Asbestos compensation as a set of cultural responses to the dark side of industrialization
Chapter 7
Asbestos compensation as a set of cultural responses to the dark side of industrialization
Since the early days of its modern use, asbestos has killed thousands of victims. To address the rise of the asbestos epidemic, countries have developed various responses, which range from banning use to compensating victims of asbestos. This book has presented a comparative inquiry of how victims’ compensation has been used in Belgium, England, Italy, and the United States as a set of cultural responses to the asbestos epidemic. This perspective allows readers to appreciate how capitalist societies have deployed legal tools—assignments of responsibility, compensation, and obligation related to injury—to address the risks generated by industrialization. Ultimately the book aims to assess how the tension between profits and equity, which is inherent to capitalism, has been confronted in the context of the asbestos epidemic. Overall, the evidence presented shows that asbestos compensation emerged as a response to the rise of the asbestos epidemic in all four countries. These responses were all organized and structured by reference to collective cultural schemas, some of which were shared among countries. A particularly influential perceptual frame that all four countries shared is the moral economy schema, which emerged from collective constructions and as a particular pattern of meaning of the welfare state. To justify the existence of the welfare state in capitalist democracies, this perceptual frame “assumed capital and state reciprocities with labor and citizens and an ethical obligation to minimal social reproduction.”1 Its influence on the rise of asbestos compensation is clear: the asbestos epidemic became in fact slowly perceived as injurious to the extent to which it was a breach of the prevailing norms of the moral economy. This cultural process translated into victims understanding the link between asbestos exposure and their injuries, triggering expectations of redress, and producing mobilization to secure compensation. It is Friedman’s total justice becoming reality.
Asbestos compensation was thus born. The initial response to the perceived injuriousness of the asbestos epidemic of all four countries was to extend workers’ compensation coverage to victims of occupational exposure to asbestos. It reproduced the cultural imperatives of the moral economy. While a source of satisfaction for many victims, the initial structuration of asbestos compensation confined institutional responses to the asbestos epidemic to workers’ compensation thus excluding from compensation many victims (self-employed victims, spouses, victims of environmental exposure, victims of diseases not recognized under workers’ compensation). This phase led to a hegemonic normalization of asbestos disease within the confines of the welfare state. This model was however challenged over time when victims triggered counter-hegemonic processes aimed at expanding compensation to new categories of victims and new types of diseases. These reactions diverged cross-nationally and led to routinized processes, rules, and outcomes of asbestos compensation that currently differ greatly across nations.2 These comparative differences are the product of unique macro- and micro-level structural conditions and nation-specific cultural experiences, which both contributed to structuration processes that pushed asbestos compensation in different directions.
The result is that victims now receive compensation from a mix of sources (torts damages as well as payments from workers’ compensation, social security ad hoc compensation schemes, settlements, and bankruptcy trusts) that differ across nations. In the United States, victims’ primary path to compensation is personal injury litigation against manufacturers of products containing asbestos. Asbestos litigation has been a particularly controversial and highly debated phenomenon in American law because of its massive size, inefficiency and high transaction costs, failure to deliver individual treatment of claims, and impact on industries that had very little to do with the firms that caused the asbestos epidemic. In England, asbestos compensation is constituted by a mix of payments coming from workers’ compensation, settlements and judicial awards, and ad hoc compensation funds. The English experience’s unique traits include the unique role of workers’ compensation claims as gatekeepers and funding sources of personal injury litigation, the consistent involvement of insurance companies in settlement negotiations, and the development of contested doctrines that apply only to asbestos cases. In Italy, asbestos compensation is also the result of a combination of workers’ compensation payments and judicial awards for personal injuries. However, the former source is much more prominent than the latter, because of the key role that unions have played in the transformation of asbestos compensation in Italy, the contested nature of employers’ immunity, and the peculiar use of criminal investigation to which personal injury claims are joined. In Belgium, the bulk of asbestos compensation comes from workers’ compensation payments and, more recently, an ad hoc mesothelioma compensation fund that compensates victims of any exposure to asbestos, occupational or not. Asbestos disease became compensable much later than in other countries, and the strict workers’ compensation rules that establish employer’s immunity victims have compressed victims’ mobilization in courts to a handful of personal injury cases, all unsuccessful with the exception of a 2011 case brought by a victim of secondhand exposure.
