Congress Urged to Change Medical Criteria, Statute of Limitations, for Asbestos Cases

In testimony before the Senate Judiciary Commission, Dennis Archer, president-elect of the American Bar Association, said Congress should establish a "clear and objective medical standard" that claimants would be required to meet before filing an asbestos-related lawsuit.

In addition, ABA wants Congress to adjust statutes of limitations so that the clock starts ticking when and if a person actually gets sick.

"Asbestos litigation in this country is spiraling out of control. Many seriously ill people are dying before they get their day in court, while others are denied compensation as dozens of corporations go bankrupt. The system needs to be fixed," Archer told the committee.

The volume of new cases as many as 75,000 are filed each year has created a backlog of more than 200,000 cases against some 6,000 defendants, says ABA. "The net result," claims Archer, "is a legal quagmire that threatens victims, companies and the courts alike."

Unimpaired claimants typically file suit because, once they have evidence consistent with asbestos exposure, the statute of limitations starts ticking. Most of these cases result in relatively small awards, but claimants who later become ill are typically precluded under the terms of the settlement from filing additional claims. "For these victims," said Archer, "a short-term windfall causes a long-term shortfall."

Archer claims requiring claimants to meet a medical standard of impairment before filing suit and adjusting statutes of limitations to allow those who do not yet meet the standard to file a claim when they do would help restore order to the system. "There is a simple principle here," he said. "Help people who are sick when they are actually sick. We should concentrate now on people who need help today."

Between 1940 and 1979, extensive use of asbestos in industrial workplaces resulted in some 27 million workers being exposed to asbestos. Thousands developed disabling, sometimes fatal, illnesses decades after their initial exposure and, beginning in the 1970s, filed lawsuits to recover damages.

In his testimony, however, Archer noted that by the mid-1990s, with the period of most intensive industrial use of asbestos drifting further into the past, the number of new filings began to decline as occurrences of disabling diseases fell.

At the same time, however, by the mid-1990s, for-profit litigation screening companies had started to generate tens of thousands of new claims each year. A very large and growing proportion of these claims are being brought by individuals who had some degree of occupational asbestos exposure, but do not have, and may never get, an impairing asbestos-related disease.

Archer's testimony follows the adoption by ABA members in February of policy based on a recommendation put forth by the ABA Commission on Asbestos Litigation. That recommendation included a proposed medical standard that would be a good starting point in the formation of a legislative approach to fixing the problem, said Archer. "Using more than three decades of medical and scientific research to craft a fair medical standard for sickness would allow us to concentrate now on those who are sick and need help today," he said.

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