Asbestos Victims’ Rights Limited By Unnecessary Legislation

Indisputably, asbestos has claimed the lives of tens of thousands of American workers over the last seven decades. Unfortunately, because industry was slow to react to scientific and medical proof demonstrating that asbestos was deadly, many more lives will continue to be lost from diseases caused by asbestos exposure. Contrary to arguments made by asbestos defendants, these tragic deaths were not caused solely by the actions of a few misguided product manufacturers.

Instead, it was the collective effort of product manufacturers, distributors, installers, engineers, construction companies, property owners and insurance companies who have caused these needless deaths. They chose profits over protecting workers by failing to utilize alternative non-asbestos products, by failing to provide adequate precautions and most importantly by failing to inform workers that they were putting their lives at risk by working with and around asbestos. These companies continue to deny any responsibility for their roles in causing lives to be lost.

Laws Stifling Asbestos Victims Right To A Trial

The seventh amendment of the United States Constitution provides injured victims with the right to a trial by a jury of their peers to seek and obtain compensation for the injuries they have suffered as a result of asbestos exposure. Unfortunately, there has been an erosion of this right as a result of legislation enacted by many states. A common trend has been to impose a cap on damages a victim may recover or to require victims of medical malpractice to go before a medical review panel before being entitled to file a complaint against a negligent doctor or hospital. Insurance companies and corporations have lobbied hard to try to frighten the American public into believing that most lawsuits are frivolous and drive up the costs of insurance and medical care. However, there is no evidence supporting either of these propositions.

Victims of asbestos diseases, such as mesothelioma, have been recently targeted by asbestos defendants and their insurance carriers who have lobbied state and federal legislatures to enact legislation intended to limit access to the courts for people suffering from mesothelioma and other asbestos diseases. For example, last month Wisconsin Governor, Scott Walker signed into Wisconsin law Assembly Bill 19, a bill that creates significant hurdles for asbestos victims seeking justice and reduces compensation for asbestos victims. This bill was opposed by the Wisconsin American Legion, Veterans of Foreign Wars and the Military Order of the Purple Heart, all of which have a large number of members suffering from asbestos diseases.

How The Bill Benefits Corporations At The Victims Expense

The bill allows corporations to delay a lawsuit until a victim files claims with any other asbestos or personal injury “trust funds,” which are accounts set up after a company goes bankrupt to pay claims to injured parties. The bill further requires victims to file claims with trusts, with which the asbestos defendants deem they should file. The most burdensome provision of the bill is that Wisconsin trial courts are required to impose a stay of the litigation until the victims file claims with these trusts and provide proof to the defendants. This means that while the stay is in place, the plaintiff is not able to seek any evidence from the defendants in support of his or case. This requirement makes it unlikely that victims will have their day in court before they die because defendants can delay proceedings by simply advising the court that it has identified another trust with whom the victim must file. Given that the average mesothelioma victim dies within 12-18 months from diagnosis, any lengthy stay of the proceedings decreases the likelihood that they will live to attend trial. Multiple stays will ensure they will not live to attend trial.

AB 19 also limits the compensation injured victims may receive for their injuries. The bill requires victims, who win at trial, to assign their rights to receive compensation from asbestos trusts, to the losing defendant. The impact of this provision is that a plaintiff will receive significantly less compensation than his or her claim is worth, while the losing defendant pays less than it should.

How You Can Support The Cause For Asbestos Victims

Similar legislation has been proposed in Pennsylvania, Michigan, South Carolina, Louisiana, and New York. Fortunately, no such bills have been proposed or are pending in Kentucky. However, that is always subject to change. Satterley & Kelley will continue to be a strong advocate on behalf of injured victims and their families in opposing any proposed legislation which limits access to courts or their right to adequate compensation. If interested in assisting in this fight, we encourage you to contact the American Association For Justice.