ABA Backs Curbs on Asbestos Suits

The American Bar Assn. voted Tuesday to support anticipated federal legislation that would curb asbestos litigation by allowing lawsuits to be filed only by victims who meet certain medical criteria.

In a surprise even to some supporters, the controversial proposal garnered the votes of 70% of the 539 delegates who attended a midyear meeting of the organization in Seattle.

“It is a dramatic event in the evolution of asbestos litigation,” said Deborah Hensler, a Stanford Law School professor. “The bar as an organization has not spoken on this issue before, and this is what many people would regard as a radical proposal.”

The resolution is targeted at noncancerous asbestos injury claims, which the Rand Institute for Civil Justice has estimated comprise 90% of all suits. There are no reliable estimates of what portion of these noncancerous claims are coming from people without serious injuries.

Payouts to people who are not seriously ill have been blamed in the bankruptcy filings of at least 60 corporations, and lawyers on both sides believe such claims are a big part of the recent surge in asbestos litigation that is clogging courts.

ABA President A.P. Carlton Jr. said the resolution reflected an emerging congressional consensus that asbestos suits from the “unsick” must be reined in. He said four members of Congress have informed the ABA that they plan to file bills that would address what has been called a litigation crisis by insurers, corporate defendants and even some plaintiffs’ lawyers.

The resolution sets priorities “so that you can process the claims that are real, the people who are sick can get to court and the people who are well don’t overwhelm the system,” said Carlton, a corporate securities lawyer from Raleigh, N.C.

But Mary E. Alexander, president of the Assn. of Trial Lawyers of America, called the vote “a bad decision that undermines our entire legal system and the right to a trial by jury.”

In remarks to ABA delegates, Alexander said the medical standards and procedures that asbestos claimants would be required to follow before filing suit were too complicated and would discourage legitimate victims from pursuing compensation.

“The proposal would rewrite the law to mandate that only individuals who have been disabled from asbestos disease have access to the civil courts. Those who are sick, but not dying, would be denied,” she told delegates. “This cannot and should not be the official policy of the American Bar Assn. or of any other group dedicated to preserving the right to trial by jury.”

The asbestos resolution would not affect asbestos cancer suits, but claims not involving cancer would be subjected to medical standards, such as pulmonary function and other tests. Those that qualify under the standards would be allowed to file suit. The rest would be put on hold unless qualifying symptoms developed. Statutes of limitations would be suspended, preserving the rights of victims whose symptoms develop years after an initial claim is made.

Business leaders applauded the resolution and said they expected it to boost efforts to win congressional curbs on asbestos litigation.

“It adds another very loud and authoritative voice to the view that this is a very large problem that needs resolution,” said Mike Baroody, executive vice president of the National Assn. of Manufacturers. “And it goes beyond that to specify that the solution needs to involve medical criteria.”

Baroody also praised the ABA for outlining specific protocols for the testing process, which is aimed at claims filed by lawyers for clients who were signed up at free or low-cost lung X-ray screenings but who may not have spoken to a doctor.

The asbestos resolution was the second vote in two days by the nation’s largest lawyers group that could be characterized as supporting limits on litigation. On Monday, the ABA adopted a resolution calling for the expansion of federal jurisdiction over class-action litigation.

The vote was widely viewed as an endorsement of a tort reform bill pending in Congress that would move many large class-action suits out of state courts, some of which are considered hostile to corporate defendants.