Testimony of Steven Kazan Before the Judiciary Committee of the United States Senate
March 5, 2003
Thank you, Mr. Chairman and Members of the Committee. I am honored to join you again as you consider this important issue. The title of this hearing says it best: "It's Time for Congress to Act."
As I emphasized when I sat here five months ago, asbestos litigation has become a national nightmare, as well as a national disgrace, and cries out for your attention. I sincerely hope that this hearing will be a springboard for action and that meaningful legislation soon reaches the President's desk.
At that September hearing, all of the panelists, from the AFL-CIO to the Association of Trial Lawyers of America, agreed that asbestos litigation was a serious problem requiring congressional intervention, and we all pledged to work with you to find a solution. Since then, others have joined the chorus, including your colleague, Sen. Nickles, who has introduced an asbestos bill, and the American Bar Association. As Mr. Archer explained, the ABA recently adopted recommendations for asbestos litigation.
So the debate has shifted. We are not just talking about the problem, we are discussing how to solve it. And that's what I will address today from the point of view of someone who has represented asbestos victims for nearly 30 years.
My view is simple. I believe in our civil justice system. It's the best in the world. We can solve the asbestos litigation nightmare simply by making some adjustments in that system.
The heart of the asbestos problem is that tens of thousands of questionable claims, many generated by mass, for-profit x-ray screenings, are filed every year. These are not diagnosed cases of asbestos disease in any real sense. The vast majority of the claimants today have no real illness and no real symptoms. All they have is an x-ray that shows marks that could have been caused by asbestos. In most cases, they have not even seen a doctor.
In short, they aren't really sick. If they were your children, you would not even keep them home from school.
Unfortunately, in many states this x-ray report can trigger statutes of limitations, forcing the premature filing of thousands of claims: These claims prevent the courts from doing their job - resolving the cases of those really injured by asbestos.
The first essential step toward solving this problem is to defer the claims of those who are not sick, but preserve their rights to sue, if and when they became sick in the future. Congress could make this possible by tolling the statute of limitations. This would allow the courts to focus on the 10% to 15% of current claims where the plaintiff has cancer or breathing problems caused by asbestos. These claims would continue as they are today, without limitation. I know our courts could provide fair and even-handed justice in these cases.
Another important element of any legislation is establishment of medical criteria to distinguish between those who are sick from asbestos exposure and those who are not. Unlike other proposals which would take claims out of the courts, this simple approach would create the conditions that would allow the civil justice system to work. It is also the approach taken by Senate Bill 413 and the ABA. Their criteria are very similar and address the unique problems involved in integrating medical standards into the legal system. Any legislation should require that a doctor obtain information about the plaintiff's work, exposure, and medical history. The doctor should also examine the plaintiff, review x-rays and lung function tests, and write a report that includes a medical diagnosis. Believe it or not, there is no real medical diagnosis for most of today's claims. And that's a travesty.
It is also important that Congress set some sort of workable standard to objectively measure whether someone is "functionally impaired" and whether this impairment is actually related to asbestos exposure. Unfortunately, many sick asbestos claimants are not sick from asbestos. They may have been smokers or been sickened some other way. While the ABA resolution and S.B. 413 differ in specifics, both take a reasonable approach to this question.
The bottom line is that reasonable medical criteria will ensure that the truly sick have immediate access to the courts and will get the compensation they deserve. This would go a long way toward putting the brakes on the bankruptcies that delay and reduce compensation to those who deserve it the most. It would also ensure that those companies already in bankruptcy could allocate their resources toward the truly sick claimants and emerge more quickly.
Since your last hearing, we have seen more studies quantifying the crisis, a lot of great discussions about solutions, and even proposed legislation. But in the same few months, more defendants have filed for bankruptcy and thousands more Americans have learned that they have serious asbestos disease. They face devastating illness and great uncertainty about whether they will receive just and fair compensation so that their families will be taken care of. Congress cannot let this scandal continue. I urge you to pass legislation establishing medical criteria and pass it soon.
Senate Testimony by Steven Kazan. Before the Committee on the Judiciary, U.S. Senate, September 25, 2002.