Mesothelioma Articles

Lack of trust poisons efforts to reform asbestos litigation

Posted: September 21, 2004

Source: St. Louis Post-Dispatch

The abuses of the nation's asbestos litigation system have prompted demands for reform from Capitol Hill to the nation's statehouses to county courts.

Last December, for example, the Madison County Circuit Court announced the creation of a "deferred docket." It permits asbestos victims who are truly ill to get their day in court before the hundreds of cases involving those who ITAL might UNITAL become sick in the future.

More sweeping changes are contemplated at the national level.

For four years, Congress has been wrestling with legislation to establish a trust fund for asbestos victims that supporters say will unclog the courts and ensure that those sickened by asbestos are properly cared for.

Congress calls it the Fairness in Asbestos Injury Resolution Act. Its critics say it's the Asbestos Industry Bailout Bill. Whatever it's called, it has become one of the most contentious pieces of legislation in years.

There are three distinct camps, each with a score of arguments and supporters.

Camp No. 1: Dozens of major corporations that once used asbestos in what they built, installed or sold; the companies that insure them; and the U.S. Chamber of Commerce and lobbyists that defend them.

No. 2: Scores of plaintiff lawyers filing thousands of cases on behalf of people who may have once worked with asbestos or been exposed to it.

No. 3: Tens of thousands of former workers (and their family members and neighbors) who have asbestosis, lung cancer and the fast-killing mesothelioma from breathing the mineral's fibers. It can cost hundreds of thousands of dollars for oxygen, medication and hospitalization to ease the pain until they die.

Although agreement is almost universal and nonpartisan that something must be done, there is rampant disagreement - split along party lines - on what should be done.

Each side savages the other's motives, methodology and solutions. Critics of the current system say that lawyers coach clients to incriminate companies that still have assets, that lawyers are making unreasonably large fees for routine, boilerplate legal work, and that lung screenings for asbestosis are often fraudulent.

Plaintiff lawyers, however, say the reform legislation is really an attempt to insulate corporations from their financial responsibility, and that the trust fund proposed in the federal legislation would be ineffective and would shortchange the most damaged victims and exclude thousands who are ill.

Dozens of hearings and hundreds of hours of staff work have brought the two sides close on several issues, including the most publicly disputed topic: the size of the trust fund.

Last week, U.S. Senate Majority Leader Bill Frist, R-Tenn., got his Democratic counterpart, Sen. Tom Daschle of South Dakota, to agree to $140 billion.

A possible deal killer remains in the Republicans' insistence that all pending trials be canceled and judgments that already have been hammered out and agreed to be tossed out.

Daschle last week submitted a counter-offer whereby many cases with a set trial will be included in the trust fund, but with two important exceptions - all mesothelioma suits would continue to be litigated outside the fund, as would any cases currently in trial or set to go to trial within 60 days. However, the insurance industry and many groups, including the AFL-CIO, still oppose the compromise.

This sticking point could mean billions of dollars for the companies and their insurers. For example, over a number of years, Halliburton Co. had agreed to pay more than $4 billion to thousands of people who had sued the company and its subsidiaries. W.R. Grace & Co. signed a similar deal for more than $2 billion, as did about a dozen other corporations.

Under Frist's plan and the language adopted by the bill's sponsor, Sen. Orrin Hatch, R-Utah, those agreements would be thrown out and asbestos victims would have to apply again to the trust fund, which would be financed mostly by businesses and insurance companies.

There is fear that many of those awaiting payouts would die before the trust fund, which even the most optimistic projections say could take years, is up and running.

Other differences between Democrats and Republicans involve who's covered and how much is paid to each victim, and what happens if the money runs out.

More money should be available for victims because it would not be used to pay for lawyers on both sides.

According to calculations by actuary Jenni Biggs, with the consulting firm of Tillinghast-Towers Perrin in Clayton, the trust fund would eliminate about $70 billion in future payments to lawyers.

In testimony last year before the Senate Judiciary Committee, Biggs estimated that $28 billion, or 21.5 percent, of those future payments would cover defense costs, and $41 billion, or 40 percent, would go to plaintiff lawyers. Now, according to the RAND Corp., 44 cents of every dollar paid in asbestos damages goes to victims.

The asbestos epidemic

Reaching a consensus even on the likely number of future asbestos victims borders on the impossible.

When the original "fairness" legislation was introduced in 2000, supporters said the epidemic of asbestos exposure had ended.

In July, the Centers for Disease Control and Prevention expressed a different opinion. The health detectives reviewed the death certificates of nearly 125,000 people. CDC reported that 77 people died from asbestos in 1968. Nearly 1,500 people died from the same cause in 2000.

Because of the long latency period - the time from asbestos exposure to signs of illness can be 20 to 40 years depending on the type of asbestos - the agency said the number of asbestos-related deaths is expected to increase in future decades.

At the same time, physicians differ on what they are seeing in their offices.

In the 1980s, doctors were treating a steady stream of patients suffering from asbestosis.

But in recent years, doctors at Washington University School of Medicine said the number of new cases of severe asbestosis have dwindled.

"It has been years since I have seen any new patients who have presented with previously undiagnosed asbestosis," said Dr. Peter Tuteur, 64, associate professor of medicine at the university.

