Another round of asbestos legislation.

Shortly after the American Bar Association (ABA) House of Delegates approved a controversial proposal to limit the legal rights of certain asbestos victims, Sen. Don Nickles (R-Okla.) introduced a bill, the Asbestos Claims Criteria and Compensation Act (S. 413), that closely tracks the ABA proposal.

"The commonsense reforms we are proposing today will accomplish three goals: Get compensation into the hands of those who need it most; ease the burden on the court system; and free the economy from expensive, unnecessary litigation," Nickles said in a statement.

But these "commonsense reforms" would create mandatory, inflexible medical criteria that those injured by asbestos would be required to meet as a pre-requisite to filing a claim. The proofs required to meet the bill's federal standards would exceed those required for any other tort claim, and they go well beyond the standards that asbestos victims must currently meet under any state law.

The consequences of failing to meet the proposed federal standards are serious: Injured workers would lose their right to file suit.

One such worker is Melvin McCandless, an asbestosis victim who testified at a March 5 Senate Judiciary Committee hearing on the bill. McCandless worked for a large mill in eastern North Carolina for 35 years. He said the mine was "lined with literally miles of asbestos-containing insulation" and that he could see the asbestos dust in the air.

"I was found by the state of North Carolina to be permanently and totally disabled because of my asbestosis. Although I have been found ... disabled in my state, I would be unable to recover in a court of law for the very same disease if this bill ... became law," he said.

Medical limits

Workers such as McCandless who are diagnosed with asbestosis--a progressive, irreversible, often fatal pulmonary disease--would be barred from court under the bill's medical criteria. Typically, by the time the disease is diagnosed, one third of an affected lung has already been permanently damaged. Yet under S. 413, a person diagnosed with asbestosis is not automatically considered to be medically impaired.

During the hearing, David Austern, president of Claims Resolution Management Corp. in Fairfax, Virginia, and general counsel for the Manville Personal Injury Settlement Trust--the first significant victim compensation trust formed by an asbestos manufacturer--said that fewer than 40 of the thousands of trust claimants would be able to pass the medical criteria of S. 413.

The bill would effectively divide asbestosis victims into two categories: impaired or unimpaired.

But impairment is not a legal concept; it is a medical term describing organ function. The American Medical Association says compensation decisions should not be based on impairment ratings.

Before filing a claim, victims like McCandless--and anyone suffering from an asbestos-related disease--would be required by the proposed legislation to submit a detailed diagnostic report from a physician. Although a few doctors may be willing to tackle writing such a detailed report, not many of them would be willing to endure defense interrogation about the report.

State law preemption 

Currently, state laws allow courts to compensate those physically and economically injured by asbestos exposure, including victims who are sick but do not yet have cancer. The federal criteria proposed in S. 413, however, would preempt state law and block access to the courts for most people harmed by asbestos, unless they had already developed cancer.

In Libby, Montana--where for decades W.R. Grace mined and milled vermiculite, which contains a highly toxic form of asbestos--hundreds of victims have asbestos-related diseases, most of which are not cancer. The medical documents of Libby residents "demonstrate that the pattern and progression of their disease does not fit within the ABA or other proposed medical criteria," said Sen. Max Baucus (D-Mont.) at the March hearing.

"I am concerned that in a rush to address a real or perceived crisis in our courts, Congress may do an injustice to hundreds or thousands of injured people by arbitrarily denying ... people the ability to protect their rights. Our number one concern here should be justice: How do we ensure that asbestos victims--all asbestos victims--are treated fairly and compensated for their injuries?"

The Asbestos Claims Criteria and Compensation Act provides no compensation for any claimant. It places those with full-blown cancer at the front of the line, but does not guarantee that they would receive more compensation than under current law. At the same time, S. 413 would substantially reduce the liability of defendant corporations by excluding claimants with asbestosis and other conditions. The only true beneficiaries of this legislation would be the defendants' insurance companies.

Kristin Loiacono is ATLA's associate director for media outreach and coalition development in the Media Relations department.