George W. Bush has declared that tort reform will be a major part of his forthcoming campaign. In the Senate, majority leader Bill Frist has said he will make it a “personal priority” in the present session of Congress to deal with what he calls “the current asbestos litigation crisis.” Frist intends to do this by persuading his colleagues to enact Orrin Hatch’s Fairness in Asbestos Injury Resolution Act, known as the FAIR Act to its advocates, and as the Frist/Hatch asbestos bailout bill to its detractors.
In a speech before the Senate in November, Frist described the Johns-Manville Corporation and W.R. Grace & Company as “reputable companies” that had been driven into bankruptcy because of asbestos litigation. What he apparently did not know was that Johns-Manville had not only been aware since the early 1930s that incurable asbestos lung disease was disabling and killing its own workers but also had instituted a corporate policy not to inform sick workers about X-ray findings showing that they had developed asbestos disease.
In an infamous memorandum, the medical director of Johns-Manville described his company’s policy toward unimpaired workers with X-ray evidence of lung damage as follows: “The fibrosis of this disease is irreversible and permanent so that eventually compensation will be paid to each of these men. But as long as the man is not disabled it is felt that he should not be told of his condition so that he can live and work in peace and the Company can benefit by his many years of experience.” Is it any wonder that when presented with such evidence from internal company documents, jurors in what Senator Frist calls “the flawed tort system” began meting out punitive damages against Johns-Manville for outrageous and reckless misconduct?
As for W.R. Grace, which also had to pay punitive damages in asbestos litigation, Frist apparently did not think it important to inform his fellow senators in his speech that the asbestos-contaminated vermiculite mine and mill in Libby, Montana–many of whose residents, he acknowledges, have recently been diagnosed with asbestos disease–was owned by none other than W.R. Grace. Nor did he tell them that in 2001 Grace settled, for more than $2.75 million, a fine levied by a federal judge who found that the company had unlawfully denied the Environmental Protection Agency access to the Libby mine. Or that in 2003 the same judge ordered Grace to pay more than $54 million for emergency asbestos cleanup work performed by the EPA in Libby, and for medical screening of Libby residents and mine workers.
Equally puzzling is the manner in which Senator Frist, a physician, managed to mislead his fellow senators about the relationship between asbestos inhalation, cigarette smoking and the development of lung cancer. Twice in his speech, he warned against allowing the victims of lung cancer caused by smoking to make claims against the FAIR Act’s compensation trust fund, on the ground that such claims might jeopardize the solvency of the fund. To support this position, he declared that fully 90 percent of the Manville Trust’s lung cancer claimants had been demonstrated to be current or former smokers. (When Johns-Manville filed for bankruptcy in the 1980s, the Manville Trust was set up to pay compensation to thousands of workers who had developed asbestos disease after being exposed to the company’s products.)
It is difficult to believe that a medical doctor could be so uninformed these days as to speak of lung cancer among asbestos workers who are current or former smokers as a disease undeserving of compensation. In any event, Senator Frist should now familiarize himself with the studies published in the peer-reviewed medical literature, which demonstrate the extraordinary synergy that exists between cigarette smoking, asbestos exposure and the development of lung cancer. These studies show that nonsmoking asbestos workers develop lung cancer five times more often than nonsmoking workers not exposed to asbestos, that cigarette-smoking workers not exposed to asbestos develop lung cancer ten times as often as nonsmoking workers not exposed to asbestos, and that workers who both smoke and are exposed to asbestos develop lung cancer fifty to sixty times as readily as workers who neither smoke nor are exposed to asbestos.
All of which should serve as a warning to Frist’s Senate colleagues on both sides of the aisle that they should do their own homework on the nature of asbestos disease and not be swayed by shrill criticism of the tort system. After all, it is this system that exposed the misdeeds of the asbestos manufacturers to begin with, and provided the only true measure of justice and compensation for tens of thousands of sick asbestos workers and the families of dead asbestos workers, who had been betrayed for decades by their “reputable” employers.
