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Industrial Time Bombs

December 30, 1985

Machinery that kills or maims in a matter of seconds is not the only hazard in the workplace. Exposure to dangerous substances can be just as deadly, but the effects may not show up for years. The laws that protect workers from unsafe machinery work. The laws covering the slow but steady killers do not.

The most serious case in point is asbestos. It is widely used in shipbuilding and home construction because it won't burn and holds heat. But the dust from asbestos also scars human lungs irreparably. Many asbestos workers have died; others, able to breathe only with difficulty, are severely disabled. One expert estimates that 8,000 to 10,000 people will die of asbestos-related cancer each year for the next 20 years.

State worker-compensation laws are seldom adequate to deal with asbestosis. They often require that claims be filed within periods that expire before the cause of disease is clear. Compensation is often based on a victim's salary at the time of exposure, often decades in the past.

So disabled workers have turned to the courts, with such success that by the time the Manville Corp., the nation's leading asbestos producer, filed for a Chapter 11 bankruptcy in 1982, 16,500 cases had been filed against it. Manville estimates that it might ultimately face about 52,000 asbestos-related lawsuits, with awards totaling more than $2 billion by the year 2001. In all, 30,000 injury suits have been filed against asbestos firms, and future cost estimates range as high as $87 billion.

The most recent and exhaustive history of asbestos health research, corporate indifference to worker safety and resulting legal battles appeared in the New Yorker magazine. Writer Paul Brodeur describes how attorneys for plaintiffs dug up correspondence indicating that manufacturers, including Manville, knew of the dangers of working with asbestos as early as the 1930s. They did not tell workers of the hazards even when X-rays from company-sponsored physical examinations first showed signs of disease.

Manville's solution is legislation that would direct claimants to state worker-compensation systems, whose funds would be enhanced by payments jointly made by manufacturers and the federal government. Manville claims that the federal government shares the responsibility because it directed shipyards to buy asbestos in wartime and did nothing to promote better safety for workers. People suffering from asbestosis would lose their right to sue under this bill--a provision that might render it unconstitutional.

Similar legislation sponsored in the past by former Rep. Millicent Fenwick (R-N.J.) and Sen. Gary Hart (D-Colo.) got nowhere. A newer bill by Rep. Austin J. Murphy (D-Pa.) would set a dangerous precedent of federal involvement. Spreading the liability might also strip manufacturers of any incentive to sponsor research on produce safety and worker protection. Companies that resisted safety standards in the past would, in effect, be rewarded for their resistance.

Manville is also negotiating with its creditors and lawyers for future claimants in a federal bankruptcy court in New York. That could be an important settlement; critics are warning that the trust fund that may be established should be large enough to ensure that future asbestosis victims will not be denied compensation.

Asbestosis lawsuits are presenting the courts with complex cases for which compensation is uneven and often delayed beyond death. Lawyers may benefit more than diseased victims. There are alternatives to the uneven hand of justice in these cases, but they may work no better. This much is certain: Legal tangles like those surrounding asbestos will recur in industrial societies that continue to use new raw materials whose side effects may not appear for decades.

A recent report by the Institute for Civil Justice at Rand Corp. says that it is time for a systematic look not only at asbestosis but also at the frame-work in which all such industrial time bombs are handled.

Rand wants a national commission to study all the problems posed by massive numbers of toxic-injury lawsuits. The report's authors say that the commission should try to determine precisely what laws that compensate workers and protect them on the job should accomplish, how to decide who is entitled to compensation and how much American consumers and taxpayers are willing to pay when holes turn up in the industrial safety net.

The report insists that the commission "not be controlled by representatives of participants in the asbestos crisis; for them the stakes are too high to expect sufficient attention to promoting the general welfare."

Even if the asbestos crisis were magically cleared away today, there will be others in a world that cannot anticipate tomorrow's hazards. A commission, jointly selected by the President and by Congress, might provide the framework for dealing with those hazards before they cause breakdowns in systems designed for simpler days.

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