It is also important to recognize that cultural change replicated structural inequalities. Through gradual steps, the asbestos industry was able to influence compensation processes in its favor by delaying its emergence, avoid its consequence, and strategically involve the institutions of the welfare state to minimize the costs of the private sectors. No matter what the structural conditions and nation-specific cultural experiences were, asbestos companies dominated the emergence and transformation of asbestos compensation to the detriment of victims, whose only response was to engage in compensation wars against asbestos defendants. These wars were more successful in some countries than in others. Where they failed, they produced unsatisfactory remedies and limited opportunity for compensation.
The breach of the prevailing norms of the moral economy
Compensation for injury involves a process that involves claiming a remedy and culminates with a payment. In their seminal paper on the emergence and transformation of disputes, Felstiner, Abel, and Sarat set the theoretical framework for reasoning about how harmful events lead to claiming. Disputes are social constructs that “reflect whatever definition the observer gives to the concept.”3 This theoretical insight led to a shift in the scholarly study of disputing from actual disputes to their antecedents in an effort to capture the full significance of disputes as social constructs. A critical antecedent of disputing entails victims’ shift in perception of events as injurious. “In order for disputes to emerge and remedial action to be taken, an unperceived injurious experience … must be transformed into a perceived injurious experience.”4 A victim must thus reinterpret “trouble, problems, personal and social dislocation” that take place in everyday life as injurious for compensation opportunities to arise.5 This reinterpretation occurs when victims attribute new meanings to everyday occurrences by draining from “the common repertoire of legal schemas and resources.”6
The emergence of asbestos compensation perfectly fits this framework. After having failed to perceive asbestos disease as injurious for decades because of the lack of knowledge of asbestos toxicity and because of the widespread attitude that dying while or because of working was an acceptable fact of life—a sentiment captured by Merle Haggard in the Workin’ Man Blues: “I ain’t never been on welfare, that’s one place I won’t be/Cause I’ll be working long as my two hands are fit to use”7—victims’ legal consciousness awakened as a result of the progressive reinterpreting the personal and social displacement caused by disease. While this process took place at different times in the four countries researched in the book, the same cultural schema triggered the process of reinterpretation of asbestos victims in all four countries: the moral economy that justified the welfare state in capitalist democracies. Mau’s definition of moral economy is “the ongoing logic of social support for, and acceptance of, the redistributive nature of welfare provision whereby a commitment to the fate of the less-well off, the disadvantaged and people at risk is recognized.”8 This schema became part of social actors’ everyday life in industrialized societies as a consequence of the emergence of the welfare state. The welfare-regulatory state, from its appearance to its post-World War II apogee during the golden years of the Keynesian Welfare National State and Atlantic Fordism, assumed capital and state reciprocities with labor and citizens and an ethical obligation to minimal social reproduction.9 These assumptions provided ethical justification for the existence of the welfare state and produced a culture of moral economy that contributed to social actors’ repertoire of schemas to interpret the institutions and practices and the welfare state. The emergence of the welfare state was an intellectual statement signaling convergence in a via media between unfettered capitalism and socialism, which renounced possessive individualism and embraced “an ideal of solidarity to supplement the customary liberal commitment to personal freedom.”10
After asbestos disease became perceived as injurious because it constituted a breach of the prevailing norms of a moral economy, asbestos compensation emerged as cultural response to this breach. As evidence of asbestos toxicity became known, asbestos workers began to realize that they were “victims” of exposure to a toxic substance, their disease was preventable, and would not have occurred if employers had made different decisions with regard to workplace safety. Asbestos disease was thus not one of those misfortunes that happen in life, one that needed to be tolerated and endured, but an “injurious” event perpetrated in breach of the principles supporting the ideas of a moral economy. Capital accumulation was no longer justified if pursued at the expenses of social reproduction. The breach of this shared understanding of the moral justification of capitalist economies produced expectation of redress whenever the minimum of social reproduction was lost. Citizens began to expect the welfare state to come to rescue of those in need and to redress the deficit of social reproduction. This expectation of redress translated progressively into an expectation of legal redress, which Lawrence Friedman labels total justice.11 Karen Tani documented that in the United States “the rise of a vibrant language of rights within the federal social welfare bureaucracy” took place during the 1930s and 1940s, when the welfare state was expanded as a consequence of the Great Depression.12 “As early as 1935,” Tani writes, “some Americans … deliberately and persistently employed rights language in communications about welfare benefits.”13
