ASBESTOS, INC.(The Talk of the Town)

In the first half of the twentieth century, asbestos was known as the "magic mineral." Its strength and durability made it ubiquitous in the industrial world, as a flame retardant, insulator, and adhesive. In the United States alone, it was used in more than three thousand products--acoustic tiles, brake linings, air-conditioning systems, fireproofing. Unfortunately, asbestos also does enormous damage to the human body. In the nineteen-twenties, doctors first documented deaths from asbestosis--a scarring of the lungs caused by the inhalation of asbestos fibres--and it later became clear that asbestos was also to blame for a deadly cancer called mesothelioma. Asbestos manufacturers knew at least some of these risks before the Second World War, but hid them. This prevarication led to the deaths of tens of thousands of workers. It also laid the groundwork for one of the costliest legal battles in U.S. history. Over the past thirty years, seventy billion dollars has been spent on asbestos litigation, and more than seventy companies have been driven into bankruptcy, and yet it's far from certain that the guilty have been punished or the victims fairly compensated. This year, the Senate seemed ready to pass a bill, the Fairness in Asbestos Injury Resolution Act, that was an attempt to bring some rationality to the system. But, two weeks ago, the bill was stymied on a procedural vote. It is still alive, but at the moment asbestos litigation remains, in the words of Supreme Court Justice David Souter, an "elephantine mass."

It didn't start that way. The first asbestos lawsuit was filed in 1966, and initially most suits targeted companies that had manufactured or sold asbestos, and most plaintiffs were people who had been seriously harmed. Gradually, though, courts came to accept more expansive definitions of both liability and harm; people who had been exposed to asbestos but were currently, in legal parlance, "unimpaired" were able to collect millions in damages, and any company that had sold a product containing asbestos became a potential target. Plaintiffs didn't have to prove that such a product had actually caused them harm--the presence of an asbestos-containing product in the workplace was considered proof enough. According to a recent study by the RAND Institute for Civil Justice, more than eight thousand companies have been named as defendants.

Essentially, asbestos litigation has become an industry unto itself. The economics of the business are those of a lottery: it costs little to enter, since many claims are consolidated into large cases that don't come to trial, and the potential payoff is very high. The number of asbestos cases filed annually has escalated since the mid-nineties, and most of those cases involved people who are unimpaired. A jury in Mississippi awarded twenty-five million dollars apiece to six plaintiffs who had never spent a dollar on asbestos-related medical expenses. There are also ...