How long did you work around asbestos, what are your injuries and where did you work?
Take these facts, plug them into a formula and your compensation will be calculated.
It of course is not as simple as that. But when the court system and companies are flooded in a tsunami sort of way with thousands of cases based on products everyone now knows are dangerous, the cases plodding their way through the court system and nearly bankrupting companies in the process is not ideal.
The Wall Street Journal discussed today the billion-dollar trusts set up to pay asbestos plaintiffs and claims that they “lack transparency, pay questionable claims and unfairly enrich plaintiffs lawyers.”
WSJ: Trusts aren’t required to disclose personal information about claims. That lack of transparency, some experts say, creates the potential for abuse. Some fear trust money won’t go to people who most need it…
“The real concern,” says Steven Todd Brown, a professor at University at Buffalo Law School, who has studied asbestos trusts, is that people who “get sick in the future may not get paid what they are entitled to, because trusts are expending their assets paying more marginal claims.” According to data from court filings and interviews with plaintiffs’ and defence lawyers, trusts are more likely than the court system to pay damage awards to claimants with conditions other than cancer, considered the gravest of asbestos-related diseases.
Plaintiffs’ lawyers point out that claims can be more efficiently resolved via the trusts (time-wise, this is no doubt true) and that insurance companies and all other interested parties can make objections at the time the trusts are created. Read the full article here.
Is it “fair” for people not to get their day in court? Probably not. Is it fair that companies have to spend millions defending against claims brought by plaintiffs who have been seen for all of five minutes by a doctor at a mass screening where all diagnoses are suspiciously similar? Probably not.
But it certainly is not just for people to spend a lifetime working only to find out that job is going to end up cutting their life by decades.
As a lawyer, it’s difficult to admit that there are some situations in which the court system cannot handle something. But this is one of them. As a young litigation associate in Texas, it was not unusual to spend a day or so a week at toxic tort depositions.* And it was often shocking how not sick some of the plaintiffs were, and how little they seemed to know about their actual diagnosis. Many received a diagnosis that they suffered from asbestos-related illness, but received, and appeared to need, no further medical care.
And it’s unfortunate that some of these people might get some of the fund money. But if there is a better way to distribute payment without years of litigation and millions and millions of legal fees, no one has figured it out yet.
It’s an imperfect system where people who are marginal victims, at best, may be compensated. But true victims hopefully get money, and any transparency problems should be addressed to make sure no one that deserves a damages “award” is left out.
The toxic in toxic tort can have so many definitions.
* Disclosure: I represented the defendants in these cases.
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