The Building Tradesman Newspaper

Friday, June 09, 2006

State Republicans, Supreme Court push for limits on asbestos victims' legal rights

By The Building Tradesman

Federal lawmakers failed earlier this year - once again - in a years-long compromise effort to establish a trust fund to help victims of asbestos-related diseases.

The trust fund money would come from companies and their insurance providers that manufactured asbestos-containing materials. So far, there have been unsolvable disagreements in Congress over how much money should be placed in the trust, and how sick a person should be in order to have access to the money.

Now, lawmakers in some states, including Michigan, are seeking their own path to fixing and settling asbestos cases. Construction workers make up a large bloc of those who are afflicted - and could still be afflicted - with asbestos-related disease. And those afflicted workers are not going to like the fix that's being served up by Republicans in the Michigan House and Senate, and separately, through a side agenda by conservatives on the state Supreme Court.

"The bottom line right now is that the Michigan legislature is trying to deny a lot more workers who have been exposed to asbestos from getting their day in court," said asbestos attorney Michael Serling. "And not only that, the Michigan Supreme Court is trying to do the same thing through what they call 'procedural and docket control.' "

Serling said the legislation, if passed, would remove about 80 percent of non-cancer asbestosis cases from the state's court dockets.

According to an April report by the Property Casualty Insurers Association of America via the Insurance Journal, "Michigan has looked at the efforts of other states such as Georgia, Florida and Texas that have worked to cut down on frivolous asbestos lawsuits and tried to prevent companies that did not produce asbestos from being sued into bankruptcy."

Michigan House and Senate panels have held hearings this year on legislation that would create more stringent rules for asbestos or silicosis victims from getting access to the courts in Michigan. The new rules, according to the Insurance Journal, would "establish reasonable medical standards for asbestos and silicosis claims necessary to verify these illnesses; they place no additional burden on mesothelioma victims and suspend the statute of limitations, preserving the right of claimants to sue should they become ill."

The key to the issue, of course, is defining "reasonable medical standards." In other words, at what point is a person exposed to asbestos, "sick?" Serling said there are two separate standards at play in Michigan.

The first, which Serling said more widely supports the rights of workers, was put out in September 2004 by the American Thoracic Society. A second standard, promulgated in 2003 by the American Bar Association - of all groups - sought to limit the number of claimants to asbestos funds by raising the medical standard for who is sick, and who isn't.

Serling said the Michigan Supreme Court is considering using the ABA's standards as a guide for thinning the number of claimants on asbestos dockets. Asbestos victims deemed not sick enough under the new rules would have their cases move from an active docket to an inactive docket.

On May 24, Serling argued before a hearing in the state's high court that the court is now effectively creating legislation to reduce the number of asbestos claimants - a role that should be - and in this case, currently is - taken on by state lawmakers.

"The fact that the state legislature is now actively dealing with these issues should be enough reason for this court to let the legislative process proceed," Serling wrote in a brief to the Supreme Court. "We urge this Court to refrain from instituting any inactive docketing system with regard to asbestos litigation."

As we've reported in the past, Michigan's Republican lawmakers and Supreme Court justices may be ignoring the old saying, "if it ain't broke, don't fix it." Until recent legislation in that state was adopted, there were 48,000 asbestos-related court cases in Ohio - Michigan has only 2,500. An effective case management system has been set up, Serling said, and most cases go to trial within two years of filing. One judge handles 85 percent of all asbestos cases in Michigan. "Most cases now settle," Serling wrote, "and few issues are appealed."

Michigan Building and Construction Trades Council President Patrick "Shorty" Gleason, an iron worker, also testified before the Supreme Court on May 24, providing a construction workers' perspective of job sites in the 1970s.

"We would walk past guys tearing asbestos insulation out of boilers in a power plant day after day, none of us had respirators or other safety equipment," Gleason testified. "Personally, it scares the hell out of me that I was breathing that stuff for years. My dad, a retired iron worker, today has breathing problems related to asbestos.

"It can get pretty easy to forget that there have been real, breathing human beings out there, who either lost their lives, or lost their quality of life, because of exposure to asbestos. I think it would be just as great an injustice for this court to allow asbestos manufacturers to shirk from their responsibility to these workers."