Back Up Asbestos Suit as Best as You Can

Six retired railroad workers in West Virginia were exposed to asbestos and suffered asbestosis, a noncancerous scarring of the lungs.

They said at trail, however, that they feared they would die of cancer because of their on-the-job exposure. The verdict of $4.9 million in the consolidated cases did not say how much was for fear and emotional distress.

The U.S. Supreme Court ruled 5-4 that claimants who suffer a true injury or disease can seek additional compensation for "future harm [that is] genuinely feared." Norfold & Western Railway Co. v Ayers, et al., ( No. 01-963), decided March 10, 2003.

Although workers must still prove that their fear is " genuine and serious," that Court did not specify how that can be shown or refuted.

Writing for the Court, Justice Ruth Bader Ginsburg said that in spite of the " elephantine mass" of asbestos litigation, courts must not "reconfigure established liability rules because they do not serve to abate today’s asbestos litigation crisis."

The Court should be applauded for following traditional common law principles because it reaffirmed the rules under the Federal Employer’s Liability Act with respect to the recovery for emotional distress.

FELA, passe’s in 1908, allows common carrier railroad employees to recover for work related injuries as long as the railroad was negligent "in part." The statute also allows the defendant to seek contribution from other tortfeasors.

The ramifications of this opinion sent shock waves across the nation’s asbestos trial bar and business community. For instance, a spokesperson for the National Chamber Litigation Center said the opinion should serve as an impetus for Congress to act on the multitude of asbestos litigation claims facing numerous defendants across the country.

The Senate Judiciary Committee has held hearings to draft legislation that would establish medical standards and new funding for asbestos claims.

The litigation is the result of extensive industrial use of asbestos as a fire retardant and in shipbuilding, predominantly from the 1930s to the early 1970s. There are an estimated 600,000 claims, with that number rising by about 50,000 a year, costing the industry more than $54 billion thus far.

Projections have been as high as $275 billion before it’s over, with claimants numbering as many as 3 million.

The most serious asbestos related disease is mesothelioma, a cancer of the lining of the chest and abdomen. It usually is fatal in one to two years; asbestos is the only know cause. Asbestos is a damaging of the lungs that can cause breathing difficulties.

The real dilemma, however, has been handling the claims of people who were exposed to asbestos but do not yet suffer symptoms, even if X-rays show some scarring of lung tissue.

Some unscrupulous trial lawyers have gone so far as to actively recruit claimants in ads that read, " Find out if you have million dollar lungs."

Illnesses tied to asbestos may take years to manifest themselves; and it is a great concern for people who sign away their rights today for a pittance, only to find out years down the road they have cancer and can recover nothing further because of the execution of a premature release.

While the country waits for Congress to act, bar groups are attempting to get a handle on the situation. Akin to what is done in medical malpractice cases, the American Bar Association Commission on Asbestos Litigation suggested a gatekeeping concept that allows a physician to provide a " Certified Medical Diagnosis" to file a claim in court.

This diagnosis would include a detailed occupational history as well as a thorough review of the claimant’s medical and smoking history.

To protect potential claimants who are not yet exhibiting symptoms, all applicable statutes of limitation would not begin until the medical criteria are met as set forth in the ABA standards. The proposals were accepted at the ABA mid-year meeting in February.

Courts across the country are rightfully concerned about the swelling dockets; and many judges are " using a kind of courtroom triage," as described by one reporter for the Wall Street Journal in a recent article on the deluge of asbestos cases. Many judges simply are asking if the plaintiff is sick before allowing a case to proceed to trial.

Justice Anthony Kennedy, joined by Justices Sandra Day O’Connor, Stephen Breyer and Chief Justice William Rehnquiest, dissented on public policy grounds, expressing concerns that permitting emotional distress damages in asbestos claims by expanding liability because the plaintiff must exhibit a physical injury before the recovery of emotional distress damages would be allowed.

It is clear that a majority of the Court was interested in sending a clear message to state courts and communities across the country that common law principle will not be compromised when defendants are negligent and responsible for harming innocent plaintiffs.

It is a time for the bar and the judiciary to be creative in forming solutions to a contentious and complex problem that is certain not to go away soon.