Asbestos Tort Reform

For two-and-a-half years, the Senate Judiciary Committee has been developing legislation to compensate victims harmed by exposure to asbestos. The bill now under consideration would create a $140 billion trust fund for asbestos injuries, removing many asbestos lawsuits from the courts.

From the start, the bill's progress has been hampered by arguments over the size of the trust fund and medical requirements, and now a new hurdle to crafting a workable, fair bill has arisen. People already compensated for asbestos injuries are returning to the courts, claiming injury from silica exposure as well.

According to Claims Resolution Management Corp., a firm that processes toxic tort claims, among a total of 8,629 plaintiffs in silica lawsuits, 5,174 had previously filed asbestos claims, and many had already been compensated. Industry fears that legislating an asbestos trust fund will give impetus to a new wave of fraudulent silica lawsuits. Although it is theoretically possible for a worker to suffer harm from both asbestos and silica, experts say it is extremely rare.

A Feb. 2 hearing by the Judiciary Committee debated possible solutions to this dilemma. One is to include a provision in the asbestos legislation requiring plaintiffs who are claiming injury from silica to prove that their injury was not caused by asbestos. But because it is hard to prove a negative, some senators and witnesses at the hearing objected to this idea as it might create more problems than it solves.

"It is clear to me that requiring victims to prove that asbestos was not a cause of their injuries in court would preempt state law, shift the burden of proving defenses to plaintiffs, and greatly expand the scope of liability protection for corporations without adding a corresponding method of compensation for additional victims," Sen. Patrick J. Leahy (D-Vt.) said at the hearing.

"The proposed language is seriously flawed," said Laura Welch, medical director of the Center to Protect Workers Rights. "If adopted, it would bar workers with serious dust-related diseases from seeking redress for their injuries," she explained. Proving that functional impairment was not caused by exposure to asbestos is impossible, she said.

Michael Martin, an attorney at Maloney, Martin & Mitchell, a Texas firm that represents silicosis victims, said that requiring a plaintiff to prove a negative would preclude "nonasbestos diseased victims from pursuing any remedy." One thing that might help would be to require plaintiffs to reveal whether they have already filed a claim for asbestos, he said. "I have seen only two cases of combined disease."

ANOTHER SUGGESTED solution is a requirement that an impartial medical panel with no financial interest in the diagnosis examine each asbestos and silica plaintiff.

Several physicians testified that it is easy to distinguish asbestos injury from silica injury. On chest X-rays, the patterns of abnormality for asbestosis and silicosis are quite distinct, even though both diseases are characterized by scar-tissue formation and take a long time to develop after the initial exposure, said Paul Epstein, clinical professor of medicine at the University of Pennsylvania.

"Asbestos produces linear, streaky, or feathery patterns on the chest X-ray, predominantly in the lower portions of both lungs," usually accompanied by patches of thickening on the membrane covering the lungs' outer surface, Epstein said. But in silicosis, deposits of scar tissue appear as rounded nodules, mostly at the top of the lungs, he explained.

During his long clinical practice, Epstein has examined 17,000 individuals occupationally exposed to asbestos. But only a dozen or so of those workers had injury from both asbestos and silica, he said.

Whatever the solution, the hearing made clear that fraudulent claims for asbestos and silica injury are a real problem that is aided and abetted by fraudulent radiologists and lawyers.

It is important to solve the problem of fraudulent silica claims, said David Weill, an associate professor in the Division of Pulmonary & Critical Care Medicine at the University of Colorado Health Science Center. A few years ago, the number of silica claims was comparatively small. But the number has increased dramatically since 2002 and is still increasing even as "industrial dust control mechanisms have made silicosis much less common today than it was a generation ago," he said.

"Nearly all of the litigation diagnoses do not come from treating physicians, but from screening companies that sell their diagnostic services to plaintiffs' law firms," Weill said. The screening companies employ a small group of physicians certified by the National Institute of Occupational Safety & Health and who diagnose silicosis or asbestosis or both, he explained.

"Whether a screening company diagnoses silicosis or asbestosis appears to depend on litigation rather than medical factors," he said. Many of the silicosis plaintiffs were diagnosed with asbestosis at an earlier date. But in the 300 to 400 silicosis claims he reviewed, only two involved actual silicosis, he said.

Senate Judiciary Committee Chairman Arlen Specter (R-Pa.) expects to introduce his asbestos compensation bill soon, if these and other conflicts can be resolved. But achieving a consensus on these matters, even among committee members, is proving elusive.