A significant challenge to the rights of injured workers in third party asbestos litigation was introduced in Congress in 1999 by U.S. Senator Orrin G. Hatch (R-UT) in what he termed the "Fairness in Asbestos Litigation Act of 1998", S.2546.
The proposed bill, if enacted, would have jeopardized and delayed the rights of asbestos victims and their families to obtain fair and adequate benefits from the manufacturers, suppliers and distributors of asbestos and health care groups. No civil trials would have been allowed to commence or be maintained until a national claims facility (Asbestos Resolution Corp.) has reviewed the plaintiff's cause of action, certified the case and released the plaintiff from mandatory mediation.The Act will limit the issues that may be raised at trial, prohibit recovery for enhanced risk and punitive damages, and waive the timeliness defenses unless the action was stale at the time of the Act's passage.
The Eligibility Process
Those seeking recovery for non-malignant conditions would be required to show the existence of a latency period of at least twelve years and either clinical or pathological evidence of asbestosis or bilateral pleural thickening with impairment.
Mesothelioma victims would be required to demonstrate that they have been diagnosed with malignant mesothelioma located primarily in the pleura or peritoneum which had a latency period of at least 10 years.
Plaintiffs with lung and other cancers must offer proof of diagnosis by a board-certified physician, a latency period of at least 12 years and either evidence of a non-malignant illness that meets the requirements for non-malignant condition or chest x-rays that show both asbestos-related pleural plaques or thickening plus evidence of 15 years exposure to asbestos fiber.
If the claimant meet the Corporation's criteria, the claim must be submitted to ADR for resolution. Additional parties could only be added during a 60 day grace period. Should ADR fail the parties wre have been required to submit the claim to mediation and the Corporation will appoint a mediator. The parties would have been required to exchange good faith settlement offers. Arbitration could have been selected in addition to mediation.
If the ADR approach fails to resolve the matter the plaintiff may then move for trial of the action. The proposed Act limits the issues to be acted upon.
Never before had this type of legislation been introduced by the chairs of both the House and Senate Committees: Senator Hatch and Congressman Henry J. Hyde (R-Il). Surprisingly enough, the legislation was also sponsored by Chrisopher J. Dodd (D-CT) and Joseph Lieberman (D-CT). It had even received the endorsement of Robert Torricelli (D-NJ).
It was not enacted, but the threat to the victims continues.