Orderly Process Beats Litigation

Two powerful industries apparently have battled to a standstill over a proposal in Congress to create a compensation system for victims of asbestos-related disease. Caught in the middle are the victims, including people who worked at a mine in Libby, Mont., and a processing plant in Spokane.

Certainly, it is better to have no legislation than to enact bad legislation. However, inaction is not acceptable, either.

The industries at odds in this dispute are asbestos manufacturers and trial lawyers.

This year’s legislation (known as S 758 and HR 1283) was supported by asbestos makers and opposed by trial lawyers. Last week, Senate Majority Leader Trent Lott said S 758 won’t be considered this year. On Monday, an aide to Rep. George Nethercutt said HR 1283 seems unlikely to reach the House floor.

Even if one of the bills were to pass both chambers it’s expected that President Clinton would veto it. He listens closely to the Association of Trial Lawyers, a major contributor to Democratic campaigns and the source of superheated rhetoric that made members of Congress reluctant to act in an election year.

Trial lawyers are fond of saying that federal legislation would serve the interests of asbestos makers. What the lawyers don’t mention is that legislation would threaten their own livelihood, creating a more direct pipeline for settlement dollars to flow between asbestos makers and persons with asbestos-related disease.

When asbestos claims are handled as separate lawsuits, lawyers pocket up to half the money juries award, depending on contingent-fee deals with their clients. And the amounts awarded vary from one jury to the next. Plus, overburdened courts take a long time to handle each claim. In 1998, according to Congressional Quarterly, only 55 asbestos cases went to trial. And yet, there are 200,000 asbestos cases pending. Approximately 300,000 cases have settled over the years. More cases, including some brought on behalf of Inland Northwest residents, are going to be filed in the future.

In fact, it is the U.S. Supreme Court that twice has urged Congress to enact a federal compensation system. In the 1997 case Anchem v. Windsor, Justice Ruth Bader Ginsburg wrote that “a nationwide administrative claims processing regime would provide the most secure, fair and efficient means of compensating victims of asbestos exposure.” That case involved an ultimately unsuccessful attempt by trial lawyers and asbestos makers to settle victims’ claims with a $1 billion fund.

This year’s legislation bogged down in some crucial details. It prescribed criteria that claimants would have to meet to qualify for compensation. Trial lawyers said the criteria excluded people with shorter-term asbestos exposure as well as those who aren’t seriously ill but may get sick some day. Asbestos companies replied that their settlement dollars should go to those who actually are sick.

Each side made good points, and if they came to brink of compromise a few years ago, they should be able to do so again.

Congress should keep trying, as well. People who acquire terrible illnesses as a result of exposure to careless industrial handling of a dangerous fiber do deserve compensation. The Supreme Court’s warning that lawsuits cannot provide asbestos victims with equitable, timely relief remains a credible case for federal legislation.