Juridisch nieuws

Fraud? Thousands in silica case also sued for asbestos damages

The International Herald Tribune, February 3, 2005 Thursday

BYLINE: Jonathan D. Glater

SOURCE: The New York Times



BODY:

Companies in the United States battling lawsuit claims of injuries caused by exposure to asbestos or silica have long contended that they are victims of fraud. Now, they finally have evidence that their concerns could be valid. Thousands of people who have said they were injured by one potentially lethal material are apparently double-dipping, now asserting separately that they were injured by the other.



More than half of the plaintiffs in a federal lawsuit in Texas seeking compensation for exposure to silica -- used in making glass, paint, ceramics and other materials -- previously filed claims against a trust set up to compensate victims of asbestos, a cancer-causing flame retardant.



Jared Garelick, a lawyer at Claims Resolution Management Corp., a trust that processes asbestos-related claims, says the discovery of the other suits came after defense lawyers in the Texas case provided a list of plaintiffs to the trust. It ran the names of 8,629 plaintiffs through its database and found that 5,174 had already filed asbestos claims, probably recovering money.



"That's huge," said Nathan Schachtman, a defense lawyer at the firm of McCarter & English in Philadelphia who has defended companies in both asbestos and silica cases. "It's a big problem, not just for the courts," he said, "because it's difficult to get the information" about where plaintiffs filed claims previously.



The evidence of seemingly duplicate injury claims was expected to emerge at a Senate Judiciary Committee hearing on Wednesday on proposed legislation on asbestos liability. The evidence will almost certainly be used by companies to ask for greater protection from silica-related lawsuits, while labor advocates will argue that blocking such suits may harm people filing legitimate cases. The evidence could also complicate efforts to enact a law that would remove asbestos claims from the courts.



According to prepared testimony by Lester Brickman, a law professor at the Cardozo School of Law of Yeshiva University, who was to appear at the hearing, "As with asbestos, the tragedy of silica exposure is being transformed into an enormous money-making machine in which baseless claims predominate."



Labor advocates fear that Congress will not treat the asbestos and silica matters as separate issues. Dr. Laura Welch, medical director at the AFL-CIO labor federation's Center to Protect Workers' Rights, who also was to testify on Wednesday, said that legislation dealing with asbestos should not be expanded to limit the right to sue as a result of exposure to unrelated substances.



"We don't want to derail what could be an important compensation bill for asbestos disease," she said. "If there are bad claims for silicosis, they should deal with that head on."



But any legislative solution to asbestos-related injury that does not deal with the possibility of a wave of silica lawsuits does not go far enough, said Michael Baroody, executive vice president of the National Association of Manufacturers and chairman of the Asbestos Alliance Steering Committee, a coalition of companies and associations.



"It is certainly our hope," he said, "that the legislation would contain language that would make that clear, and preclude that sort of back-door return to the courts."



The hearing is to take place as the administration of President George W. Bush is pushing for changes in the U.S. civil justice system, for example, limiting the amount of damages that plaintiffs in civil suits can be awarded. Evidence that claims filed against companies that made, supplied or worked with silica may be dubious could bolster the administration's position.



It is possible that a person could suffer from exposure to both asbestos and silica. But such a high number of double occurrences is implausible, said Schachtman, the corporate defense lawyer. Asbestos litigants who also say they were injured by silica, he said, will have to claim "that they didn't know that they had an injury from silica but they already knew they had a lung injury" from asbestos. That is a difficult argument, he said.



A legislative solution to the problem of asbestos liability is complicated by the fact that some people may indeed have been harmed by both substances, as Judge Edward Becker of the U.S. Court of Appeals for the 3rd Circuit said last month.



And there is recent evidence, unrelated to the problem of duplicate claims, that unsupported -- even fraudulent -- claims are a serious problem. In the lawsuit now under way in Corpus Christi, Texas, doctors who had signed documents saying that plaintiffs in the case were suffering from silicosis backed away from those conclusions when questioned under oath late last year