Senate Wisely Kills the Federal Asbestos Trust Fund

For 30 years, the insurance industry and other special interests have been trying to force injured people to waive their Seventh Amendment right to trial by jury and have their disputes resolved outside the court system. S. 852 was yet another proposal to dismantle the jury system, this time for workers and their families who are suffering the health consequences of asbestos exposure.

The theory behind this proposal was that in return for giving up the right to jury trial, those who are injured by asbestos would be able to avoid lengthy delays in receiving care or compensation. The truth, however, is that other systems that have tried this kind of proposal have utterly failed to deliver on its promises, and this one would have been no different.

The proposed bill would have precluded people sickened from asbestos from seeking compensation through the civil justice system, whether or not they were covered by the proposed trust fund. Thus, someone whose injuries are not of the type covered or who does not meet the unreasonably strict qualification criteria would have been left without the means to obtain any compensation.

Compensation available to many victims under this proposal, especially the most seriously injured, are significantly below what is available to victims who currently seek compensation through the in the civil justice system. For example, the maximum compensation for many mesothelioma patients would not have covered the cost of their medical bills and lost wages.

The bill contained new and burdensome obstacles for victims seeking compensation. For example, the burden of proof for certain classes of victims is tilted against claimants; the medical criteria proposed in the bill is unfair to victims and many would have been unable to receive any compensation at all. What’s more, the bill contemplates a far-fetched scenario where attorneys would have either represented victims for free, or at a radically low contingency fee of 5 percent, with the result being that attorneys would have found it financially impossible to represent victims. This would have left many sick victims to pursue their claims without assistance or representation.

Also, except for rare exceptions, the fund would have only covered people harmed by asbestos on the job. That excludes those who are sickened from community exposure to airborne asbestos. Victims of recent hurricanes who are forced to live in hazardous environments would therefore have been excluded. Even workers exposed to asbestos would have been excluded since the fund generally requires a minimum of five “weighed” years of substantial exposure.

Victims would have risked getting nothing because not enough money was being set aside – and there was no guarantee it would last, or provide victims with options on a timely basis. If insufficient funds had been set aside to cover all claims, victims would have had no recourse because they would not have been able to opt out of the system. If the legislation passed and then sunset, which was possible under the bill, victims would have had to start litigation anew, risking even further delay in obtaining compensation. Anyway one looks at it, setting up such an uncertain and confusing scenario for victims is horrible public policy.

A new report, by Professor Peter Barth of the University of Connecticut1 reviewed three federal compensation programs - the Black Lung program, the Energy Employees Occupational Illness Compensation Program Act (EEOICPA), and the Radiation Exposure Compensation Act (RECA). In each case, he found that proponents of each of these programs dramatically underestimated the number of claims the program would be required to process, resulting in delays in compensation for victims and higher costs than expected, which taxpayers then had to cover.

Even conservatives believed the proposal was unconstitutional, unworkable and unfair.

In a April 18, 2005, letter to Congress, former Solicitor General Ted Olson said that the proposal was not only unconstitutional, but it contained “profoundly harmful public policies” including “confiscating private property, upsetting final court decrees, disturbing settled expectation, undoing years of conscientious work by courts and litigants, and doing damage and causing emotional distress to sick and deserving claimants."

The bill limited the liability of asbestos manufacturers and their insurers, which for years deliberately hid the dangers of asbestos from their own workers and obstructed lawsuits against them, so that hundreds of thousands of Americans were poisoned and creating a massive public health crisis.

In 1933, the Johns-Manville Company settled with an attorney for 11 former Manville employees, all asbestosis victims. The attorney received $30,000 for the victims, in exchange for a written promise that he would not “directly or indirectly participate in the bringing of new actions against the Corporation.” This fact did not come to light for more than 45 years. In the meantime, the company was able successfully to avoid damage suits. Had the public known about this settlement, it is likely that the hazards of asbestos would have come to light decades earlier.2

1 “Commentary on the Creation of a Fund for Victims of Asbestos Caused Diseases,” February 15, 2005.

2 Paul Brodeur, Outrageous Misconduct; The Asbestos Industry on Trial, Pantheon Books, New York NY, 1985, p. 22; See also, Barry Meier, “Deadly Secrets System Thwarts Sharing Data on Unsafe Products Series,” Newsday, April 24, 1988.)

MYTHBUSTER! Senate Wisely Kills The Federal Asbestos Trust Fund

MYTHBUSTER!

Senate Wisely Kills
The Federal Asbestos Trust Fund