SB 411: A solution in search of a problem

By The West Virginia Record | Jun 22, 2015

CHARLESTON – I was taken aback by The West Virginia Record’s recent editorial on SB 411, the so-called Asbestos Trust Claims Transparency Act.

As a Charleston attorney and lawyer for asbestos victims for more than 20 years, I was involved directly with the legislative negotiations on SB 411. This effort resulted in the much improved bill that was passed by the legislature and became law.

Contrary to The Record’s claims, the original version of SB 411 did not attempt to help the sickest victims of asbestos. Instead, it provided sweeping immunities for groups of defendants and unfair requirements on the sickest victims. More importantly, it should be noted that it was plaintiffs’ attorneys who brought “transparency” to the proposed legislation.

Let’s look at the facts.

Asbestos use goes back to ancient Greece and Rome — and even then it was observed that working with asbestos caused “sickness of the lungs.” With the Industrial Revolution, asbestos use grew, peaking in the years after World War II. This is particularly true in West Virginia with its high concentration of chemical, glass and steel manufacturers. In addition to the thousands of workers who have died, secondary exposure led to the illness and death of spouses and children who were exposed to microscopic asbestos fibers from the worker’s body, clothing and other items.

According to the National Institute for Occupational Safety and Health Administration’s 2004 Worker Health Chartbook, West Virginia tied Delaware for the highest asbestos mortality rate in the country. We had more cases because more workers were exposed.

Asbestos manufacturers knew as early as the 1920s that the product was dangerous. The first reported case was in 1927, and the U. S. Fifth Circuit wrote in 1973 that “by the mid-1930s, the hazard of asbestos as a [lung disease causing] dust was universally accepted.” It was a very profitable product, however, so manufacturers kept it on the market to make millions. Indeed, manufacturers cared so little about the safety of workers that in 1966, a Bendix Corporation executive wrote, “If you have enjoyed a good life working with asbestos products why not die from it."

Industrial exposure in West Virginia led to first hundreds and then thousands of asbestos cases being filed in the 1980s and 90s. In sharp contrast, just 92 cases were filed in 2009 and 104 in 2010.

Since 2001, West Virginia’s case management order (CMO) for asbestos cases has handled these cases efficiently and prioritized cases so that cancer patients have their cases heard first. The CMO was the result of extensive negotiations between those of us who represented the injured workers and their families and the manufacturers. Together, we put together a system that handled these cases fairly, efficiently and protected the interests of all parties involved.

Defendants involved in the creation of the CMO have acknowledged that “the existing CMO was an exhaustive joint effort by the vast majority of plaintiffs and defendants to develop a comprehensive system to address the large number of asbestos claims in West Virginia.” Furthermore, the CMO was amended more than five years ago to improve disclosure requirements regarding bankruptcy payments to clients. Since its implementation, the CMO has never been appealed by parties on either side.

The system was not broken, claims against bankruptcy trusts were being disclosed and there was no crisis.

If that’s the case, then why push SB 411? Because the CMO was working. Sick people and their families were being compensated for their exposure to a deadly product that was kept on the market for decades after its dangers were known. West Virginia courts were holding manufacturers accountable.

The real purpose of the bill, found in the original version of SB 411, was statutory immunity by eliminating or delaying the overwhelming majority of claims. It would have been next to impossible for most victims to meet the minimum medical criteria, and the criteria for medical experts would have been impossible for West Virginians to meet as well. It eliminated many cases for spouses and children who became ill following secondary exposure.

It blocked compensation from solvent companies until after plaintiffs had collected from those in bankruptcy — translation: never.

Dying West Virginians would not have been compensated, and billion-dollar manufacturers that kept a dangerous product on the market for decades would have kept their profits.

Thankfully, Sen. Charles Trump and Sen. Mitch Carmichael saw the fallacies in the original bill. Indeed, Senator Trump praised the CMO and Judge Arthur Recht and Judge Ronald Wilson, who have enforced the CMO since its implementation, in both Senate Judiciary and on the Senate floor. The senators encouraged the West Virginia Association for Justice and other stakeholders to work together on compromise that reflected the existing CMO, protected West Virginians’ rights and ensured that West Virginia workers and their families can pursue their claims.

I was involved in those negotiations from Day 1. Our work resulted in the revised version of SB 411 that was passed by the legislature and signed by Gov. Earl Ray Tomblin.

The final version of SB 411 does impose new disclosure requirements for claims against the bankruptcy trusts and penalties for failure to comply. It makes it more difficult for those patients with non-cancer illnesses to file claims, but it eliminated the impossible criteria for cancer patients imposed in the original bill. It preserves claims for spouses, children and others harmed by secondary exposure. It also eliminated the immunities hidden in the original bill.

West Virginia’s CMO is working and should be the national model for handling these claims. SB 411 was a purported solution to a problem that didn’t exist.

Schwartz is a partner with the Charleston firm of Harvit and Schwartz and a member of the West Virginia Association for Justice Executive Committee.

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