Asbestos Litigation and Bankruptcy : A Case Study for Ad Hoc Public Policy Limitations on Joint and Several Liability

Over a decade ago, the Federal Judicial Conference warned of an asbestos litigation “disaster of major proportions.” The Supreme Court of the United States has described the litigation as a “crisis.” According the RAND Institute for Civil Justice, by the end of 2000, more than 600,000 asbestos claims were filed. RAND estimates that as many as three million more plaintiffs may eventually file claims. Most new claimants are not sick. The flood of claims has forced almost sixty companies into bankruptcy; many of these bankruptcies are very recent. As a result, defendants with only remote connections to asbestos – known as peripheral defendants – are being dragged into the litigation. Some of these companies have also begun to declare bankruptcy. Experts predict that, absent meaningful reform, asbestos cases may continue to be a major legal and public policy problem for decades to come.In this Article, Professor Cupp argues that courts and legislatures should impose ad hoc public policy limitations on joint liability in asbestos and other appropriate cases. The Article analyzes holdings that support asbestos-specific limits on joint liability, and explains why unlimited and unrestrained joint liability represents unsound public policy in the current asbestos litigation environment. The Article concludes that limits on joint liability in asbestos cases are supported by sound public policy and would help mitigate the litigation crisis