Articles Posted in Asbestos

Kansas state lawmakers recently took up debate in the legislature’s upper house over the passage of House Bill 2457, a law that could end up imposing serious restriction on the legal rights of asbestos cancer victims to recover vital compensation following a mesothelioma diagnosis. If approved, the bill would require mesothelioma patients to undertake a lengthy administrative and investigative process that could go beyond the time they have left.

In February 2018, the Kansas State House of Representatives passed their version of the bill with a 77-40 vote over the objections of advocates who claim the bill is necessary and places roadblocks to justice. House Bill 2457 is Supported by the Kansas Chamber of Commerce, a statewide business and industrial coalition in the state of Kansas that often creates pro-business legislation.

If passed, House Bill 2457 would require asbestos cancer victims to file all possible claims against other defendants in a 30-day window, allowing a jury to consider shared liability among sources of asbestos exposure. Often times, this includes filing administrative claims with asbestos bankruptcy trusts in lieu of formal lawsuits against solvent companies still doing business.

An intermediate appeals court in New York recently denied a motion brought forth by a group of asbestos product related companies attempting to challenge the types of damages cancer victims can recover and the state’s special asbestos court system as a whole. The appeal comes a year after the courts modified their case management orders to allow plaintiffs to recover punitive damages in mesothelioma cancer lawsuits and less than one month after a state jury handed down a record breaking $60 million plaintiff’s verdict.

The special asbestos court, known as the New York Court of Asbestos Litigation (NYCAL), is one of the country’s largest backlog of asbestos cancer cases and has created its own unique rules to help move along cases on the docket. One of those case management orders was an agreement with defendants to defer punitive damages in exchange for waivers of due process rights to allow cases to move more quickly through the courts.

Punitive damages are a special type of award meant to punish defendants for especially egregious conduct and serve as a type of warning to prevent other entities from engaging in similarly reckless behavior. The agreement between the asbestos companies and the courts had remained in place for almost two decades until 2014 when punitive damages were reintroduced by a Manhattan Supreme Court justice.

The Missouri state House of Representatives recently approved legislation that could impact the amount of compensation mesothelioma cancer victims could receive for their claims when filing lawsuits against defendants. With Missouri juries handing down substantial verdicts to plaintiffs harmed by the deadly products developed by asbestos companies, lobbyists for the business and insurance companies have long eyed the state for so-called “tort reform” to limit compensation to plaintiffs.

As part of the effort to limit plaintiffs’ access to justice, the Missouri House approved a bill meant to force mesothelioma plaintiffs to disclose whether or not they have filed administrative claims with asbestos bankruptcy trusts. The Missouri Senate is expected to take up the legislation soon and the state may join a growing list of other states that have already passed these asbestos claims transparency laws promulgated by the likes of pro business and insurance lobbyists like the Chamber of Commerce and Industry.

Asbestos bankruptcy trusts were created by companies that were no longer solvent but needed a way to release themselves from legal liability in order to qualify for federal bankruptcy protections. Asbestos companies set aside tens of billions of dollars for mesothelioma cancer victims to file administrative claims with and are often seen as a much more expedient way for plaintiffs to receive the compensation they need to pay for vital medical treatment.

Legislation that would limit asbestos lawsuits continues to make the rounds throughout the country with Indiana and Kansas lawmakers being the latest to consider it. Created by conservative organization the American Legislative Exchange Council (ALEC), the bill in similar formats has been enacted in 12 other states.

Critics charge that such legislation is unfair to terminally-ill cancer victims who were exposed to the fire-resistant asbestos while on the job. If the bill is enacted, they would not be able to sue a manufacturer after more than 10 years had elapsed since being exposed to asbestos. However, asbestos-related diseases are seldom diagnosed within 10 years of exposure.

Mesothelioma: a usually fatal cancer

Michigan state lawmakers recently passed legislation that could severely restrict access to justice for mesothelioma cancer victims seeking their day in court to recover vital compensation and hold asbestos companies responsible for their dangerous products. The 58-51 vote, along party lines, passed the Asbestos Bankruptcy Trust Claims Transparency Act as a means to prevent so-called “double dipping” by plaintiffs seeking to recover the compensation they need to pay for medical bills and lost wages.

In some states, mesothelioma cancer victims have the option to file administrative claims with asbestos bankruptcy trusts set up by companies wthat sought federal bankruptcy protections but still needed to fund settlements for future liabilities. Michigan is one of numerous states that recently passed similar legislation forcing plaintiffs in civil lawsuits against solvent parties to disclose whether or not they have filed claims with any asbestos bankruptcy trusts.

Unfortunately for plaintiffs, the law also has another built-in component designed to deny and delay otherwise meritorious claims Under the bill, if the defendant in an asbestos action identified an asbestos trust claim not previously identified that the defendant thinks the plaintiff could file, the defendant could request a stay of the proceeding.