Capital Commentary is the weekly current-affairs publication of CPJ, written to encourage the pursuit of public justice.

All-out War



February 28, 2000

Which battle does that title evoke? The Chechnya conflict? Or the nasty political mud-slinging between American presidential candidates this primary season? Yes both of these—but another war is raging in which more than 200,000 victims of asbestos exposure are seeking redress of their grievances in the courts. Lawsuits continue to arrive at a rate of over 40,000 per year. The Association of Trial Lawyers of America has taken up the asbestos victims' cause by launching a fervent attack to defeat a bipartisan congressional bill that would move victims' claims out of the courts and into a federally administrated compensation system.

The House Judiciary Committee, under the chairmanship of Henry Hyde, is scheduled to markup the revised bill, The Fairness in Asbestos Compensation Act, on March 1. The original bill, introduced last summer, was drafted by the Coalition for Asbestos Resolution consisting of over 300 civic, business, and trade groups nationwide who are seeking a workable solution to what has amounted to a national legal crisis. Even U.S. Supreme Court justices have urged Congress to draft legislation to deal with the elephantine mass of asbestos cases strangling the courts.

Of course, what's at stake for trial lawyers is the loss of enormous contingency fees. Defendant corporations stand to benefit from the bill because it caps punitive damages. What about justice for the victims? Unfortunately, there is no justice that can bring back the lives lost due to lung cancer or that can provide a cure for others suffering from asbestos-related diseases, especially in places such as Libby, Montana, where 192 deaths are linked to a now defunct vermiculite mine and where 300 more cases have been diagnosed.

But if justice cannot undo the damage, it can go far in assisting the victims by ensuring their medical care. An out-of-court settlement process by which those currently ill from exposure can receive quick compensation for treatment makes a whole lot of sense. The backlog of cases in the courts has prevented some from receiving help, even though their condition has worsened, and others have died before their court appearance. Moreover, the backlog is made worse by the filings of many people who have not yet become sick from exposure but are afraid that the statute of limitations in their states will not allow them to file their claims at a future point in time. One of the advantages of the federal legislation is that it would override these statutes. People could obtain help without resorting to court battles and manipulation of the legal system.

Many asbestos-related cases are the result of products that were widely regarded as safe at the time of handling. Only in recent decades has science established links between environmental hazards and occupational diseases. It is unjust that asbestos litigation costs have forced some 25 companies into bankruptcy, often with no compensation money being left for those who suffered injury. An out-of-court system would regulate compensation to victims. At present, the amount of compensation depends on the success or failure of each individual's lawyer.

Clearly, where violations of existing health and safety laws have been intentionally committed, litigation remains the key means to prosecute and punish offending companies. Businesses should also invest more of their resources in partnerships with other institutions, including government, to undertake preventative research that will serve to protect their workers and consumers.

At this stage, the proposed administrative solution appears to be a good alternative to lengthy, costly, and delayed court proceedings. Companies' money would then be spent on compensation instead of litigation costs. Now, the Judiciary Committee needs to ensure that the quasi-governmental corporation with a board appointed by the President and confirmed by the Senate, does, indeed, bring relief more quickly and equitably to victims and does not create new bureaucratic hurdles.

—Michelle N. Voll, Development Director
   Center for Public Justice

“To respond to the author of this Commentary please email:
Capital Commentary is a weekly current-affairs publication of the Center for Public Justice. Published since 1996, it is written to encourage the pursuit of justice. Commentaries do not necessarily represent an official position of the Center for Public Justice but are intended to help advance discussion. Articles, with attribution, may be republished according to our publishing guidelines.”