Vanderbilt Law Review


Mark H. Reeves

First Page



During the three decades he spent working as a machinist for the United States Navy, Henry Plummer suffered continuous exposure to the asbestos used in the insulation, gaskets and pipe coverings of warships. In late 1999, a biopsy confirmed that he had developed mesothelioma, a gruesome type of cancer that kills all those who contract it and is caused only by asbestos. In an effort to combat his cancer, Mr. Plummer embarked on a long, painful course of treatments that included chemotherapy and the removal of his left lung in April 2000. In early 2001, however, Mr. Plummer's doctor informed him that new tumors had emerged, this time in his right lung. He was subsequently placed on a ventilator and died in October 2001.

Before his death, Mr. Plummer retained an attorney and filed a lawsuit against more than twenty makers of asbestos products. Several defendants settled before trial, and a jury awarded Mr. Plummer a $3.1 million verdict against one specific defendant, AC&S. Before Mr. Plummer's widow received any money, however, several of the settling defendants, including Owens-Corning and Fibreboard, filed for bankruptcy protection. Faced with the threat that AC&S would do the same, Mrs. Plummer agreed to settle her claim confidentially for an amount substantially less than the trial award. After paying her attorney's thirty-three percent of the award in addition to other expenses associated with the trial and her husband's illness, Mrs. Plummer will be left with less than $1 million?--a substantial sum of money, but certainly not one commensurate with the injury her husband suffered as a result of his exposure to asbestos. Unlike Henry Plummer, James Curry was not continually exposed to asbestos over a period of decades. Instead, his job only called for him to occasionally handle asbestos-containing products. Also unlike Mr. Plummer, Mr. Curry was not so unfortunate as to contract mesothelioma. Instead, Mr. Curry and his co-plaintiffs alleged only that they suffered from mild asbestosis, a nonmalignant (although, in particularly severe cases, fatal) respiratory tract condition caused by inhaling asbestos fibers, and resulting lung abnormalities such as "scars, marks, opacities, and other imperfections in the lungs that show up in X-rays."' Rather than losing one lung to asbestos-related cancer and having his other lung infested with tumors that would ultimately claim his life, a 65 year- old Mr. Curry was still able to enjoy a daily three to four mile walk when his suit went to trial. In fact, Mr. Curry's alleged asbestos injuries were so slight that four different doctors testified at trial that he suffered from "no asbestos-related condition whatsoever."' These facts, however, did not stop a Mississippi jury from awarding $150 million to Mr. Curry and his five similarly situated co-plaintiffs in October 2001. Ironically, the jury ordered that sixty percent of the award given to Mr. Curry and his co-plaintiffs be paid by AC&S-the same company against which Mrs. Plummer was forced to settle her claim out of fear that the company would file for bankruptcy protection. The jury came to this decision despite the fact that AC&S, which is based in Lancaster, Pennsylvania, "never had offices in Mississippi, never performed contracts at any of the sites where the plaintiffs worked, and sold few asbestos-containing products anywhere."

Unfortunately, the cases of Mr. Plummer and Mr. Curry are not aberrations. Instead, they provide a paradigmatic illustration of some of the tremendous shortcomings of the current asbestos claims resolution process. These shortcomings are the result of a tangled web of interrelated problems. Plaintiffs such as Mr. Curry, who have little if any physical impairment, are now responsible for eighty percent or more of all new and pending asbestos claims. The increasing volume of claims filed by unimpaired plaintiffs is clogging the dockets of courts across the country, especially in certain jurisdictions seen as being particularly hospitable to asbestos plaintiffs. In order to deal with these massive numbers of claims, courts are increasingly forced to implement various procedural shortcuts, most notably mass consolidation of asbestos claims. This approach has had the unforeseen and harmful side effect of encouraging more asbestos claims by unimpaired plaintiffs. The result is the creation of a vicious cycle: judges feel forced to turn to aggregation to deal with the overwhelming numbers of claims being filed, particularly by unimpaired plaintiffs, but their willingness to aggregate cases only serves to encourage more filings, often by unimpaired plaintiffs.

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