Every law school should offer a course in legal ethics called "How Lawyers Abuse the Law." The first case study would be asbestos litigation, which shows how the thirst for profits has led a small group of trial lawyers to erode the rights of legitimate victims while driving dozens of companies into bankruptcy and _ worst of all _ corrupting the court system. If Congress does not fix this problem, shame on it.
Trial lawyers once did heroic work on asbestos. They forced old-line asbestos companies, which hadn't protected workers against known dangers, to compensate legitimate victims. Because asbestos had been widely used as insulation in shipbuilding (for hot pipes) and in construction, some companies couldn't survive. Johns Manville, the leading producer, went bankrupt in 1982. But litigation was expected to decline because asbestos use dropped sharply. In 2001, it was only 3 percent of its 1973 peak.
Instead, new claims have exploded. By 2000, they totaled 600,000 and were rising by about 50,000 a year, says the RAND Institute for Civil Justice, a think tank. Contrast these numbers with the Manville experience. After bankruptcy, it proposed a trust (to be funded by nonasbestos businesses) to pay victims. At the time, experts said the trust would receive from 83,000 to 100,000 claims. It's already six times that level.
What happened? The answer is that claims are paid to people who aren't sick. Asbestos litigation has become less about justice and more about business. Trial lawyers have _ by shopping for favorable state courts _ turned asbestos into a cash cow. Already, asbestos claims have cost $54-billion, estimates RAND. Less than half has gone to actual victims. In the 1990s, they got only 43 percent. The rest went mainly to trial lawyers (who brought the cases) and defense lawyers (who fought them).
Projections of the ultimate costs now range from $200-billion to $275-billion. The final number of claimants is projected from 1-million to 3-million. These estimates could be low, because all estimates so far have been low. As costs and claimants have grown, more companies have been sued; the total now is about 6,000. Many simply used some asbestos product.
The situation has become so absurd that even a few trial lawyers denounce it. Steven Kazan, who has represented cancer victims since 1974, testified recently before the Senate Judiciary Committee that the scorched-earth tactics of other trial lawyers have made it harder for genuine victims to recover. Payments to lots of undeserving claimants take away from people who actually die, or their families.
The most serious asbestos-related disease is mesothelioma, a cancer of the lining of the chest and abdomen. It usually kills in one to two years; asbestos is the only known cause. The number of annual cases is estimated from 2,000 to 2,500. Including lung cancer, all cancer cases account for about 10 percent of new claims, says RAND. There are some serious cases of asbestosis, a damaging of the lungs that can cause breathing difficulties.
But most people who sue suffer no "impairment" from asbestos, even if X-rays show some slight scarring of lung tissue, says RAND. In plain language, their health isn't affected. Trial lawyers actively recruit claimants with mass X-ray screenings and ads. Said one Internet ad: "Find out if YOU have MILLION DOLLAR LUNGS."
"We've gone from a medical model in which a doctor diagnoses an illness and the patient then hires a lawyer, to an entrepreneurial model in which clients are recruited by lawyers who then file suit even when there is no real illness," testified Kazan. "They are not patients. They are plaintiffs recruited for profit."
In theory, judges should prevent abuses. In practice, trial lawyers depend on a few states, whose expansive liability laws, procedural rules or well-known anticorporate bias shift the odds in their favor. The Association of Trial Lawyers of America reports that 85 percent of cases are filed in 10 states. Mississippi, Texas and West Virginia are leaders. Facing hostile judges and juries, companies often settle _ even if the evidence is on their side.
Among ordinary people, there is a word for this: fraud. This is a legalized fraud. Many people suffering no sickness are paid small sums so that a few trial lawyers can be paid large sums. The ATLA estimates that about 700 trial lawyers are engaged in asbestos litigation.
Congress could end this lavish welfare program for lawyers. It could pre-empt state law on asbestos; it could set strict medical standards for damages; it could put a cap on lawyers' fees. It could channel more money to deserving victims and reduce the total costs of settlements. It could limit this economic scourge and restore some self-respect to the law, which ought to be an instrument for social good and not lawyer enrichment.
+ Robert J. Samuelson is a columnist for Newsweek. +
Washington Post Writers Group