The emergence of asbestos compensation is thus connected to the rise of the culture of total justice that pervaded the aftermath of the Second Industrial Revolution. Individuals came to see that many of the “troubles, problems, personal and social dislocation”14 experienced in everyday life in industrial societies were man-made. These cultural transformations allowed asbestos victims to identify the injurious nature of diseases caused by exposure to the magical mineral, to “name” it in a legal sense, to transform it into a grievance.15 In this light, the data presented in this book provide comparative support to Lawrence Friedman’s thesis and show that legal culture’s total justice turn is true not only in the United States but also in many other Western industrialized nations.
Hegemonic reproduction of the moral economy
In all countries, the initial response to the perceived injuriousness of the asbestos epidemic that each nation took was to extend entitlement to workers’ compensation payments to victims of disease caused by occupational exposure to asbestos. The structuration of asbestos compensation thus initially reproduced the moral economy. This schema not only infused meaning that enable victims to seek appropriate compensation; it also became the source of ideas on how to deal with the growing demands for compensation of asbestos victims and the measure of such compensation. It played a double role: it contributed to the emergence of asbestos compensation and it dictated its structural horizon by shaping ideas of what the proper institutional responses to asbestos claiming needed to be (see Figures 7.1).
Figure 7.1 Hegemonic normalization of the asbestos epidemic
The result was a hegemonic normalization of asbestos disease with institutional responses that limited the remedies available only to some victims (those injuries by occupational exposure) and some diseases. The values of the moral economy became a vehicle of institutional reproduction of existing power structures, of corporate power in particular.16 In this regard, power is the product of coordination of cultural strategies involving the participation of different types of groups all contributing to the creation of a “hegemonic interpretation that is combined into a single narrative, with each element reinforcing rather than contradicting the others.”17 As Susan Silbey demonstrated, law is implicated in hegemony: mediating processes through which local practices areas aggregated and condensed into systemic institutionalized power are “at work in and through law.”18 The result of this processes are “situations where meanings are so embedded that representational and institutionalized power is invisible.”19 Hegemony is thus so deeply embedded in everyday life that it is invisible, subterranean. Therefore, “subjects do not question dominant structures and cannot make justice claims against the aspects of structure and power that are invisible.”20
Working compensation as policy response to the rise of the asbestos epidemic constituted an institutional reproduction of capitalists’ power in which the values that made the moral economy were hegemonically deployed to preserve concentration of power as it had been for half a century. Since its early days, workers’ compensation was envisioned as a structural arrangement geared to support members of the working class who became unable (temporarily or permanently, partially or fully) to work as a consequence of serving capitalists’ interests but also to crush class conflict. Workers’ compensation systems had in fact in fact emerged in Europe and North American since the late nineteenth century as a response to the industrial-accident situation.21 It was a creative and innovative response that brought new ideas and created new institutions in industrialized nations. It was a compromise between the working class’s demands for redress in the event of accident and the industrialists’ demands for protection of invested capital and efficient management of industrial risks. This is true in all four countries researched in this book, including the United States, a country that is often labeled as “exceptional” for its lack of a socialist workers’ movement.22 While it is true that the US welfare state grew more slowly and later than in Europe and developed less extensively,23 it became nonetheless an important part of the class struggle between capitalists and workers. Although supplemented by private enterprise, which “has performed many social functions … that long were dominated by government or corporatist bodies in Europe,”24 the institutions of the welfare state were extensively involved in the structuration of asbestos compensation. Extending the long arms of workers’ compensation to the asbestos disease epidemic was instrumental in addressing class conflict between asbestos firms and workers.
