Asbestos litigation is the longest-running mass tort in the nation, and a classic example of lawyer-driven lawsuit abuse.
For decades, a group of personal injury trial lawyers manipulated the legal system to obtain fees for themselves by filing lawsuits on behalf of tens of thousands of uninjured people whom the lawyers identified and recruited through questionable means. The lawyers then used people who were suffering from malignant mesothelioma or another debilitating asbestos-related disease as leverage to make money off the lawsuits they filed for the uninjured clients they had recruited.
In the early 2000s, some of the same personal injury trial lawyers began using the asbestos litigation model to pursue silicosis lawsuits. As was the case in many asbestos lawsuits, within a few years, these lawyers had filed cases on behalf of thousands of plaintiffs who were not suffering from any silica-caused disease.
No one disputes that inhalation of asbestos fibers or pulverized silica can cause serious illness, but unfounded lawsuits filed by personal injury trial lawyers were draining the system that was meant to help those who had truly been hurt, and delaying justice for sick individuals.
Starting in 2005, the Texas Legislature took steps to end abusive asbestos and silica litigation. Over the course of several legislative sessions, Texas passed common-sense reforms to ensure that any Texan who is truly sick with an asbestos- or silica-related disease can quickly obtain his day in court. At the same time, Texas’ reforms shut down the ability of personal injury trial lawyers to profit from unethically mass recruiting clients.
2005: A Model for the Nation
In 2005, the Texas Legislature passed Senate Bill 15, which is the cornerstone of Texas’ multi-year effort to end abusive asbestos and silica litigation, and is the model for asbestos litigation reform throughout the nation. Among other things, SB 15:
- requires courts to use medically sound diagnostic criteria to determine if a plaintiff truly has a disease caused by exposure to asbestos or silica (to address the problem of lawyers filing lawsuits on behalf of unimpaired people);
- transfers asbestos and silica cases pending in Texas state courts to two multidistrict litigation courts (MDL) for coordinated and highly efficient pretrial proceedings (see also Lawsuit Procedures);
- moves pending cases by unimpaired plaintiffs to two “inactive dockets” managed by the MDL courts, where the cases remain pending until each plaintiff establishes an actual impairment under the statutory medical criteria;
- requires dismissal of new asbestos or silica cases that do not satisfy the statutory medical criteria but allows a plaintiff to re-file his lawsuit later if actual impairment is demonstrated;
- prohibits “bundling” of hundreds of plaintiffs’ cases into a single lawsuit, a tool regularly used before 2005 by personal injury trial lawyers to leverage settlements on behalf of unimpaired plaintiffs;
- limits the use of diagnostic materials obtained through mass medical screenings paid for by trial lawyers and used to identify potential clients, most of whom have no actual asbestos- or silica-caused disease; and
- extends the statute of limitations to allow an asbestos or silica lawsuit to be filed within two years after diagnosis of actual impairment no matter when the harmful exposure happened, thus ensuring access to the courts for anyone suffering from an asbestos- or silica-caused disease.
2007: Perfecting the 2005 Law
The focus of SB 15 was to ensure that any plaintiff suffering from an asbestos- or silica-caused disease would have his lawsuit resolved quickly, while filtering out cases without merit. To further build on this objective, in 2007 the Legislature passed Senate Bill 749, which prohibits postponement of trial when a plaintiff is suffering from asbestos- or silica-caused cancer or other malignant disease. This measure was passed in collaborative agreement by TLR and the plaintiff lawyers who typically represent these cancer victims, and helps ensure these cases are not stalled within the court system.
2013: Resolving the Dilemma of the Inactive Docket
By 2013, thousands of asbestos and silica cases filed by personal injury trial lawyers on behalf of unimpaired plaintiffs had been sitting on Texas’ inactive dockets for almost a decade. By law, these cases could neither move forward to trial nor be dismissed. Thus, further legislative action was required.
To address this problem, the Legislature passed House Bill 1325 in 2013, requiring the MDL pretrial courts to dismiss all unimpaired plaintiffs’ cases sitting on the inactive docket. Today, rather than sitting on an inactive docket, these lawsuits are simply dismissed and can be re-filed whenever the plaintiff meets the medical criteria required by law. When re-filed, the case will proceed as if it were never dismissed in the first place.
2015: Dealing with Inconsistent Claiming
The final piece of the asbestos and silica lawsuit abuse puzzle was passed by the Texas Legislature in 2015.
Many companies that manufactured or used products containing asbestos had filed bankruptcy and created trust funds worth billions of dollars to pay past, present and future asbestos liabilities. As a result, a person suffering from an asbestos-caused disease can obtain compensation in two ways: by filing a lawsuit against solvent defendants and by filing a claim with one or more of the trust funds.
Injured plaintiffs are entitled to—and often choose to—pursue both routes. However, before 2015 there was nothing stopping personal injury trial lawyers from manipulating the system and improperly double dipping. These lawyers told different stories about their clients’ exposure histories to the trust funds than they told to defendants in the lawsuits. This type of manipulation of the evidence is typically called “inconsistent claiming” and is a form of fraud.
In 2015, the Texas Legislature enacted House Bill 1492 to shut down inconsistent claiming. HB 1492 requires a plaintiff in an asbestos case to file his claims with all available asbestos bankruptcy trusts, and then provide the trust-claim documents to the litigation defendants before the case can be presented to a judge or jury. As a result, defendants receive the same information as the asbestos bankruptcy trusts, eliminating the lawyer-driven practice of inconsistent claiming.
For a more detailed review of asbestos litigation in Texas, please read The Story of Asbestos Litigation in Texas and Its National Consequences, a study conducted by the TLR Foundation.
See also Personal Injury, Product Liability