Asbestos is the longest-running cause of mass tort litigation in U.S. history. Are we anywhere near solving it? To judge by a recent study from a nonpartisan taxpayers’ watchdog, the National Taxpayers Union, the disappointing answer is no.
The Senate’s trust fund is all but certain to go bankrupt in a few years unless its multiple problems are fixed — that much became clear in August, after the Congressional Budget Office predicted the fund will bleed $6.5 billion by 2015. That wasn’t even counting debt-service costs.
If and when the fund goes bankrupt, there will be two options: Either the asbestos issue will return to the courts, putting victims and defendants back where they are today, or Congress will decide to hook taxpayers for the massive sums of money the trust fund promises litigants. Is there safe passage between a Scylla of legal deadlock and a Charybdis of budget woes?
The National Taxpayers Union doesn’t think it is possible, at least not with the envisioned trust fund. Instead of the trust fund, the group said, “Congress should consider legislation that tightens criteria for filing claims, extends filing deadlines, and limits punitive damages.” In other words, it thinks Congress should look at a House Republican Study Committee proposal to tighten the rules but keep asbestos in the courts. That proposal, the Asbestos Compensation Fairness Act, is all but certain to be shunned by Democrats and isn’t on Senate Majority Leader Bill Frist’s agenda.
A compromise is in order here. In theory, a trust fund could work if the following conditions were met: if all defendants participated fairly, if strict medical criteria were enacted and if there were no possibility that taxpayers could end up footing the bill. Those were the elements lacking in previous funds that went bust. But at present, the Senate proposal fails on all three counts. On the first, the NTU predicts that small firms will be fleeced. For the second, it concludes that the fund’s medical criteria “are more liberal than those generally accepted in the tort system” — which is already clogged with fraudulent suits. And third, no one knows what Congress will do 10 years from now if the fund goes bust; if history is any indication, it will pass the buck to taxpayers.
The only way to fix the fund is to merge it with the House’s medical-criteria proposals and its other anti-fraud and pro-taxpayer ideas. That won’t be easy; the climate in the Senate is to ignore the practical problems. “The real crisis which confronts us is not an asbestos litigation crisis. It is an asbestos-induced disease crisis,” Sen. Ted Kennedy said in April during the asbestos hearings. In reality, asbestos is both a legal crisis and a medical crisis, one which demands real congressional resolve.
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