Golden State Column: The Legacy of
Asbestos
My Golden State column for Monday,
February 20, starts below after the headline and continues onto the
jump.
Even within the specialized world of
mass tort litigation, asbestos stands alone. Victims of tobacco, the
dangers of which have been widely and clearly disseminated, are
arguably if partially complicit in their own disease. The women who
were injured by silicon implants and the Dalkon shield necessarily
comprise a limited population.
But asbestos could hurt anybody.
Although its miners and manufacturers and their insurers knew of its
hazards as far back as the 1930s, and possibly the 1910s, no alarms
were sounded for the general public and no warnings appeared on the
packaging until usage ceased in the 1970s. The victims were in many
cases unaware that the material they were exposed to was asbestos
and to the extent they were employees in refineries and shipyards,
they wouldn't have had the option to avoid it even if they knew.
The Rand Corp.
survey of the litigation landscape is deeply mistrusted by the
asbestos bar, which views it as an argument to shutter the
courthouse doors against innocent victims. This is a misreading. It
does document the diversion of resources to legal expenses on a
massive scale, but it shows that the money comes out of the pockets
of defendants and plaintiffs alike, and it weighs the effect of
every alternative on victims' access to justice. As its main author,
Stephen Carroll, told me, the fact that more than 60 cents of every
dollar spent on the process gets eaten up by the process "doesn't
tell you what you should do instead, but shows there's a powerful
argument that there should be an instead."
Terry McCann has been inducted into
both the
wrestling and
surfing halls of fame.
Golden State: Asbestos Claims
for Cash, Justice
"It
was beautiful," Terry McCann
told me. "It would come down like silver, a silvery snow."
The retired Orange County business
executive and 1960 Olympic gold-medal wrestler was describing the
dust that filled the air of the Oklahoma refinery site where he
worked in 1957 and 1958. It would settle on his face, his hair, his
clothes, sting his eyes, fill his lungs.
This floating, glittering nuisance
was asbestos. In April 2005, nearly 50 years later, McCann visited a
doctor to determine why he was experiencing knife-like pains in his
lungs after a lifetime hewing to a fanatical fitness regime. That
was when he learned that the cascades of silvery flecks had bestowed
upon him an incurable disease called mesothelioma.
A few
months later, McCann, 71, became an asbestos plaintiff in Los
Angeles Superior Court, where he sued 21 manufacturers and marketers
of asbestos or their corporate successors. Eight were later dropped
from the case, and 12 reached confidential settlements. Opening
statements in the trial of the sole remaining defendant, Burns
International Services Corp., are scheduled for Wednesday.
It’s too easy, albeit instructive, to
cast McCann as a data point in a woeful statistic: Since the 1960s,
more than 750,000 people have filed legal claims resulting from
asbestos exposure, according to a study by the Rand Corp., and the
growth rate has been picking up steam. Cases of mesothelioma, an
aggressive lung malignancy of which asbestos is the only known
cause, have been increasing by more than 2,500 a year.
The Rand study estimated that
defendant companies and their insurers had spent more than $70
billion through 2002, including $21 billion on their own legal
expenses and $49 billion in settlements and court awards, of which
the plaintiffs received $30 billion. Meanwhile, more than 70
defendant companies have filed for bankruptcy protection (not all
because of their asbestos liability).
Asbestos plainly presents an
unprecedented challenge to the U.S. court system. Although insurers
and manufacturers knew of its health dangers by the 1930s, asbestos
products were used extensively in industrial, commercial and
residential construction through the 1970s, exposing people in all
walks of life. Because its effects can appear 40 years after
exposure, the size of the claimant pool is incalculable.
Litigation in state courts, where
most asbestos cases are filed, can have wildly varying outcomes: The
average California jury award for mesothelioma is $5 million, says
McCann’s attorney, Roger Worthington, who specializes in such cases.
But one of his clients was recently awarded $34 million. The process
also imposes an intolerable burden on plaintiffs who may be
terminally ill; one of McCann’s depositions was a six-hour ordeal in
the presence of 16 squabbling attorneys.
Every attempt to find a solution has
fallen short. Consider the 1982 bankruptcy of Johns-Manville Corp.,
an innovative attempt by a major manufacturer to get a handle on the
crisis. The bankruptcy resulted in the creation of a settlement
trust whose billions of dollars in assets seemed to be comfortably
adequate to pay the 100,000 claims anticipated over its lifetime.
But the trust was quickly
overwhelmed. The number of claimants breached the 100,000 threshold
in about a year. Soon after, the trust was forced to conserve its
resources by slashing payments to 10 cents on the dollar. In 2001,
when actuaries warned that it might face as many as 2.5 million more
claims, payments were cut further, to 5 cents on the dollar.
Most recently, Congress has gotten
into the act, but its efforts to quell the litigation boom also have
stumbled. Just last week, a Senate plan to create a $140-billion
trust fund with money from manufacturers and insurance companies was
killed in a procedural vote. The plan had bipartisan support — and
bipartisan opposition. Plaintiffs and their lawyers were concerned
that its built-in payment cap of $1.1 million per claimant would
leave many victims impoverished by medical costs.
"That would evaporate like water in
the desert," Worthington says. Moreover, once the fund was drained,
payments to victims would become the responsibility of taxpayers.
Worthington and other attorneys
prefer an approach being pushed in the House, which leaves the
courtroom doors open to those with the most severe disease and
defers lawsuits by those who can’t show significant injury, even if
they can prove exposure. But that bill could itself render many
worthy claims too costly to interest lawyers, leaving victims out in
the cold.
Both congressional approaches beg the
question of whether it’s just to bar the courthouse door to people
whose lives have been scarred by a hazardous product that was
indiscriminately marketed for decades.
Seated on the couch in his Dana Point
home next to Lucille, his wife of 52 years, McCann can still seem
the picture of vigor. When he stands upright, his 5-foot-4 frame
projects the compact power that won him his gold medal as a
125-pound wrestler at the Rome Games in 1960. It’s only when one
sees him shamble painfully from one room to the next that the
effects 12 courses of chemotherapy have had on his body become
outwardly detectable.
McCann recounts his life story in
pithy whole sentences, as befits the former CEO of Mission
Viejo-based Toastmasters International, a service organization that
promotes public speaking as a tool of community leadership.
He grew up in a tough Chicago
neighborhood, went to college as a wrestler and supported his wife
and two children with the refinery job while training for Rome. (He
and Lucille would raise seven kids.)
Over the years, the wrestling teams
he coached in his spare time produced 52 national champions. He
never smoked, never drank liquor, never drank coffee. He doesn’t
conceal his bitterness toward the industry that poisoned him.
"I was taught that you run your
business in an ethical manner," he says. "If I hadn’t seen the
documentation that these companies knew what they were doing, I
wouldn’t have pursued this. But I’m angry." |
PATIENT PROFILES
