Jenner & Block

Institute for Legal Reform Issues Report Assessing Litigation Trends Affecting the Business Community

Essig_Genevieve_COLORBy: Genevieve Essig


In October, the U.S. Chamber Institute for Legal Reform issued a report, The New Lawsuit Ecosystem: Trends, Targets and Players, presenting an analysis of the “lawsuit ‘ecosystem’ for the areas of litigation abuse of most concern to the business community” and the direction in which the associated litigation trends are heading.  The report covers a wide variety of subject matters, including class action litigation, mass tort litigation, asbestos litigation, securities and M&A litigation, False Claims Act litigation, and wage and hour litigation.  The following observations from the report may be of particular interest to environmental attorneys:

  • There has been a rise in lung cancer claims in asbestos litigation
  • A few areas of mass tort litigation are waning, including climate change litigation and welding fume litigation (alleging that the manganese in welding fumes causes neurological injury)
  • There has been a renewed interest in “fear of disease” claims / claims seeking medical monitoring for exposure to potentially harmful substances

The authors of the report note that lung cancer cases are “ideal” for plaintiffs’ lawyers because the life-threatening nature of the disease will support a trial preference regardless of the etiology of the disease. Further, despite causation challenges, the claims can involve significant damages and settlement value.  The authors report that in Madison County, Illinois, lung cancer claims exceeded mesothelioma claims for the first time in 2012 (though the surge apparently subsided as of June 2013).  A rise in such claims has been observed in other jurisdictions as well.

As for medical monitoring claims, the authors recount opinions of the U.S. Supreme Court and a number of state supreme courts in the late 1990s and early 2000s resisting medical monitoring claims in recognition of the possibility that permitting recovery for medical monitoring could divert resources from individuals who actually become sick or may become sick to those who are not sick and may never become sick as a result of their alleged exposure, but observe that the holdings in a handful of more recent cases indicate that “the pendulum has started to swing back toward permitting medical monitoring claims, in some circumstances.” 

TAGS: Climate Change, Toxic Tort