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How FACT Act would bring transparency to asbestos claims

Austin American Statesman, August 11, 2017

By: John Brieden and Morgan Little

Most Americans have seen those TV ads touting “billions of dollars” set aside for victims of mesothelioma, the lethal cancer associated with asbestos exposure. Few realize that these funds are also at the center of a national controversy that disproportionately affects military veterans.

Until the 1970s, the military used asbestos. No surprise, then, when studies show about one in three asbestos and mesothelioma victims is a veteran.

Those billions were made possible by a special federal bankruptcy law that intended to compensate both present and future victims. Sadly, they pay only pennies on the dollar these days. They have been depleted by a system that allows lawyers to tell one story to the trusts and another in their lawsuits.

In March, the nonprofit Texans for Lawsuit Reform Foundation released a report on how asbestos litigation was driven by lawyers, many based in Texas. Part of the early goal was to overwhelm the judicial system and the defendants. Often, through “inconsistent claiming,” one exposure history was revealed by lawyers in litigation for their clients and an entirely different exposure history when making claims with the trusts.

This often leads to “double-dipping,” which depletes the trusts and enriches lawyers rather than achieving justice for injured people. In a famous North Carolina case, a federal judge recently allowed research into 15 such cases and found evidence suppression in every single one.

The case also brought Texas’ asbestos history into the spotlight. An infamous 20-year-old memo used by the Baron & Budd firm in Dallas to “prepare” witnesses was singled out by the judge. The old claims of promoting perjury or simply preparing witnesses were sparked anew.

Journalist Christine Biederman is trying to help settle that debate by unearthing key testimony about the coaching memo from 19 years ago. So far, she has been blocked by teams of lawyers in an Austin court. We learned recently that high-profile First Amendment attorney Paul Watler has joined the Biederman appeal as it takes on national implications.

How bad has the situation become? Late last year, 13 state attorneys general filed a Civil Investigative Demand with several national asbestos trusts to demand they open their books. The trusts declined and a lawsuit was filed.

Amid the debate, there has been state-level progress. In 2015, the Texas passed landmark legislation requiring asbestos plaintiffs to reveal trust claims. A half-dozen states have passed similar laws, though federal oversight has been virtually nil.

Veterans are becoming involved. In August 2016, the American Legion, America’s largest military service organization, passed a resolution in support of a federal transparency law, called the FACT Act, for Furthering Asbestos Claims Transparency. The bill passed the U.S. House of Representatives in March and awaits action in the U.S. Senate.

Veterans and everyone touched by the tragedy of asbestos exposure need transparency. They need it soon — or there may be little or nothing left. We urge the U.S. Senate to continue reforming a deeply flawed system.

Brieden is a judge in Washington County. Little is chairman emeritus of the Texas Coalition of Veteran’s Organizations.