Applying the Hard Lessons of Asbestos to the Emerging Landscape of Toxic Torts

While many industry observers discuss asbestos litigation in the past tense, as if it were a dusty relic of the 20th century, those on the front lines of the defense bar know better. Asbestos isn’t a closed chapter; it is a living, breathing case study that continues to shape the modern mass tort landscape. Despite decades passing since its peak usage, new claims continue to flood the docket, and coverage disputes frequently outlast the original corporate entities that manufactured the products.

For the modern underwriter, asbestos is more than a historical reference. It is a persistent reminder of how exposure litigation can expand, mutate, and endure. As we confront a new era of emerging risks, from PFAS (perfluoroalkyl substances) to microplastics, the lessons of the asbestos “experiment” have never been more relevant. The real danger today isn’t just the next “forever chemical”; it is the failure to recognize the patterns that asbestos first established.

That pattern is already repeating. In Hardwick v. 3M Company et al., pending in the U.S. District Court for the Southern District of Ohio, plaintiffs have advanced claims based not on manifested illness, but on the presence of PFAS in their bloodstream, an exposure-driven theory that dramatically expands the potential claimant pool. The parties reached a settlement in principle in February 2024, with implementation continuing into 2026, signaling that the next wave of long-tail toxic tort litigation is already underway.

The Fallacy of “Contained” Risk

In the early 1970s, the consensus among stakeholders was that asbestos was a manageable, niche problem. The prevailing assumption was that claims would be limited to specific “at-risk” industries: shipbuilding, heavy construction, and core manufacturing. Medical experts at the time predicted a narrow range of injuries, primarily restricted to asbestosis and mesothelioma at clearly defined occupational sites.
We now know those assumptions were catastrophically narrow.

As the litigation matured, the “manageable” pool of claimants didn’t just grow; it exploded. The medical scope widened to include a battery of lung cancers and respiratory ailments that were previously attributed to other lifestyle factors. Most significantly, exposure theories shifted. We moved from “direct occupational contact” to “bystander exposure” and eventually to “take-home” exposure, where the family members of workers were allegedly harmed by dust on a parent’s coveralls.

For carriers, these miscalculations weren’t merely academic errors; they were financial earthquakes. Early reserved decisions were based on the belief that the “tail” of the risk would be short. Instead, underwriters found themselves trapped in a decades-long cycle where claim volumes and defense costs far outstripped even the most conservative models. The lesson here is clear: early modeling fails because it cannot account for the creativity of the plaintiffs’ bar or the evolution of scientific “consensus.”

The “Solvent Defendant” and the Expanding Pool

One of the most defining and frustrating characteristics of asbestos litigation is the relentless expansion of the defendant pool. Initially, the focus was squarely on the manufacturers of raw asbestos and insulation. However, as these industrial giants were forced into Chapter 11 bankruptcy under the weight of litigation, the target moved.

The plaintiffs’ bar, needing solvent entities to pay settlements, began a “search for the solvent defendant.” This led to the targeting of distributors, small-scale contractors, premises owners, and eventually companies with only the most peripheral links to the material. This “litigation creep” meant that a company that sold a product containing a single asbestos-lined gasket in 1965 could find itself a primary defendant in 2024.

This shift fundamentally changed underwriting. It proved that “peripheral involvement” is a myth in mass torts. For underwriters, this expansion created exposure in unexpected corners of their portfolios, often in “low-risk” policies that were never priced to handle the costs of a multi-district litigation (MDL) defense.
That same pattern is already emerging in PFAS litigation, with recent rulings allowing claims to proceed against companies far removed from chemical manufacturing, echoing the early expansion that defined asbestos.

