Posted April 28, 2016
A relatively quiet, orchestrated effort by big asbestos corporations and insurance companies to roll back the ability of those sickened from asbestos to seek compensation in court is popping up in states around the country. The most recent examples of this has occurred in Utah with H.B. 403 and Tennessee with H.B. 2234.
Dubbed the so-called FACT Act, this legislation, which has become law in Wisconsin, Texas, Arizona, Oklahoma, West Virginia, Ohio and now in Utah and Tennessee, is based off a proposal put forth several years ago by the right wing American Legislative Exchange Council (ALEC). This organization, funded by major corporations with significant asbestos liability, drafts model legislation intended for state lawmakers to attach their names to and push through legislatures in states throughout the country.
Similar legislation is pending in other legislatures, including in Pennsylvania, New York and Missouri.
While the bills introduced in these and other states aren’t identical, their intended purpose is the same: to erect a series of legal roadblocks making it nearly impossible for asbestos victims and their attorneys to get their day in court.
Common among many of the bills that are awaiting a vote or have already become law are the following provisions:
- Give asbestos defendant companies unlimited power to run out the clock on sick and dying victims and their families, by allowing them to submit numerous motions that repeatedly stay or delay a case.
- Make it effectively impossible for victims exposed to more than one source of asbestos from ever bringing a claim, because they would be required to demonstrate the exact “dose” they received in each exposure.
- Forfeit the privacy of families who make compensation claims by publishing highly private information, including the victim’s full Social Security number.
Several of the proposals, like the one just passed in Tennessee, go even further, forcing victims to disclose information that is either impossible to obtain, or would give the defendant corporations such a steep advantage in court that it would be virtually impossible for the plaintiff to win:
These provisions would require plaintiffs to file the following at the initiation of the lawsuit:
- Name, address, date of birth, social security number, marital status, occupation and employer. This requirement goes far above and beyond traditional pleading practices.
- “Specific location and manner of each alleged exposure . . .beginning and ending dates of each alleged exposure; and the identity of the manufacturer of the specific asbestos product for each exposure[.]” This information must be corroborated with supporting documentation. Unfortunately, many plaintiffs are unaware of the exact nature of their exposure and rely heavily on the discovery process to build their case. The legislation would prohibit these victims from seeking compensation for their injuries.
- Radiological and pathological evidence establishing the plaintiff’s illness.
- A detailed “medical, social, and smoking history.”
- Evidence of 15-year latency period between the plaintiff’s first asbestos exposure and symptoms. We now know that some victims succumb to asbestos-triggered diseases within only a few years of exposure. This provision would bar them from recovery.
- Sworn statement from the plaintiff’s treating physician including a “detailed narrative medical report and diagnosis” as well as an assertion that the asbestos exposure was a “substantial factor” in the plaintiff’s illness. No treating physician wants to be dragged into litigation; this legislation would force victims to choose between keeping their doctor and getting compensation for their families.
As far as I can tell, there is no other group of Americans that, if injured by another industry, would be forced to provide this amount of information before their case is allowed to proceed to trial, or give the defendant corporations such a substantial advantage in court.
None of the so-called FACT Acts, of course, make it easier for those sick and dying from asbestos exposure to obtain information from the very corporations that poisoned them to begin with. In fact, this legislation makes its much easier for defendant companies to continue to keep that information a secret from both those it has injured and the public at large.
The legacy of this industry hiding information about the risks of asbestos to human health goes back decades, You can read more on this at EWG Action Fund’s site, which chronicles the asbestos industries’ deceit and deception, including internal company memos that show it was well aware of the serious health risks asbestos causes as far back as the 1940s, but kept that from workers and the public for years.
And the industry skulduggery continues event today. A recent example of this involves the chemical giant, BASF and its law firm, Cahill, Gordon & Reindel that appear to have colluded to destroy and fabricate evidence in a large number of asbestos injury cases brought against the company.
Asbestos continues to claim up to 15,000 American lives each year and the annual death toll is not likely to decrease. And many of those who have not yet been diagnosed with mesothelioma, asbestosis or other lung cancers caused from asbestos, but will, and who happen to live in states where these bills have become law will likely die before they and their families can realize some measure of justice.
In Unity
Linda