November 10, 2002 - The asbestos crisis / Some victims may miss out in the litigation stampede

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In the course of more than a century, asbestos has gone from being regarded as a blessing to being viewed as something like a curse. The substance that seemed so useful as a way to fireproof and insulate structures had a deadly flaw: tiny hooked fibers that attach to the lungs and can cause both an incurable cancer called mesothelioma and a potentially debilitating condition called asbestosis.

As many as 27.5 million American workers had substantial exposure to asbestos between 1940 and 1979. Although asbestos use began to drop sharply after 1973, when federal regulations began and companies began to fear lawsuits, problems can arise 20 to 40 years after exposure. Between 2,000 and 5,000 people die from asbestos each year. Litigation has gone through the roof, with the unfortunate result that many deserving victims will be denied just compensation because defendants won't be able to afford to pay. More than 600,000 people had brought claims through 2000 against more than 6,000 companies.

The cost to U.S. businesses is counted in the multibillions of dollars, and lawyers and claimants are falling over themselves trying to board this gravy train. Just last week, the U.S. Supreme Court heard a case in which six retired railroad workers were awarded $5.8 million by a jury in West Virginia. In addition to seeking damages for asbestosis-related impairment, they sought to be compensated for mental anguish resulting from the fear that they might develop cancer.

Two years ago, Congress considered a Fairness in Asbestos Compensation Act, which in reality was flawed and failed to advance. For one thing, claimants exposed before 1979 had to prove a minimum of 12 to 15 years' exposure when, in fact, shorter exposure can result in illness. The Supreme Court also may help if its ruling in the current case before it serves to discourage less pressing claims. Moreover, individual judges at lower levels could help by using their discretion not to blindly consolidate cases.

The remedy may have to come from several quarters, but it had better come soon. As asbestos litigation has reached a state of crisis, resulting in victims of asbestos being further victimized by the very system that ought to be helping them.

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