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NotificationsNotify me of updates to ASBESTOS LITIGATION: PROSPECTS FOR LEGISLATIVE RESOLUTION, pp. 137 - 152
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Authors:  Edward Rappaport
A large volume of litigation has been occasioned by occupational exposure to
asbestos, which may ultimately result in payments of $200 billion or more and has
already bankrupted numerous companies. This litigation “explosion” has led to a number
of innovations in legal process, but some of the more comprehensive settlements were
overturned by the Supreme Court, with the Court suggesting that the situation “calls for
national legislation.”
One approach proposed in the 109th Congress, embodied in H.R. 1957 (Cannon et
al.), would conserve the resources of defendant corporations — many of which have been
bankrupted by asbestos cases — so that funds could be applied first to workers who are
already sick. This would be done by establishing precise standards for proving the
presence of asbestos disease for legal purposes, and postponing the cases of those who
might show evidences of exposure but are not yet impaired. H.R. 1957 would also apply
to the asbestos problem a number of principles known under the more general rubric “tort
The bill receiving the most attention in the 109th Congress, S. 3274 (Specter and
Leahy) would also establish standards for proving injury but, instead of taking the tort
reform approach, would remove the cases from the court system entirely. In its place
would be an administrative system and a special fund to pay claims. S. 3274 would
define nine asbestos disease categories, each with a specified level of compensation,
ranging from $25,000 to $1.1 million. The fund from which claims would be paid would
be financed by assessments on defendant companies and their insurers. Each of the
largest firms subject to assessment would be responsible for paying up to $27.5 million
per year for up to 30 years, with an overall funding goal of $140 billion.
The most debated points of S. 3274 have included the adequacy of the funding
scheme, the levels of compensation, medical criteria (especially as regards smoking
history), and start-up and close-down issues. 

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