Though opinions differ on its nature, everyone seems to be in agreement that Americans today face a crisis when it comes to asbestos.
One side says America is in the midst of an “asbestos disease crisis,” with “approximately 5 million individuals every year” diagnosed with asbestos-related diseases, many of whom are “gravely ill” and not receiving just compensation.
The other side claims we face an “asbestos litigation crisis,” built upon “frightening” medical and legal procedures which raise “red flags of fraud” and have needlessly cost Americans billions of dollars and hundreds of thousands of jobs.
So which is it?
There is no better place to look for answers than the Lone Star State. Approximately 40 percent of all U.S. asbestos lawsuits have been filed here. And Texas is also the home to many silica lawsuits, which use the same medical and legal methodology developed through years of asbestos litigation.
U.S. District Judge Janis Graham Jack is currently presiding over 10,000 silica lawsuits which have been consolidated in her court for pretrial proceedings. Events in her Corpus Christi courtroom are enlightening:
The use of mass screenings is symptomatic of both silica and asbestos litigation, with over 1 million workers screened for asbestosis in the past seventeen years. However, these are not medical screenings meant to identify patients with diseases needing treatment, but rather legal screenings seeking to identify potential litigants.
When evaluating the x-rays and patient histories produced in these screenings, doctors generally make diagnoses that satisfy legal, not medical, standards. The result is most people meeting the legal standards to proceed in court do not meet the medical standards necessary to produce a correct diagnosis of illness or impairment.
For example, one study using independent radiologists identified the presence of lung abnormalities in only 4.5 percent of x-rays used in asbestos litigation, in contrast to the doctors employed by trial lawyers who found abnormalities in 96 percent of the x-rays. Additionally, other studies estimate that up to 89 percent of all asbestos claims come from people who do not have cancer and may not be ill or impaired at all.
Though tens of thousands of people have suffered from asbestos-related diseases, since 1974 asbestos exposure has been reduced to the point where today there is almost no occupational exposure to asbestos. Most of those who have been injured have had their day in court. For those remaining with legitimate medical claims, access to just compensation is being hindered by tens of thousands of meritless lawsuits. Today, these represent the vast majority of asbestos lawsuits, which have cost $54 billion, driven 70 companies into bankruptcy and put as many as 700,000 Americans out of work.
Policymakers wanting to correct this problem ought to be sure they are focused on the true crisis. This is important if the courts are to acknowledge what the medical evidence shows – there is no asbestos disease crisis in our country. Policymakers must compel the courts to acknowledge medical standards, either by putting them into law or by establishing independent medical panels to review claims. Either approach will improve the health of the Texas judicial system and the economy.
Most importantly, it will allow those who have been truly harmed their day in court.
Bill Peacock is the Economic Freedom Policy Analyst at the Texas Public Policy Foundation, an Austin-based research institute.