THE BLOG
02/08/2006 08:43 pm ET | Updated May 25, 2011

A Shameful Transfer of Assets

A shameful bill is about to be pushed through Congress; it transfers assets from a desperately sick population and ordinary taxpaying Americans to a handful of big companies. Ironically named the Fairness in Asbestos Injury Resolution Act (FAIR), the bill creates an industry-sponsored trust fund to pay what industry and Congress consider to be legitimate asbestos claims while simultaneously denying asbestos victims the right to a trial. It is cruel, inadequately funded, shifts corporate costs to taxpayers and robs Americans of a Constitutional right. I have watched as a family member suffered and died from asbestos exposure. This bill is an affront to her memory.

Proponents cynically claim the bill gets more money to victims by restricting lawyers' fees. But it is actually designed to deny legal help altogether. Under the guise of weeding out litigation fraud, the bill would force victims to produce detailed records linking their disease to their workplace, even those who have already won court cases. The burden of proof will be heavy, and the job will be beyond the capacity of most. The victims will need help and guidance, but Trial lawyers cannot be hired to fill out forms. In asbestos litigation cases, trial lawyers take the financial risk, agreeing to forego payment if the effort is unsuccessful. Now asbestos victims will be forced to seek out a lawyer who gets paid by the hour. That takes money, and the desperately sick do not have cash to spare. Some may be able to adequately complete the paperwork alone, but many will fail.

Experts have testified that asbestos costs could be as high as $561 billion. Yet the trust fund is to be funded at the rate of a mere two billion dollars a year and is capped at a total of $140 billion over its life. Apparently, the funding was not driven by concern for victims but rather was only what the involved corporations were willing to pay. Put simply, this bill was written to shunt corporate costs off on to ordinary tax-paying Americans. Taxpayers will be on the hook for any shortfalls in this fund, and shortfalls there will be. We know this from prior experiments with the model.

The Government Accountability Office recently studied the four existing federal compensation systems and found that all have severe shortcomings. In every case there have been heartless delays in assistance for victims and cost overruns the federal government has been forced to cover. One, the Black Lung Disability Trust Fund, has cost taxpayers roughly $38 billion more than originally estimated. The Congressional Budget Office predicts FAIR will add $8 billion to the federal deficit in the first ten years.

FAIR threatens all of us. It robs Americans of a fundamental Constitutional right--a trial by a jury. Why would Congress entertain the rollback of this right? The answer is clear: a handful of companies with asbestos liabilities have greater standing in Washington, and deeper pockets, than the Constitution does. A report issued by Public Citizen concluded that the top asbestos companies and their insurers will net $20 billion in reduced payments to victims if the bill passes. Small wonder they've spent so freely on their lobbyists.

Twenty years ago I wrote a book in which I recommended against investing in companies facing asbestos litigation. At that time I noted that over 25,000 persons had filed suits over asbestos-related diseases. Their brave lawsuits and the size of the resultant awards have been the only effective tool that the American public has had in preventing this reckless disregard of human life from continuing. But FAIR would strip Americans of this absolutely essential protection, leaving us all vulnerable to the next incident of willful harm perpetrated in the name of profit.

Watching my own mother-in-law die of mesothelioma, an asbestos-related illness, I fully understand the dread with which this diagnosis is greeted. The victim suffers great pain. It is pain that cannot be eliminated, nor even reduced adequately; and in the end, the patient is quite literally tortured to death. FAIR is anything but. Decency demands that it be stopped.