Summary of the Testimony of Steven Kazan

Submitted to the House Judiciary Committee
February 5, 1998

I am Steven Kazan, a lawyer with the firm of Kazan, McClain, Edises, Abrams, Fernandez, Lyons & Farrise in Oakland, California. For 25 years, I have represented asbestos victims. I am here today in a very unusual role ­ one that I could not have envisioned even a short time ago ­ unveiling a joint proposal submitted to Congress by asbestos victims, unions representing asbestos workers, asbestos trusts and defendants. This coalition combines the disparate parties to the asbestos litigation crisis that has rocked the nation's courts for 25 years.

The issue concerning Tobacco liability and immunity with respect to asbestos victims is far different than that presented to Congress in any other context, for two principal reasons. First, smoking is far more harmful to asbestos victims than to other smokers. Second, because of the situation that the Judicial Conference has accurately described to this Committee as the asbestos litigation crisis, the tort system cannot deliver adequate or timely relief to asbestos victims for their smoking-caused harm. While immunity granted to tobacco companies ­ without an alternative mechanism under which they pay their fair share ­ would be a disaster for asbestos victims, so too would infusing tobacco defendants into virtually every asbestos case in the already historic asbestos-litigation backlog.

As the result of a tragic synergy, smoking is so dangerous to asbestos workers that it constitutes a unique smoking-related public health problem. According to the Surgeon General, asbestos workers who smoke a pack a day are eighty seven times more likely to die of lung cancer than nonsmoking Americans. This is eight times more than other smokers.

In the past, because of the tobacco companies' suppression of documents and scorched-earth defense tactics, the Tobacco companies' share of the liability has been borne both by the largely bankrupt asbestos industry and by victims. The release of the tobacco documents is changing everything. The result: our soon-to-be largest mass tort ­ tobacco ­ is about to be infused into virtually every case that makes up our current largest mass tort ­ asbestos. The enormous asbestos-case backlog is like a bus stuck on the tracks, and the onrushing tobacco litigation will cause an unparalleled litigation train wreck.

The solution we propose would create a mechanism, a "Tobacco Asbestos Trust," similar to the existing asbestos trusts, through which asbestos victims would receive prompt, efficient and equitable compensation for their smoking-caused harm. Tobacco companies would receive targeted tort immunity ­ but only in exchange for a better method of meeting their responsibilities. Asbestos defendants would give up their "third party payor" suits against Tobacco ­ but only in exchange for tobacco funds to be used exclusively for victims.

Any tobacco legislation ­ whether or not it contains broad grants of tort immunity to the tobacco industry in other contexts ­ should address the "tobacco-asbestos" problem. Tobacco companies' most culpable conduct has been directed at those most vulnerable to smoking's harm, such as teenagers and asbestos victims. It is indisputable that smoking has caused much of the unique harm suffered by asbestos victims ­ and that Tobacco has not paid a dime of its share of the responsibility. Congress should not permit the release of pent-up tobacco litigation to make the asbestos litigation crisis worse, thereby denying any meaningful or timely relief to asbestos workers. We urgently request that Congress adopt the solution we propose.