- The Washington Times - Sunday, October 13, 2002

An asbestos-damage lawsuit in West Virginia could end up costing the economy billions and shutter major businesses across the country. The case involves thousands of plaintiffs and some 250 companies, but many more businesses could be affected as the legal juggernaut rolls on.
Asbestos litigation has already driven most of the primary asbestos producers and distributors into bankruptcy, and a special trust fund already has paid out more than $2.5 billion to more than 360,000 claimants. Twenty companies have gone belly-up in the past two years alone as a result of asbestos-related litigation. Yet, the single most amazing thing about all this is that most of the people suing in the West Virginia case aren't medically impaired in any way. They are suing on the basis of theoretical injuries that might surface in the future. Most of the companies being sued, meanwhile, were only marginally involved with asbestos, a mineral used in a wide variety of industrial products throughout most of the 20th century.
Safety problems with asbestos first emerged about 30 years after World War II, when shipyard workers who sprayed fire-retarding asbestos into the hulls of troop ships started coming down with serious asbestos-related diseases. While breathing in asbestos is recognized as being extremely hazardous, there is far less medical certainty about the dangers of being exposed to asbestos used in such products as drywall, automotive brake linings and toasters, where the substance usually is sealed in. That is the nut of the West Virginia case whether theoretical exposure/danger ought to be considered equivalent to actual exposure and demonstrable injury.
Steve Kazan, a plaintiffs' attorney who handles claimants with serious asbestos-related diseases such as mesothelioma, told the Los Angeles Times: "There is a great capacity for venality and greed in the profession … we are going to see 60,000-100,000 more claims a year almost indefinitely" if something isn't done. Indeed, a sympathetic West Virginia jury already has awarded $5.8 million to six plaintiffs who claimed emotional distress because of a fear that sometime, somewhere in the future they might contract asbestos-related cancer.
The issue should have been resolved with the passage of sensible tort-reform legislation that would have protected the recovery rights of real victims. Senate Democrats have stymied reform attempts rather than risk a cutoff of campaign contributions from the Association of Trial Lawyers of America, whose members have poured more than $25 million into Democratic campaign coffers in recent years. Unless we want to establish the principle of damage recovery based on theoretical damages and injuries as opposed to those that actually occur, this mass-market ambulance chasing must be stopped.


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