Thursday, September 25, 2003

The U.S. Supreme Court has implored Congress to do something about the "elephantine mass of asbestos cases" in the courts. It is now time for lawmakers to corral this pachyderm, which for years has run wildly and destructively in defiance of reason.

The best means to do this is a proposal called the Fairness in Asbestos Injury Resolution Act, or Senate Bill 1125.

Asbestos was once considered a blessing, a handy way to fireproof and insulate buildings. But it came with a curse: tiny hooked fibers that can cause both an incurable cancer and a debilitating condition called asbestosis. Between 1940 and 1979 some 27.5 million Americans had substantial exposure to asbestos. Thousands still die every year as a result.

Whatever is done in Congress, the human victims of the scourge must be left with a system that offers fair compensation. At the moment, they must take their chances in a litigation lottery, with no guarantee that the companies they are suing will not be bankrupted. At least 67 companies have failed already, a dozen of them in Pennsylvania.

Last year, a Rand Corp. study reported that 600,000 people in the United States had filed claims for compensation from asbestos-related injuries. Some 65 percent of the compensation paid over the last decade was to people claiming noncancerous conditions -- a trend that was swelling the asbestos caseload. This is not cause for celebration. As the report said, "There is widespread agreement that the majority of the claimants without cancer are functionally unimpaired."

The litigation explosion has itself become a cancer, with plaintiff attorneys searching for new defendants with deeper pockets who are not directly related to the production of asbestos. They like to file their suits in states where they think juries are most sympathetic (West Virginia is a favorite).

The cost for U.S. business is staggering. It was estimated to be $54 billion by the end of 2000, the Rand report said, and threatened to grow to more than $210 billion more.

The evil spreads in other ways, too. Locally, it will be remembered that the asbestos crisis was the undoing of Allegheny County Common Pleas Judge Joseph Jaffe. The disgraced judge was sentenced to federal prison earlier this year for extorting $13,000 from a lawyer who had 1,300 asbestos cases before him.

So this is a situation in which many people lose. Because victims, companies and their insurers have a common interest in establishing a saner system, perhaps something can be done at last.

That's where SB 1125 comes in. It would establish a $108 billion fund to pay no-fault claims for physical injuries related to asbestos. In July, the Senate Judiciary Committee voted 10-8 to approve the bill, with Sen. Dianne Feinstein, D-Calif., joining the Republicans.

The $108 billion fund would be generated principally by contributions from defendant companies and insurers. All asbestos cases would be submitted to the U.S. Court of Federal Claims, which in turn would hand them over to a special asbestos master and claims examiners. A right of appeal would exist and claims could be adjudicated within months, not years.

The legislation would set out categories of payments for different conditions and circumstances. Not surprisingly, the chief point of contention between Republicans and Democrats has been over the size of awards -- and perhaps that is as it should be.

This is a work in progress. There are undoubtedly good points and bad to the legislation, but lawmakers need to hammer out a compromise that is acceptable to victims and businesses. Pennsylvania Sen. Arlen Specter is among those who have been playing a productive role to help reach an accord.

But more help is needed. There is an elephant to be moved, and this is the best chance in years. The time for Congress to act is now.

E-mail this story   Print this story