The reproduction of the moral economy in asbestos compensation had powerful ideological effects: it reinforced capitalists’ hegemonic stands and minimized threats to the paix sociale; it addressed asbestos victims’ concerns; at the same time, it contained demands for compensation to workers’ compensation remedies. This strategy proved to be effective, to different degrees, in the United States, Italy, and Belgium, where workers’ compensation is traditionally seen as the exclusive remedy for workers and personal injury claims for occupational diseases against the (former) employer are severely restricted. As the following figure demonstrates, in many countries in addition to the four included in this study workers’ compensation was the policy response to the emergence of the asbestos epidemic (see Figures 7.2). The medical literature recognized asbestos exposure as a cause of asbestosis in the 1930, of mesothelioma in the 1950s, and or lung cancer in the 1960s. Asbestosis was the first disease to become compensable. Mesothelioma and lung cancer followed decades after. In recent years, pleural plaques and cancer of the larynx have been included in a handful of countries.
The inclusion of asbestos disease under workers’ compensation is a measure of the success of the ideals, beliefs, and expectations connected to the moral economy to define what policy responses were appropriate to address asbestos victims’ demands for total justice. The practices and processes that emerge from asbestos claiming reinforced the belief that rebalancing the harm to social reproduction would be sufficient remedy. The moral economy became the measure of proper legal redress. Compensation of asbestos victims was in fact measured, and found to be satisfactory, in relation to its ability to redress the imbalance between social reproduction and capitalist accumulation.
Asbestos compensation practices thus reproduced power imbalances and became the vehicle of hegemonic stands of the capitalists. These stands had been integral part of the welfare state since its birth and had contributed to the emergence of the moral economy schema. Moving classic liberalism away from individualism and the self-guiding market,25 welfare states emerged from pragmatic reasons—capitalists’ fear of uncontrolled class conflict. Although attempts to crush workers’ mobilization were launched around the turn of the nineteenth century, class conflict proved to be more resilient than expected. Industrialists came to appreciate workers’ compensation as a tool that, along with other structural components of the welfare, promised to contain and manage class conflict and workers’ protests and demands for better working conditions. After initial resistance, capitalists eventually supported the constitution of workers’ compensation and the welfare state as the lesser evil to address class conflict. Fulfilling the promise of the architect of the welfare state, Prussian Chancellor Otto von Bismarck, who envisioned a “moral economy” as the way to mitigate social unrest created the Employer’s Liability Law of 1871, the welfare state became capitalists’ ideological tool to curb workers’ class struggle.
