For years, corporations responsible for inflicting asbestos-related illness on hundreds of thousands of Americans have been granted immunity from lawsuits by filing Chapter 11 bankruptcy protection. While the negligent corporation is able to emerge from bankruptcy and continue doing business, the innocent victims are forced to wait for fair compensation, time they may not have. The one consolation to these victims is the requirement that the negligent wrongdoers pool assets and insurance proceeds and place them in a trust to compensate past and future victims.
The problem with the Asbestos Trust Fund is that the victims don’t receive what they need and deserve, which is the full value of their settlements. According to the RAND Corporation, the amount of money that actually makes it to the injured worker is typically less than one third the amount of the settlement. Additionally, the trust fund has been excessively under-funded because they were set up without an accurate estimate of the number of victims who will be eligible for benefits. Claims under the trust are often delayed due to a huge backlog of cases (hundreds of thousands) requiring review. Claimants may have been better off waiting on a clogged civil justice system, instead, something that the Trust Fund was created to avoid!
Asbestos victims can only recover a fraction of what they could have recovered from one of the bankrupt companies in a lawsuit. When circumstances allow it, the victims may also pursue claims against the companies that have not gone bankrupt. This is not “double-dipping”; every dollar that a victim receives from a bankruptcy trust acts as a set-off to any future lawsuit recovery. For example, if a jury award for damages is $50,000 and the victim already received $25,000 through the trust, the defendant (solvent company) in the lawsuit would only be obligated to pay $25,000. Because legitimate lawsuits are being filed against these solvent companies, these wrongdoers are scrambling for ways to limit their liability and avoid being held accountable. Defendants and their attorneys claim that plaintiffs are “double-dipping” by seeking compensation from the trust and then, again, in a lawsuit. They want access to detailed records from asbestos bankruptcy trusts, specifically who was paid, how much, and for what specific illness.
Ohio Governor John Kasich (R) recently signed into law HB 380 – a bill that requires plaintiffs in asbestos lawsuits to file their trust claims before pursuing non-trust cases in court. The law requires all plaintiffs to provide a full account of all potential or filed trust claims as well as the evidence presented in those claims. This could add years the plaintiff may not have; in some cases, victims have died long before they could testify. And, now Wisconsin State Rep. Andre Jacque (R) is proposing a similar law – Bill AB 19 that will drag out asbestos-related injury lawsuits. In both cases, lawmakers claim that the bills would prevent “double-dipping” on jury awards that would deplete trust funds.
However, victims’ compensation is so low under the trust, that pursuing alternative defendants in court would only make up a small portion of the difference between what the trust paid and “fair value”. Asbestos are consistently under-compensated when compared to other accidental injury cases. It is no surprise that those lobbying for AB 19 include the Wisconsin Builders Association, Wisconsin Manufacturers & Commerce, the Wisconsin Insurance Alliance, the Wisconsin Paper Council, and the Wisconsin Civil Justice Council, a tort reform group that Jacque says brought the proposal to him.
Jacque maintains the bill is not intended to hold up court cases, but rather to limit jury awards to reasonable amounts. In reality, the bill impeded legitimate claims to protect corporations while robbing innocent cancer victims of full compensation and a swift conclusion to their litigation. The premise that recovering from bankruptcy trusts and then recovering from solvent companies after a lawsuit is "double dipping" is false.
Laws restricting the rights of innocent victims are not limited to asbestos. Rights are being limited and sacrificed on alter of corporate profit in all areas of tort litigation and all over the country. And because most of us are not touched, personally, by accidents and injuries or by disease contracted in the workplace, we ignore efforts to trample on our rights. Tomorrow, however, it may us or our loved ones who need access to our civil justice system and find it “closed” to our type of injury or illness. As healthy citizens, we need to be the voice of the victims and their families, whose lives have been torn apart by corporate negligence. We all need to stand up to the corporations that have killed thousands of innocent victims and devastated families nation-wide. We need to do so for two important reasons: 1. It is the right thing to do for our families and the families of our fellow citizens. 2. As taxpayers, we pick up the bill, in Medicare, Medicaid and public assistance while the actual wrongdoers receive a get out of jail free card. Is that the justice system you want?
Mark Bello has thirty-six years experience as a trial lawyer and fourteen years as an underwriter and situational analyst in the lawsuit funding industry. He is the owner and founder of Lawsuit Financial Corporation which helps provide cash flow solutions and consulting when necessities of life litigation funding is needed by a plaintiff involved in pending, personal injury, litigation. Bello is a Justice Pac member of the American Association for Justice, Sustaining and Justice Pac member of the Michigan Association for Justice, Member of Public Justice, Public Citizen, the American Bar Association, the State Bar of Michigan and the Injury Board.
Attorney, certified civil mediator, and award-winning author of the Zachary Blake Betrayal Series—Mark Bello is also the CEO of Lawsuit Financial and the country’s leading expert in providing non-recourse lawsuit funding to plaintiffs involved in pending litigation. He is also a member of the State Bar of Michigan, a sustaining member of the Michigan Association for Justice, and a member of the American Association for Justice.