Know Your Rights
Asbestos: In The News Again
By David S. Casey, Jr. and Martin W. Edelman
Once again, asbestos is in the news.
As you read this, the U.S. Senate may be debating S. 1125, the so-called Fairness is Asbestos Injury Resolution Act.
However, there is nothing fair about the bill. It fails to provide adequate compensation to victims to pay their medical bills and provide for their families, and it is little more than a windfall to asbestos companies like Halliburton and their insurers.
First, here is a quick primer on one of the largest disease epidemics in this country's history. The story begins more than 100 years ago when the "magic mineral" was increasingly added to construction and consumer materials because of its remarkable fire-retardant properties.
By 1918, however, researchers had discovered the dangers posed when asbestos fibers were inhaled into the lungs, and, soon enough, the companies mining the mineral and using it in their products fully understood the health hazards for employees and consumers. Their insurance companies knew too.
But it was many decades before the industry publicly acknowledged these dangers and only then after then after they had been held accountable in court. This was too late for hundreds of thousands of workers poisoned and killed by asbestos.
Today, almost everyone knows that asbestos is a deadly carcinogen. Few know that it has already killed at least 250,000 men, women, and children, with hundreds of thousands more still to come, because the latency period for asbestos-related diseases is often several decades. An estimated two million Americans have X-ray or CAT scan evidence of asbestos-related disease. In each case, the disease is irreversible and progressive.
What's worse, contrary to what you may think, the use of asbestos is still legal in this country.
Millions of people are still being exposed and a study by the Environmental Working Group (http://www.ewg.org) shows asbestos kills 10,000 Americans a year.
The asbestos tragedy represents a failure of both industry and government. In response, victims and their surviving families have turned to their only recourse, the civil justice system. And now the industry and its insurers are turning to the U. S. Congress for protection from our justice system.
This brings us to the Frist-Hatch bill, which serves the interests of the asbestos lobby and its insurers, instead of those injured or killed by asbestos. Simply put, this bill strips away the rights of an injured person in our system of justice, preempts the laws of the fifty states, and sets up in their place a new federally administered trust fund bureaucracy.
Today, there are about 300,000 asbestos claims pending nationwide. The Hatch bill would require that every one be re-filed with the new bureaucracy. Today, the most severely sick asbestos victims (men and women whose lifespan is a few years-at best) are processed on a fast-track system, receiving compensatory relief for themselves and their loved ones within months. The earliest the new system can be up and running is 2005.
The Hatch bill would cancel all pending settlements between asbestos manufacturers and asbestos victims. Ongoing jury trials would be stopped dead in their tracks. Unless a final judgment has been entered and paid, and all appeals are over, jury verdicts would be null and void.
As mentioned above, the Hatch bill provides a massive payoff to asbestos companies. Halliburton is an example. Halliburton has already agreed to pay $4.2 billion in settlements with 200,000 victims. The Hatch bill would be a $3.5 billion windfall to Halliburton, because the settlement agreement would be cancelled and Halliburton's contribution to the trust fund would be far less.
A comprehensive agreement among all parties in the asbestos litigation could be struck, but the Hatch bill is not the way. It is unfair to those injured by asbestos through no fault of their own-and too fair to the asbestos companies and their insurance companies.
David S. Casey, Jr., president of the Association of Trial Lawyers of America, is a partner in the San Diego, CA law firm of Casey, Gerry, Reed, and Schenk.
Martin W. Edelman, president of the New York State Trial Lawyers Association, is a partner in the New York law firm of Edelman & Edelman, P.C.
