Sunday, June 04, 2006

Asbestos Claim Fund Legislation.. Or Is It?

I have very mixed feelings about asbestos litigation. I used to work, on the defense side, in it. There are some people who are legitimately sick and are suffering from asbestos exposure. There are, however, a great number of people who are exploiting the process to enrich themselves.

For instance, I depoed a guy who started working in the late 1970s as a union insulator (he also did a number of other jobs that did not involve working with asbestos, mainly cattle ranching). By that time it was known, by the unions in particular, that asbestos was causing damage and kiling people. However, instead of taking precautions, like wearing the masks that were available, the guy refused to. Not only that, but he meticulously kept records of ever type of insulation material he ever came in contact with. Round about 2004, he went over to a large plaintiff's firm which specializes in turning out asbestos cases by the gross. He was sent to a certain radiologist who looked at his x-ray, penciled in 1/0 in the box for ILO (see page 3 for the explanation) and a lawsuit was filed on his behalf. The rest of his medical records showed him to be a moderate smoker who, despite approximately 30 years of smoking between 1/2 to 1 pack a day, had no measurable impairment of his lung functions.

On the other side, I deposed a pleasant man who was clearly afraid of death. He was in his late 60s and had been a union plumber all his life, working primarily in residential homes. As I recall, he usually did work before the foundations were laid. He started work in the mid-1960s. He never really recorded what he used except to bill his customers. The invoices generated in the 1960s,1970s and early 1980s were largely gone. Why? He got rid of them as they no longer were useful for his business. As I recall, he was a smoker from the 1950s until the 1970s when his wife demanded he quit. He built a buisiness and raised a family. Then in 2003, he got mesothelioma.

The third case I recall, was a shipfitter/welder. He was one my first deposition. He could not remember anything that he did in over three decads of welding (1970 to 2002). His answers to interrogatories were filled with ship names. Some he remembered. Some he did not. Even on the ones where he could remember working, he could not for the life of him remember what part of the ship he worked (or even if he was working on a shop welding parts that were later sent to the ship in question). And then at the end, I remember asking him about his medical condition. He said that no treating doctor had ever told him that he had asbestosis, cancer, mesothelioma, or pleural plaques (these are four disease types that are linked to asbestos exposure). (The records would show that the same radiologist as in the case of the insulator had also put him down with ILO score of 1/0 with the standard notation of "marks consistent with interstitial fibrosis"). So then I asked him, after seeing if he had any other health complaints, why was he filing a law suit. He said, "So I could see if I had an asbestos disease." That just blew me away.

All three of these cases were filed by the same plaintiff's firm that specializes in mass torts, and particularly in asbestos litigation.

The name of the game, generally in asbestos litigation, is tag. If the plaintiff can remember seeing the product, or produce something that shows what it was, then typically the manufacturer, seller, or contractor/refinery who used it is on the hook. In all three of those cases, the plaintiffs got money from the client or clients I was representing. Even though the plaintiffs above could not remembering being in the same place, room, or portion of complex where my client's equipment was located.

Now in case 1 (the insulator), I was fairly mad about the outcome. Mainly because this guy knew what was going on. Yet, he was cynical enough about it that he essentially spent his life preparing for this lawsuit. And then client I represented decided, at the urging I suspect of my seniors (since I was the grunt at this firm) to make a deal and throw money at this guy. He walked away with a fairly sizeable recovery.

The same thing happened in case number 3 (the welder). Even though this guy had trouble remembering his wife's name, much less where he went to high school, he still walked away with a sizeable recovery, though not as large as the insulator who had his meticulous records.

The second gentleman, the plumber, ended up recovering as well. Though based on the way the depo went, and from what I know of the clients that I worked on in that case, he probably did little better than the other two. Mostly because he could not "tag" that one target who would pay the lionshare of the settlement/verdict. Had it been up to me, I would have whipped out the checkbook there and paid. He had confirmed, undisputed case of mesothelioma. The slides showed asbestos bodies in them. And yet, he probably did not do as well as he should have in comparison to the other two cases.

And this, based on testimony from plaintiff's lawyers, is probably true. According to the testimony of Steve Kazan, some asbestos litigation defendants are paying out more for asbestosis cases than they are for mesothelioma cases.

(It should be noted, there are thing which will affect recoveries in all personal injury cases. These include the age of the plaintiff, the amount of impairment, how much he is making, how much he has lost as a result of the impairment and etc.)

