National Trends Driving Asbestos Litigation in 2013-2014 (2 of 3): Decrease in Non-Impairment Filings

Increase in Lung Cancer Filings

As plaintiffs’ firms approach a “max out” point on potential mesothelioma lawsuits and judicial reforms limit the filing of non-impaired asbestotic cases, there is a growing national trend toward filing more lung cancer claims.

Unlike the relatively limited number of people diagnosed annually with mesothelioma (estimated at 2,500 to 9,300 cases over the next 20-plus years), about 226,160 Americans are diagnosed with lung cancer each year. According to the Centers for Disease Control and Prevention (CDC), approximately 85 percent of lung cancers are smoking-related. However, plaintiffs’ attorneys have experts willing to testify that exposure to asbestos is a substantial contributing factor to the development of lung cancer (some even suggest a “synergistic effect”).

Also, the bankruptcy trusts pay significant amounts for lung cancer claims and have a low standard for the definition  of a “non-smoker” such that a claimant with a significant, but remote smoking history is characterized as a “non-smoker” and can receive a higher payment than a current smoker. This provides an incentive to seek out and file claims for people diagnosed with lung cancer who also allegedly worked with or around asbestos or just lived with someone with a history of asbestos exposure.

“Asbestos-related” lung cancer claims can involve significant damages and settlement value especially in “plaintiff-friendly” jurisdictions with favorable jury pools. Moreover, the majority of mesothelioma cases have been captured in the marketplace by top tier plaintiffs’ firms that spend significant amounts on marketing or referral fees. This leaves many of the other plaintiffs’ firms to pursue the lung cancer cases. Accordingly, there has been a noticeable increase in lung cancer filings nationally, especially in more active jurisdictions. For example, in 2012, lung cancer claims for the first time exceeded mesothelioma claims in Madison County, Illinois.  Additionally, according to the U.S. Chamber Institute for Legal Reform, the number of pending lung cancer cases in New York City has nearly tripled over the past four years.

This trend has been noticed and criticized in the context of New York Congresswoman Carolyn McCarthy’s lung cancer lawsuit. In high-profile editorial pieces in Forbes magazine.

McCarthy’s heavy smoking history (over 40 years) is juxtaposed against her claim of take-home exposure to asbestos from her father and brothers who worked on Navy ships and in utilities. The articles detail how New York plaintiffs’ asbestos firms use “a time-honored strategy of bundling weak and strong cases together leveraging larger overall settlements than if the cases were presented separately.” It remains to be seen if this criticism will slow the wave of lung cancer filings.