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The-Waiting-for-Godot Approach to Asbestos : But a wise judge offers a way out of the litigation jungle

December 02, 1990

It was nearly 20 years ago that asbestos workers filed the first lawsuits against the Johns Manville Corp. for injuries resulting from their exposure to asbestos fibers. In that time, Manville has resolved about 22,000 personal injury claims. But 130,000 are still pending, and no one can predict how many more will still be filed.

Many asbestos victims--perhaps 12,000--have died before they were able to receive compensation for the cancer and respiratory illnesses caused by Manville's asbestos products. Many others, who suffer from major asbestos-caused disabilities and who have lost income and incurred enormous medical debts, have been waiting years for their money.

Neither the lawyers nor the court experts in this litigation, however, have had to endure the same agonizing wait for their compensation. This inequity--along with questionable filings by plaintiffs' lawyers, deliberate stalling by defendants, excessive billing by their attorneys and long-delayed payments to victims--has plagued this litigation since its beginning. The Manville Corp. was one of the worst offenders, but by no means the only one.

More than eight years have passed since Manville filed for bankruptcy protection from the flood of lawsuits filed against it. Now, more than two years have elapsed since the corporation emerged from bankruptcy proceedings to begin compensating the tens of thousands of asbestos victims whose claims were then pending.

Manville's 1988 bankruptcy reorganization, creating the Manville Personal Injury Settlement Trust, was intended to solve many of the problems inherent in asbestos litigation. But it failed miserably. Thousands of new claims, far more than expected, continued to be filed; the money available to pay those claims proved to be grossly inadequate, and all sides maintained their litigious posture, causing legal fees to drain as much as two-thirds of the trust's funds. As a result, the Manville mess has worsened since 1988 rather than improved.

Last July, New York Federal District Judge Jack B. Weinstein declared that he was fed up with the "wasteful, inefficient war over asbestos" and ordered the parties to restructure the Manville Trust so it will pay victims "when they need it . . . not 10 or 20 years hence."

The judge recently announced an agreement on restructuring. While there is precious little in this shameful chapter about which the civil justice system can be proud, the agreement does offer some hope that injured individuals will now see some of the money due them during their lifetimes.

The agreement breaks new ground in several respects. The sickest workers will now receive their money before those who are not as ill. Plaintiffs' attorneys have accepted a cap on their contingency fees. The restructuring agreement also pumps more money into the trust to pay claims.

The agreement is solid and innovative, as well as long overdue. We urge that the anticipated appeals be decided quickly and that money finally be paid to those who have had to wait so long.

Judge Weinstein indicated that he views the Manville agreement as a model for other asbestos defendants. In so doing, he joins a growing list of jurists, including U.S. Supreme Court Chief Justice William H. Rehnquist, who are rightly calling for a fairer, more efficient and more comprehensive approach to paying asbestos claims.

Sadly, asbestos litigation is far from over. Manville is only one of some 20 defendants; the recent agreement applies only to claims against Manville.

But we can hope that the important Manville agreement will provide the impetus to finally end this two-decade-long legal war of attrition--a war that has for too long been fought over the dead bodies of asbestos workers.

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