Asbestos Litigation: Better, But Not Over

Size: px

Start display at page:

Download "Asbestos Litigation: Better, But Not Over"

Marjorie Walsh
6 years ago
Views:

1 Asbestos Litigation: Better, But Not Over Casualty Loss Reserve Seminar Chicago, IL September 14, 2009 Moderator: Jennifer L. Biggs, FCAS, MAAA Panelists: Mark A. Behrens, Esq. Michael J. Sehr, Esq.

2 Asbestos Litigation: Better, But Not Over Session Description Asbestos litigation has changed dramatically in the last few years, with the pendulum swinging more in favor of defendants The era of mass screening of (fraudulent) claims has passed, corporate defendant bankruptcies are unlikely to resume at a significant pace, and many states have enacted reforms that focus resources on the sickest claimants The most serious mesothelioma claims are expected to continue for decades and remaining solvent defendants and their insurers continue to see upward pressure on the cost of these claims Approval of several bankruptcy trusts with $30 - $40 billion available to claimants will influence future claiming behaviors While the litigation landscape has changed for the better, significant liabilities remain and the future remains uncertain 2

3 Agenda Jenni Biggs Introduction of Panelists High Level Overview of Asbestos Litigation Mark Behrens Update on Reforms Mike Sehr Insurer / Claim Handler View Claim Statistics Primary Areas of Concern Legislative, Legal, Judicial Environment Questions & Answers 3

4 Panelist Introduction Mark Behrens is a partner in the Public Policy Group at Shook, Hardy, & Bacon LLP in Washington, DC and is an expert in the fields of tort and liability reform and the judiciary. Mark will provide an update on recent legislative actions and judicial proceedings that shape the litigation environment. Mike Sehr is the Senior Vice President of Environmental and Mass Tort Claims at CNA Insurance Companies in Chicago and provides the front-line perspective of an insurer handling asbestos claims on behalf of their policyholders. Mike will share high level insights regarding nationwide trends, significant liability cost drivers, and areas that are of the most concern for the future. 4

5 Asbestos High Level Overview of Litigation Environment 5

6 High Level Overview of Asbestos Litigation Environment Total claim volume surged from Most of the surge was nonmalignant claims arose from mass screenings Malignant claims peaked as well Total claim volume has since dropped Nonmalignant claims dropped dramatically, beginning in 2004 No mass screenings Decrease in bankruptcy filings Federal reform efforts derailed State tort and judicial reforms enacted Cancer claims have also declined Mesothelioma claims also appear to have declined from their peak and have remained fairly steady in the past few years Trends vary by defendant and jurisdiction Future claim liabilities are expected to be driven by mesothelioma 6

7 Mesothelioma Claims: Diagnoses and Claim Filing Annual incidence count relatively flat (males stable; females increasing) Large changes in annual claim filing counts 3,500 3,000 2,500 Claim/Diagnosis Counts 2,000 1,500 1, Year of Filing/Diagnosis USCS Male Incidence USCS Female Incidence USCS Total Incidence TP Meso Claim Benchmark Manville Meso Claims 7

8 Mesothelioma Diagnoses and Claims will Continue for Decades Claims in Year Relative to 2009 Filing Level Filed Year TP Meso Claim Benchmark Run-Off

9 Mesothelioma Propensity to Sue The propensity to sue ( PTS or claiming rate) has been volatile and less than 100% of diagnoses PTS has been lower for older ages and females Ratio of Manville Claims to USCS Incidence Diagnosis Years Ratio Manville to USCS Incidence < Age at Diagnosis Males Females Total 9

10 Update on Reforms 10

11 State Legislation/Court Orders To Address Unimpaired Asbestos Claimant Filings Seattle (King County) St. Clair County Madison County Chicago (Cook County) Syracuse (5th Jud. Dist.) 2004 New York City 2006 Baltimore Portsmouth No Cause of Action Inactive Docket or CMO Asbestos Medical Criteria Legislation 11

12 Don t Miss Mark Behren s Recent Article: What s New in Asbestos Litigation? The Asbestos Litigation Environment Has Changed Impacts Affecting Mass Screenings and Unimpaired Filings Filings Down in General Especially the Unimpaired Change in Disease Mix: Mesothelioma Cases are the Primary Focus Other Trends In Asbestos Litigation Rejection of Plaintiffs Expert Causation Testimony in de minimis or Remote Exposure Cases Migration of Claims to New Venues New Theories of Liability Component Supplier Liability Secondhand Exposure Claimants Increased Transparency Between Bankruptcy and Tort Systems Bankruptcy Trust claim Forms Efforts to Address Potential Double Dipping 12

13 Insurer / Claims Viewpoint 13

14 Insurer / Claims Viewpoint from the Front Lines Overview of the Battlefield Areas of Concern Hot Jurisdictions Claim Severity New Defendant Targets Lung Cancer Claims Legislative Environment Introduction of new legislation to address litigation moderating Efforts to undo favorable tort reform Legal Environment Trial Activity New York and Michigan Decisions Judicial Environment Federal MDL Judges reacting to abuses 14

15 Questions and Answers 15

THE CURRENT AND EXPECTED FUTURE STATE OF US ASBESTOS LITAGATION

CASUALTY LOSS RESERVE SEMINAR THE CURRENT AND EXPECTED FUTURE STATE OF US ASBESTOS LITAGATION SEPTEMBER 19-20, 2016 Kip Makuc Navigant Consulting, Inc. 1200 19 th Street, NW Washington, DC 20036 cmakuc@navigant.com