Based on those three cases, which of those should have been filed at all? Only number 2. As a matter of fact, I changed number 2 to make it more clear cut (the actual plumber had a cancer which studies have shown to be linked with, among other things, exposure to asbestos. The defense experts confirmed that he was suffering from the disease. In end, it changed the result almost nil as far as the evaluation of whether it should have been filed).

In my opinion, I think that trial lawyers/consumer rights attorneys/personal injury attorneys, have let us down in the course of the asbestos litigation saga. This is not to say that I expect attorneys to be altruistic. However, it seems that there are some firms in this country that have made a lifestyle of perpetuating the asbestos litigation by filing claims on behalf of people who have no impairment, only markers on their chest fims/CT scans that indicate exposure to asbestos.

As Mr. Kazan noted in his testimony, the reason for this is because of a shift in how asbestos cases came about. He stated,

Traditionally toxic tort litigation follows a medical model: a plaintiff sees a doctor to treat his illness or injury and then is referred to, or otherwise finds, a lawyer. Litigation screening substitutes an entrepreneurial model: the lawyer recruits the plaintiff – who usually feels fine, has no symptoms or impairment, and is unaware of any “injury” – and sends him to a screening company for an x-ray. The question is, what features of asbestos litigation have contributed most to this shift to an entrepreneurial model? I focus on three: the failure of courts to enforce the principle that a person should not have a tort claim unless he is “injured”; interstate forum shopping, that allows these claims to flow to pro-plaintiff courthouses with no connection to the plaintiff or the case; and consolidations that are intended to force the settlement of cases whether or not they have merit under state law.
This entrepneurial model has not exactly ended up finding the people it should be finding. Instead, it has become a way to essentially manufacture claims. It has lead to abuses, such as what happened in Texas last year when Judge Jack found that this practice, in a silicosis suit, was leading to the manufacture of claims. And this has lead to a backlash which does not benefit plaintiff's rights in general.

So where does that leave us? Essentially a mess (for one view, which I agree in part with is here). It leaves us in a situation where there are a lot of legitimately injured people, people who worked and were exposed through little or no fault of their own in many cases, having trouble getting compensated for the wrong done to them because we are flooding the dockets with cases brought by people who are not actually injured, but bare only the marker of exposure.

Will these people ever become ill, in some cases yes and in some no. In my opinion, do they deserve to be compensated? No, not until they show some sign of impairment or other illness.

Who is responsible for this? Basically, everyone. Some of the blame rests with lawyers who put greed above respect for the institution of tort law. Some of it rests with the insurance companies with their short sighted, next quarter view that is afraid of a protracted court fight that could cost more than a settlement. Some of it belongs to the companies themselves for not doing more, sooner to make sure that they protected the people using the materials. Some of it belongs to the judges who forgot that a personal injury claim was supposed to include an injury in fact.

So this is all a long prolog to what started this idea in my head today. For the past few years, there has been a push on in the U.S. Congress to pass an asbestos claims bill. Essentially, this would take problem of asbestos and make it a claims based process and not a litigation one. It would establish a fund and all persons who had a claim of an asbestos related injury would be referred to it and further suits would be preempted from being filed in state or federal court.

This is not the first time this has been done. For example, to deal with claims based on injury from vaccinations, there is a claim program. It is a streamlined process that looks to see if the injury is related to vaccines and if so what is the amount. Its essentially works as an administrative hearing. However, if the compensation is not fair to the claimant, after the exhaustion of the process, they can still file in state or federal court for their injury. The program seems to work.

The current asbestos bill, has been stalled for years. Last year it looked like their might be a compromise that would satisfy all parties. However that fell through.

So once again, Senator Hatch is trying to get a bill together which will end this litigation. However, to make it more palatable, senators are attempting to attach claims arising from the World Trade Center attack and Hurricane Katrina. And its not just the Republicans, with their tort reform drum beat, who seem to be supporting it. Senators Clinton and Landrieu have both been trying to add amendments to the bill to bring their constituents into the coverage.

Should they be covered? Probably not. The asbestos bill is meant to deal with the asbestos related litigation. The asbestos litigation is primarily driven by people whose occupations, or in some cases family members, exposed them to asbestos. Bringing in another group of people will simply be a drain on the resources f the fund, leaving us with two options. The first is the government taking over responsibility for guarranteeing the fund. This puts the burden on the taxpayer and the treasury, which quite frankly could use a little less burden. The second is that it goes bankrupt and no one gets compensated.

Hopefully, the senators will realize this and pass a bill that works to solve this mess.

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