Doctor Wages Personal, Political Asbestos Battle

By Alison Lapp : Herald-Sun Washington Bureau

http://www.herald-sun.com/orange/10-629685.html

Jul 24, 2005 : 7:23 pm ET

WASHINGTON -- Hillsborough doctor Bret Williams has dedicated his life to treating underserved populations, from tobacco farmers in Caswell County to indigenous populations in Bolivia.

But the most difficult illness he's faced was his own.

The Duke University-trained physician learned in April 2003 that his chest pain was a symptom of mesothelioma, a disease known as the signature cancer of asbestos exposure because virtually nothing else causes it.

One month later, complications from the removal of his right lung left him dependent on a respirator at Duke University Medical Center.

The 53-year-old father of three said his situation looked desperate.

"I couldn't be weaned off the respirator, and they had all the children come to say their good-byes," Williams said. "I eventually pulled my own breathing tube out and started breathing again. I was one of the lucky ones. Being a doctor, I knew how to respond. I sought the best possible treatment, but still almost died."

Williams says he was exposed to asbestos during his youth in Kansas and while repairing his home in North Carolina. A lawsuit he filed against several asbestos manufacturers is set for trial in September. But he worries that a bill in the Senate would wipe out his case.

Williams, who has no current signs of mesothelioma and has been able to resume work, joined the Association of Trial Lawyers of America in Washington last week to meet with senators and lobby against the Fairness in Asbestos Injury Resolution, or FAIR Act of 2005.

The bipartisan legislation, co-sponsored by Sens. Arlen Specter, R-Pa., and Patrick Leahy, D-Vt., would create a privately funded and publicly run fund to compensate victims of asbestos exposure.

Asbestos companies and insurers would pay $140 billion into the fund over 30 years, which would be available to people who meet medical criteria for mesothelioma and other asbestos-related diseases. In return for the fixed payments, victims would not be allowed to sue the firms.

Williams said he was upset that lawsuits that had not reached settlement would be subject to compensation under the fund rather than an amount decided in a jury trial. Mesothelioma patients would be eligible for $1.1 million, half what the Trial Lawyers Association estimates they currently receive in court.

Mike Riley, a lawyer who represents asbestos victims in Raleigh and Durham, said both the loss of the right to a jury trial and the reduction in the amount of settlement payments skew the legislation in the asbestos companies' favor.

"It's simply a bailout for companies that have manufactured and made a profit on asbestos-containing products," he said.

Lobbying Congress

The Washington-based consumer rights group Public Citizen agrees.

It estimates that companies that manufacture asbestos-containing products spent $144.5 million lobbying Congress from 2003 through 2004. The Dow Chemical Co., which has research and development offices in Cary, spent $3.6 million during that period, according to Public Citizen, and the FAIR Act would reduce its future liability payments from a projected $1.6 billion to $2.2 billion over 15 years to an estimated $378.5 million over the next 30 years.

Scot Wheeler, who represents Dow, said the act would benefit the general public, not just businesses.

"A national solution, such as legislation, is needed to provide fair compensation to the victims," he said, "as the courts cannot handle the volume of cases and have not been able to adequately distinguish those plaintiffs who have asbestos-related diseases from those who do not."

Political compromise

In Senate Judiciary Committee discussions on the bill this spring, Leahy called the act the "essence of legislative compromise," trying to balance the interests of the more than 70 companies nationwide that have declared bankruptcy, in part because of asbestos litigation, with those of the 27.5 million workers who were exposed to asbestos on the job between 1940 and 1980.

But Riley said the legislation falls short, because only people who worked professionally with asbestos-containing products would be eligible for payments. Family members who washed their relatives' asbestos-laden clothes or people who lived near plants that processed asbestos-containing materials would not be able to file suit, as they are now eligible to do in North Carolina, he said.

The Association of Trial Lawyers of America also opposes the bill's 5 percent cap on lawyers' fees, saying it would force many plaintiffs to face the legal system without the help of attorneys who now collect an average of 24 percent of settlements. David Carle, a spokesman for Leahy, said large payments to lawyers would not be necessary under the fund because settlements would no longer be decided in an adversarial system.

During his Capitol Hill visit, Williams met with staffers for Sen. Richard Burr, R-N.C. Douglas Heye, a spokesman for Burr, said the senator was still reviewing the legislation, but believed there were "flaws in the current system that need to be fixed," including controlling lawyers' fees.

*** POSTED JULY 25, 2005 ***