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Editor: Christopher J. Robinette
Southwestern Law School

Friday, February 10, 2006

Asbestos Bill Comments

[Updated and moved to the top Friday 2/10 at 5 pm]

Like the SOTU post, I'll try to update this periodically.  The Post had this good story about the early back-and-forth on the bill, which provides decent background on both the bill and the battle to come.  "Under the measure, companies and their insurers would contribute $140 billion to a trust fund that would compensate victims of asbestos exposure. The measure would stop all asbestos-related court cases and spare defendants crippling jury awards."

Some posts:

  • Alliance for Justice (letter to the Senate [PDF]): "S. 852 will leave a substantial number of seriously ill victims of asbestos-induced  diseases -- many of whom are dying -- uncompensated and worse off than they are under current law.  The Asbestos Trust Fund that S. 852 creates is unfair, unworkable and inadequately funded.  According to testimony presented to the Senate Judiciary Committee, the fund will rely on very substantial borrowing early on to pay hundreds of thousands of initial claims resulting in debt service costs over the life of the fund that could reduce the $140 billion intended to pay claims by as much as 40 percent or more.  Moreover S. 852 terminates the right of victims to seek redress in the civil justice system, which for all its challenges, has evolved to manage asbestos litigation with increasing efficiency.  An asbestos fund that fails to offer victims equal or better  protection and relief than they enjoy under the current civil justice system is completely unacceptable."
  • Manufacturers' Blog (NAM): "We find that too many people really don't understand the crux of the disagreement on this issue. We find all too often when talking to people about it, they begin with the assumption that we somehow doubt that asbestos is a harmful substance. We don't doubt it. This issue isn't about whether asbestos is safe or not -- this has long since been established. The issue is how people injured by exposure to asbestos will be compensated. We want to make sure that all the money doesn't go to trial lawyers and healthy people."  [After some stats about percentage of recovery to lawyers, etc.]  "This, in short, is a national disgrace. There are sick people out there who deserve to be compensated. Only trouble is, there's a line of healthy people -- and trial lawyers -- in front of them."  See also their update today.
  • People Over Profits (ATLA): "The Specter-Leahy bill asks asbestos victims to bear the risk of an inadequately funded, unfairly structured and untested new compensation program that is not even a "no fault" system. In fact, victims must surpass huge new hurdles to prove their asbestos exposure and that it is the cause of their illness. Based on the current version of the bill, it will be impossible for them to do so."  (Also lists "ten worst hurdles" established by the bill.)
  • (via NAM): This one has a point-counterpoint which does a reasonable job of summarizing the views on either side.   
  • WSJ's LawBlog links to a WSJ article (paid sub. req.) saying that the legislation appears DOA.
  • The American Enterprise Institute hosted an event a couple of weeks ago discussing the bill; a video of the event is available as is a summary.  I think it is fair to summarize the summary (yikes) as ambivalent -- everyone wants something legislatively but nobody's certain this is good enough.
  • The New York Times [free sub. req.] editorialized in favor of the legislation yesterday.  "No one can be sure that $140 billion would cover all current and future claims. But the bill would give victims the option of going to court should the trust fund run out. It would be a vast improvement over the present method of dealing with the claims of asbestos victims, which is to clog the courts and bankrupt companies while still depriving many victims a measure of justice."
  • [New] WSJ LawBlog has a good update today (Thursday), including this entertaining snippet: "[N]oted plaintiffs’ class action lawyer Richard Scruggs apparently supports the bill: 'This bill stops companies from going bankrupt and prevents trial lawyers from going after these companies and bringing them down,' he told the paper. In response, a spokeswoman for the American Trial Lawyers Association 'noted that Mr. Scruggs appeared to be the only trial lawyer in the country who supported the legislation.'"
  • [New] The Heritage Foundation: "Regrettably, the Senate bill as written may end up replacing one failed system with another. Lawmak ers can still remedy the problem if they focus on rules that will aid those truly wronged and nothing more. If they can do this, asbestos litigation reform could establish a positive precedent rather than another—albeit different—type of failure."  [via our neighbors at the Law Librarian Blog]
  • [New] The Washington Post editorializes in favor: "The bill will be debated and amended, and it may face a second attempted filibuster before it gets a vote. Some amendment may be reasonable at the margins, but the bill's central idea -- to replace litigation with a $140 billion compensation fund to be financed by defendant companies and their insurers -- must be preserved. Democrats complain that the fund won't have enough money to compensate asbestos victims; Republicans complain that the fund will have too much money, the raising of which will constitute a burden on small and medium-size firms. The fact that the bill is being attacked from both directions suggests that its authors, Sens. Arlen Specter (R-Pa.) and Patrick J. Leahy (D-Vt.), have balanced competing interests in a reasonable manner."
  • [New] 14 Republicans have rewritten the bill entirely: "A group of Republican senators on Thursday proposed completely rewriting an asbestos bill to allow lawsuits under strict medical criteria rather than create a $140 billion fund to pay victims of the mineral. . . .  Cornyn said his proposed amendment would establish a 'national floor' with respect to medical criteria. It would require physical impairment, to which exposure to asbestos was a substantial contributing factor, to bring an asbestos claim to court. Several states have passed similar legislation.  His proposal would also extend the statute of limitations for filing claims, so people who are not yet sick from asbestos can still have their cases heard if they fall ill in the future, Cornyn said. Further, the plan would attempt to limit fraud by medical screeners that vouch for claims."  Note: Comments reflect that this bill failed.

I did a little (mind-numbing) asbestos insurance litigation when I was in practice and have read a fair amount about various proposals.  I don't pretend to have a good solution in mind, though I do tend to think that legislation -- fair and cautious legislation -- is probably necessary, even if (as seems likely) the court system is getting better at dealing with the litigation.

While obviously it wasn't about the current bill (or any particular bill), Souter seemed pretty sensible here, writing for the Court: "The 'elephantine mass of asbestos cases' lodged in state and federal courts, we again recognize, 'defies customary judicial administration and calls for national legislation.'"

Please point me to any other posts you think should be included.

Current Affairs, Legislation, Reforms, & Political News, Products Liability | Permalink

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» Asbestos bill debated from PointOfLaw Forum
The conservative site TownHall has a point-counterpoint between Dana Joel Gattuso (critical of the FAIR bill) and Michael Baroody (supports it). And Bill Childs at TortsProf rounds up a number of other links on the legislation.... [Read More]

Tracked on Feb 7, 2006 7:47:03 PM


The Cornyn amendment, which corresponded to parallel House legislation, failed, 70-27.

Posted by: Ted | Feb 10, 2006 3:41:54 PM

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