Trouble in The Air

Senate Bill Grants Immunity To Asbestos Companies and Cuts Assistance To Terminally-Ill Asbestos Victims

April 25, 2005

Trouble in The Air: Bill Voids 12 State Laws

Bill voids 12 state laws guaranteeing speedy trials for the dying

In one of its cruelest provisions, the Senate bill would override legal protections for the terminally ill in at least 12 states, and court customs in at least 8 more. While these laws vary from state to state, in general they guarantee a trial date for the terminally ill within three to six months of a medical certification of illness. These statutory protections are particularly relevant to victims of mesothelioma because half of all mesothelioma victims die within 14 months of diagnosis.

At least 1,700 people died of mesothelioma in these 19 states in 2002, according to the most recent data from the National Centers for Health Statistics of the Centers for Disease Control (NCHS 2005), 1024 in the 12 states with statutory protections and 678 in states with customary procedures. If the current bill were law at that time, these people would have had no access to the courts, but would have had to wait in limbo for the trust fund to get up and running before they could seek any assistance. Hundreds of them would have died waiting, due only to the unfortunate fact that they were diagnosed with fatal asbestos disease at the wrong time.

In 2003, the asbestos bill authored by Senator Orrin Hatch (R-UT), carried a crucial amendment, sponsored by Senator Feinstein and backed by some Republicans, that protected the rights of the terminally ill. Senator Feinstein convinced the committee that the amendment was essential for the bill to be fair. This time around, protections for terminally ill Californians have been eliminated from the bill released April 12 by Judiciary Committee Chairman Arlen Specter (R-PA).

Ensuring that the "truly sick" get speedy and priority resolution of their claims is an often-stated goal of trust fund advocates (U.S. Senate 2003). In 2003, Feinstein's amendment guaranteed that terminally-ill Californians would retain access to the courts during the interim period before the trust fund became operational. But if the current bill, hammered together by Judiciary Committee chairman Arlen Specter (R-PA) is passed, California asbestos victims with just months to live will have their cases thrown out of court and have to wait nine months for the Administrator of the fund to certify whether or not the fund is operational. During that time these terminally ill individuals may pursue a settlement under the fund, but defendants will have no incentive to engage them, and if settlement negotiations do occur, the dying person must rebuild and resubmit all the evidence supporting his or her claim via a process that is not yet established. If after nine months the Administrator fails to certify that the fund is operational, individuals dying of asbestos diseases could start over in the courts, but only until the fund is operational, when all claims in the court are terminated. Hundreds of people with mesothelioma will die waiting for this process to work itself out.