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Legislation affecting asbestosis cases may do more harm than good

Date Posted: March 5 2004

Will Congress finally approve a reformed agenda for dealing with present and future asbestosis cases?

The issue over how to compensate asbestosis/mesothelioma victims – thousands of whom have worked in the construction industry – may finally be coming to a head by the end of this month, when Republican Senate Majority Leader Bill Frist has said he would put the matter to a vote.

Senate Bill 1125 would create a multi-billion trust fund for workers afflicted by exposure to asbestos, a carcinogen that has been banned as a building material. At this point, however, the creation of a fund seems to be one of the few concrete issues that have emerged from a cantankerous debate on the matter between Democrats and Republicans.

The dollar amount of the trust fund that would be created to pay victims is perhaps the largest bone of contention, but it’s not the only one. Last October, according to the Construction Labor Report, Republicans proposed that the trust fund should be established at $105 billion, with another $10 billion available in contingency funding. The money would come from a trust fund from insurance companies and businesses that were involved with asbestos manufacture and distribution. About 70 of those businesses have gone bankrupt over the years.

Democrats have maintained that the Republican proposal provides insufficient compensation for asbestosis victims. Some lawyers have estimated that the costs of settling future asbestos lawsuits at $275 billion.

AFL-CIO President John Sweeney called the $105 billion amount “grossly inadequate.”

“The terms of this agreement come nowhere close to covering the costs of expected disease claims,” he said. “The proposal fails to state with any certainty that claims will be paid, and does not protect against the possibility that if funds run out sooner than anticipated, victims will be left without recourse both to the fund as well as to the tort system they will have left behind.”

Michigan attorney Michael Serling, who specializes in asbestosis litigation, said he and most other attorneys who represent patients with work-related lung diseases would also give a thumbs down to the Republican plan.

“It’s true, the dollars simply don’t work,” Serling said. “But there are other problems. The plan that (Republicans) are putting out there would create a bureaucratic nightmare.”

He said recent or pending court settlements involving asbestosis could be voided, throwing plaintiffs into limbo. Instead of cases being handled by the courts, a new government bureaucracy would be created to decide who is sick and who isn’t, and who gets paid damages, how much, and when.

While it takes a typical asbestosis case about two years to go through Michigan courts – which Serling said is a “pretty good” record for timeliness – the new plan could result in bureaucratic case backlogs of five to six years.

There are about 2,200 mesothelioma/asbestosis patients in Michigan, Serling said, which is a relatively small number compared to other states. About 50 percent of them worked in the construction industry.

Republicans control both houses of the federal government, and could have enough votes for passing the bill. But Sen. Orrin Hatch (R-Utah), the bill’s sponsor, said he expects a Democratic filibuster when the matter comes to a vote. “I don’t think it’s going to break through until we bring it to a head,” he told the Construction Labor Report.

Not surprisingly, the Wall Street Journal doesn’t like the compromise-laden plan for its own reasons. “Gone were once-promised strict medical criteria to make sure plaintiffs didn’t collect unless they were really injured. Gone also was any guarantee against trial lawyers continuing to shop the courts for jackpot jury verdicts for unsick clients…All Mr. Frist is doing here is opening up a federally-sponsored honey pot for trial lawyers and labor unions and calling it ‘tort reform.’ “

Serling said if there’s a choice between the current system and the plan being pushed by the Congressional Republicans, asbestosis patients are better off if nothing changes.

“With all the protestations about the tort system, it has worked pretty well,” he said. “The court dockets for these cases are moving.”