How do you study a particular subject when there's no data available to analyze?
That's the stumbling block confronted by two researchers for the Rand Institute for Civil Justice who set out to examine the relationship between asbestos courts and asbestos trusts.
"Settlements, which constitute the lion's share of asbestos resolutions, are kept confidential," they lamented.
Which means, there's often no way to determine if plaintiffs are double-dipping –- winning settlements from defendants in asbestos lawsuits and making claims against one or more asbestos trusts as well.
The researchers discovered that some courts do not require disclosure of trust payments made to plaintiffs. Other courts require disclosure, but neglect to enforce it. Even in courts that do enforce disclosure, plaintiffs' attorneys can defer claims against trusts until litigation is concluded.
As of 2002, defendants had paid $49 billion to 730,000 plaintiffs in asbestos lawsuits, the researchers report. Fifty-six companies have filed for reorganization and set up asbestos trusts, the 26 largest of which have paid out $10.9 billion as of 2008.
According to Professor Lester Brickman of the Benjamin N. Cardozo School of Law in New York, asbestos trusts are controlled almost exclusively by plaintiffs' attorneys.
"The trusts operate as private kingdoms run exclusively by plaintiffs' lawyers," Brickman contends.
He describes the trusts as "piggybanks owned by the plaintiffs' lawyers, who can write the rules, or rewrite the rules, according to their needs."
On a positive note, the Rand researchers report that West Virginia is in the vanguard of asbestos suit reform. In our state, plaintiffs must now complete a good faith investigation of potential claims against trusts 120 days before trial. They also must assign to verdict defendants the right to bring indirect trust claims.
For once, in this one area of litigation, West Virginia courts offer an example for other states to follow. Maybe someday our state legal system will be a national model in any number of ways.