Published January 2005

Congress must make
asbestos law a priority

By Don Brunell
Guest Editorial

A Washington state Court of Appeals set a precedent that Congress should follow in resolving asbestos-related lawsuits that continue to plague our nation.

The case involved a retired pulp and paper worker who learned he had pulmonary fibrosis, a respiratory disease that can be caused by any number of agents, including exposure to asbestos. He rightfully filed for and received workers’ compensation benefits as a result of the disease.

Not content with his workers’ comp benefits, he also filed suit against several parties, including his employer, seeking civil damages for his exposure to asbestos.

The Court of Appeals ruled that, since the worker had sought and received workers’ comp benefits, he could not then sue his employer in court unless he could establish that his employer had shown “deliberate intent” to harm him. In addition, the court noted that the plaintiff had worked at several jobs throughout his career that exposed him to asbestos, and he could not establish that his current employer was to blame for his disease.

Workers’ compensation is a no-fault insurance program that focuses on benefits rather than blame. Employees don’t have to establish that the employer is responsible, only that the injury is work-related. This speeds up compensation and avoids lengthy and expensive court battles.

We need a federal program like workers’ comp to address asbestos claims across the nation. Asbestos claims are a $200 billion drain on our economy. More than 8,000 companies are currently being sued for asbestos exposure; 70 companies have been driven into bankruptcy by asbestos litigation; and nearly 60,000 jobs have been lost due to these cases.

Even so, many asbestos victims are not getting the compensation they deserve. Because the court system is clogged with asbestos cases — many of them filed by people who are not even sick — legitimate victims often spend years in court trying to get compensation. In far too many cases, they die waiting for their day in court, and if they do live long enough to prevail, their settlements are cut in half by attorney fees and expenses.

Case in point: A Washington state woman told Sen. Patty Murray’s staff last summer that her father died 18 years ago from asbestos exposure and her mother is still in court awaiting compensation. The problem? There is uncertainty over who is responsible for his asbestos exposure because he was a construction worker who worked on many projects during his career where asbestos was widely used as an insulating material.

Despite that heart-wrenching story and others like it, Murray and her Washington colleague, Maria Cantwell, helped block attempts to pass asbestos fairness legislation over the last couple of years. That legislation would set up a national no-fault asbestos compensation fund that would have sped up compensation payments and helped eliminate fraudulent claims.

The Fairness in Asbestos Resolution Act would have removed asbestos disease claims from the courts and established a no-fault system, much like our state workers’ compensation system. The bill would have created a $124 billion national asbestos victims’ compensation fund, financed by defendant companies and insurers.

Not surprisingly, the powerful trial lawyer lobby opposed the bill and successfully lobbied Congress to kill it by refusing to allow it to come to the floor for a vote.

Hopefully, when the new Congress convenes this month, it will pass asbestos compensation reform as a first order of business. Washington’s delegation should insist that asbestos fairness legislation be at the top of the Congressional agenda and quickly send it to President Bush for his signature.

Don Brunell is president of the Association of Washington Business, Washington state’s chamber of commerce. Visit AWB on the Web at www.awb.org.

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