The national plague of asbestos litigation is about to arrive on your doorstep in the form of higher prices, lost employment, collapsing stock prices, and delayed justice. The nation stands on the brink of a judicial crisis that can be prevented only if you make your opinions known to elected officials, and soon.
The number of asbestos claims has doubled in the last two years, to 200,000 in 2001. Approximately 50,000 new claims are filed each year. The number of future claimants could be as high as two million.
To date, at least 42 companies have been driven into bankruptcy as a result of asbestos litigation costs. More companies are likely to follow.
Most Aren’t Sick
The increase in new asbestos claims is not fueled by filings by sick claimants: The number of such claimants has remained almost constant in recent years. It is caused by claimants who have medical evidence of having been exposed to asbestos but have no symptoms of an asbestos-related disease and no likelihood of ever being injured by such an illness.
Most new asbestos claimants feel compelled to file claims out of concern they will be time-barred if they do not file soon after the first markers of exposure become detectable. While this is understandable, their suits are crowding out claimants who are actually sick and need assistance now.
Senior United States District Court Judge Charles R. Weiner explains: “Today, given the volume of claims and the disappearance of any effective injury requirement, defendants are paying those who are not really injured.”
This system is bad for almost everyone involved, particularly sick claimants. Absent some changes in the way asbestos claims are resolved, claimants who become truly sick in the future may not receive adequate compensation.
Reform Is Needed
How can we prevent the impending judicial crisis? Three reforms are necessary.
First, the claims of unimpaired claimants should be deferred to an “inactive docket” until the individual develops an actual impairment. Claimants are moved to the active civil docket when they present credible medical evidence of impairment. Impaired claimants are thus able to move “to the front of the line” and are not forced to wait until earlier-filed claims by unimpaired individuals are resolved.
Inactive docket programs have existed for many years in Massachusetts, Cook County (Chicago), and Baltimore. They have proven to be fair and workable.
Second, abolish multiple punitive damages in asbestos cases. Punitive damages are not normal civil damages. They are awarded over and above compensatory damages. Punitive damages serve to punish a defendant for wrongdoing and deter others that might engage in similar conduct. In the asbestos context, however, punitive damages no longer serve either a retributive or deterrent purpose. State trial courts in Baltimore, Northampton County (Bethlehem), Pennsylvania, and Philadelphia have severed, deferred, or stayed indefinitely punitive damage claims in asbestos cases.
The third necessary reform is “fair share” liability reform. The rule of joint liability, commonly called joint and several liability, provides that when two or more persons engage in conduct that might subject them to individual liability and their conduct produces a single, indivisible injury, each defendant will be liable for the total amount of damages. Joint liability is unfair, because it puts full responsibility on those who may have been only marginally at fault.
Most states have abolished or modified the principle of joint liability, either by judicial decision or legislation, but exceptions and partial repeals are common. It’s time to close the loopholes.
What can you do? Call or write to your state and national elected officials. Tell them you support asbestos litigation reform that would allow the truly sick and needy to get help first, and require other claimants to wait until they can show medical proof of an asbestos-related illness. Tell them to support legislation that bars multiple punitive damages awards. Tell them to end the unfair extension of liability to companies and individuals who did nothing wrong.
You have an enormous stake in the operation of the nation’s judicial system. Will you invest a few minutes of your time to protect it?
Richard O. Faulk is chair of the Environmental Litigation and Counseling Practice Group of Gardere Wynne Sewell, LLP, a law firm based in Houston, Texas.