Expert To Congress: Asbestos, Silica Need One Bill

By Arthur D. Postal , Washington Bureau Chief

NU Online New Service, Feb. 2, 4:47 p.m. EST, Washington?A New York law professor and expert on asbestos litigation warned a Senate panel today that Congress must be resolute in combining asbestos and silica in legislation to address such injury claims.[@@]

Otherwise, said Lester Brickman, a professor at the Cardozo School of Law at Yeshiva University in New York, a "clear and present danger" would be created of double-dipping by asbestos claimants.

He said if a separation of such claims were allowed claimants could potentially win settlements for asbestos injury and then turn around and collect for the same illnesses by alleging they came from exposure to silica. Other witnesses denied this.

Unless the language in the current bill drafted by Mr. Specter, joining silica and asbestos, is sustained, Mr. Brickman said, it would create "the mass conversion of bogus asbestos claims into bogus silica claims by the same plaintiffs' lawyers, screeners, and B-readers [of X-rays] that have made asbestos litigation into a national scandal."

The hearing is presumably a prelude to Sen. Specter's introduction and action on his legislation.

Mr. Specter's bill, to be called the Fairness in Asbestos Injury Resolution (FAIR) Act, is expected next week as a follow up to his prompt action Thursday on litigation reforming the class action litigation process.

Class action legislation is expected to be passed promptly by the committee tomorrow. Floor action on that legislation is scheduled for next week.

The silica hearing today came in response to insurer and defendant concerns that language in the bill outlawing such double-dipping will be excised.

Concerned about difficulties in getting the Specter bill passed, the American Insurance Association, which has served as the insurance industry's voice on the asbestos bill, issued a statement during the hearing in which it said it remains concerned about ?leakage' problems in Sen. Specter's proposal for an insurer-funded trust fund to deal with all asbestos injury claims.

In comments by Craig Berrington, senior vice president and general counsel, AIA said, "One focus at today's hearing is how to deal with so-called ?mixed dust' and/or silica claims." He explained that, "Any federal trust fund proposal must not contain provisions that permit plaintiffs to recast asbestos claims as silica or mixed dust claims simply to avoid being placed into the trust fund, or to collect under the fund and then return to the tort system for a second try at compensation.

"There must be finality and certainty with any trust fund, and unless ALL asbestos claims are in the trust fund, there is no finality and certainty," Mr. Berrington said.

"The fund," he continued, "must be the exclusive remedy for resolving asbestos claims from the day the bill goes into effect."

Sen. Patrick Leahy, D-Vt., ranking minority member on the committee, blasted the provision to require victims to show that their illness was not caused by asbestos. This is something
physicians say would be difficult, Sen. Leahy said.

Sen. Dianne Feinstein, D-Calif., who is also drafting an asbestos bill, called the provision "a potential deal breaker."

Most Washington analysts, lobbyists and congressional staffers see little likelihood of the asbestos bill moving promptly because it has little support from the insurance industry and defendant companies.

Those interests, led by American International Group on the insurance sides, have asked Sen. Specter to redraft the bill to remove the trust fund that is at its core and instead draft a bill that merely creates medical criteria for settlement of asbestos claims. But that approach has no support from organized labor.

Citing a recent article in a law review, Professor Brickman said, "the developing silicosis litigation phenomenon appears to be an attempt to replicate asbestos litigation and recycle asbestos claims."

At issue are expected efforts to amend Sen. Specter's bill to remove a provision that would preclude claimants with asbestos-related conditions from bypassing the proposed legislation and filing "ostensible" silica claims in state and federal courts.

Other witnesses at the hearing said asbestos damage can't be passed off as silicosis.

Dr. Laura Welch, Medical director of the Center to Protect Worker Rights, an AFL-CIO unit in Silver Spring, Md., said "Asbestosis and silicosis cause a different pattern of lung injury, and can be distinguished with occupational history, pulmonary function testing, and x-ray, so a case of asbestosis can't be turned into a case of silicosis or another dust disease," she said.

And Mike Martin, of Maloney, Martin & Mitchell, a plaintiff's law firm in Houston, Texas, told the panel that silica and silicate exposure are a "different animal from asbestosis."

"Silicosis results from exposure under circumstances that do not involve asbestos exposure," he said.

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Expert To Congress: Asbestos, Silica Need One Bill

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