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The Takeaway

Over the past 40 years, the types of products identified in asbestos litigation have changed from those used primarily in industrial settings to include products used in commercial and service industries to the current inclusion of personal care products. Some evidence supports the hypothesis that corporate bankruptcies have played a part in that evolution.

A Change in Product Identification

In 1982, UNR Industries was the first company to file for bankruptcy protection as a result of asbestos litigation.[1] Since then, over 130 companies have done so, with some of the fault for those bankruptcies considered to lie with asbestos litigation.[2]

UNR Industries manufactured products like insulating cements, pipe coverings, and block insulation. In August 2024, Avon— a company that manufactures talc products alleged to be contaminated with asbestos—filed for bankruptcy relief. The latter is a vastly different product from those manufactured by UNR.

It’s apparent that product identification in asbestos litigation has changed over the years. Have companies’ bankruptcies played a part in that?

Evidence that Bankruptcy Effects Identification

In 2015, the Rand Corporation conducted a study of 86 asbestos plaintiffs and the asbestos-containing products they identified. Forty-seven of the plaintiffs had worked at The Brooklyn Naval Shipyard between 1940 and 1949, and 39 had served in the Navy between 1950 and 1954 and were either stationed on or out of the West Coast.

 The study compared the plaintiff’s identified exposures prior to and after bankruptcies by looking at both interrogatory responses and deposition testimony. Results showed that as more time passed after a bankruptcy, the less likely identification became. (Prior to bankruptcy, the identification rate was 20 percent. The rate dropped to 4 percent two years or more after filing.)

The study’s authors proposed that in part, this fall in identification rates could be due to defendants not exploring exposures related to bankrupt companies at depositions.[3]

Who’s Responsible for Eliciting Information About Bankrupt Companies?

Bankruptcies of companies who produced asbestos-containing products have become  common. As the Rand study showed, one result of those bankruptcies is that the number of products plaintiffs identify declines once a bankruptcy claim has been filed. However, past exposures to asbestos-containing products remain. Who elicits exposure testimony about those bankrupt companies’ products? There seems to be disagreement between the two sides of the bar about whose responsibility that is.

Plaintiff’s attorneys argue that it’s fully appropriate for them to focus on solvent defendants. They also point out that the defense has the opportunity to explore exposures through the discovery process.

On the other hand, defense attorneys argue that the case management orders in various jurisdictions require plaintiffs to produce information regarding all known exposures, not just the companies they are suing. They also contend that it’s difficult to show exposure without a statement by plaintiff, a family member, or coworker (whichever is applicable in a given case). Furthermore, defense attorneys point out that it’s not uncommon for them to have limited time for questioning during a deposition, and it’s appropriate that they use that time for questions regarding their client, not inquiring into possible bankrupt company exposures. Seeking this information can be a difficult tightrope for defense attorneys to walk.[4]

Conclusion

The evolution of product identification in asbestos litigation continues. Early asbestos lawsuits focused on the use of asbestos insulation in various industrial locations. Now it’s  common for a plaintiff to have no industrial work. Instead, they may allege exposures only to talcum powder products. Is this a result of bankruptcies or an evolution of knowledge regarding asbestos and alleged asbestos-containing products? We may never know. We can conclude that this litigation continues to evolve and change, and bankruptcy is at least one factor in these changes.

[1] https://www.crowell.com/a/web/tcit8JAMUkK1DmBVpG9sEK/chart-1-asbestos-bankruptcies-chronological.pdf

[2] https://www.crowell.com/a/web/tcit8JAMUkK1DmBVpG9sEK/chart-1-asbestos-bankruptcies-chronological.pdf

[3] Bankruptcy’s Effect on Product Identification in Asbestos Personal Injury Cases, Lloyd Dixon and Geoggrey McGovern / Rand Corporation (2015). https://www.rand.org/pubs/research_reports/RR907.html

[4] Ibid.