Posted December 10, 2002
This article appeared in the Monday, December 10th, 2002, edition of the LA Times.
If you fear your working conditions might one day give you cancer, should you be able to sue your employer and collect damages even before you're sick? Some of the nation's most prominent trial lawyers say yes. About 700 of them are behind the explosion in asbestos litigation. Since 2000, more than 100,000 claims have been filed against scores of companies. One study estimates there may be 3 million claims before it's all over. One jury awarded $150 million to six plaintiffs who were exposed to asbestos dust but don't have cancer — they just fear that one day they might get it.
However, an insurgent group made up of lawyers who represent terminally ill clients now say the asbestos cases have become mockeries of justice and argue that such litigation will undermine the chances that those who have been harmed by cancer will be fairly compensated. The fault line now emerging among trial lawyers over whether to seek damages for clients who are healthy is one of the latest issues in what has become the nation's longest-running product liability case.
Soon, the Supreme Court will weigh in on whether six West Virginia railroad workers once exposed to train wheels and brakes containing asbestos fibers are entitled to the more than $4 million a jury awarded them because they fear their limited exposure would one day cause cancer.
Attorneys themselves are making the kinds of candid admissions they've never made before. "We have more and more asbestos cases because lawyers are very, very creative," said Dallas attorney Mark Iola, once a pioneer in asbestos lawsuits and now part of the renegade group of tort lawyers.
Iola is frank when he talks about his erstwhile ally Fred Baron of the Texas-based tort firm Baron & Budd, whose primary asbestos strategy is to sign up as many clients as possible, then force defendants into bankruptcy. "Fred likes that because he can settle a bunch of cases and pocket the fees," Iola said in a press interview.
Federal law banned asbestos in the workplace 30 years ago, but curiously the number of claimants has risen dramatically in the last few years. If anything, such protections should mean a decrease in victims. "That's why we have 10 times more nonmalignant cases being filed today than in 1990," Iola explained. "A nonmalignant asbestos case is whatever a willing physician says it is, so a lawyer and physician can go out and create however many cases they want."
In addition to keeping damages out of the hands of those with terminal illnesses, asbestos litigation is also having a devastating economic effect on workers unlucky enough to be employed by the more than 60 businesses already driven to bankruptcy. A study released last week by Columbia University professor Joseph Stiglitz, the chairman of the Council of Economic Advisors in the Clinton administration, says between 52,000 and 60,000 workers have already lost their jobs and more than $8,000 each in pension funds.
Such effects aren't surprising when one considers the extremes most asbestos lawyers resort to. Often, asbestos lawyers enlist marketing and advertising firms to drum up business. They sponsor mass screenings held at union halls and motels.
A secret document titled "Preparing for Your Deposition" that Baron & Budd wrote for witnesses was also especially telling: "It is important to maintain that you never saw any labels on asbestos products that said "WARNING" or "DANGER."
The document also instructed witnesses to avoid revealing that any one asbestos product outnumbered another because "all the manufacturers sued in your case should share the blame equally!"
Lawyers have targeted Mississippi courts, flooding the dockets with thousands of out-of-state claims from well people because the state has been especially friendly to plaintiffs. Lawsuit excesses have been so outrageous that the Mississippi Legislature recently put limits on asbestos litigation.
Venue shopping has also become common. Earlier this year, Provost & Umphrey, a plaintiffs' firm with offices across the country, went looking for a favorable judge in Texas, filing four nearly identical asbestos cases in separate courts. When the firm's actions were uncovered last month, a judge slapped it with a $500,000 fine.
Trial lawyers used to aspire to be modern-day folk heroes championing the rights of the helpless, as in Hollywood movies such as "Erin Brockovich." Now the profession ought to make good on that dream and stop the rampant abuses in asbestos cases.