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2006 Legislative Priorities
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From the 1930s to the early 1970s, there was extensive industrial use of asbestos in the workplace. Some 27 million U.S. workers in high-risk industries and occupations were exposed to asbestos between 1940 and 1979. Significant numbers of workers, who years later developed disabling and sometimes fatal illnesses, filed suit. Many of the most sick won large awards. By the end of 2000 more than 600,000 individuals, the vast majority of whom had not developed-and may never develop-an asbestos related illness, had brought claims. The volume of claims has created an enormous backlog in court dockets that delays awards for severely impaired victims of asbestos exposure.
One the main reasons people who are not sick and may never get sick file suit is because people who have been given chest x-rays showing abnormalities "consistent with" asbestos-related diseases face a difficult legal dilemma. They may not have any breathing problems or consider themselves to be "sick," but they fear that the finding triggers the running of statutes of limitations that could require them to sue within a specified period of time. Once a suit is filed, unimpaired claimants may accept a settlement that, should they eventually become ill, provides insufficient redress for their eventual impairment. The terms of their pre-illness settlement typically prevent them from pursuing future litigation should a serious illness develop.
S. 852, S. 3274 and H.R. 1360 would create a trust fund to compensate workers exposed to asbestos and prohibit those workers from suing their former employers. The fund would use medical criteria and occupational exposure history to determine claimants' awards. The fund as written would be privately funded by companies, existing trust funds and insurers. S. 852 was brought to the floor of the Senate on Feb. 14, 2006. It was pulled from the floor after it received insufficient votes to waive a budget point of order. Sen. John Ensign (R-Nev.) raised the budget point of order, maintaining that the bill’s potential for more than $5 billion in expenditures by the federal government within any 10-year period would violate a prohibition against such spending after the year 2016. The 58-41 vote fell short of the 60 required to waive the budget point of order. A February 14, 2006 ABA letter on S. 852 is found at this link. Earlier during consideration of S. 852, the Senate voted 70-27 to table an amendment offered by Sen. John Cornyn (R-Texas) that would have kept asbestos cases in the court system but would have required stringent medical criteria and covered malignant cases. In the House, Rep. Kirk (R-IL) introduced H.R. 1360 on March 17, 2005. It is legislation to create a trust fund similar in many respects to S. 852. Another House bill, H.R. 1957, was introduced on April 27, 2005 by Representative Cannon, Chair of the House Judiciary Subcommittee on Commercial and Administrative Law. It would require claimants to meet specific criteria before they could file a cause of action in an asbestos case. It also provides for “tort reform” for asbestos cases. H.R. 1957 was referred to the House Judiciary Committee. No other action has taken place on the House bills. President Bush has called on Congress to pass an asbestos bill.
The ABA supports enacting federal legislation that would require claimants to meet specific medical criteria before filing action in only non-malignant asbestos cases and would toll all applicable statutes of limitations until such time as the criteria are met. The ABA recommends that the federal government undertake a study of the impact the federal government has had in the causation of asbestos-related injuries over time and identify the appropriate role for the federal government in the solution of the present asbestos legislation crisis, without altering the responsibility of others. The ABA also has offered policy recommendations that address the litigation of claims, including a case management order, a model statute of limitation and standards for mass screenings. The ABA takes no position on whether trust fund legislation should be enacted but urges that certain principles be followed if an administrative process such as a trust fund is established to deal with asbestos cases. The principles include: ensuring access to adequate representation in the claims process; ensuring that awards to claimants (1) not be depleted by subrogation from any private or governmental entity, (2) apply existing laws concerning taxation of awards to claimants (which generally are not subject to taxation: and (3) not unduly foreclose independent claims existing under state, territorial or federal law relating to safety or other obligations of employers; ensuring that there is adequate up-front financing for the trust fund and disclosure of certain information concerning the contributors; and including specific contingent provisions to respond to any potential occurrence of shortfall of funds.
- 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.
- 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. 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.
- Requiring such claimants to wait to file suit until they develop the level of functional impairment required by the proposed standard would be profoundly unfair if the statute of limitations is simultaneously running against them. Thus, any legislation deferring asbestos-related claims involving no functional impairment must contain a concomitant provision tolling any otherwise applicable statute of limitations until the required level of diagnosis is met.
- Implementing the ABA's resolution would help protect the rights of claimants when they suffer from a serious or functionally impairing asbestos-related disease, prevent scarce judicial and party resources from being misdirected because of a flood of premature claims, and help defendants avoid bankruptcy due to the burden of non-impairment claims.
- The flood of claims generated by litigation screenings hurts those with asbestos-related impairment by crowding litigation dockets. Workers with mesothelioma and other serious injury claims often experience lengthy delays in obtaining compensation, and bankruptcies have reduced the funds available to pay such compensation.
Staff Contact: Lillian B. Gaskin, Senior Legislative Counsel
Last Updated: November 20, 2006