Looking for victims and profiteers in the national asbestos litigation bonanza
This just in from the Execution State:
The Texas legislature is considering legislation to eliminate the claims of asbestos victims. As cited in a recent Houston Chronicle editorial, the current session of the legislature is planning to pass a bill that will exclude claims of thousands of litigants in Texas courts. Many long-term asbestos disease sufferers, having waited for years already, will have to reinitiate proceedings.
Two years ago Texas lawmakers made legal requirements more difficult for filing new claims on companies for asbestos damage. Texas is a state where it is considered a poor risk to file an asbestos injury claim. Insurance companies and asbestos-company abusers, content with the 2003 legislation, are ecstatic about the prospects of the current legislation.
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A little background:
Asbestos, derived from the Greek "not extinguishable," is a group of fibrous minerals that has historically been used for fire retardants, electrical insulation, heat absorption (as in brakes), and so on. Most asbestos has been mined from Canada. Though the medical profession was aware of the hazards of asbestos as early as 1898, it was not until the 1970s that use of asbestos was discouraged and many uses banned. Ironically, it was in the 70s that use of asbestos peaked.
When inhaled, asbestos is carcinogenic. In the United States, it is estimated ten thousand people die each year of asbestos-related diseases, such as mesothelioma (tumor of the mesothelium, the membrane surrounding the lung), asbestosis (chronic inflammation of the lungs due to scarring or fibrosis), lung cancer, and gastrointestinal cancer. Asbestos has a synergistic effect with tobacco smoking in the causation of lung cancer.
Asbestos was one of the first pollutants identified for regulation in the Clean Air Act of 1970.
A vast number of asbestos lawsuits are pending in American courts. According to Wikipedia, since the late 1970s, roughly 6% of all annual filings in American courts are related to asbestos. "As of 2004, asbestos cases result in about 600 to 700 appellate opinions per year (that is, including both federal and state courts)." Asbestos-damage liability is the largest issue facing the global insurance industry.
The first asbestos exposure lawsuit (for asbestosis) was filed by Claude Tomplait in Beaumont, Texas, in 1966. The defendants were 11 companies who made asbestos-containing insulation products. In May 1969, the verdict was returned in favor of the manufacturers. In 1969 an coworker of Tomplait's sought damages against several companies and was awarded $80,000. In the early 70s, lawsuits spread to other states.
Significantly, a 1974 asbestos case against Johns-Manville Company in Pittsburg, California resulted in a finding that executives of that company had conspired to conceal knowledge of the hazards of asbestos since the early 1930s. Other claims were allowed, and in 1982 Johns-Mansville filed for bankruptcy. Within a few years, the entire asbestos textile industry was in bankruptcy as were several insulation manufacturers.
In the 1980s, medical and scientific studies showed that asbestos injuries occur in environments, not only where asbestos is being manufactured and processed, but in places where asbestos products were installed, both residential and commercial. The discovery that asbestos-related-illness sufferers were coming from the general population enabled even more lawsuits.
Health loss stemming from asbestos exposure affects thousands of people. Roughly 730,000 asbestos claims were filed during the past four decades, including 200,000 now pending in state and federal courts. With the tens of thousands of new claims, annually, total cost of asbestos litigation to American business has increased from $1 billion in 1982 to a whopping $70 billion in 2002.(1)
Of importance is the fact that the negative health effects associated with asbestos may take years to develop. Thus, workers exposed years ago and even people within close contact of workers (family members who may inhale asbestos fibers from worker's clothing) may begin to encounter the symptoms of asbestos-related disease today.
This latency of effect is important because insurance companies generally object to people claiming damage by exposure when damage has not yet been demonstrated.
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So what's the solution in Texas?
Well, for sure not through the legislature, which, like all mixed-economy legislatures, tends to be bought and paid for by the highest bidder—in this case the asbestos industry and its insurers. For example, one of the proposed rules is to exclude from claimability a 60-year old man who has not lost more than a third of his lung capacity!
Such technical details do not belong in legislation. The common law is capable of dealing with torts and class action suits in a practical manner; the judiciary can set up the rules that are appropriate to its jurisdiction in order to efficiently handle a large number of cases. The judiciary is in the best position to resolve the issues to the satisfaction of all the parties.
If the existing judiciary is not capable of handling the volume of cases, perhaps the legislature can authorize special courts. But it should write no law. Arguably, the best practice is to authorize private arbitration in order to filter out the most straightforward cases, thus not overburdening elected judges. Surely the system can quickly expunge truly dilatory and frivolous claims.
The asbestos issue is quite different from the celebrated tobacco lawsuits.
We're talking about contractual matters: among other things, whether employees or users were properly informed of risks, whether they voluntarily assumed risks, and what employees' health agreements were with the companies.(2) From a libertarian perspective, all lawsuits regarding asbestos exposure that do not involve interstate commerce belong in state courts, as federal tort law or regulatory statutes lack Constitutional authority otherwise.
- Study by the Rand Institute for Civil Justice. back to text
- Interestingly, Bush and Cheney are in favor of legislation that removes liability for companies with asbestos problems, such as Halliburton, a company that Cheney ran. Halliburton and other companies were responsible for mining and shipping 16 billion tons of vermiculite (which contains lethal levels of asbestos fiber) to some 750 fertilizer and insulation manufacturers between 1924 and 1990. back to text
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Although it doesn't negate
Although it doesn't negate your message, I can't resist sending you this information contrary to part of your background material on asbestos: Relative risk of lung cancer for asbestos workers was "highest for those who had never smoked, lowest for current smokers, and intermediate for ex-smokers. The trend was statistically significant. There was no significant association between smoking and deaths from mesothelioma" 0565. University of London, School of Hygiene and Tropical Medicine. "Cancer of the Lung Among Asbestos Factory Workers."