Attorneys Fighting over Criteria for Asbestos Lawsuits

One thing everyone attorneys, plaintiffs and defendants agreed on in asbestos cases is that there are too many cases for the court system to handle. Now, two groups of attorneys are fighting over how to remedy the situation.

The Association of Trial Lawyers of America (ATLA) is opposing a vote held Tuesday by the members of the American Bar Association (ABA) to support a controversial recommendation by the ABA's Commission on Asbestos Litigation that proposes, in great detail, the medical criteria that must be met in asbestos lawsuits. The criteria, meant to ensure the statute of limitations for lawsuits does not start until a claimant is really sick, are much more strict than for previous cases.

According to the ABA, the recommendation addresses dual concerns: protecting the right of claimants with impairing asbestos-related injuries to obtain fair compensation efficiently in the tort system; and preventing "scarce judicial and party resources from being misdirected by a flood of premature claims by individuals who have been exposed to asbestos but do not have, and may never get, any functional impairment from asbestos-related disease." The proposed plan deals only with non-malignant claims.

According to a statement from the ATLA, the new medical criteria "are so strict they close the courthouse doors to the majority of asbestos victims, who are sick with asbestos diseases but don't have terminal cancer."

"Those who are sick, but not dying, would be denied," ATLA President Mary E. Alexander said at the ABA meeting. "One could liken the situation to saying a person infected with HIV through a tainted transfusion should have no legal rights unless she contracts AIDS. This cannot and should not be the official policy of the American Bar Association or of any other group dedicated to preserving the right to trial by jury."

According to experts, asbestos-related cancer and impairing asbestos diseases continue to occur, but they represent a small fraction of annual new filings. According to a recent RAND report, as many as 90 percent of new claims are now brought by individuals who have radiographically detectable changes in their lungs that are "consistent with" asbestos-related disease (and other causes), but have no demonstrated functional impairment from those changes. "In sum," said the report, "it appears that a large and growing proportion of the claims entering the system in recent years were submitted by individuals who have not incurred an injury that affects their ability to perform activities of daily life."

But will the proposal do what it claims: stop the flood of "frivolous" lawsuits? And in doing so, will people with legitimate claims be precluded from filing?

Edna Oikle of Seattle is a 75-year-old woman who spends her days and nights tethered to an oxygen tank and must be cared for by relatives. She is one of 1,000 current and former residents of Libby, Mont., who believe they became ill from breathing air poisoned by asbestos dust coming from the W.R. Grace vermiculite mine.

Her disease, known as Libby tremolite asbestos disease, is significantly different from chrysotile asbestos disease, which is what the Commission on Asbestos Litigation used to create its criteria. Chrysotile was used in naval shipyards and in products such as brake linings. Tremolite, estimated to be 10 times more carcinogenic as chrysotile and therefore more likely to produce mesothelioma, is also more likely to produce a debilitating pulmonary disease that looks different from chrysotile-induced disease on X-rays and in lung-function tests.

In fact, says attorney Roger Sullivan, tremolite asbestos disease does not meet the criteria found in the ABA proposal. Sullivan represents about 400 Libby victims.

"The cruel irony is these are people who are suffering, who are seriously ill with significant medical expenses, who would be precluded from initiating suit or receiving payments," Sullivan said.

In the meantime, there are more than 600,000 asbestos cases in the court system currently, says ABA President Alfred Carlton Jr., who noted, "There is a bipartisan consensus that something needs to be done."

The financial impact of non-impairment claims has been profound. According to the RAND report, more than 60 companies, believed to be otherwise financially viable, went bankrupt due to asbestos-related liabilities, over 20 of them in the last two years. None of the companies claimed an inability to pay fair compensation to truly sick claimants. And virtually all point to the same problem: thousands of non-impairment claims filed each year with no end in sight.

Nobel Laureate Professor Joseph Stiglitz of Columbia University recently issued a report, commissioned by the American Insurance Association (which, certainly, has a vested interest in the outcome of these cases), which calculates the economic impact of these bankruptcies on the employees of the bankrupt companies. He estimates that 60,000 workers lost their jobs as a result of asbestos-related bankruptcies. (The RAND report estimates job losses at approximately 128,000.) Stiglitz concludes, "Each displaced worker at the bankrupt firms will lose, on average, an estimated $25,000 to $50,000 in wages over his or her career."

ATLA's Alexander is not swayed by these arguments. The ABA should not assume the roles of "doctor, jury and judge," she said. Instead, she added, asbestos cases should be decided by juries that hear all the evidence.

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