One reason asbestos litigation is unique among mass torts is that, due to the latency period between a plaintiff’s alleged exposure to asbestos and when their injury manifests, we are still seeing lawsuits alleging exposure to asbestos from many decades ago.

Through KCIC’s work compiling the public data available in asbestos complaints, we have been able to analyze exposure data to see how the average date of first exposure (DOFE) has shifted over time.

This shift — hereinafter referred to as a “DOFE creep” — is a critical statistic for defendants in this litigation. First, it offers insight into the prolongation of the litigation. As average DOFEs approach the 1970s and 1980s — when most asbestos-containing products were removed from the market — a decline in lawsuit filings would be expected. Second, because insurance companies began adding asbestos exclusions to their policies in the mid-1980s, it raises concerns among policyholders that they will have to cover more settlements out of pocket as DOFEs move later and more cases fall outside of their coverage years.

KCIC last conducted a DOFE analysis in our Asbestos Litigation: 2020 Year in Review report. We thought it was time for an update. The below analyses were performed with complaint data received and processed by KCIC as of Aug. 1, 2024. They include all cases filed between 2014-2023 that included DOFE information (87% of the total population). Since exact dates typically are not mentioned on a complaint, KCIC applies a ruleset to fill in the date (e.g. a DOFE of “1970s” is interpreted as “1/1/1970”).

DOFE Creep by Exposure Type

Figure 1 below shows the average DOFE by claimant over time in three ways: overall exposure, primary exposure, and secondary exposure. Primary exposure refers to direct contact with asbestos. Secondary exposure involves indirect contact, typically through someone or something else. For overall exposure, we take the earliest date between the primary and secondary DOFEs.

When looking at overall complaint DOFEs, there has been a considerable increase in the DOFE creep over time. Between cases filed in 2014 versus 2017, the DOFE shifted from December 1958 to April 1959 — less than a four-month change in average DOFE over the three-year period. In 2020, the average DOFE was November 1960 — 594 days (more than a year and seven months) later than the 2017 average. In 2023, the average overall complaint DOFE was October 1962 — 698 days (just under two years) later than the 2020 average. With each three-year period, we see that the average DOFE has shifted later in time more quickly than the prior three-year period.

Looking at DOFEs arising from primary exposure only, we see an even steeper trend in DOFE creep. Between cases filed in 2014 versus 2017, the average primary exposure DOFE shifted from March 1960 to December 1960 — a nine month change over the three-year period. In 2020, the average primary exposure DOFE was January 1963 — 749 days (just over two years) later than the 2017 average. In 2023, the average primary exposure DOFE was September 1965 — 968 days (about two years and 8 months) later than the 2020 average.

In general, secondary exposure DOFEs tend to be earlier than primary exposure DOFEs because they can occur earlier in life. For example, a plaintiff can be exposed to asbestos during childhood through their parents’ clothes if the parent was exposed to asbestos at work. However, DOFEs are still trending later as time goes on. In 2014, the average secondary DOFE was January 1955, and in 2023 it was August 1959. The DOFE shifted about four years and seven months during that 10-year period.

DOFE Creep by Disease Type

Figure 2 below shows the average overall DOFE when comparing mesothelioma plaintiffs to plaintiffs diagnosed with other diseases.

The average DOFE for mesothelioma claimants has consistently been earlier than claimants diagnosed with other asbestos-related diseases. It has increased from March 1960 in 2020 to February 1962 in 2023, while the average DOFE for other diseases increased from August 1961 in 2020 to July 1963 in 2023. The change in average DOFE was very close for both — 697 days and 682 days, respectively.

DOFE Concentration Over Time

Figure 3 below shows the percentage of asbestos claimants that fall into various DOFE ranges. This comparison is drawn between claimants who filed cases in 2014 versus 2023. Here, you can see a higher percentage of claimants with later exposure dates are filing lawsuits.

Since 2014, the percentage of claimants with DOFEs before 1960 has decreased from 49% of the total claimant population to only 32% in 2023. DOFEs between 1960-1969 increased from 36% to 43% of the claim population. The 1970-1974 DOFE range has increased from comprising 11% of claimants in 2014 to 16% in 2023. Only 4% of claimants in 2014 had DOFEs in 1975 and later, compared to 9% in 2023.

Figure 4 below shows the same type of DOFE range comparison between 2020 and 2023. We can see that even a three-year difference in file date is showing a clear shift in DOFE.

DOFEs before 1960 comprised 39% of filings in 2020, compared to 32% in 2023. Plaintiffs continued to allege the most DOFEs in the 1960-1964 period, but the percentage was higher in 2020 (26%) compared to 2023 (23%). Interestingly, between 2020 and 2023, the percentage of claimants having a DOFE between 1965-1969 increased from 17% to 20%, and 3% of cases shifted out of the 1960-1964 range and into the 1965-1969 range. We also see a 3% increase in DOFES between 1970-1974, which comprised 13% of 2020 filings and 16% of 2023 filings, and in DOFEs 1975 and later (6% versus 9%).

Asbestos litigation shows no signs of fading any time soon. That remains apparent in the filing trends detailed in our Asbestos Report 2024 mid-year update, which details an uptick in 2024 filings at mid-year, compared to 2023. Nonetheless, DOFEs are shifting later, and that creep is moving more quickly in recent years than what we’ve seen in the past.  It will be interesting to observe whether this acceleration continues and how it will shape the asbestos litigation landscape.

It is important to note that, while complaints are a good indicator of general asbestos litigation patterns, they don’t necessarily reflect DOFE trends for a specific defendant. KCIC often works with defendants in this litigation to perform similar analyses based on their own data and experience, which can help them forecast their future liabilities and/or how their future liabilities may be offset by insurance. Please reach out if you have any questions about this analysis or have interest in further DOFE analysis.

*Former Intern Haleluya Worku also contributed to this blog post.

**Usage of and or reliance upon the data in this report is prohibited without written permission from KCIC. The contents of this blog may not be duplicated or distributed without written permission from KCIC.