Asbestos Trust Fund: A Taxable Taking?

If the trust fund does pass, it appears it will do so over considerable opposition from the insurance companies and some of the manufacturers. The interesting constitutional issue is whether Congress can force them to pay into the fund.

Proponents of the fund analogize the fund as another tax. Opponents claim forcing them to pay into the fund would constitute an impermissible taking. Now, it is true that democratic governments impose taxes on certain segments of society to pay for alleged ills done to others. However, the fund would require quite a bit of money up front and participants would be required to contribute specific amounts.

So, does that mean that there is a constitutional limit on how much you can tax someone? And, can you preemptively set someone's tax liability to bypass any finding of liability? If so, what's to prevent the government from nationalizing parts of the private sector? Heck, why don't they just "tax" the tobacco companies based on their entire market caps? Sounds a lot like socialism.

U.S. asbestos bill gains another sponsor

S.852: A FAIR Plan or Fairly Bad?

It takes a singular political talent to bring such disparate interests as trial lawyers, insurance companies, labor unions and manufacturers into common cause. So, give Senator Specter credit for putting forth a proposal that brings all these interests together...in opposition unfortunately.

Well, Senator Specter can take cold comfort in that the Washington Post editorial page supports him though how many votes that brings is an unknown. But, tomorrow everyone gets a chance to take shots at Specter's work. Just goes to show, if you try to please everybody, you end up pleasing nobody...except the Washington Post editorial board.

The fact that almost everyone with an interest in this issue opposes the bill probably indicates that it's very fair or really, really bad. The bill is, to say the least, very long and complicated.

Plaintiff's Lawyers and Right-wingers Agree Trust Fund Is Bad?

Hell hath frozen over if both the plaintiff's bar and conservatives both oppose the asbestos trust fund. Well, at least the right wing has started to change its tune with a campaign to stop Specter. Of course, both groups oppose it for different reasons. The plaintiff's bar has obvious reasons to oppose this. Now, the right sees the fund as a huge "tax" on business and a slush fund for the plaintiff's bar. It they're right, then the next logical thing would be the plaintiff's lawyers to come out in favor of the trust fund. If that happens, we have surely entered the Twilight Zone.

Stop the Arlen Specter Asbestos Tax!
Stop the Asbestos Trust Fund

Cutting Losses, Going for the Kill

What's interesting about the asbestos reform negotiations in Congress is seeing the players change sides. First, the UAW has come out in support of the as-yet-to-be-proposed bill breaking the monolithic opposition from Big Labor last year. Before that, with some of the insurers breaking ranks and opposing the basic concept of the bill, one wonders if it's a net wash or a gain for either side.

It's probably safe to say that both sides see changes in the states that affect the likely outcome of doing nothing. Medical criteria bills are under consideration in Texas, Florida, Georgia and Tennessee and may come up in Mississippi and South Carolina. If that happens and the bills do what they're supposed to (a big "if" at that), a good chunk of the disputed asbestosis cases are gone or moving to other states.

For the insurers, that qualifies quite nicely in the "good things" category and for the labor unions and some of the plaintiff's bar, the "bad things" category. So, the dynamics of doing nothing have changed for the better for the insurance companies and their insureds and for the worse for some of the plaintiffs' interests. It just might well be that a trust fund would be more expensive than doing nothing, which is probably why some of the players are changing sides. And, it wouldn't it be ironic if they were right?

Posturing or Progress on Asbestos Reform?

It seemed only a couple of years ago that Senator Hatch was saying what Senator Specter said today. So, I should take the "we're thisclose" to a deal announcement with some skepticism. However, if there are Democrats willing to come along for the ride, he might be onto something.

Of course, if the defense interests are willing to accept a trust fund plan that allows plaintiffs to go back to court and sue if it runs out of money, they're going to end up very, very disappointed...and short $140 billion. And, just how can they force insurers or defendants, who don't want to play ball, to pony up for the fund? I guess we'll find out later this week when the proposed bill comes out.

