Asbestos revisited. (Washington Focus).

In late September, only weeks before the close of the 107th Congress, Sen. Patrick Leahy (D-Vt.) chaired a Judiciary Committee hearing on the status of asbestos litigation in the United States. A staunch supporter of plaintiffs' rights, he noted that it was the first full committee hearing on the matter since Supreme Court Justice Ruth Bader Ginsburg, in Amchem Products v. Windsor, suggested congressional action as a way to ensure that current and future asbestos victims receive fair compensation. (117 S. Ct. 2231 (1997).)

"I agree with Justice Ginsburg that Congress can provide a secure, fair, and efficient means of compensating victims of asbestos exposure," Leahy said.

He is, however, wary of attempts by the industry to immunize itself from liability. "The past failed efforts at legislative solutions were thinly veiled attempts by some to avoid accountability for their asbestos responsibilities through what they euphemistically call national tort `reform,'" he said.

Asbestos, a mineral compound, is still in use today despite widespread knowledge that it poses serious health risks. It can be found in thousands of products, ranging from paper to brake linings to insulation used in schools, office buildings, and shipyards. More than 100 million people in the United States have been or continue to be exposed to asbestos.

The diseases related to asbestos exposure have a long latency period, and symptoms may not appear for 15 to 45 years. Asbestos companies knew for decades that their products were deadly, but they did nothing. As a result, hundreds of thousands of Americans have already died from asbestos-related diseases.

Legislative attempts to limit the asbestos industry's liability for these illnesses have been made at least three times since 1977, and each time, Congress rejected industry-backed proposals.

The most recent attempt occurred during the 106th Congress, when Rep. Henry Hyde (R-Ill.) and then-Sen. John Ashcroft (R-Mo.) introduced companion bills (H.R. 1283 and S. 758) on March 25, 1999. The bills would have limited the rights of asbestos victims to bring civil claims against the industry and would have established an administrative compensation system based on extremely restrictive federal medical-eligibility standards. If that legislation had passed, up to 50 percent of asbestos victims who are eligible for compensation under existing law would have been screened out of the system and denied compensation for their injuries.

The Hyde/Ashcroft bills were supported primarily by the GAF Corp. and several other asbestos product manufacturers, as well as the U.S. Chamber of Commerce. Similar legislation was drafted in September 2001 but never introduced.

"The lesson to learn from the past is that any compensation plan must be fair to asbestos victims and their families," said Leahy. But devising such a plan is easier said than done. Identifying issues and crafting solutions "will require a commitment by lawmakers and interested parties to conduct a full and open debate," he said. "Unfortunately, Congress has yet to conduct that kind of debate."

Impaired or unimpaired?

Part of any debate will focus on asbestos victims' level of "impairment." ATLA has opposed industry efforts to label people with lung conditions such as pleural plaques, pleural thickening, or pleural calcification--and even some forms of asbestosis--as "functionally unimpaired."

Evidence disputes industry charges that most claims are filed by people who are not sick. According to the Manville Personal Injury Settlement Trust, which processes asbestos claims, more than 85 percent have been filed by people diagnosed with cancer, asbestosis, or other illnesses. Fewer than 15 percent are classified as "pleural" or, as some call them, "unimpaired."

Steven Kazan, an attorney who favors making a distinction between people who are "impaired" and those who are "unimpaired," describes the latter as people who "may or may not have evidence of a change in the lungs and do not have physiological signs of illness."

But if a person has inhaled asbestos and has lung damage, though is not yet experiencing a breathing problem, hasn't that person been injured by asbestos?

The bankruptcy issue

At the September hearing, Leahy noted that corporate executives ignored the dangers of asbestos and continued to profit from its sale. "AS a result," he said, "the marketplace has punished more than 50 companies that knew ... about the health dangers ... [by] forcing them into bankruptcy because of their asbestos-related liability."

Former ATLA president Fred Baron told the committee that virtually all of those filings were for reorganization under Chapter 11 of the Bankruptcy Code, not for liquidation under Chapter 7. These corporations have set aside assets, typically in a separate trust, to pay asbestos claims.

"Congress preserved the rights of future claimants by prohibiting bankrupt trusts from spending their assets now on current cancer cases rather than preserving those assets for future claims," Baron said.

Instead of looking to tort "reform" as a way to reduce bankruptcy filings, Baron said, Congress should consider legislation sponsored by Leahy that would provide tax relief for asbestos-related trusts. Baron cautioned that if lawmakers consider creating a new fund for asbestos victims, they should investigate the resources available to individual asbestos companies and demand "complete financial disclosure."

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