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March 2013

Recent Developments in Diesel Exhaust—An Asbestos Parallel?

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Although the courts have shut down diesel exhaust litigation concerning certain categories of defendants, mass tort plaintiffs lawyers will no doubt take a closer look at diesel exhaust after the DEMS and the IARC proclamation to attempt to find ways around existing precedent. Unfortunately, it appears, at least on the surface, to the plaintiffs' bar, that asbestos and diesel exhaust litigation have some parallel. Both involve airborne inhalants that have become increasingly regulated. Both involve the opportunity for revisionist "historians" to find evidence that someone, somewhere, long ago recognized a possible hazard and, therefore, everyone should have foreseen a hazard long ago. Through continued motion practice and further evaluation of DEMS weaknesses, however, diesel exhaust litigation should not become the next mass tort.

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