The Latency Trap: Time as a Weapon

Latency is the ultimate multiplier of uncertainty, and asbestos is the gold standard for this phenomenon. Because asbestos-related diseases can take 30, 40, or even 50 years to manifest, claims arrive long after the policy has gathered dust in a basement or the insured has ceased operations.
This temporal gap creates a “forensic” nightmare for claims handlers. The process often begins with the grueling task of reconstructing historical policies, which requires locating secondary evidence of coverage from the 1950s or 60s when the original documents have long since been lost or destroyed. Once coverage is established, the defense must then evaluate “dead” standards, which involves defending business decisions based on the “state of the art” knowledge available half a century ago, rather than modern safety expectations. Finally, there is the increasingly complex hurdle of managing successor liability. Determining which modern entity is truly responsible for the “sins” of a company that may have been bought, sold, or merged five times since the original exposure occurred is a legal puzzle that can take years to solve.

Today’s emerging risks, particularly PFAS, share this exact “delayed-fuse” characteristic. When the injury doesn’t manifest for decades, the underwriter isn’t just paying for a claim; they are paying for the inflation, legal evolution, and social inflation that occurred during the waiting period.

The Endless War: Coverage Mechanics

The underlying tort claims are often secondary to the massive legal battles fought between underwriters and the insured. These “coverage wars” focused on four primary battlegrounds that still dictate how we handle long-tail risk today:
Courts continue to litigate the “trigger of coverage,” debating whether the policy in place during the initial exposure should pay, if the burden falls on the policy active when the disease manifests, or if a “continuous trigger” applies across every policy from first exposure to diagnosis.
Once a trigger is established, the fight moves to “allocation,” where parties must decide if the bill should be spread pro rata across all years of exposure or if an “all sums” approach allows the insured to select a single policy year to absorb the entire limit.
The “occurrence” debate remains a multi-billion dollar pivot point, as the determination of whether thirty years of exposure constitutes one single event or thousands of individual occurrences dictates whether a single deductible applies or millions.
The late-game adoption of specific asbestos exclusions created a secondary wave of litigation, specifically regarding how the “sudden and accidental” language in standard pollution endorsements should be interpreted in the context of gradual, long-term exposure.
These aren’t just technicalities; they are the difference between a manageable loss and an existential threat to a carrier’s surplus.

Modern Application: From Asbestos to PFAS and Beyond

The parallels between the asbestos crisis and today’s “forever chemical” landscape are impossible to ignore. Just like asbestos, PFAS was once hailed as a miracle of modern chemistry, essential for everything from non-stick pans to firefighting foam. Just like asbestos, the scientific understanding of its “permanence” in the human body is evolving rapidly.

To navigate this, the insurance industry must apply the asbestos playbook to these new risks by anticipating that the defendant pool will inevitably grow. While the current focus remains on chemical manufacturers, history suggests that tomorrow’s litigation will target fast-food companies using PFAS in packaging and the municipalities responsible for providing water. Furthermore, carriers must avoid the trap of under-reserving; a “wait and see” approach to emerging toxins is often a recipe for financial disaster. If the science suggests a long-term health link, reserves should reflect the worst-case “take-home” exposure models immediately. Finally, the industry must prioritize a coordinated defense. One of the great failures of early asbestos handling was the lack of a unified strategy among carriers. This fragmented approach allowed the plaintiffs’ bar to “divide and conquer” by exploiting inconsistent legal positions across different jurisdictions.

Conclusion: The Value of Hindsight

Asbestos remains the most instructive chapter in mass tort history because its lessons were learned at the expense of decades of litigation and billions of dollars in settlements. For the partner or underwriter navigating today’s landscape, the goal isn’t necessarily to predict which chemical is “the next asbestos.” The goal is to build a more resilient infrastructure to handle long-tail risk.

By recognizing the warning signs early, shifting liability theories, expanding defendant pools, and scientific “creep”, underwriters can move from a reactive posture to a proactive one. History may not repeat itself exactly, but for those in the business of risk, it remains the only reliable map for the road ahead.

Originally published in the New Jersey Law Journal: Applying the Hard Lessons of Asbestos to the Emerging Landscape of Toxic Torts