Justice for Asbestos Victims

By Alfred P. Carlton Jr.,
President, American Bar Association President

Joe, a shipyard worker in Seattle, participates in a free asbestos screening and is told that his tests contain evidence consistent with an asbestos-related illness. Even though he is not ill, Joe is forced to decide between filing a lawsuit within the statute of limitations and forfeiting his right to receive compensation. Joe sues and settles for $12,000.

Now, fast-forward seven years. Joe learns that he has fatal lung cancer as a result of his exposure to asbestos. The settlement he received earlier will fall far short of the hundreds of thousands of dollars in medical expenses that Joe and his family are going to incur and, because he entered into the earlier settlement, he has no right to any further compensation.

While Joe's case is hypothetical, the unfortunate reality is that cases like this have become all too familiar. Worse still, these cases are an avoidable by-product of an asbestos litigation system that is spiraling out of control.

The American Bar Association has proposed a simple, common sense solution to this problem. It is based on a simple principle: we should help people who are sick when they are actually sick. First, people who bring asbestos-related claims should be required to meet a clear, consistent and medically-sound standard for impairment before bringing suit. There is more than three decades of sound medical and scientific research that could be used to craft such a standard.

Second, the statutes of limitations should be adjusted so that the clock does not start ticking until a person is actually sick. In effect, this would change the current system, which presents people who are not ill with a "file now or never" scenario, with one that allows people to file when they actually need it.

Fortunately, the Senate recently held hearings. Congress now seems ready to act. Indeed, the need for action is clear. Each year, 50,000 to 75,000 new asbestos-related lawsuits are filed. A large and growing proportion of these cases involve claimants who do not now, and may never, suffer from an asbestos-related illness. This has created a backlog of more than 200,000 claims against more than 6,000 companies that is crowding dockets across the country. As a result, seriously ill people who file claims are facing longer and longer delays in having their cases heard. In some cases, people have died before getting their day in court.

Even those cases that are resolved can carry hidden consequences. As was the case with our hypothetical "Joe," claimants who are not sick typically may file suit because, once they have evidence consistent with asbestos exposure, the statute of limitations starts ticking. These cases result in relatively small awards, but claimants who later become ill are typically precluded under the terms of the settlement from filing additional claims. For these victims, a short-term windfall causes a long-term shortfall. This is not justice.

There is no justice for corporations involved in asbestos litigation or the people working for those companies either. More than 60 corporations-including more than 20 in the last two years alone-have been bankrupted by asbestos litigation. When companies file for bankruptcy, they dramatically cut (or cease altogether) payments to victims who are already receiving awards-not to mention those who get sick later. Moreover, to date, more than 60,000 workers have lost their jobs as a result of these bankruptcies.

Real justice for asbestos victims means fixing the system. Requiring claimants to meet a medical standard of impairment and adjusting statutes of limitations to allow people to wait until they are ill to file suit would help.

And, despite claims to the contrary, such an approach would not deny victims their day in court, rather it would preserve their right to go to court. It would restore order to an out-of-control asbestos litigation system in a manner that helps to ensure that the real victims of asbestos - people who are sick with cancer, mesothelioma, and other asbestos-related diseases - receive the compensation that they need and deserve.