Legal - Mesothelioma Legislation - Overview

Since the first lawsuits against major asbestos manufacturers appeared in the 1970s, a total of more than half-a-million suits have been filed. As early as 1977, Congress was considering bills that would "fairly" compensate the thousands of workers and others who were exposed to asbestos, often with the full knowledge of their employers. By the mid-1980s, big business was feeling the pinch.

Between 1982 and 1999, 49 companies had filed for bankruptcy because of asbestos claims. Another 30 companies filed for bankruptcy in the first six months of the year 2000. In 1994, Congress approved special bankruptcy provisions for those companies facing asbestos lawsuits. Under the provisions of Chapter 11, firms who file for bankruptcy receive an immediate automatic stay of all actions in which they are the defendant. In most cases that stay applies to subsidiary companies that may not have been included in the bankruptcy proceedings, therefore protecting their assets as well. Those provisions also include measures that discharge all present and future actions against the firm if they meet specific conditions:

the current lawsuits against the company must total more than their net worth
the reorganization plan must include a fund to pay personal injury and property damage claims
the funding level of the fund is determined by the current claims against the company
a representative must be appointed to negotiate on behalf of injury claimants
75% of the firm's claimants must approve the reorganization

Congress has been attempting to stem the tide of asbestos-related lawsuits since the mid-1970s. Reacting to the burgeoning lawsuits being filed - there were over 40,000 filed against Johns-Mansville before that company filed for bankruptcy protection and instituted a trust fund to deal with claims - members of both the House and the Senate have floated nearly a dozen attempts to legislate mesothelioma lawsuits and claims. While most claim an attempt to ensure compensation to those who were injured by asbestos, nearly all take and "trust fund" route, which favors insurance companies and big business.

Historically, the legislation that has been proposed has tried to address the concerns of two opposite sides of the asbestos debate issue. On one side are the asbestos companies, big business and the insurance companies. On the opposite side are the victims of asbestos poisoning and their families, as well as labor organizations and the trial lawyers that represent them. Each side is seeking something different.

The Victims want:

adequate compensation for all victims
recognition of environmental and secondary asbestos exposure
relaxed standards of proof of exposure
responsibility resting on manufacturers and insurance companies
preservation of right to seek compensation in court
sufficient funding for current and future claims

The Plaintiffs want:

efficient and predictable claims system
liability limited to those with malignancies
required definitive proof of exposure
compensation limited to those that prove "workplace exposure"
elimination of the right to seek remedies through the tort system

In addition to federal legislation, a number of states have enacted their own legislation to stem the tide of mesothelioma lawsuits in their states. While some of the legislation that has been passed, such as in states like Texas and Florida, has been aimed at limiting the number of lawsuits choking the courts, a great deal of it has also been intended to benefit those with legitimate claims to compensation for their mesothelioma or other asbestos-related conditions. Among the most common issues addressed in mesothelioma legislation by state legislatures are:

Amending Statutes of Limitation: Because of the long latency period between asbestos exposure and illness, many workers who became ill with mesothelioma learned that they did not have the right to bring suit against the companies responsible for exposure because the statute of limitations had passed. Even in states where the statute clock starts ticking when the worker learns of the asbestos exposure, the statute of limitations often present a problem. In states such as Texas, the laws were revised so that a worker diagnosed with asbestosis and later diagnosed with mesothelioma could return to court for the more serious illness even if he or she had been awarded a settlement on the asbestosis case.
Prohibiting "bundling" for class action suits: Mesothelioma and asbestosis are the only two diseases for which the only known cause is exposure to asbestos, but there are many other conditions that are related to asbestos exposure. Victims suffering from those conditions - like lung cancer, esophageal cancer, stomach cancer, pleural plaques, pleural stenosis and many others _ often were dismissed by juries, who found themselves having to make judgment calls about whether the disease could have originated any other way. To combat that, many lawyers "bundle" cases by wrapping up several plaintiffs with so-called "lesser" diseases with one or two who have been diagnosed with mesothelioma. Several states have passed laws that prohibit bundling.
Limiting "the right to bring suit" to those who can prove they are ill: Because the statute of limitations forced plaintiffs to bring suit or lose their right to do so, there have been many lawsuits filed by plaintiffs who have been exposed to asbestos, but have not yet become ill. In 2005, Texas became a pioneer by combining a change in the statute of limitations with a statute that required plaintiffs to show that they are ill in order to bring suit.
Expediting cases of mesothelioma: California passed 2005 legislation to expedite mesothelioma lawsuits particularly when the plaintiffs were in the end stages of the cancer. This was a counter-measure to a defense tactic of stalling mesothelioma cases in hopes that the plaintiff would die. In California, a victim's estate is restricted in the damages that it can collect.