Alternative Exposures Needed in a Defendant’s Asbestos Case Defense

The number of defendants involved in asbestos personal injury lawsuits continues to climb. More than 25 defendants each month see their first ever asbestos case. Reasons for the increase are many, but the primary drivers are an active plaintiffs’ bar, significant defendant companies filing for bankruptcy, and defendants that do not take advantage of learning from history to combat this trend. While trusts have been established for most bankrupt companies, the amounts collected from trusts do not typically off-set payments to a plaintiff in the tort system for the same injury. As a result, look for the plaintiff’s bar to continue seeking new players to bring to the defense table.

Looking to replace bankrupt defendant targets, the plaintiffs’ bar continues to do an impressive job identifying companies with no previous involvement in the asbestos litigation and dragging them into the pool of named defendants. By looking further into the old distribution chain and researching entities with any possible nexus to asbestos, plaintiff attorneys are consistently introducing new defendants.

Given the asbestos litigation has been going on for decades, there is a long and valuable documented history available to assist with today’s cases, and in particular, the secondary exposure cases. Many of the new, and some not so new, defendants have either “forgotten” about or do not know where to find exposures that have already been identified and documented throughout the litigation. Hundreds of thousands of asbestos personal injury claimants have provided depositions, answers to interrogatories, and other discovery information regarding their exposure to asbestos.

The challenge and frustration for defendants is to determine how to harness their ability to find historic sources of exposure information. Many defendants are focusing on alternative exposure by using historical discovery document repositories. These tools empower defendants to search for evidence of alternative exposure back through decades of discovery information. This valuable data arms defendants with potential offset amounts collectible from bankruptcy trusts, the possibility of lowering overall settlement values, and perhaps even a complete dismissal from the case.

Identifying and bringing to light alternative exposures is critical to reduce overall liability. Defendants will need to be diligent in this effort to keep up with the plaintiffs.

Brad Drew is a senior managing director of PACE Claims Services in Trenton, New Jersey.

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