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Asbestos Bill Has Clear Stakes, Foggy Fate

Fulton County Daily Report
02-21-2006 - The procedural derailment in the U.S. Senate of a bill aimed at pulling asbestos-related suits off court dockets around the country means that -- at least for now -- some 3,000 such cases filed in Fulton County courts in Georgia will remain open.

If passed, Senate Bill 852, the Fairness in Asbestos Injury Resolution (FAIR) Act of 2005 would create a trust fund of up to $140 billion, subsidized by mandatory contributions from companies facing suit, now or in the future, over asbestos-related activities.

From that, plaintiffs proving asbestos-related disease could claim as much as $1.1 million, which would forestall any litigation. Attorneys' fees would be capped at 5 percent of any award.

Exposure to the fire-retardant mineral is known to cause of mesothelioma, a virulent cancer that can attack the lungs, heart or stomach; lung cancer; and asbestosis, scarring of the lung tissue that can be fatal.

The issue has splintered party ties, with Democrats and Republicans forming diverse coalitions on either side. On Tuesday, Senate Majority Leader Bill Frist, R-Tenn., a key supporter, had to make a last-minute procedural maneuver to keep the bill from being killed.

Sen. Arlen Specter, R-Pa., the bill's main sponsor, vowed to bring it back to the floor. But when asked whether the bill could make it back this year, another co-sponsor, Sen. Johnny Isakson, R-Ga., said, "I think 'I'm not sure' is the operative answer."

Isakson lamented the bill's lack of progress.

"The asbestos problem is a huge burden on human beings and businesses alike," said Isakson. "We wanted to see that those who have truly suffered get compensated, and that those who have abused the system -- plaintiffs, as well some unscrupulous doctors and attorneys -- are no longer allowed to do so."

Isakson recently voted against a substitute bill offered by Sen. John Cornyn, R-Texas, that, instead of creating a trust fund, would institute a "medical criteria" for claimants to meet before any case could proceed to court. That measure was similar to legislation that several states, including Georgia, have passed.

(Georgia's 2005 legislation is currently under challenge in a series of cases before the state Supreme Court, and the majority of the Fulton asbestos cases are on hold until a decision is made. The state high court matters include Georgia Pacific Corp. v. Mitchell, No. S06I0364.)

"I did not vote for that bill because I thought we needed to have a full debate on the trust-fund bill," said Isakson. But now that the trust fund bill has stalled, he added, "the medical criteria bill may come back up."

In a rare split between Georgia's Republican senators, Sen. Saxby Chambliss supported the Cornyn substitute, but also voted for Specter's version. He could not be reached to discuss his position.

Opponents have attacked the trust fund bill on two fronts. Liberal lawmakers and plaintiffs' lawyers say it will shortchange victims, while conservatives and some defense attorneys say the trust fund will run short, leaving taxpayers to pick up the tab, and also allow some companies to dodge liability.

Bill Clark, director of public and political affairs for the Georgia Trial Lawyers Association, said the failure of the bill -- which his organization opposes -- represented another opportunity for asbestos victims.

Clark said his group supported the medical criteria model and had helped pass the Georgia bill last year.

"This is a product that kills 10,000 people a year, and that's a reasonable way to put the neediest victims at the front of the compensation line, and make sure that those who know they've been exposed but aren't sick yet -- but will be in 10 or 15 years down the road -- can also be taken care of when the time comes," said Clark.

Clark complained that Frist, a supporter of the trust fund bill, "brought a corporate bailout bill to the floor that would have had a tremendous impact on the budget."

Erin Elaine Shofner of Atlanta's Hawkins & Parnell, who is defending hundreds of the suits, said she expected a more resounding defeat.

"There were several people we expected to line up against it who crossed over," she said. Shofner agrees with the bill's critics that "there may be some real problems there. The funding has to be adequate to take care of all the valid claims and make sure they're paid fairly, and it's hard to predict how much that's going to cost."

She added that the companies that contribute to the fund would seek to reduce their contributions.

"Everybody wants to pay less than everybody else," she said, "so how do you determine who pays what? That's always an issue, and it will be a bigger one if that passes."

Fellow defense attorney Angela M. Spivey of the Atlanta office of McGuireWoods thinks -- Frist and Specter notwithstanding—the legislation is doomed, at least for this session.

"I would be amazed if it came back up this year," she said. "There's just not the support for it."