San Antonio Express-News, Anton Caputo
Published June 7, 2005
On government maps, they show up as hot spots - nine Texas counties boasting some of the highest death rates from asbestosis in the country.
Shipbuilders, plumbers, builders, workers from all sorts of industries, inhaled microscopic asbestos fibers a lifetime ago, 25 to 40 years ago in some cases.
Their lungs attacked the fibers in vain, secreting an acid that failed to damage the asbestos but scarred the surrounding tissue, eventually leaving them unable to breathe.
As many as 50,000 asbestos lawsuits are pending in Texas courts, seeking damages from not only asbestosis but from other asbestos-related diseases and cancers.
And Texas lawmakers, mindful that the number of potential victims has yet to peak, passed legislation in the waning hours of the session, setting a higher bar for defendants to make their cases.
The new rules likely will halt thousands of cases and prevent more from being filed by setting strict medical standards for claims. But it also eliminates deadlines that had prompted many to rush to court, and will allow them to return any time they develop asbestos-related illnesses that meet the new medical criteria.
Dissenters say the legislation's medical standards are too strict and will cut out thousands of people who have legitimate claims. It's the result, they say, of the bullying of a Republican-dominated state government that was adamant about delivering on its promise of asbestos litigation relief to industry and insurance companies.
But the bill's author, Sen. Kyle Janek, R-Houston, said the bill is the result of "negotiation at its best" that allowed trial lawyers and tort-reform lobbyists to hammer out a compromise, albeit under the intense pressure of the governor and lieutenant governor.
Mike Ramsey, former president of the Texas Trial Lawyers Association, admits it was the simple political reality that lawmakers and lobbyists might settle the issue without the trial lawyers that brought them to the table.
The association won a narrow victory in 2003 when a similar but more aggressive bill was defeated. Ramsey said the group couldn't depend on the same thing happening again.
"Negotiating positions are driven by uncertainty," he said. "If we would have known that we could have successfully fought the passage of any bill, we would have, but we couldn't make that assumption."
As it was, the trial lawyers signed off on legislation that Ramsey termed as "more fair than the ones before," and it passed through the House and Senate.
Janek said the dual support of the attorneys and industry was important in maneuvering the bill around potential political minefields. This issue, he said, crossed normal party lines, threatening Democrats in strong business districts and Republicans in strong blue-collar districts.
"A lot of the members were worried," Janek said. "They were worried about being pinched in a vise by this."
The pressure over asbestos litigation has been mounting across the country for almost 30 years as more than 730,000 people filed claims that have cost the nation's businesses and insurance companies $70 billion, according to a recent study by the RAND Corp.
The substance was commonly used by many industries for decades, and as many as 27 million workers nationally were exposed from 1940 to 1979.
Breathing asbestos fibers can cause lung cancers including mesothelioma, as well as many other lung problems, including asbestosis.
Some 838 Texans died of asbestosis in the 1990s, with hotspots in Orange, Jefferson, Jasper, Newton, Burleson, Sabine, Tyler, Hardin and Galveston counties, according to the Centers for Disease Control and Prevention.
The CDC started keeping statistics on mesothelioma deaths in 1999. That year, 125 Texans died of the cancer, which ranked seventh in the country.
"And we ain't peaked yet," said RAND Corp. senior economist Steve Carroll. "We have already spent well over $70 billion on asbestos, and there is every indication that, if things continue down the same track, we will spend at least that much and maybe more in the future."
Carroll's reasoning: RAND's study found that the average person files an asbestos claim 40 years after being first exposed. The asbestos industry peaked in the United States in 1973.
Given that, Carroll expects the number of asbestos claims to peak in about 2013 unless the rules are changed.
Many of the suits were filed on the basis of X-rays that showed scarring or other damage to the lungs, but involve people who haven't demonstrated symptoms of disease.
In some high-profile cases, the X-rays couldn't be independently verified. This prompted many, including Gov. Rick Perry, to accuse greedy trial lawyers of flooding the courts with bogus lawsuits.
"There is no justifiable reason that people who are not harmed should be able to sue and drain money," said Ken Hoagland, spokesman for Texans for Lawsuit Reform. "This has caused the ruination of many good businesses that might be needed in the future to make payments to true victims."
The only "neutral" study on this issue, Carroll said, was performed by the Manville Trust, which found that roughly 50 percent of those making claims could not show a physical impairment.
"Other than that, you have the defendants saying that this is all a crock and no one is really hurt, and the plaintiff's side saying everyone is hurt," Carroll said. "It seems pretty clear that a whole lot of defendants are not impaired."
Texas' new medical standards are based on criteria set by the American Medical Association, said Janek, who is a physician.
Under those criteria, anyone diagnosed with asbestos-related cancer can sue. Without cancer, a person must undergo a series of tests to determine if he or she is impaired. That includes lung capacity "below the lower limit of normal," or "below 80 percent of predicted."
Several advocacy groups, including Texas Watch and the Washington-based Environmental Working Group, contend the standards are too stringent.
Dr. Jeffrey Levin, chairman of the Department of Occupational Health Services at the University of Texas Health Center at Tyler, was surprised by the law's specificity.
"It's a very interesting piece of legislation, from the regard that it's very detailed from a diagnostic standpoint," Levin said. "I am not familiar with others that have legislated diagnostics in this detail. It is kind of precedent-setting in that way."
The new rules will not dismiss pending cases that do not meet the criteria. But they freeze them in a multi-jurisdictional court, which means they can't go to trial until the criteria is met.
This was an important concession to the trial lawyers, said association President Guy Choate. That's because, despite the pending cases' inability to go to court, they are still eligible for negotiated settlements from bankruptcy trusts or a federal asbestos trust being debated in Washington.
For new cases filed after Sept 1, there is no bureaucratic limbo. The court will simply dismiss those that don't meet the medical criteria. The dismissal is without prejudice, meaning the case can be brought back any time in the future.
Ultimately, most on both sides said the setup is something they can live with.
"We did get our stamp on it," Choate said. "We thought the system that was in place was fair, but they have the political ability to change it and we appreciated the ability to be included in the negotiations."
