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Friday, February 10, 2006

Asbestos Reform: Who Opposes It?

In today's Post editorial (and most coverage), the main opponents of the asbestos bill are identified as trial lawyers: "But the truth is that the bill's main opponents are trial lawyers, who profit mightily from asbestos lawsuits and who constitute a powerful lobby in their own right."

While I'm certain that it's true that much public opposition comes from the plaintiffs' bar (see ATLA, for example), there's another interest group that may (quietly) oppose it: defense firms that make their money on these suits.

I spoke recently with a (non-asbestos) defense lawyer who mostly practices in various southern states typically identified as "judicial hellholes," and he said that in his region, the defense firms were possibly more upset about the reform bill than the plaintiffs' bar.  The plaintiffs' attorneys have already made a pile of money from asbestos, he suggested, and are perhaps better able to find a new area (as many of them did after the addition of arbitration provisions in credit agreements, for example), while the defense firms rely on the hourly defense work and may be less able to shift gears.  And, not incidentally, it's a lot of work to start a new area of law -- just like there are asbestos plaintiffs' "trials in a box," defense firms have no doubt put together stock discovery answers, examinations, etc., that make the work not that difficult.  It takes time -- and it might not be billable time.

Even if true, of course, the defense firms aren't going to go out and publicly lobby against their clients' interests (and it seems evident that this bill would generally benefit defendants).  And so perhaps pockets of opposition from defense firms don't make that big of a difference.  But it may at least be oversimplifying to say that the opposition is entirely from the plaintiffs' bar.

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The defense bar isn't paying millions of dollars to defeat or threatening the careers of senators who support the bill. So they're not "opposition" in any meaningful sense.

Posted by: Ted | Feb 10, 2006 8:25:06 AM

But they're not out lobbying for it, either, at least with the volume that their clients might be hoping, nor are they (so far as I can tell) paying millions of dollars to support the bill or to support senators who do vote for the bill. The absence of support can be significant, just as active opposition can be.

In any event, I agree that the impact is not nearly as large as the plaintiffs' bar (hence the final paragraph, etc.) -- but still think it's an interesting source of opposition, even if it's quiet.

Posted by: Bill Childs | Feb 10, 2006 8:47:40 AM

Actually, as a refugee of a firm which was primarily asbestos-defense, the impact on a number of firms would be huge. In my area (Northern California), there are a number of insurance defense firms who would have to seriously downsize as a result of asbestos litigation ending.

Plaintiffs firms are a little more agile when it comes to entering a new area. On the other hand, the defense firms, largely retained by the insurance companies, would be in trouble. The biggest is that they would have retool overnight and still keep costs the same. This is not as easy as it sounds since those firms which do asbestos work typically are in a constant struggle to recover their money from insurance companies who want to pay as little as possible.

The world of asbestos is a very odd, symbiotic relationship where the parasite keeps the host alive. Which is which is debateable.

Make no mistake, asbestos defense people watch this legislation closely. Most of the ones I knew, and who commented on it, did not want it to pass because it would disrupt the way they do business.

Posted by: Bill | Feb 10, 2006 3:43:53 PM

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