Of all the selfish exploitation schemes that greedy trial lawyers have perpetrated on our justice system, their abuse of asbestos litigation is certainly the worst. Use of asbestos essentially ended more than 30 years ago, yet trial lawyers are still soliciting and bringing countless claims, many of which are frivolous or downright fraudulent. They are clogging the courts and driving good businesses ― many of which had little or nothing to do with asbestos ― into bankruptcy.
To be sure, there are real victims of asbestos, and the extent of their suffering is hard to comprehend. About 2,000 people each year develop the hideous lung disease mesothelioma, a form of cancer that causes unbearable pain. It has only one known cause: asbestos exposure. No one would doubt for a moment that these victims deserve justice. But thanks to the trial lawyers, legitimate victims of mesothelioma are having a harder and harder time getting it.
You see, many years ago, trial lawyers saw a gold mine in mesothelioma claims. The problem was that there weren’t enough actual victims. So they started bringing lawsuits on behalf of people who might someday get the disease. Over time, asbestos claims became an industry as lawyers set up “mass screenings” anywhere they could park a mobile X-ray and woo potential plaintiffs with the promise of an easy settlement. After assembling a suitably huge group of plaintiffs, the trial lawyers filed their lawsuits and tried to strong arm the defendants into settling. Most defendants and their issuers usually obliged in order to avoid costly court battles.
Today, asbestos claims from people who do not have any kind of cancer make up 89 percent of all claims filed, according to a RAND Institute study. RAND also reports that more than 300,000 claims are now pending. Meanwhile, the real victims ― those actually afflicted with mesothelioma ― are receiving only a tiny fraction of the awards and having to wait years for justice because so many frivolous and dubious asbestos complaints are clogging the courts.
At the same time, asbestos claims are driving company after company out of business. Nearly one hundred companies have been forced into bankruptcy as a direct result of asbestos liabilities. As many as 60,000 jobs have been lost, with hundreds of thousands more projected to disappear in the coming years. The bankruptcies are also jeopardizing retirees’ pension and 401(k) benefits. And the problems are getting worse.
Having driven nearly all of the asbestos manufacturers out of business, trial lawyers turned to other deep pockets. There are now more than 8,400 companies defending against asbestos claims, many of them small businesses. Nearly all these employers never made or installed asbestos. But they have money, so the trial lawyers have put them on the hook.
No one ― except the trial lawyers ― doubts that asbestos litigation has become a crisis that cries out for a solution. Fortunately, there is now a proposal before Congress to create a fund with money from businesses and insurers, not taxpayers, large enough to handle current and future complaints. Such a fund will ensure swift justice for the real victims and provide certainty for companies now facing an endless number of asbestos claims and the infinite payouts that accompany them.
The fund will also mean an end to the wasteful trial lawyer gravy train. Since claimants would only need to show that they are sick with an asbestos-related disease in order to collect from the fund, they won’t even need to hire an attorney in order to obtain compensation. At the same time, the fund plan includes medical and exposure criteria to eliminate the fraud that plagues the current system and ensure that money goes to actual victims. The fund will also guarantee that there is money available down the road for those victims who don’t yet know that they are sick.
Best of all, victims won’t need to prove that a particular defendant caused their illness. That will end the complexities and lengthy delays that have become common in the current system. Victims will be able to collect their compensation fast, and the trial lawyers’ asbestos jackpot will finally be eliminated.
Some conservatives have condemned the trust fund, asserting wrongly that it will be supported by a tax on businesses. That’s simply wrong. In fact, the major corporations and a number of insurers are the strongest supporters of the trust fund. They have concluded that backing the fund will save consumers and investors money in the long run over the current system with its infinite liability. And most small businesses will contribute nothing at all.
Some have also argued that the fund helps trial lawyers. Wrong again. Maintaining the status quo, with its reliance on the court system, mass tort actions, and strong armed settlements is the trial lawyers’ most pleasant dream. The defeat of the trust fund proposal would see that dream come true.
Granted, no conservative is anxious to see the federal government take action. But just as our country’s class action system cried out for national reform, so does asbestos.
Victims shouldn’t wait another year. Neither should the countless U.S. employers who will crumble under the weight of asbestos liability, putting hundreds of thousands of American jobs and millions in pension benefits at risk. It’s time for Congress to take the next step on legal reform and pass this badly-needed legislation. The asbestos fund is the best way to repair our legal system, ensure justice for victims, and protect our economy ― while ending the trial lawyers’ asbestos bonanza. And that would be justice, indeed.March 3, 2005
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