This is true also with regard to asbestos disease. Before embracing workers’ compensation, the industry tried to crush victims’ nascent claim consciousness by deploying several tactics along with an extensive cover-up of asbestos toxicity what has been extensively researched and documented by business historians26—it is not a coincidence that the SAIAC Cartel, through which key asbestos European and US companies agreed to “exchange technical knowledge, centralize research activities, standardize product ranges and organize the export business” and “divided up global markets, pressurized national governments, fixed retail prices, and extracted favorable business terms from asbestos producers,”27 was established in 1929, the year in which “independent researchers identified the symptoms and causes of asbestosis.”28
Figure 7.2 Expansion of workers’ compensation to asbestos disease
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The industry vehemently opposed the recognition of asbestosis as compensable disease as well as any form of workplace regulation. The industry also proposed confidential settlement to victims in the hope of dissipating victims’ demands. Companies made ex gratia payments in exchange for workers agreeing to confidential settlements. In 1927 a Massachusetts asbestos textile worker filed a claim. “A group of Johns-Manville workers launched claims in 1929 and by the mid-1930s at least 69 more state compensation suits were brought against the company. During the 1930s, claims were filed against other leading manufacturers, such as Raybestos-Manhattan. The latter compensated about twenty cases in the 1930s.”29 Money however was also offered with the promise that payments would remain confidential. Johns-Manville went even further when in 1933 it settled 11 cases in exchange for their attorney’s promise that he would never “directly or indirectly participate in the bringing of new actions against the Corporation.”30 Payments, which were not very generous, were kept secret by the parties involved. Workers rarely talked about them with fellow victims and as a result claim consciousness struggled to emerge. Turner & Newall did the same in England; Eternit with Italian and Belgian victims; James Hardie with Australian victims.31
Finally, companies set up private compensation funds quietly compensating victims without the need for them to file claims. Turner & Newall set up its self-funded Asbestosis Fund in the 1940s. The Fund was administered by an external insurance company, Commercial Union, so that the company did not have to confront its employees or former employees directly. Between 1931 and 1948, the Asbestosis Fund paid GBP 87,938 to 140 asbestosis victims.32 These payments represent the first steps of asbestos compensation in England more so than workers’ compensation since Turner & Newall’s employees comprised the majority of early victims of asbestos exposure. The Fund was gradually wounded down after 1948 when the government took the lead in the administering of compensation for occupational diseases by abolishing the 1897 system of workers’ compensation and creating the IIDB. Eternit set up its compensation fund in the 1980s for similar reasons. In its original form, the fund offered payments to workers below the age of 65 and affected by asbestosis resulting in a degree of disability exceeding 33 percent. They were offered payments equal to the difference between the workers’ compensation benefit and their last salary. The fund was later expanded to include former employees who had developed mesothelioma in 2000, victims of secondhand exposure in 2001, and victims of environmental exposure in 2006. Overall at least two asbestosis victims and 70 mesothelioma victims were compensated, including 12 victims of household exposure and two of environmental exposure. Mirroring Turner & Newall’s thinking Eternit wound up its plan in 2007 after the establishment of the 2007 Asbestos Fund, which pulled together public money to compensation asbestos and mesothelioma victims.
When the rise of victims’ demands for compensation seemed inevitable the industry rapidly came to see the asbestos regulations as the lesser of two evils, as a more desirable outcome than litigation and realized that there was an opportunity to shape regulations so that the industry could secure immunity at a low cost. This position is clearly reflected in the words of Vandiver Brown, Johns-Manville’s corporate attorney, who in 1950 told an audience of fellow asbestos executives: “eliminate the jury … the shyster lawyer and the quack doctor … provide a forum for evidence that might cast doubt on disability … the worst Workmen’s Compensation Commission is preferable to the best jury.”33 At that point, the industry began lobbying for narrow coverage of asbestos diseases,34 which successfully framed opportunities for compensation very narrowly. For instance, the 1931 asbestos regulations in England “only applied to workers employed on or after 1 May 1931” and allowed compensation only of those workers who had been employed in “a restricted number of asbestos jobs,” workers employed in certain “scheduled areas” of manufacturing plants, which exposure entitled victims to compensation.35 Ultimately, the inclusion of asbestos disease to workers’ compensation coverage looked reasonable to all of the parties involved. Victims would receive some compensation. The industry would avoid getting dragged in front of courts. Labor unions’ role as representatives of workers would be reinforced, in the public eye and eyes of their members. The success of the reproduction of the moral economy schema in the structuration of responses to the asbestos epidemic corroborates Foucault’s insight on workers’ compensation in general. The French intellectual argued that workers’ compensation is a form of justice de classe, conceived by the capitalist class to enforce inequality between social classes, industrialists and workers, with the latter carrying an unfair share of social and economic burdens.36
