State asbestos bills would create obstacles for the injured.

Asbestos bailout legislation has been on Congress's front burner in recent months--the Senate bill was blocked in February but is likely to reemerge--and state legislatures are following suit. Bills in statehouses nationwide would create unnecessary and unfair hurdles for people claiming injury from asbestosis or asbestos-related cancer.

The state proposals are modeled after legislation drafted by the American Legislative Exchange Council. These bills generally include provisions that would cap noneconomic damages, eliminate joint and several liability, bar the consolidation of cases, limit expert testimony, and impose medical criteria standards that have been proposed by the American Bar Association (ABA) for people filing claims involving nonmalignant asbestos-related disease.

While all the provisions are harmful to asbestos victims, the ABA standards are particularly unfair. For example, a failed Virginia bill that incorporated the standards would have required that a person claiming injury from asbestosis or asbestos-related cancer file "a written report and supporting test results" documenting that he or she had a prima facie case before the case could proceed in court. It would have required a physician to verify that he or she had taken a "detailed occupational and exposure history" of the plaintiff and had identified all the plaintiff's places of employment and exposures to any other airborne contaminants. The doctor's statement would have had to list "the nature, duration, and level of any such exposure" and include "a detailed medical and smoking history."

Under the bill, the plaintiff would have had to demonstrate that he or she had at least a Class II pulmonary function impairment (as defined by the American Medical Association), which would have eliminated claims of mild impairment. The plaintiff would also have had to meet tough breathing test or chest X-ray prerequisites, or both.

The obvious goal of the onerous prefiling requirements in this bill and others currently pending is to discourage most victims from making claims. The requirements would severely limit the accountability of asbestos manufacturers.

While advocates for asbestos victims succeeded in beating back the Virginia bill, legislatures in a few states--including Florida, Georgia, Ohio, and Texas--have succumbed to the pressure of asbestos manufacturers and enacted bills that shield the industry at the expense of the injured. Attorneys in Florida and Georgia are challenging the constitutionality of the statutes in those states.

Advocates for asbestos victims will continue to work with lawmakers in other states, including Kansas and South Carolina, to defeat similar proposals.