Tuteur said he and his colleagues saw many such patients in the 1980s and early 1990s.

"That kind of figures, because it takes 20 to 25 years for asbestosis to develop. You need a couple of decades at least of heavy exposure, and uncontrolled heavy exposure basically ceased around 1965" because of government regulation, said Tuteur, who also directs the school's pulmonary function laboratory.

But recent studies suggest that asbestos can cause harm at much smaller concentrations and over a much shorter period. The National Institute for Occupational Safety and Health and scientists for the U.S. Environmental Protection Agency have reported that asbestos-related diseases do not require career-long exposure but can be caused by short, intense exposures or even by inhalation of a single burst of fibers.

Dr. Michael R. Harbut, chief of the Center for Occupational and Environmental Medicine at Michigan's Wayne State University, said it's difficult to understand why medical centers with a large patient load wouldn't be seeing asbestosis.

"In my own practice, I've seen at least three new noncontroversial diagnoses in the last nine workdays," said Harbut, who is also co-director of the National Center for Vermiculite and Asbestos-Related Cancers.

Dr. George M. Matuschak of St. Louis University partly attributes the decline in new asbestosis cases here to more sophisticated diagnoses.

"We have a better understanding now of fibrotic lung diseases and are not so quick to attribute them to asbestos exposure," said Matuschak, who directs the university's pulmonary critical care unit.

Many physicians and researchers worry that there is a new generation of asbestos victims with mesothelioma beginning to surface.

"We are continuing to see younger and younger patients," said Dr. David Sugarbaker, chief of thoracic surgery at Boston's Brigham and Women's Hospital, which treats mesothelioma victims from across the country.

Sugarbaker said that the mean patient age has dropped in the last decade from the low to mid-70s, to the mid-50s.

"More and more of the exposures are not through the traditional route - you know, dad worked in the shipyard and his daughter shook the asbestos dust out of his clothes.

"With our younger patients, we don't have a clear understanding of when and where they were exposed."

While the heavy use of asbestos that was seen in the '50s, '60s and '70s has, in large part, dissipated, the United States is still importing tons of asbestos-containing brakes and has recently identified that between 15 million to 35 million homes and buildings have tremolite asbestos-containing insulation in walls and attics. EPA researchers said tremolite is far more toxic than the chrysotile asbestos normally used in construction.

While the Senate's effort at asbestos tort reform is expected to eventually succeed, growing concern about the number of future asbestos victims is likely to renew the debate on the size of the trust fund needed.

The deferred docket

While some St. Louis physicians say there is a dearth of new cases of asbestos-related disease, this did not slow filings in Madison County Circuit Court.

Madison County saw asbestos filings rise from 411 in 2000 to 884 in 2001, to 953 last year.

That was the apparent impetus for the deferred docket, requested by some defendants in April 2003. (Such dockets, which subordinate nonmalignant cases, are already in use in other jurisdictions, including Michigan, New York City and Boston.)

A few days before the Madison Countyregistry took effect on Dec. 1, the firm of Goldenberg, Miller, Heller and Antognoli filed 295 asbestosis suits at the Madison County courthouse. That's about 30 percent of all asbestos claims filed in the county last year.

Except for the name of the plaintiff, the suits use identical wording, and list the same co-counsel, the Granite City plaintiff firm of Callis, Papa, Hale, Szerwczyk, Rongey and Danzinger.

Two attorneys who defend asbestos cases said the mass filing of the suits and the start of the deferred registry were not coincidental. The lawyers spoke on condition of anonymity.

'"It's pretty obvious that the Goldenberg firm was trying to get in under the wire," said one of the lawyers. "Their motivation, as usual, was getting trial dates for those cases to use as leverage for quick settlements."

Randy Gori specializes in asbestos litigation for the Goldenberg firm. He said that the prospect of the deferred docket played no role in the timing of the suits.

"We had linked up with another firm in Pennsylvania, and that firm had given us quite a few cases that just so happened to come in to our office at the same time and were just in line for filing," Gori said. "The timing may look odd, but we did not know the deferred docket was going to go into place at that time."

The deferred docket was officially requested by a group of asbestos defendants.

But attorneys from a firm that has defended asbestos claims in Madison County said plaintiff lawyers specializing in mesothelioma suits were the real force behind the motion, and gave notice they would not object to such a docket.

The only firm to object to the deferred docket was Goldenberg.

Lawyers who handle mesothelioma cases are often scornful of claims involving nonmalignancies. They argue that the glut of those cases is preventing terminal victims from getting their day in court.

Plaintiff attorney John Simmons praised the deferred docket; Simmons is managing partner of the SimmonsCooper firm, which now limits its asbestos practice to mesothelioma.

"The deferred docket is a win-win," he said. "If they (plaintiffs without symptoms) never get sick, they never get paid, and that's the best scenario.

"And it preserves the dollars that are going to be spent on settlements for those who are truly deserving."

Gori said Simmons was buying into the argument that there are only limited resources available.

"I don't believe that," Gori said. "I think companies are declaring bankruptcy not because they are financially strapped, but because they want to avoid their asbestos liabilities."

Reporter Paul Hampel
E-mail: paulh@post-dispatch.com
Phone: 618-659-3639

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