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.