Message to Sen. Feinstein: Oppose SB 1125!

Sen. Dianne Feinstein
James Peterson, District Director
750 "B" Street, Suite 1030
San Diego, CA 92101

Re: SB 1125, "Fairness in Asbestos Injury Resolution Act"

Dear Sen. Feinstein:

I am a native Californian, and I am biased on this issue. My firm limits its representation to those with mesothelioma, and in rare instances -- probably less than 5% of our cases -- to those with significant asbestos exposure who have developed lung cancer. Generally we represent lung cancer claimants with no or remote smoking histories.

I have witnessed first-hand the suffering caused by asbestos. Mesothelioma is invariably fatal. The cause of death is usually mechanical pressure of the tumor upon the vital organs. My clients are literally crushed to death, slowly and excruciatingly.

I am not biased in the sense that I would mourn the loss of my fees, if a fair compensation system were enacted, or better yet, a cure for mesothelioma found. Much more than compensation, my clients want more life. The overwhelming majority of my clients are heretofore strangers to the litigation system who would never bring suit if it were not for astronomical medical expenses and the devastation to their families caused by their diseases. If the Hatch Bill were to compensate my clients at an amount available to them in the tort system, their cause would be won, and I would gladly quit the battlefield.

I am not one of those plaintiffs' lawyers who pretends that there are no problems with the current asbestos litigation system, and no need to address those problems. Indeed, I would support legislation which adopts a fair interpretation of impairment per American Medical Association and American Thoracic Society criteria and establish that impairment as a threshold for suit, as with "no fault" automobile negligence statutes. We should offer such legislation as a first and hopefully last step in addressing legitimate concerns regarding compensation inequities between sick plaintiffs and those who are not, by any reasonable interpretation.

The Nickles bill, introduced a year ago by Sen. Don Nickles (ROK), attempted to permit only those with significant asbestos injuries to bring suit. The devil is in finding a dividing line between the impaired and unimpaired, but we are struggling with that same devil in the Hatch bill, and, as noted above, Hatch is beset with many more demons.

I wonder why the Nickles Bill introduced last March vanished without Senate action, and why the Hatch Bill has instead been the vehicle chosen for asbestos litigation reform. Do you feel that the Nickles Bill died because it could not garner the support of organized labor and the trial lawyers who represent unimpaired asbestos claimants? I would greatly appreciate your opinion on these questions.

I oppose SB 1125 for many reasons, including:

• Forfeiture of Seventh Amendment Constitutional jury trial rights should be limited to the extent necessary to solve the problem. The source of the current wave of bankruptcies can be directly traced to the filing of asbestos claims by those alleging signs of asbestos exposure on x-ray, but who are not seriously ill. We should address this problem by taking away the right of the unimpaired to bring fear of cancer and other claims, and barring suit until a serious, asbestos-related condition developed. Because the estimates for the costs of non-malignant claims vary from $.60 to $.70 of every dollar consumed by the litigation, such legislation would result in tremendous cost savings that would stem the flow of bankruptcies.

• SB 1125 goes too far, unnecessarily taking away the Seventh Amendment trial rights of those with serious, often deadly asbestos-related illnesses.

• Sen. Majority Leader Frist proposes directing all asbestos cases to federal court if the Hatch trust fund runs out of money. If history is any guide, the Frist proposal would effectively gut the Biden amendment, because the federal court system has done an extremely poor job of managing asbestos cases. Our state courts have been far more efficient in processing asbestos cases. In San Francisco Superior Court, mesothelioma cases commonly reach trial in six months.

• SB 1125 creates a new federal bureaucracy which will have the burden of processing hundreds of thousands of claims. Of course, one cannot credibly argue that any new federal bureaucracy should be shunned as contrary to conservative principles of limited government. However, if legislation like the Nickles Bill represents a reasonable alternative which would address the problem without resorting to a large federal bureaucracy, we all should support such legislation as that which creates the least harm over another big government spawn.

• The "additional views" on SB 1125 published by Republican Judiciary Committee members raise serious concerns that legitimate asbestos cancer claims will be barred, despite well-established medical evidence of the extraordinary synergism between cigarette smoking and asbestos exposure in the causation of lung cancer.

• SB 1125 does not allocate a nickel to medical research to end the suffering. As my article details, any legislation devoid of research funding is a half-hearted measure.

Again, I would appreciate your views as they evolve on both the Hatch and Nickles proposals to fix "the elephantine mass" of asbestos litigation.

Sincerely,

Roger G. Worthington

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Take Action Revisited! Beware the Ides of March: the Hatch Bill Rears Its Ugly Head ... Again (2/9/04) RGW,PC

*** POSTED FEBRUARY 20, 2004 ***