Sen. Hatch's Promises Of Swift Compensation Under S. 1125 Refuted By Asbestos Cancer Advocate
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June 30, 2003
Dear Mr. Berenson, I am a Times subscriber and have followed your coverage of the Hatch asbestos trust fund bill. I am a plaintiffs' attorney representing asbestos victims, so I have an ax to grind, but I am taking the liberty of drawing your attention to one particular aspect of the bill we find most troubling. I should mention that our firm represents only mesothelioma and cancer victims. We campaigned alongside industry interests for legislation involving simple medical criteria that would have preserved the tort system for presently sick claimants -- the type of approach embodied in the Nickles bill, which has somehow faded from sight. So we acknowledge the problems in the present asbestos litigation system. But the Hatch approach is terribly flawed from our clients' standpoint. Leaving aside the absurdly low values for some of the disease categories, and many other issues, I specifically want to call to your attention the inevitable delays of many years in payment, and how these delays would affect our clients dying from cancer. I sincerely wish you would report on what this fund would do to people like our clients Chris and Wendy Stoeckler. Mr. Stoeckler is 41 and dying of mesothelioma. He sustained substantial exposure while working as a break mechanic for many years. His case is set for trial in October, 2003. He has, at most, a few months left to live. We do not expect him to see 2004, and he may well die before his case comes to trial in October. At this point, his main concern is seeing that his wife and ten-year-old daughter are provided for. With his trial set for October, we can reasonably expect to obtain multiple settlements for him this year. If necessary, of course, we will take his case to trial against any defendant that does not offer an appropriate sum in settlement. As I have listened to the hearings, I've heard Senator Hatch and others say repeatedly that payment is "no fault" and "quick." The impression sought to be conveyed is that a claimant will simply file some proof of having mesothelioma, say, and receive a check in a few weeks. Nothing could be further from the truth.
As for insurance carriers, the President shall, after "consulting" with various congressional officials, appoint members of an "Asbestos Insurers Commission." As to the actual administration of the fund itself, the President must appoint an administrator with the advice and consent of the Senate. §221(c). The administrator must retain "advisors, managers, and custodians" to help manage the assets of the fund. §222(a)(4). The administrator must also establish "surcharge" procedures. §223(d)(3). Presumably once all of this is done, the administrator is to notify all companies of their duty to provide information necessary to calculate their initial assessments. The companies then have thirty days to respond, and the administrator must send back the initial assessment within another sixty days. Although the Act provides that a company may "obtain rehearing of the administrator's initial determination," there is no deadline for this to occur. Roughly the same deadlines apply to insurance company assessments. It is unclear whether all of the above steps must occur before any claims are to be paid. From all of the above, it appears that, at an absolute minimum, it would take several months from the date the bill passes to the time that assessments are imposed. And even under the best of circumstances, the bureaucratic delay is likely to be much longer. All of this means 12 to 18 months before the fund is actually up and running. Once the fund is finally up and running, it will, of course, face an immediate flood of claims. For all of the hundreds of thousands of asbestos claims currently pending in thousands of courts across the country would now, of course, be concentrated in one court, with five judges and a few magistrates. It is simply impossible to believe that this court -- or any court -- could cope with such an avalanche of claims at the outset. Leaving aside the fact that Mrs. Stoeckler and their daughter would receive far more in settlements than this fund could ever provide them, the injustice that the enactment of this fund would do to the Stoecklers is palpable. Assuming this bill were passed into law in the fall, it could eliminate the Stoecklers' tort claims just before they were to obtain sizable settlements from the companies responsible for Mr. Stoeckler's asbestos exposure. Even assuming the Stoecklers filed a claim with the fund on day one of its operation, they would have to wait at least a year before the fund even processed their claim. At that point, they would receive their million dollars, but in three annual payouts. By this time, of course, Mr. Stoeckler will be dead, and his wife and daughter will have lost their husband, father and breadwinner. I do hope you will devote some attention in your coverage of the bill to the practical problems this legislation would pose for people like the Stoecklers. As I said above, we support reform of the asbestos litigation system. But the Hatch bill would be absolutely devastating to deserving claimants such as the Stoecklers. There are thousands of similar cases. Thank you very much for your attention to these comments. Please do not hesitate to contact me should you wish to talk about this further, or should you desire any further information.
Charles S. Siegel, Esq.
*** POSTED JULY 1, 2003 *** |