Litigation as counter-hegemonic response
The hegemonic influence of the moral economy schema became contested over time. Hegemonic interpretations often trigger counter-hegemonic reactions. After power becomes institutionally structured, contestation becomes difficult. Yet, power is occasionally locally contested as is hegemonic interpretations.37 This is the case of asbestos when victims began challenging these structural responses to the asbestos epidemic, and triggered counter-hegemonic process aimed at expanding compensation to new categories of victims and new types of diseases. This is a counter-hegemonic response to the subterranean cultural forces that pushed victims to accept workers’ compensation as sufficient legal redress (see Figures 7.3). Litigation was the victims’ process that successfully channeled counter-hegemonic stances. This strategy was deployed when victims began realizing that that asbestos compensation as a culture response was merely reproducing the welfare state thus limiting opportunities for total justice. Irving J. Selikoff, a scientist, doctor, and author of the 1964 celebrated study of asbestos insulation workers that established a link between asbestos and lung cancer, lamented in 1986 that workers’ compensation as a fair social bargain had failed: “the quid has disappeared and the quo has remained.”38
Figure 7.3 Counter-hegemonic responses to the asbestos epidemic’s normalization
There are two strands of counter-hegemonic litigation. The first strand is personal injury litigation directed towards corporate entities to supplement workers’ compensation payments. It developed from the premise that workers’ compensation payments became seen as insufficient to provide satisfactory legal redress. Product liability in the United States, negligence in England, danno morale and, until 2000, danno biologico in Italy enabled victims to successfully achieve this goal. In the United States, product liability led to a dramatic shift of perspective: while claims have often been grounded on occupational exposure, the legal doctrine deployed in personal injury litigation successfully challenged the welfare state paradigm and positioned asbestos compensation in a different cultural environment—companies’ liability for exposing consumers to a dangerous product. Counter-hegemonic goals were quickly achieved. Asbestos litigation generated ideas, precedents, and theories that entrepreneurial attorneys soon redeployed in the representation of other claimants. Asbestos litigation became the “mother” of many mass torts against tobacco, drug, and car companies. Counter-hegemonic goals were obtained with such degree of success that it triggered a counter-counter-hegemonic reaction—the argument that the United States were experiencing a litigation explosion and the birth of tort reform programs to curb the “excesses” of tort litigation.39 In England, labor unions demanded that victims filed a workers’ compensation claim before funding the personal injury claim. This was true in Italy too, where the welfare state provided a special retirement package on the top of workers’ compensation payments. As a result, In England and Italy, workers’ compensation preserved its centrality as a necessary step to seek further compensation.
The second strand was directed against workers’ compensation administrations to challenge eligibility requirements. The goal was to expand compensation to a wider range of victims than those whose rights to compensation had been recognized under the wings of the welfare state. Since the welfare states emerged, in part, to curb the wave of class struggle that rose during the Second Industrial Revolution, protections and remedies afforded by its institutions primarily benefitted individuals injured while working, the workplace being the ideological battlefield of the welfare state. Consequently, victims of occupational exposure benefitted from more generous redress for the harms of asbestos exposure than victims of non-occupational exposure, who would find solace exclusively in disability payments and free health care. Workers’ compensation eligibility further narrowed the need for victims to show that they were suffering from certain asbestos diseases (initially lung cancer was not compensated) and that their exposure to asbestos fibers had been of a certain length, amount, and associated with certain occupations. Litigation against workers’ compensation administrations aimed to relax eligibility requirements. This strand of litigation was particularly active in Italy and England, where the litigation was successful in broadening entitlements. Mobilization was successful in expanding compensation to a broader number of victims of occupational exposure but less successful with regard to victims of secondhand and premises exposure. Ad hoc