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An update on the rights of asbestos victims, and how they've been wronged

Date Posted: June 8 2007

By Michael B. Serling

On April 17 I had the distinct honor of addressing the Michigan Building and Construction Trades Council in Lansing. The occasion was their 48th Annual Legislative Conference. Many of the leaders in attendance expressed to me their concerns regarding asbestos disease among their membership.

Rightly so, since the sad truth is that cases of mesothelioma cancer, lung cancer and asbestosis are still prevalent among Michigan building tradesmen. Indeed, mesothelioma cases in the United States are still as numerous as they were ten years ago, perhaps even more so.

Mesothelioma, a cancer of the lining of the lung or lining of the abdomen, is almost always a terminal illness for which the only known cause is asbestos exposure. It is a disease that strikes its victims 20, 30 and even 40 years after the first exposure to asbestos. At the conference I told the delegates the story of the first mesothelioma case ever to be filed in the state of Michigan. It happened to be my case.

The year was 1975 and I was only 31 years old at the time, in practice for just five years. My client was an asbestos insulator who died at the age of 53, leaving a widow and two young children. Over the next three decades this tragedy was repeated in tens of thousands of other families of our tradesmen in Michigan and throughout the country.

What is troubling is that redress for the victims of asbestos disease is now under attack in many states, including Michigan. Last year we and many other defenders of victims' rights were in pitched battles in Washington, Lansing and many other state capitals.

On the federal level, the proposed asbestos legislation (the mislabeled "FAIR Act") before the U.S. Senate appears to have faded into the background. This was a controversial bill that actually divided labor.

The AFL-CIO came out against the bill, whereas the UAW supported it. Indeed, some of the building trades supported the legislation while most trades sided with the AFL-CIO in opposing it. Most asbestos law firms opposed the bill as did the American Trial Lawyers Association (now known as American Association for Justice).

Those opposing the bill felt that it would have created a new bureaucracy mired in red tape. Under the proposed bill victims would have given up their right to trial by jury in favor of this new system controlled by the government in power. There was great skepticism about the adequacy of funding. Many predicted that cases would not be compensated for five years or more. Most states, including Michigan, resolve asbestos cases within two years. Fortunately, from our perspective, the bill did not make it through the Senate and has been dormant for over a year. With the Senate now in control of the Democrats, it is unlikely this bill will resurface.

In Michigan bills were brought before committees of the state House and state Senate to establish criteria legislation. This would have defined when an asbestosis or lung cancer case could be brought, somewhat akin to Michigan's No-Fault auto law.

The criteria proposed by the Republican majorities was extremely one-sided and, if passed, would have denied 75% to 90% of asbestosis and lung cancer victims their day in court. I am happy to say that the bills failed and in November Democrats carried enough seats to control the state House.

In the Michigan Supreme Court insurance and company lobbying groups attempted to have the high court in Lansing pass a court rule which would have achieved the same result as the proposed legislation mentioned above. This would likewise have denied 75% to 90% of asbestosis and lung cancer victims access to the courthouse.

Although the state Supreme Court did not give big insurance and big asbestos what they wanted, the court did pass a rule in August 2006 interfering with the ability of Michigan asbestos judges to resolve cases, which they had been doing successfully for many years.

Nonetheless, the parties involved in asbestos litigation have continued resolving about 600-800 cases a year. This has enabled most victims to receive compensation within two years from the date their cases were filed. However, with the new court rule the pace of case resolution could be in jeopardy.

We believe that the current Michigan Supreme Court has demonstrated hostility toward victims' rights and access to the courthouse. Most appeals involving issues affecting the rights of victims are being decided against the plaintiff by a 4-3 margin. There are now several cases in the Michigan Supreme Court which could significantly further erode the rights of asbestos victims.

The cases deal with issues involving the Statute of Limitations, qualifications for expert witnesses and the rights of family members of tradesmen to bring claims for their own asbestos related diseases. My firm and other attorneys representing the rights of asbestos victims are doing our utmost to continue defending those rights of hard-working tradesmen.

We ask every one of you to remain educated on issues affecting the rights of workers and victims of asbestos disease. We urge you to exercise your rights at the ballot box and to contact elected members of our state and federal government on issues that are important in preserving your rights. If we all work hard we can make Michigan once again a place that is safe for workers and a place where workers are free to exercise their constitutional rights as envisioned by our founding fathers.