EPA’s Asbestos Rule Likely to Feature in Toxic Tort Litigation

The EPA’s rule banning the sole asbestos known to be used in the US will spur more court fights over evidence to be presented to juries, but won’t significantly increase the amount of toxic tort cases filed, according to defense and plaintiffs’ attorneys.

The Environmental Protection Agency announced on Monday that it will ban imports of chrysotile asbestos, the only raw fiber that’s known to be imported into the country. The agency also will ban all known uses of the cancer-causing mineral and imported equipment made with it.

“Normally you’d say this will be manna from heaven for the plaintiffs bar,” said Samuel Tarry, a partner with McGuireWoods LLP, whose experience includes defending the automotive industry in asbestos litigation. Some new defendants may be targeted as a result of the regulation and analyses in it, he said.

But the rule’s primary impact will be to increase disputes over what evidence can be presented to juries, said Tarry and Laurence Nassif, managing partner at Simmons Hanly Conroy LLP, who’s spent more than two decades representing plaintiffs in asbestos and mesothelioma litigation, among other personal injury cases.

Chrysotile asbestos has been imported by a few chemical producers for equipment that produces chlorine and caustic soda. The EPA’s rule will ban the mineral’s use to make industrial gaskets, oilfield brake blocks, and aftermarket brakes and other products used by the automotive industry. A core focus of the rule is to protect chemical, car mechanic, and other workers.

Nearly all of the roughly 3,000 mesothelioma cases diagnosed each year end up in court litigation about past asbestos exposures, both attorneys said. The rule isn’t likely to change that, they said.

But “the ban will certainly mean judges will hear more Rule 403 motions to exclude evidence of the ban at trial,” Tarry said.

Scientific Evidence Disputes

Federal Rule 403 governing civil procedures, also called the “prejudice rule,” allows a court to exclude relevant evidence if its potential value is outweighed by any of three effects that would detract from a fair trial. The three effects courts are to consider include whether the evidence would confuse, unduly influence, or mislead a jury.

There’s a real risk that jurors could be confused by differences between the regulatory modeling the EPA’s rule used and the medical causation evidence that courts require, Tarry said.

Regulators, to be protective, presume situations may pose greater risk than they actually do. Plaintiffs bear the burden of proving their injury was more likely than not caused by the defendant, he said.

The EPA failed to consider a substantial amount of published data that didn’t support its final conclusions about chrysotile asbestos’ health risks, said Dennis Paustenbach, president of Paustenbach and Associates, a consulting firm specializing in toxicology and risk assessment.

The agency’s conclusions about chrysotile’s cancer potency, for example, and “the alleged historical hazards to vehicle mechanics is entirely inconsistent with the epidemiological evidence,” said Paustenbach, who also has served as an expert witness in litigation over chemicals health effects.

Yet, the EPA rule’s underlying analyses “will undoubtedly stimulate additional litigation, and they could influence some existing cases,” he said by email.

Nassif, the plaintiffs attorney, said he expects defendants’ lawyers will try to exclude evidence. Yet, the EPA’s rule “can only help our cases in court,” he said.

Defendants previously have used the EPA’s lack of a ban to say chrysotile is not that dangerous and not as toxic as some other forms of the mineral, he said.

The EPA’s rule removes that argument, Nassif said. “It will help us because they can’t say EPA allows it.”