Excerpts From Address by Hon. Griffin B. Bell
2003 ABI Annual Spring Meeting

For every sick claimant who sues, there are many more claimants seeking money who are not sick. Asbestos litigation now stands as the only part of our tort system in which people who can show no real physical injury are routinely allowed to sue.

It is not right that healthy plaintiffs overwhelm the courts in such numbers that many mesothelioma cancer victims will not live to have their day in court.

It is not right that legitimate and frivolous claims are grouped together in massive inventories at the expense of due process.

It is not right that defendants must pay persons not actually hurt — or not hurt by them.

But the most visible damage caused by asbestos litigation crisis is to our economy. These suits have driven more than 50 American companies into bankruptcy, from small manufacturers to Fortune 500s. With all the original defendants now bankrupt, a wider net is being cast for fresh defendants with deeper pockets. So lawsuits are targeting companies that never manufactured any asbestos-containing materials, but only had some peripheral involvement. Several thousand companies are now targets of this litigation. Thousands of innocent employees have lost their jobs; thousands of innocent employees have suffered huge losses in their retirement plans; thousands of innocent shareholders have seen their investments reduced or destroyed.

The costs are staggering. Some experts predict that asbestos liability could cost companies $275 billion. That amount exceeds current estimates of the costs of all Superfund cleanup sites combined, Hurricane Andrew or the Sept. 11 terrorist attacks.

Claims are multiplying because courts are permitting unimpaired people to pursue claims against many defendants, including many which had little or no involvement with the claimant. And this development brings us to the highest cost of all — the loss of due process and simple justice.

Asbestos cases, like water running downhill, seek the lowest level. Asbestos plaintiff lawyers file frivolous cases in the few jurisdictions where defendants consistently face an uneven playing field. It is sad to say that some of our courts tolerate this crass venue shopping.

Beyond venue shopping, there are other abuses in certain state courts handling asbestos cases.

Some courts permit product identification, from decades-old memories, that smacks of witness coaching.

Some courts permit, in the name of efficiency, standards of causation that are so relaxed that practically anyone could be named a defendant.

Under pressure from plaintiff attorneys, some judges have fallen into the trap of thinking about the process, while forgetting that justice is the goal that the process is meant to serve. They have allowed lawyers to transform them into claims processing machines.

What can we do to restore fairness to this system?

One obvious solution would be federal legislation that would impose fair and reasonable standards. Such a national solution is certainly warranted. After all, asbestos litigation is hardly a local problem — it is a national crisis. That is why the U.S. Supreme Court, as well as the lower courts, has urged Congress to enact such legislation.

And I hope Congress will act. But the Supreme Court has been calling for this solution for years now. We should not hold our breath or count the days.

In my view, there are several specific steps courts should take now.

The vast majority of asbestos plaintiffs today are either healthy or they suffer from medical conditions not caused by exposure to asbestos. Some state courts — notably in Pennsylvania — have held that plaintiffs who do not suffer some physical impairment caused by asbestos are not entitled to maintain an asbestos lawsuit. This may sound like common sense, but in some states the application of common sense seems to be missing.

In my view, unless people suffer a physical impairment, they have not suffered legal injury. They have no basis to sue. Unimpaired plaintiffs should see their cases dismissed or placed on an inactive court docket.

Some plaintiffs claim to have an asbestos-related disease based on testimony by so-called “medical experts.” Generally, these medical experts never treated the plaintiffs, and the testimony of these experts usually would not be accepted as reliable by most physicians.

One federal judge in Cincinnati dealt with this problem by appointing independent experts. After these experts determined up to 65 percent of claims before the court were invalid, these cases were dismissed. More courts should follow this good example.

Another key issue in asbestos cases is whether plaintiffs can prove that they were exposed to asbestos fibers for which a particular defendant was responsible. We need to get beyond the mentality that any defendant will do whether associated with the product in question or not.

The courts also need to crack down hard on witness coaching. Judges need a clear sense of reality when they hear an elderly plaintiff confidently testify about events — not important at the time — that took place so long ago.

Many courts now permit the asbestos plaintiffs lawyers to aggregate their “inventory” in order to pressure defendants to resolve cases in bulk. These defendants are forced to settle with masses of plaintiffs who are not sick in order to avoid trial against a few plaintiffs who are. This offends the most fundamental rule of legal ethics — loyalty to each individual client.

“Inventory” treatment of claims also violates the fundamental rights of defendants to due process of law. The courts should not permit clients to be treated as “inventory,” as though they were inanimate objects. Courts should not permit defendants to be coerced to settle frivolous cases in order to settle good ones.

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