Curb lawyers' abuse of asbestos liability
3:00 PM 12/29/02

The asbestos industry that poses the biggest threat is no longer the one that failed to protect its workers against the dangers of asbestos. Rather, it is the one that manufactures asbestos lawsuits for profit.

The asbestos lawsuit industry is now producing about 50,000 claims a year, most of which involve plaintiffs who suffer no impairment from asbestos. They are recruited by lawyers who make a highly profitable business of filing asbestos lawsuits.

These manufactured lawsuits threaten the jobs of Americans at companies facing ruin by asbestos litigation. They also threaten the ability of real victims of asbestos to collect money they deserve, and threaten the nation's confidence in its system of justice.

The few law firms that compose the lawsuit-for-profit business are a national disgrace. Congress should take action to rein in their conduct.

Asbestos litigation didn't start out this way. Once, honest lawyers represented true victims of asbestos - people who suffered from mesothelioma, a cancer of the lining of the chest and abdomen, or lung damage as a result of exposure to asbestos, which until 25 years ago was widely used in products from insulation to brake linings. True victims remain, and honorable lawyers remain. But asbestos litigation has been inflated - and corrupted - by a new approach.

Steven Kazan, a California lawyer who has represented asbestos victims and condemns the lawsuit for profit industry, identified this change in testimony before the Senate Judiciary Committee this year:

"We've gone from a medical model in which a doctor diagnoses an illness and the patient then hires a lawyer to an entrepreneurial model in which clients are recruited by lawyers who then file suit even when there is no real illness."

Consider Jim "THE HAMMER" Shapiro, a Rochester, N.Y., lawyer who recruits plaintiffs with the come-on: "Find out if YOU have MILLION DOLLAR LUNGS."

Consider also that a study by the Rand Institute for Civil Justice found that just 10 percent of new asbestos claims involve cancer cases. Some others involve asbestosis, a form of lung damage, but the majority of plaintiffs, according to the Rand Institute, suffer no harm from asbestos.

The harm to the country, however, is significant. The American Insurance Association says asbestos lawsuits have cost U.S. businesses $275 billion so far, and about 55,000 people have lost their jobs at companies ruined by asbestos litigation.

In the first 10 months of this year alone, 15 companies facing asbestos-related losses filed for bankruptcy.

As the filing of asbestos claims increases, the business carnage grows. Six thousand companies have been sued over asbestos as lawyers try to tap new sources of money. Many of the more recent target companies simply used an asbestos product made by another business.

Moreover, only so much money can be extracted from companies for asbestos claims. The more taken up by recruited plaintiffs, the less available to real victims suffering fatal or debilitating diseases.

Victims collect less than half the money anyway. The Rand institute found victims in the 1990s got only 43 percent of the money paid out in asbestos claims. Plaintiff and defense lawyers divided most of the rest.

What we have is not so much a system for compensating victims as a massive transfer of wealth to lawyers.

How do these manufactured cases win money? That involves business strategy by lawyers. People who have slight scarring of lung tissue, but no impairment from asbestos, are often grouped in lawsuits with people who suffer real impairment.

The plaintiffs' lawyers then pick a state known for sympathetic juries or laws that favor plaintiffs. Ten such states account for 85 percent of asbestos cases filed.

With this strategy lawyers stand a chance of getting a payday for dubious claims and a bigger paycheck for themselves.

Many of the cases that include dubious claims never even have to prove themselves in court. Companies often find it's cheaper to settle those cases than to ferret out bogus plaintiffs.

The nation needs to find a way to stop the scourge of asbestos lawsuits for profit. The ideal solutions would be implemented at the state level, since liability laws are generally state issues. But, by dodging across states lines to file suits in favorable court systems, the asbestos lawsuit industry has turned the issue into a federal one. Consequently, Congress should step in to require that medical standards must be met before damages can be awarded to an asbestos plaintiff.

Requiring plaintiffs to meet a medical standard would at least be a start toward limiting the corruption of our justice system, reducing the threat of lost jobs and ensuring that people who are truly suffering from asbestos-related illness can receive the compensation due them.