Mention the word “asbestos” in these parts and people immediately think of Libby. Hundreds of people in the northwestern Montana city have been stricken or killed by lung diseases caused by exposure to asbestos mined nearby.
But while the human suffering and staggering treatment costs in Libby are extraordinary, they're also just part of a problem Supreme Court Justice David Souter aptly called an “elephantine mass.”
Breathing asbestos can be deadly, generally by causing a disease known as asbestosis and a form of cancer. But it generally takes 20 years or more for symptoms to show. People suffering from asbestos-related diseases often lose the ability to work and face high health care costs on the way to the grave. Our society's concept of justice permits people who suffer harm to seek compensation from those who are accountable for their harm. It's only fair.
The problem - and it's a massive one - is that so many people have filed lawsuits seeking damages for asbestos exposure and disease that justice is in jeopardy. More than 700,000 people have sued companies that made or used asbestos. Companies have paid some $70 billion to date in settlements and damage awards - payments that have driven more than 70 businesses into bankruptcy. Hundreds of thousands of cases remain stacked up on court dockets.
Bankrupt companies are an empty pocket. People seeking compensation for asbestos injury wind up empty-handed when the defendant declares bankruptcy. This leads to two problems: People can't obtain the compensation they deserve from those most accountable, so their lawyers target other companies that might plausibly share responsibility. It's a ripple effect exposing many companies to uncertain liability. Settlements and judgments in just a fraction of the lawsuits now pending are enough to bankrupt virtually every company sharing significant liability over asbestos. Meanwhile, many people who've been exposed to asbestos and feel fine today will wind up sick someday. When they do, an awful lot will find the well of compensation has run dry.
Not that they stand to gain all that much in the first place. A study by the public policy RAND Corp. showed that even when victorious in court, victims receive only 42 cents of every dollar spent - the rest goes for attorneys and administration. Talk about adding insult to injury!
The volume and complexity of asbestos lawsuits have overwhelmed the courts. Many victims won't live long enough to get their day in court.
Billions of dollars are being spent seeking damages and defending against damages, and the only thing for certain is that at the rate it's being spent, there isn't going to be much or anything for hundreds of thousands of victims.
So, this is what Justice Souter calls the “elephantine mass.” It's a tsunami of litigation that the late Chief Justice William Rehnquist predicted would only be solved through legislation - not litigation.
That legislation exists in the form of
S. 852. It would create a $140 billion fund to compensate current and future asbestos victims. The money would come from companies that now share risk of liability. The proposed fund would create an administrative resolution to asbestos claims, ending all those lawsuits.
The bill's a compromise. It has more money than some politicians, mostly Republicans, want. It doesn't offer nearly as much money as other politicians, mostly Democrats, want. A few conservatives worry that it will lead to a large new federal obligation when, as they say, the fund inevitably runs out of money. Trial lawyers don't like the idea of ending litigation, shunting money they might otherwise collect as fees into the pockets of victims and keeping liable companies solvent. But we'd defy any of the critics to point to a solution that produces greater justice.
The asbestos bill recognizes an inescapable fact: There's going to be only so much money available to compensate victims. The legislation aims to spread the money more broadly than through litigation.
S. 852 cleared an important hurdle last Tuesday when the Senate rejected efforts to block debate on the bill. That's just a step toward resolving the thorny issue, but it's a long-overdue step in a process that fosters injustice with every delay.
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