Senator Specter Says Asbestos Deal 'Very Close'

No Connection between SV40 and Mesothelioma

As a lawyer, I sure didn't go to medical school and I suspect many a lawyer is as science- and math-impaired as I am. So, being able to evaluate what doctors say is quite hard unless you have another doctor or scientist to call the other one a quack. However, this study suggests that any connection between the SV40 polio vaccine and mesothelioma was caused by contamination in the testing procedures. So, all those plaintiff's lawyers trying to bring in the big pharmaceuticals into asbestos litigation just got a lump of coal in their settlement stocking. Of course, it's just another study and I'm sure there are studies that suggest the opposite. So, let the Daubert battles continue!

SV40 not implicated in mesothelioma

Plaintiff's Lawyers Complaining About Frivolous Lawsuits? Hell Hath Frozen Over

It seems that asbestos plaintiff's lawyers aren't too thrilled with silica plaintiff's lawyers trying to muscle in on their racket. So much so that California asbestos plaintiff's lawyers are complaining about shady doctors and mass screenings. And, they got the California courts to agree with them.

Also, the silicosis plaintiff's lawyers are taking it on the chin in Texas. What with plaintiff's doctors basically admitting their diagnosis are questionable, one wonders why someone hasn't taken them to task in the asbestos world.

This also points to the major challenge for any medical criteria for asbestos cases. If doctors are corruptible, there need to be sufficient safeguards for medical criteria to be effective. Determining who would be "impaired" may also be as messy and expensive as it is now.

But, for now, I'll just be amused at hearing asbestos plaintiff's lawyers complaining about shady doctors and questionable medical diagnosis. Not that any of them ever use such doctors or use such dianogsis, no?

Mesothelioma Plaintiffs Down and Out in Indiana

As a Californian, it's surprising to see such pro-defense decisions in courts of other jurisdictions. This decision from an Indiana appellate court basically shuts down any mesothelioma cases in the state. The court held that the plaintiff "must submit evidence that a reasonably experienced physician could have diagnosed the patient with one of these conditions within the statute of repose period, not merely that the plaintiff had lung damage that could eventually lead to one of these conditions." Given that the statute of repose is ten years and the latency period for mesothelioma is much longer than that, mesothelioma plaintiffs are effectively precluded from bringing a cause of action in the Hoosier State.

It seems the court was following the precedent of the Indiana Supreme Court because it had previously struck down the statute of repose as unconstitutional under the state constition but was reversed by the state supreme court. I wonder if that converts all the potential cases in the Hoosier state into asbestosis claims with later mesothelioma claims filed in another state.

Does this mean that Indiana asbestos lawyers need to get admitted into neighboring states? If so, stay away from California. We've got too many lawyers already.

JURICH v. JOHN CRANE, INC. No. 45A05-0407-CV-385 Indiana Court of Appeals (March 31, 2005)

Happy Asbestos Disease Awareness Day?

According to this website today is Asbestos Disease Awareness Day. Of course, since today is also April Fool's Day, one wonders if this is a joke or an example of brain dead marketing. But you can get blue wristbands to commemorate the day. I wonder what the wrist bands are made of? Crocidolite? Old gaskets, half-rounds or packing?

Of course, some law firm has awarded Senator Harry Reid "for outstanding contribution to public education and awareness of mesothelioma lung cancer". You know, I don't remember Senator Reid being a big asbestos advocate before becoming the Senate minority leader. I wonder if this "award" comes with a bunch of $2000 checks and a promise to filibuster.

And, why have asbestos awareness now nearly 20 years after widespread use in the US ended? It's not as if more people are going to get ill if something isn't done right now. Could it be a cheeseball attempt to stop the proposed reform bills in the Congress?

Well, at least one of the plaintiffs here at the court reporting service in Oakland is wearing a blue wrist band. I guess we'll see if the plaintiff's lawyers are wearing any today as well. Of course, it's the unimpaireds I see today so perhaps they aren't the best poster children for today.