Unraveling the “Master Historical Narrative” of Asbestos

Sheila Scheuerman at the TortsProf Blog has posted a note about a forthcoming article by Rachel Maines, of the Cornell School of Electrical and Computer Engineering, entitled “The Asbestos Litigation Master Narrative: Building Codes, Engineering Standards, and ‘Retroactive Inculpation’.”  The article was published “in press,” in August, and is slated to appear in an upcoming issue of Enterprise & Society.

Prof. Scheuerman has kindly provided a link to the in-press version of Professor Maines’ article:  Download Maines Asbestos Litigation Master Narrative 2012. Several years ago, Professor Maines published a book that challenged the asbestos dogmas created in the occupational health community, and by plaintiffs’ counsel and their expert witnesses. R. Maines, Asbestos and Fire: Technological Trade-offs and the Body at Risk (Rutgers Univ. Press 2005).  In her forthcoming article, Maines extends the thesis of her book, to explore how plaintiffs’ counsel conspired with their expert witnesses, such as Barry Castleman, to create what she calls “The Asbestos Litigation Master Narrative,” which involves the “retroactive inculpation” of industry for manufacturing asbestos-containing products.  Her article explores how building codes, engineering standards, and federal regulations specified the use of asbestos in various products, for health and safety reasons.  These codes, standards, and regulations represent a broad and deep consensus that asbestos could and should be used safely because of its important physical properties.

Maines notes that her search of LexisNexis revealed only two asbestos cases in which courts referenced building codes as standards that weighed against the plaintiffs’ constructed narrative of conspiracy tales and supposedly established historical knowledge of asbestos hazards.  She seems to imply that defense counsel have not done enough to put the legal and regulatory insistence upon asbestos use before courts and juries, which must employ the retrospectoscope to assess past knowledge and exercise of due care.

While Maines presents a valuable and engaging counter-narrative, with careful historical scholarship, her implied criticism of the defense bar is unwarranted.  In several key states (NJ and PA), where many asbestos cases have been tried, a combination of hyper-strict liability and trial bifurcation has kept juries from hearing the kind of evidence that Maines outlines.  For many years, reverse bifurcation was mandated in Philadelphia County Court of Common Pleas.  Causation and damages were litigated in the first phase of trial; liability in the second.  Plaintiffs’ counsel sometimes played an ancient videotaped deposition of Dr. Katherine Sturgis, and the defense often did not respond, perhaps because Dr. Sturgis was so lackluster, and because most juries had a hard time in any event finding for the defense after they committed to a causation and damages verdict.

There were notable exceptions.  One judge who took cases from the Mass Tort Program was the Hon. Levan Gordon, who resisted the MTP prescription for reverse bifurcation, and who tried cases “all issues.” In one case Tom Hanna and I tried against now Judge Sandy Byrd, back in May 1989, O’Donnell v. The Celotex Corp., Phila. Cty. Ct.C.P., July 1982 Term, Case. No. 1619, Judge Gordon followed his practice of trying cases all-issues, and I was thus able to put on a “state-of-the-art” defense, along with evidence of U.S. Navy military specifications for asbestos in insulation products.  The plaintiffs’ product identification witness, Mr. George Rabuck, unexpectedly cooperated by offering a story of a shake-down cruise of a Navy vessel, in which the insulators had not covered a stretch of steam pipe with insulation.  When a nearby oil valve broke, spraying oil onto the uninsulated pipe, a fire erupted, and two sailors died before it could be extinguish.  I was able to have Mr. Rabuck agree that a fire on a ship was a terrible thing, and in my closing argument, I was able to paint the picture of the two dead sailors who taken off the ship in body bags because someone forgot to use asbestos.  I felt that the risk-utility balance had been restored.  Perhaps the jury did as well; they returned a general verdict for the defense.

I tell the war story, not only because it was one of my favorite trials, but also because the defense used evidence of governmental insistence upon procurement and use of asbestos-containing insulation.  I am confident that many other defense lawyers have used similar mil-spec evidence as well, along with evidence of the U.S. government’s very deep knowledge of the potential hazards of asbestos.

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