What do Ford, General Motors, General Electric, Dow Chemical, Pfizer and Viacom have in common, besides being on the Fortune 500 list? A nasty little problem called asbestos. All these companies have used–and continue to use–this toxin, exposing employees and consumers to asbestos long after it was known to be harmful. All of them are beset by thousands of claims filed by asbestos victims, and all have been ordered to pay damages amounting to millions–in some cases billions–of dollars. And all are in desperate need of a legislative cure for their asbestos woes, one that would shrink their liability. So they bought one. It’s called FAIR–the Fairness in Asbestos Injury Resolution Act.
FAIR is sponsored by Senators Arlen Specter and Patrick Leahy, who have alerted the Senate to prepare for a vote on the bill sometime this fall. The watchdog group Public Citizen estimates that the asbestos industry–which includes both asbestos manufacturers and “Tier 2” companies, like Ford and GE, that use asbestos in their products–has spent roughly $145 million over the past two years peddling the bill to Congress. But that’s a pittance compared with the savings the bill would yield them. If FAIR becomes law, Public Citizen estimates, the top ten asbestos corporations’ liability will be slashed by 79 percent, or $20 billion. This is textbook corporate welfare under the guise of “tort reform,” the movement to absolve corporations of their legal responsibilities to those whom they injure, contaminate or kill.
Like other tort reform efforts, FAIR is being promoted as a response to “frivolous lawsuits,” but it is less a reactive measure than a pre-emptive one. Asbestos disease is on the rise: According to data from the Centers for Disease Control and the National Center for Health Statistics, it will peak around 2015, claiming roughly 100,000 lives between now and then. With asbestos still widely used in both residential and commercial construction–as well as in household products ranging from fertilizers to insulation–dangerous exposures persist. The American Thoracic Society estimates that in the construction industry alone, 1.3 million workers are exposed to it daily, many of them among the most vulnerable members of the workforce. According to Jonathan Bennett of the New York Committee for Occupational Safety and Health, “A tremendous amount of asbestos removal is done illegally…and it is most commonly done by corrupt contractors who hire immigrant workers who are desperate for jobs.”
FAIR places such high-risk workers in further jeopardy. If the bill passes, workers who develop asbestos disease will have to produce extensive records linking their exposure to their workplace in order to receive compensation. Trying to extract records from unscrupulous employers is hard enough under the current tort system, but FAIR–which not only places arbitrary caps on the amount of compensation victims can receive but also restricts lawyers’ fees to 5 percent of the award–will make it all too likely that workers will go through the process unassisted. Day laborers trying to prove they’ve been exposed to asbestos by a negligent contractor will face a Sisyphean task.
And asbestos is hardly limited to construction sites. A 2004 Environmental Working Group report noted that those at serious risk “include the families of the men and women who work with asbestos, the communities that surround current and former asbestos mines…and consumers who innocently exposed themselves and family members to asbestos through products like hair dryers, electric blankets, attic insulation, home siding and ceiling and floor tiles.” This widespread exposure lays the groundwork for a public health crisis that would carry a massive price tag for asbestos companies.
But if FAIR passes, asbestos victims will no longer be able to take them to court. Instead, people who develop asbestos-related disease would seek compensation from an industry-sponsored trust fund, administered by a presidential appointee and advised by industry representatives. FAIR’s backers–who range from the National Association of Manufacturers to the United Auto Workers–argue that by eliminating frivolous lawsuits, this system will save jobs in embattled US industries while providing just compensation for the “truly sick.” But the truth is that under FAIR many asbestos victims will never see a dime of compensation.
Under FAIR’s trust-fund system, it would no longer be sufficient for victims to prove that asbestos made them sick. To establish a claim, they would have to meet FAIR’s “medical” criteria for asbestos-related disease, which have no basis in scientific fact. Says Bennett, “The problem for the asbestos companies is that so many people have asbestos disease that they’ve had to redefine what that is.” FAIR stipulates, for example, that lung cancer patients seeking compensation must have asbestos scarring in both lungs. The bill also demands that claimants demonstrate a minimum exposure period of fifteen months–even though it is well established that just one month of occupational exposure to asbestos can double the risk of lung cancer.
Treating asbestos-related diseases like mesothelioma and asbestosis–after the oxygen tanks have been purchased and the chemotherapy and pain medications paid for–can cost an individual patient millions. But the toll asbestos takes on its victims cannot be measured in dollars and cents alone. As James Fite, national secretary of the White Lung Association (a group devoted to educating the public about the hazards of asbestos exposure), explains, “You’re talking about people who all their lives were strong and built things and were good with tools. Now they have to worry about how far they park their car from the grocery store. Will they be able to carry those groceries across the parking lot?”
FAIR paves the way for a grim scenario: Deprived of the right to take their cases to court and forced to appeal to an industry-controlled fund for compensation, tens of thousands of asbestos victims will be left to suffocate while asbestos companies are absolved of their crimes. Bennett notes that FAIR’s sponsors like to call it a “no-fault bill,” because the legislation does not identify a single company responsible for asbestos-related damages. But it is public knowledge that the fault for America’s asbestos disease epidemic lies with Halliburton, Honeywell and the scores of other corporate powerhouses that have poisoned their workforces and their communities. Meanwhile, healthcare costs continue to rise, employers continue to cut medical benefits for active and retired workers, and asbestos use shows no signs of abating. Perhaps most frightening, with right-wing attacks on public services–from OSHA to Social Security–and employer attacks on unionization, health benefits and pensions accelerating, these ineligible asbestos victims will likely be only the first wave in a flood of castoff ill, left literally gasping for breath.