Companies that made everything from brake pads and insulation to crayons containing asbestos have known for nearly 80 years that breathing in even small amounts of asbestos dust and fibers put people at risk for deadly lung diseases. Despite learning of asbestos dangers during the 1930s, railroads, shipbuilders and construction companies continued to use the material extensively until the late 1980s. Asbestos was not outlawed, however, and can still be found in many places.
For nearly as long as they knew of the link between on-the-job asbestos exposure and asbestosis, lung cancer and mesothelioma, companies have used all the resources at their disposal to deny liability for occupational illnesses. Plaintiffs have won many notable victories in personal injury and wrongful death cases, however.
As a Virginia (VA) attorney who specializes in representing rail workers in Federal Employers’ Liability Act cases, I have been happy to hold railroads accountable for exposing employees to asbestos. In one case, I represented a longtime CSX employee who died from a combination of lung diseases, including abestos-caused cancer. The award to man’s widow in that FELA case took 4 years to obtain and totaled $8.6 million.
Companies hate paying awards like that, even when those corporations, like CSX or Norfolk Southern, report incomes of several billions of dollars each year. One way asbestos makers and users have limited their liability is by setting up trusts that serve as defendants in asbestos-related lawsuits. This was, in part, necessary because many corporations went bankrupt after asbestos use declined through the 1990s.
At the same time, asbestos trusts serve as roadblocks to sick workers and their survivors. The trusts’ only mission is to defend companies, so the trusts set up complicated paperwork rules and requirements that can result in delays and denials of claims. In short, the trusts make it difficult for plaintiffs to compete on equal legal grounds.
Now, asbestos trusts and their funding corporations have asked the U.S. Congress to make it even harder for people made ill or killed by working with and around asbestos to even have their days in court. If, as groups like the National Association of Manufacturers and the U.S. Chamber of Commerce succeed in getting H.R. 4369, the Furthering Asbestos Claim Transparency Act — FACT — passed, the trusts would be required to request “quarterly reports that contain detailed information regarding the receipt and disposition of claims.” This would compel attorneys representing asbestos victims to spend all their time doing paperwork rather than advocating for their clients.
The Virginia Personal Injury Lawyer’s Perspective
Having more than 20 years of experience fighting for clients hurt by railroads’ negligence, I would consider passage of the ironically named FACT legislation a congressionally sanctioned denial of justice. As the American Association for Justice notes, nonpartisan federal investigators determined there were no “transparency” issues with reports from lawyers to asbestos trusts. Further, because it can take 40 years or longer to show symptoms of mesothelioma or another work-related lung disease, dying from a diagnosed illness caused by asbestos exposure can take only months.
Plaintiffs in asbestos cases could literally lose their lives while their attorneys were compelled to file ream after ream of unnecessary paperwork. I could not agree more strongly with Environmental Working Group Chief of Staff and General Counsel Heather White, who wrote in a letter to Congress: “If signed into law, the FACT Act would significantly delay or deny justice for thousands of victims of the great asbestos tragedy.”
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EJL