One of the strangest sagas in U.S. legal history has been the vast proliferation of lawsuits alleging exposure to asbestos. The U.S. Supreme Court will soon decide whether to hear an appeal challenging the state court practice of consolidating literally thousands of asbestos claims into mass trials and/or settlements. And the U.S. Senate Judiciary Committee has scheduled a hearing before this session adjourns to discuss possible legislative remedies for runaway asbestos litigation.
We hope one or the other of these avenues leads to a more sensible system that makes compensation for those actually suffering illnesses attributable to asbestos the most important priority. The courts are so clogged with lawsuits that some victims -- especially those suffering from mesothelioma, who have a life expectancy of only 18 months after diagnosis -- die before their court dates. At the same time, courts are hearing suits brought by people with no symptoms who may never become sick.
As you probably know, asbestos is a fireproofing material that was widely used in construction and manufacturing up until it was banned (in the United States) in the late 1980s after ample evidence emerged that it was highly hazardous to human health, causing cancer and a variety of respiratory ailments. Even before the asbestos ban, it was becoming clear that the asbestos-related legal liabilities of the American businesses and their insurance companies were going to be mind-boggling.
Since the 1970s, companies have paid an estimated $20 billion in settlements and legal costs related to asbestos litigation. More than 50 companies have filed for bankruptcy as a result of asbestos settlement costs, including not just asbestos manufacturers, but those using asbestos in other products. And there is no end in sight -- claims could continue for another fifty years, with estimates of total liability as high as $200 billion. More than 2,400 companies, some with only tangential connections with asbestos use, have been sued.
Unfortunately, the spiraling number of asbestos lawsuits is not producing a just result for many of the people suffering asbestos-related illnesses. Claimants receive as little as 37 cents out of every dollar paid by defendants because of transaction costs and attorneys fees, and often must wait for years to get to trial or settlement, according to a recent study by the RAND Institute for Civil Justice. Eighty to ninety percent of new cases are filed by plaintiffs who are not sick, in part because of statutes of limitation that encourage people who've been exposed to asbestos to "use or lose" their right to sue. But the sheer number of cases is leading many state judges to lump together worthy and unworthy claims and press defendants for mass settlements.
The negative impact of this system on people actually suffering or dying from asbestos exposure has led to a division of opinion among trial attorneys, with those representing the ill demanding reforms to protect their clients' right to quick and effective compensation.
This is one issue where the fight is not simply a part of the age-old struggle between companies seeking to avoid financial responsibility for misdeeds and trial attorneys seeking to punish them while rewarding their clients and themselves. We agree with Supreme Court Justice Ruth Bader Ginsburg, who argued in an earlier case that the goal should be to provide a secure, fair, and efficient means of compensating victims of asbestos exposure. We concur with the view of the AFL-CIO that the current system is unfair and unpredictable. Senate Judiciary Committee Chairman Pat Leahy's decision to hold a fair and balanced hearing on the asbestos litigation crisis should signal the beginning of a bipartisan effort to create certainty in the system and get help to victims without spurring new waves of business bankruptcies.
