The proponents of S.1125, the "Fairness In Asbestos Resolution Act of 2003," have claimed repeatedly that the majority of the awards paid in asbestos cases have gone to individuals who are not truly injured - yet, nothing could be further from the truth. This misleading and false argument is nothing more than an a cynical attempt to use a legal fiction to strengthen a political objective -- which will have the effect of denying injured workers and their families the compensation they deserve.
Instead of false rhetoric, Congress should review the statements of recognized medical experts, often contained in the asbestos and insurance industries' own court filings. These documents clearly indicate that even minimal exposure to asbestos fibers can lead to long term health problems. This exposure also puts workers and others at risk for serious injuries to the lungs, and, in many cases, the denial of life insurance benefits.
The Asbestos and Insurance Industries
The asbestos and insurance industries' own documents further undermine their claims that there are thousands of people who have been exposed to asbestos but are not injured or "impaired."
These documents also highlight that the companies have known of the dangers of even low-level exposure for decades. For example:
"The undisputed medical facts are that actual bodily injury, in the form of tissue or cellular damaged caused by lodged asbestos fibers, begins shortly after such fibers are first inhaled." Statements of Pittsburgh Corning Corp. in Pittsburgh Corning Corp. v. The Travelers Indemnity Co. v. PPG Industries, Inc. U.S. District Court (E.D. Pa) (October 24, 1984).
"The injury to the body begins at the first inhalation of the asbestos fibers. Although the eventual change in the lungs begins to develop at this time, it is not until the disease is relatively advanced that a firm diagnosis of asbestosis can be made." Internal Memo of the Travelers Ins. Co., Liability Claims Administration, Injurious Exposure Claims at sec. 18.1.
"The only conclusion that can be drawn from the medical evidence is the conclusion that is virtually uniform in the medical literature - asbestos-related injuries are the result of a continuous injurious process, beginning with first exposure and continuing through clinical manifestation." Post-Trial Phase III Brief of Policy Holders on the Medical Evidence, Superior Court of State of Ca, City & County of San Francisco (Dec. 9, 1986).
In addition, once the lungs are injured due to asbestos exposure they do not recover. For example:
"The accumulation of scar-like tissue decreases the functional volume of the lungs, stiffens the passage ways, and impedes the transfer of gases in and out of the blood. If the process continues, the functional capacity of the lungs becomes inadequate to support normal activities and may eventually be unable to support life. Brief of The Travelers Insurance Co., re Exposure v. Manifestation, Commercial Inc., Co. v. Pittsburgh Corning, (U.S.D.C., E.D.Pa) (July 14, 1981)
"[a]s the fibrotic process progresses, shortness of breath becomes apparent at lesser levels of physical activity and ultimately occurs at rest. . . . As the disease progresses, lung volume reduction leads to a pattern of rapid, shallow breathing." Post-Trial III Brief of Policy Holders on the Medical Evidence, Superior Court of the State of Ca, City and County of San Francisco (Dec. 9, 1986).
The Medical Experts
One of the asbestos industry's most regular experts, Dr. John Craighead, agrees:
"It is my opinion that asbestos fibers cause injury to the lung within minutes of inhalation."
"Asbestos fibers may alter, or cause serious mutations in, the chromosomal structure of the cells of the pleura." [This immediately renders the person a candidate for developing lung cancer.] Affidavit of Dr. John Craighead, M.D. (November 3, 1992), filed as an expert witness on behalf of Insurers American Motorist, Republic and Constitution State, in Stonewall Ins. Co. v. Nat's Gyp. (S.D.N.Y. 86 Civ. 9671)
In addition, the foremost authority on the medical consequences of asbestos-related pleural fibrosis has emphasized that simple pulmonary tests do not always reveal the level of harm to the lungs:
"Asbestos-induced pleural fibrosis can cause respiratory symptoms in persons whose simple pulmonary function tests appear normal." D. Schwartz, New Developments in Asbestos-Induced Pleura Disease, 99 Chest 191, 194 (1991).
The American Thoracic Society
The American Thoracic Society (ATS), a leading organizations in the scientific and medical community regarding the diagnosis and treatment of asbestos-related diseases, has also raised serious concerns about the proposed medical criteria initially adopted by the ABA, which also serves as the basis for medical criteria in S. 1125. As the ATS has indicated, this criteria "does not reflect the current state of medical screening and diagnosing asbestos related diseases."
In addition, the ATS states that the ABA criteria used to assess impairment from asbestos-related scarring is insufficient. They also note "diffuse pleural scarring can be associated with greatly diminished FVC [forced vital capacity] regardless of the extent or thickness of the scarring."
Finally, the ATS recommends the use of CT scans, which are available throughout of the U.S., which can detect asbestosis even when an X-ray indicates the lungs are normal.
Denial of Life Insurance or Workers Compensation Benefits
In the ultimate hypocrisy, victims of asbestos exposure have been denied life insurance benefits for decades, while the insurance industry claims they are not impaired:
"In the practice of American and Canadian life insurance companies asbestos workers are generally declined on account of the assumed health injurious conditions of the industry." (Frederick Hoffman, Prudential Life, Mortality from Respiratory Diseases in Dusty Trades, U.S. Dept. of Labor Bulletin 231, 1918).
An insurance industry training manual recognized that: work involving the use of toxic materials like asbestos would cause severe losses and cautioned against writing workers compensation policies where asbestos was involved. (Insurance Company of North America Education Department, Casualty Insurance Course, 1947).
"A diagnosis of pleural disease affects the underwriting process of an applicant's insurance policy, often causing an increase in the applicant's insurance premium, or causing the applicant to be declined coverage." (Affidavit of Dr. Lawrence D. Jones, M.D. (March 12, 1991) in Multi District Litigation-875.)
Used with permission from The Association of Trial Lawyers of America. All rights reserved