouraged or pressured Dr. Selikoff to promote the notion that all asbestos minerals were equally pathogenic to undermine a substantial factor defense from companies that mined or used chrysotile fiber.

Dr. Selikoff almost certainly was aware that the South African companies were judgment proof in U.S. courtrooms.  South Africa was a renegade nation at the time, increasingly the subject of disinvestment campaigns and economic boycotts.  South Africa would not honor court judgments based upon verdicts in U.S. asbestos personal injury cases, and the intermediaries, distributors of amosite and crocidolite, were little more than shell corporations.

Plaintiffs’ counsel, as far back at the late 1970s, surely anticipated the substantial-factor battles ahead.  They obviously had talked to Dr. Schepers, who told them that in his view, chrysotile was innocuous with respect to mesothelioma causation.  The plaintiffs’ lawyers needed to keep the solvent North American companies in the courtroom.

I do not have a Castleman letter to, or a tape recording of a Ron Motley conversation with, Dr. Selikoff to document my postulated scenario.  It is hard, however, to fathom any good reason as to why Dr. Selikoff was so motivated to be a crocidolite denier, when the evidence on both prevalence of, and health effects from, the use of crocidolite and amosite, was so obvious.

Law school professors are fond of analogizing asbestos mesothelioma cases to the famous “two fires” hypothetical in the law of torts. See, e.g., Anderson v. Minneapolis, St. Paul & Sault Ste. Marie Railway 146 Minn. 430, 179 N.W. 45 (1920) (abandoning “but for” causation when two fires, each would have tortuously burned house); Restatement Second of Torts Sec. 432(2).  The analogy is far removed from the typical mesothelioma case, which involves multiple fiber types, with widely varying level of exposures.

Rather than 10 defendants, each responsible for 10% of the total risk, the real world court cases illustrate the misuse of joint and several liability, and the abuse from hiding exposures to products of bankrupt and judgment proof companies.  The following hypothetical is more typical of cases I have litigated:

Plaintiff was a shipyard worker, with 30 years of worksite exposure.  Plaintiff worked with a range of insulation products, some of which had crocidolite or amosite content, but most had only chrysotile asbestos in their makeup.  All or mostly all of the insulation manufacturers are bankrupt.  The plaintiff claims to have changed his car’s brake linings, and that he was exposed to chrysotile once a year, when he did this car repair.

To put some figures to the hypothetical, suppose a range of varying “potency factors” for different fiber types, with different breakdown of the three major asbestos mineral varieties:

10% crocidolite, with a potency factor 200x

20% amosite, with a potency factor 50x

70% chrysotile, with a potency factor 1x

These potency factors are realistic although not everyone would agree.  On these facts, the chrysotile exposure, although quantitatively substantial would have an insubstantial role in producing mesothelioma in such a shipyard worker.  The total relative chrysotile role would be about 2.28% of the total.  Realistically, all chrysotile products, considered together, would not be a substantial factor in producing a mesothelioma.

Now the brake linings exposure claimed from changing brakes once a year supposedly involved only chrysotile exposure.  Compared to the occupational exposure in the hulls of ships, this outdoor work rarely took more than a couple of hours.  A conservative estimate would put the chrysotile exposure somewhere at 0 to 0.01% of all the chrysotile exposure sustained, or somewhere from 0% to 0.0002.3% of causation, assuming that chrysotile can even cause mesothelioma (a doubtful assumption).

Dr. Selikoff surely not envision the gritty details of today’s world of asbestos litigation, in the wake of 90 bankruptcies, with its cynical game of hiding the bankrupt and judgment-proof companies’ shares of liability.  He did, however, likely see that chrysotile mining and manufacturing firms would press the relative innocuousness of chrysotile fiber in causing mesothelioma.  The ground work for the injustice of the mantra that “each and every exposure” to asbestos is a substantial factor was laid a long time ago.

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