The Quick and the Dead: The Lege Wraps Tort Reform in Asbestos Packaging
The lethal danger of asbestos exposure to human health, especially to the health and lives of workers (and their families) in asbestos manufacturing or related industries, has been known for roughly 100 years. That knowledge was not widespread, because beginning in the 1930s and continuing into the 1970s, the major asbestos manufacturers did everything they possibly could to keep it hidden. They settled asbestos-related employee lawsuits only on a condition of confidentiality; they suppressed scientific studies demonstrating the dangers of asbestos; and they instructed company doctors not to inform workers that they were experiencing symptoms of asbestosis, cancer, or related lung disease. In a 1949 file memorandum that did not come to light until a 1976 lawsuit, a Johns Manville doctor wrote, "But as long as the man is not disabled it is felt that he should not be told of his condition so that he can live and work in peace and the company can benefit by his many years of experience."
It's no coincidence that a lawsuit discovered that incriminating document, along with hundreds of others like it. A combination of independent scientific research, workplace safety regulations, and civil litigation in the Seventies and Eighties finally began forcing companies to disclose decades of willful misconduct -- and to begin paying damages to a few of the millions of people injured by that reckless negligence. A trial lawyer named Ward Stephenson won the first asbestos product-liability lawsuit in 1971 in Orange, Texas. They didn't mine or make asbestos there, of course -- they just used it freely knowing it would kill.
In short, if it weren't for "greedy trial lawyers" -- the mythical bogeymen who terrified the regular session of the 78th Legislature into another radical spasm of "tort reform" -- thousands of workers in Texas and millions across the nation would have no recourse against employers who knowingly and recklessly exposed them and their families for years to highly toxic and carcinogenic asbestos.
Soon enough, the companies responded to pending lawsuits by declaring "bankruptcy" -- e.g., the leading asbestos manufacturer Johns Manville in 1982, although at the time the company had $2 billion in assets. So when you read about all the "mom and pop" businesses forced into bankruptcy by "frivolous" lawsuits, consider that many of these quite substantial companies emerge robust and wealthy years later, while the workers they injured stand in line (if they can still do so) for paltry settlements that do not begin to compensate them (or their survivors) for their injuries.
The real bogeymen are back, of course. Not content with winning the regular-session tort-reform lotto, the boys in the owners' box have returned with HB 47 and SB 8, bills designed to determine by legislative rule -- before a court gets to consider any evidence -- who is "sick enough" to be allowed to bring an asbestos lawsuit. Gov. Perry -- who personally berated Sen. Eddie Lucio on the Senate floor for refusing to approve an asbestos bill -- is unembarrassable and feels so strongly about emergency health care for major manufacturers and insurers that he added the asbestos bill to the special-session call.
Who's Dying, Who's Paying?
You might think the fact that millions of Americans have been exposed to potentially lethal doses of asbestos (we all have friends or family among them), that perhaps 300,000 of them will die from asbestos-related cancers in the next 20 or 30 years, and that many hundreds of thousands more will see their lives diminished or cut short by asbestos-induced illness, might be considered a major public health disaster. Rather, according to Houston's corporate tort-warrior Rep. Joe Nixon, nominal author of HB 47, all those people getting sick and dying constitute "an insurance disaster." That's what he told his House Civil Practices Committee July 8 -- although later, when Rick Levy of the AFL-CIO called him on it, he denied using those words.
Yo, Joe, they record the meetings -- it's on the tape.
Frankly, you can tell just about all you need to know about the asbestos bills by those who registered in favor of them, but didn't testify: lobbyists for the Texas Association of Business, Georgia-Pacific, Dow Chemical, American Insurance Association, Texas Apartment Association, Occidental Petroleum, Texas Petroleum Marketers & Convenience Store Association, International Paper, ChevronTexaco, Texas Oil & Gas Association, ConocoPhillips, ExxonMobil, et al. -- all those mom-and-pop businesses threatened with bankruptcy by litigation-crazed workers faking white-lung disease. The big boys don't leave their fingerprints on the lectern -- they leave that to "independent" groups (nudge nudge, wink wink) like Texans for Lawsuit Reform and Citizens Against Lawsuit Abuse.
The Owners' Box
Nixon's bill passed the House easily (surprise!), but thus far Sen. Kyle Janek, R-Houston, has not quite been able to gather the 21 votes he needs to get SB 8 to the Senate floor. A formidable obstacle is Houston Sen. Mario Gallegos, a retired firefighter whose father died of asbestos-related cancer (reportedly, Gallegos' tears had more effect on Lucio than Perry's bullying). The opposition has forced Janek to improve the bill -- it no longer covers all "mineral dust" injuries and some specific rule-making would fall to the Supreme Court -- but the bill remains an extravagant gift to industrial tycoons, a gratuitous injury to industrial workers, and a slap in the face to ordinary citizens who will have to achieve some arbitrary standard of sufficient injury or illness -- not to receive recompense, but even to be allowed a day in court. "It's a terrible bill, one of the worse I've ever seen," said Gallegos. "I'll do everything I can to stop it."
One aspect of the Texas tort rush is that Republicans in Congress are ramming through an inadequate national asbestos trust fund that would end asbestos litigation, dole out token payments to the ill (not their survivors), and allow companies that had already agreed to settlements totaling roughly $20 billion to get off the hook for a quarter of that amount. The Bush administration considers a Texas bill a steppingstone to a national settlement that will -- poof! -- magically make asbestos illness disappear as a public issue as well as an industry expense. Among the biggest winners: Halliburton, which would see its pending $4.2 billion settlement with 200,000 asbestos claimants cut to $675 million over 27 years. The indigent corporation should be able to make that up with one "postwar" reconstruction contract -- and use plenty of asbestos to do the work.