By Karen Marshall
Lately I’ve spent a lot of time looking at trends in asbestos litigation and legislation. Apparently, I’m not the only person in Washington, D.C., who has focused on these issues recently.
Last week the U.S. House Judiciary Committee’s Subcommittee on the Constitution held a hearing on “How Fraud and Abuse in the Asbestos Compensation System Affect Victims, Jobs, the Economy and the Legal System.” The Subcommittee has jurisdiction over issues like tort liability, product liability and general legal reform.
Although the hearing was sparsely attended, it’s still notable because it’s the first time Capitol Hill has focused on asbestos compensation issues in some time.
Legislative Efforts Since 2000
By the turn of the century, hundreds of thousands of asbestos claims had been filed. Many worried that the massive number of claims would exhaust the resources available to compensate future victims of asbestos-related diseases. Of particular concern were claims by people who had been exposed to asbestos but had not yet developed physical impairments.
Congress held hearings and considered various schemes to manage the number of cases. Proposals included ideas like creating a national organization of compensation boards to handle asbestos claims and making sure similar cases were treated consistently.
As federal proposals failed to make any progress, some states like Texas, Ohio and Florida began enacting tort reform laws aimed at limiting asbestos lawsuits by all but the sickest claimants. Courts in other states like Pennsylvania and New York began adopting procedures aimed at quicker resolutions for claimants with severe asbestos-induced illnesses.
Over the past decade, groups like the American Legislative Exchange Council (ALEC), tort reform advocates and other industry representatives have been busy promoting proposals to limit asbestos exposure claims and the liability of certain companies. Some proposals take the form of model legislation such as ALEC’s model bills to require disclosure of asbestos trust claims, to limit the liability of companies that buy or merge with other companies that have asbestos liabilities, and to establish medical criteria for compensation. Several states have enacted laws similar to these models.
The last federal bill proposing a comprehensive national scheme for compensating asbestos claimants was the Fairness in Asbestos Injury Resolution Act of 2006 (the “FAIR Act”), S. 3274. The proposed law would have accomplished the following, among other provisions:
- Create an office within the Department of Labor to process asbestos injury claims and pay compensation to eligible claimants;
- Provide fair compensation to claimants in a no-fault, non-adversarial manner;
- Halt most pending claims in state and federal courts; and
- Establish allowable award amounts based on disease severity.
The bill was introduced in the Senate in May 2006, but never reached the voting stage. It was an amended version of the FAIR Act of 2005, S. 852, introduced by former Senator Arlen Specter. The 2005 bill made more progress than the 2006 version but ultimately did not pass.
Recent Congressional Hearing
The recent House Subcommittee hearing raises questions about whether there is renewed interest on Capitol Hill in passing federal asbestos compensation legislation. Hearing testimony and statements from the lawmakers who attended acknowledged an explosion of asbestos litigation as well as the dangers of asbestos. The main focus was on how certain litigation practices, such as allegedly fraudulent mass medical screenings and lawsuits, affect bankruptcies, jobs and general business growth.
The hearing was a typical subcommittee fact-gathering session with written and oral testimony from a panel of witnesses. Present at the witness table were (i) a law professor, (ii) a plaintiff’s attorney, (iii) an attorney who has advised an asbestos personal injury trust and asbestos defendants, and (iv) a small business owner facing over 100 asbestos lawsuits.
According to the testimony from the small business owner, his business has never manufactured asbestos, but has sold gaskets containing an asbestos product. The business is reportedly unable to expand or hire needed employees because of the lawsuits. Of all the witnesses, the small businessman was in the unique position of being able to share a personal story about his hardships.
Noticeably absent from the witness panel were voices of people who actually suffer from asbestos-related diseases. There were no mesothelioma, lung cancer or asbestosis patients. No caregivers. No one to share personal stories about the human suffering caused by asbestos exposure. No one to describe all of the medical and related expenses that can reach into the millions. Also absent was a doctor who could testify about effective screening procedures, much less the physical, emotional and financial burdens of treatment for asbestos-induced illnesses.
Hopefully, any Congressional efforts to create more fairness in asbestos compensation will prioritize the needs of the parties who suffer most from asbestos exposure: mesothelioma patients and others who suffer from asbestos-related diseases. Any fraudulent litigation activities have the most devastating impact on this group of people. This group also faces the most dire consequences if adequate compensation is no longer available for asbestos-related injuries.
At the end of the hearing, Subcommittee Chairman Trent Franks (R-Ariz.) stated, “I’m glad we settled the issue today.” It is unclear from his remarks what, if any, next steps the committee will take.
Subcommittee hearings are often used to call attention to certain issues and build a record of findings for future bills. It appears too early to tell whether the session will trigger further hearings or the introduction of more “fairness” legislation. If so, Congress should make space at the witness table for the actual victims of asbestos exposure. It’s hard to imagine any level of fairness without their input.
We will keep you informed if there are any future developments at the federal level. Until then, watch this blog and visit the legal options section of Asbestos.com for information on state litigation and legislative trends.