West Virginia should reclaim the lead in asbestos lawsuit reform

Last year, the Rand Institute for Civil Justice released a report examining the relationship between asbestos courts and asbestos trusts.

The researchers had little data to work with, however, because settlements are kept confidential, making it difficult to determine if plaintiffs are double-dipping – winning settlements from defendants in asbestos lawsuits and making claims against one or more additional asbestos trusts as well.

As of 2002, defendants had paid $49 billion to 730,000 plaintiffs in asbestos lawsuits, the researchers reported.

More than 90 companies have gone through bankruptcy as a result of asbestos litigation, creating at least 60 trusts, the 26 largest of which had 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 “piggy banks owned by the plaintiffs’ lawyers, who can write the rules, or rewrite the rules, according to their needs.”

The good news is that West Virginia was leading the way in asbestos lawsuit reform – or had been leading, until Ohio jumped out ahead of us just this week.

In West Virginia, plaintiffs must complete a good faith investigation of potential claims against asbestos trusts 120 days before trial. They must also assign to verdict defendants the right to bring indirect trust claims. This was cutting-edge stuff until a few days ago.

On Tuesday, however, Ohio took the lead in asbestos lawsuit reform when its House of Representatives passed a bill to discourage duplicative asbestos lawsuits by requiring plaintiffs to reveal all asbestos claims made on their behalf.

Similar legislation has been introduced in our own state legislature, but Ohio beat us to the punch by enacting it before we did.
What are we waiting for? Let’s reclaim the lead in asbestos lawsuit reform and show those Buckeyes who’s best.