In 1991, U.S. Supreme Court Chief Justice William Rehnquist found that the asbestos litigation problem had "reached critical dimensions" and was "getting worse." The U.S. Supreme Court, in opinions in 1997 and again in 1999, urged Congress to solve the problem created by the "elephantine mass" of asbestos litigation.
Congress has considered several proposals, and the U.S. Senate is currently debating an omnibus asbestos bill that creates a multi-billion dollar trust fund. Understandably, the Senate proposal has as many critics as supporters.
Texas, on the other hand, has effectively dealt with its litigation crises. This year the Texas Legislature created a fair and efficient path to trial for those who are sick, preserved the full rights of those who may get sick, and unclogged the courthouses in Texas.
Where Did the Problem Come From?
Asbestos is a mineral that was used extensively in industrial applications in the United States, especially between the 1940s and 1970s. Exposure to asbestos, particularly through inhalation of asbestos fibers, has been linked to mesothelioma (a type of cancer), lung cancer, asbestosis, and pleural thickening/pleural plaques. Asbestos-related diseases typically do not manifest upon exposure, but arise many years (up to 40) after exposure. It is estimated that as many as 27.5 million American workers may have been exposed to asbestos between 1940 and 1979.
Nonetheless, exposure to asbestos does not mean a person will contract an asbestos-related illness. Some studies indicate that each day, each of us inhales 10,000 to 15,000 asbestos fibers. Essentially, everyone in America, Europe, and any industrial country has been exposed to asbestos. However, it is only a small fraction of those who have significant occupational exposure who develop serious asbestos related illness. It is the rights of those who are sick we are trying to protect. But the sadness of mesothelioma and other deadly asbestos-caused cancers has been used by many enterprising plaintiffs’ lawyers, representing not sick clients, to create this litigation crisis.
Recognizing the potential for large contingency fees by generating asbestos claims, these lawyers hire doctors and x-ray technicians to screen persons with possible occupational exposure to asbestos in an attempt to identify asbestos lawsuit plaintiffs. The lawyer sponsored mass screening process has consistently (but not surprisingly) identified persons who have radiographically detectable markings on their lungs that, according to the doctors, are "consistent with" asbestos-related disease. Studies have determined that the vast majority (over 90%) of these findings are wrong, and that the screening process has, in fact, produced false positives for individuals who are normal. Of those individuals who do have radiographically detectable markings on their lungs, most are not experiencing any symptoms of asbestos-related disease and are not suffering from any asbestos related illness affecting their daily functions. Tens of thousands of new claims are made each year by individuals who have never actually had occupational asbestos exposure or by individuals with some degree of exposure but no impairing asbestos-related condition of any kind.
Judge Charles Weiner, the federal district judge presiding over the federal asbestos multi-district litigation, described it this way:
Oftentimes these suits are brought on behalf of individuals who are asymptomatic as to an asbestos-related illness and may not suffer any symptoms in the future. The filing of mass screening cases is tantamount to a race to the courthouse and has the effect of depleting funds, some already stretched to the limit, which would otherwise be available for compensation to deserving plaintiffs.
Where Are We Now?
Texas’ state court became a favored forum of plaintiffs’ lawyers. For several years, more than 40% of all asbestos suits were filed in Texas. There still are approximately 50,000 pending claimants in Texas that pre-date HB 4. Since HB 4, 1,300 new cases have been filed representing approximately 7,000 new claimants.
Again, 90% of these claimants have no impairment or disease.
The result is that all these healthy claimants seek fairly nominal settlements from the 50 to 100 companies each sues. The settlements range between $500 to $2,500 per defendant. Its not economically possible for any single defendant to prosecute a defense for the settlement amount, so the extorted sum is paid. The result over 70 bankruptcies the loss of thousands of jobs, $54 billion changed hands, mostly to lawyers, and…those who are ill with cancer are not able to recover complete compensation.
What has been done with asbestos is now being attempted with silica. Silica, or crystalline quartz, is the second most common element in the earth’s crust. It is used now and will be used in all manner of industrial and construction applications. Glass and ceramics are two of its most visible applications. If you have a backyard pool, there is a good chance you are using it as part of the filtration system.
Safety efforts with silica use began in the 1930s, and improved so that despite expanded use, mortality and morbidity associated with silica have been in steady decline. Silica is a product which is now being used safely.
But, then came the mass tort plaintiffs’ lawyers. One leading producer of silica sand was named in only 154 suits in 1998. In 2002 alone, however, this company was sued 19,214 times, mostly in Texas and Mississippi. If the increase in any real disease had been this dramatic, we would have the worst pandemic in recorded history on our hands.
What is even more amazing is that many of the asbestos claimants are now silica claimants, utilizing the exact same x-ray and doctor to make both diagnoses.
What Asbestos Legislation Has Achieved in Texas
The new Texas law sets out specific medical criteria to be used to distinguish between the claims of people who are physically impaired due to exposure to asbestos or silica and the claims of people who are not experiencing any physical problems associated with exposure to asbestos or silica. The goal of the new law is to allow claimants who are actually impaired to pursue their claims in the judicial system, while deferring the claims of those who are not impaired.
Specifically, the requirements for pursuing a nonmalignant, asbestos-related claim are that the claimant provide a report showing:
- a physical examination by a board certified physician;
- a detailed medical history covering all possible causes of the claimant’s medical problems and confirming exposure to asbestos;
- a minimum of 10 years since exposure to asbestos;
- either: (1) a quality 1 chest x-ray, read by a certified B-reader graded 1/1 or higher for bilateral irregular opacities, or B2 or higher for pleural thickening with blunting of the costophrenic angle; or (2) pathological asbestosis graded 1(B) or higher;
- pulmonary function testing reflecting results below the lower limit of normal;
- an opinion by a board-certified physician that the impairment was not more probably the result of causes other than asbestos.
The new law also prohibits physicians from relying on findings, testing, or screening performed in violation of regulations, or on reports or opinions of doctors or labs that required the claimant to retain the services of the law firm sponsoring the exams or test. It also addresses specific abuses in asbestos/silica litigation by preventing the "bundling" of claims of different people for trial and by applying the current proportionate responsibility and exemplary damages statutes to all asbestos and silica cases.
In sum, Texas’ approach is to prevent premature asbestos and silica claims by persons who are unimpaired from entering and staying in the civil justice system while expediting the suits of those who are truly ill. This prevents the enormous cost the unimpaired claims are currently imposing on the judicial system, the defendants, and the economy. As a balance, the bill ensures that if these unimpaired claimants ever become ill or impaired, their claims will not be lost due to the statute of limitations.
This should be the goal of any federal legislation. The Texas Legislature answered the call of Chief Justice Rehnquist and created model asbestos/silica legislation.