WEST VIRGINIA RECORD

CHARLESTON – A bill that has been introduced in both houses of the West Virginia Legislature would limit certain asbestos claims.

The Asbestos and Silica Compensation Fairness Act of 2006 has been introduced in both the House of Delegates and the state Senate.

Among other things, the bill would limit certain asbestos claims, would provide for the fair and efficient judicial consideration of personal injury and wrongful death claims arising out of asbestos or silica exposure and would ensure that individuals who suffer impairment, now or in the future, from illnesses caused by exposure to asbestos or silica, receive compensation for their injuries.

"My personal feeling is that this is desperately needed both from an employer standpoint and for the people who are seeking damages," said state Sen. Vic Sprouse, R-Kanawha, one of the sponsors of the legislation. "There has been such mass litigation on this here in West Virginia that it becomes almost impossible to differentiate between legitimate claims and those that aren't."

The bill would adopt medically accepted standards for differentiating between individuals with nonmalignant asbestos-related or silica-related disease causing functional impairment and individuals with no functional impairment or whose impairment is caused solely by some other cause, such as asthma emphysema or smoking.

It also would require that physical impairment be an essential part of an asbestos or silica claim.

In addition, it would provide a method to obtain the dismissal of lawsuits in which the exposed person has no functional impairment, while at the same time protecting a person's right to bring suit on discovering an asbestos-related or silica-related impairment or injury.

Also, it would create an extended period before limitations begin to run in which to bring claims for nonmalignant injuries caused by inhalation or ingestion of asbestos or by the inhalation of silica to preserve the right f those who have been exposed to asbestos or silica but are not yet impaired to bring a claim later in the event they develop such a problem.

The bill also would require that all silica and asbestos claims be filed in separate civil actions, ending the practice of class action claims of exposure. Also, no discovery would be conducted until it has been determined the plaintiff has established that he or she has physical impairment.

"I think it's fairly straightforward," Sprouse said. "There's probably concern because some people want to make sure they have a right to a claim.

"But this bill just takes a step back and says, 'Let's differentiate between those truly have diseases and those who haven't been impaired.

"It's a big bill and a complex bill, but I think the basic elements are things that everyone can understand."

Sprouse said he doesn't know of any other states that have similar measures, but he said there has been discussion of such action on the federal level and in many states.

"To me, the best way to get at it is through federal legislation," he said. "But that isn't on the horizon, so we have to step forward at the state level."

Charleston attorney Jim Humphreys, who handles asbestos cases, doesn't like the proposal.

"It is typical of the new kind of corporate raids on public institutions for their special interests," Humphreys said. "Either the drafters of this bill are pathological liars or they should be in a mental institution because they can't take care of themselves."

Humphreys said asbestos litigation is not clogging the state's courts, noting that there are 800 or 900 pending cases in the state.

"Never did a judge go to the Legislature and say we're swamped," he said.

"West Virginia has been innovative in finding ways to resolve the claims of the injured parties against the defendants without diminishing the Constitutional rights of either party."

One example he used is consolidation of cases, which would no longer be allowed under this legislation.

"We have done about 20,000 asbestos cases here in West Virginia," he said. "If we handled those one at a time, we'd be well into the 24th century before the last person got their day in court. If you injure enough, you walk away Scott free.

"This bill begins with lies and ends with the most brazen assault on the working families of West Virginia since Hawk's Nest."

The Hawk's Nest Incident involved injuries and deaths as the result of the construction of the Hawk's Nest Tunnel near Gauley Bridge as part of a hydroelectric project. The three-mile tunnel, diverting the New River under Gauley Mountain, was constructed by Union Carbide beginning in 1927.

The tunnel was filled with silica dust, and the workers were not given masks for protection even though management wore such masks during the short times they visited for inspection. As a result, many workers, mostly poor and black, died from silicosis, sometimes as quickly as within a single year.

There are no definitive statistics, but several sources agree that resulting fatalities probably eventually totaled approximately 700 of the workers.

"This bill tilts the rules entirely in favor of the corporate rapists who have raped the families of West Virginia," Humphreys said. "They don't want fairness. They want favoritism."

In the Senate, the bill is SB474. In the House, it's HB4348.