Trial Lawyers and Fear-Mongering Put Real Victims At Risk in Asbestos Cases, by Kevin Martin

Today’s burning question: You discover you are inhaling between 10,000 and 15,000 fibers of asbestos per day. Should you: a) head for the nearest emergency room, b) call your physician and schedule a checkup, 3) purchase a gas mask to wear outdoors, d) go about your business as usual.

Given the huge asbestos scare that is fueling multi-million dollar class-action lawsuits across the country, it may surprise you to learn that the answer is “d.”

That’s because everyone on the planet is inhaling between 10,000 to 15,000 fibers of asbestos every day of their existence.

Asbestos, you see, is a naturally occurring group of minerals that is found in about two-thirds of rocks on earth, and it – again, naturally – becomes airborne when disturbed by such forces as wind and landslides.

Occasionally this naturally occurring asbestos can create problems. In March, for example, a California construction crew building an athletic field for a Sacramento high school dug into a rock formation containing high levels of asbestos.

The result was understandable concern that students might end up inhaling too much asbestos. Although the firm conducting the construction followed Sacramento County’s Naturally Occurring Asbestos and Dust Protection Ordinance, there were still misgivings.

“While the project appeared to be conducted in a rather safe manner, that does not satisfy me that, in fact, no emissions of asbestos fibers occurred,” says Earl Withycombe, a board member of the American Lung Association of California.

He’s almost certainly right, but he’s also entirely irrelevant since asbestos fibers already are present in the air.

Unfortunately, misperceptions like Withycombe’s play into the hands of personal injury lawyers who are skilled at using such unscientific statements to persuade jurors into awarding vast sums of money to so-called “asbestos victims” who happen to be in perfect health.

That’s not to minimize the risks associated with inhaling or ingesting huge amounts of asbestos over a long period of time. The worst cases of asbestos-related diseases on record happened to American shipyard workers who sprayed fire-proof asbestos into the interiors of troop ships during World War II.

Their problems were exacerbated by the fact that the USO rewarded their efforts with free cartons of cigarettes each week. Years later, medical researchers discovered that asbestos fibers combined with tobacco smoke significantly accelerated asbestosis and other severe lung diseases.

The widespread public fear of asbestos fibers – even at the most benign levels – explains why a relative handful of plaintiff lawyers have been able to bankrupt more than 50 corporations who neither mined nor distributed asbestos, but merely used the talc-like substance in a variety of useful products. In almost all cases, in fact, the asbestos was sealed-in to the products, so the products were actually safer than the surrounding air.

Last year, the RAND Institute of Criminal Justice estimated the lawyers had rounded up more than 500,000 claimants in lawsuits totaling more than $21 billion in potential claims.

An ad hoc committee appointed by U.S. Supreme Court Chief Justice William Rehnquist earlier reported that asbestos litigation is becoming “a disaster of major proportions” and that “the worst is yet to come.” The potential long-term liability posed by rapidly proliferating lawsuits, it reported, easily exceeded $200 billion.

The awards being sought now, in most cases, are not for workers with any kind of serious health effects. A West Virginia jury recently awarded nearly $1 million to each of six palintiffs because they “feared” they might get cancer because they once worked with products that contained asbestos.

Incredibly, none of the plaintiffs claimed that their high-priced “fear” caused them severe emotional distress. The award gave new meaning FDR’s famous phrase that “the only thing we have to fear is fear itself.”

As a result of the massive new awards to healthy workers, many who have actually suffered serious illnesses from asbestos are not being properly reimbursed.

The fear factor has also powered the asbestos abatement industry. Building owners spend about $3-4 billion a year to rid their properties of asbestos.

Yet a 1999 USA Today investigation found: “A person who spends a career inside a building rich with asbestos materials is more likely to die of a lightning bolt, a bee sting or a toothpick lodged in the throat than an asbestos related cancer.”

Michael Thune, the chief epidemiologist of the American Cancer Society told the newspaper, “People have a hard time understanding the magnitude of different risks. This risk of getting cancer from asbestos in buildings is so small that eliminating it wouldn’t create a measurable blip in the 171,000 lung cancer deaths that occur every year.”

Barring widespread tort reform, judges across the country ought to make sure that impartial experts brief juries in asbestos claim trials so they know what level of the mineral actually cause health problems over a period of time.

By all means, reimburse workers whose health has actually been devastated by prolonged exposure to asbestos. But enriching healthy workers who show no ill effects from short exposures to low-levels of asbestos – and their personal injury lawyers as well – is nothing short of frivolous.

(Kevin Martin is a member of Project 21 who owns an environmental contracting firm in the Washington, DC area. He can be reached at [email protected].)

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