Enough to Make You Sick

In the struggle for a shrinking pot of money from asbestos litigation, the sickest victims are getting nickels and dimes while lawyers get their millions

At the screenings, which are conducted in mobile trailers parked at motels or union halls, chest X-rays are taken by technicians, then a doctor spends a few minutes with the individuals.

In March, Dr. Gregory Nayden, an osteopath working for one such company in Florida, Georgia and Mississippi, testified in a deposition that he had evaluated approximately 14,000 people as part of these litigation screenings, for which he was paid more than $1 million. He concluded that every single one had asbestosis.

Nayden, the testimony showed, was not an expert in asbestosis, was unfamiliar with much of the medical criteria, was unlicensed in the states in which he was working, and he didn't even write up his own reports.

Lynne Bailey of Fort Worth lost her husband, Ronald, to mesothelioma, a rare and incurable form of cancer caused by asbestos exposure. Since his death in 2000, she has witnessed firsthand the results of a national battle over asbestos lawsuits.
Mark Graham
Lynne Bailey of Fort Worth lost her husband, Ronald, to mesothelioma, a rare and incurable form of cancer caused by asbestos exposure. Since his death in 2000, she has witnessed firsthand the results of a national battle over asbestos lawsuits.
Dallas attorney Mark Iola, who handled Ronald Bailey's case, believes that only people with serious health problems should be able to sue asbestos defendants.
Mark Graham
Dallas attorney Mark Iola, who handled Ronald Bailey's case, believes that only people with serious health problems should be able to sue asbestos defendants.

The medical evidence accepted in state courts where most of the suits are filed is hazy and imprecise, say Scrudato and breakaway plaintiffs' lawyers such as Kazan and Iola. X-ray findings that plaintiff-hired doctors will testify are "consistent with" asbestosis are consistent with a lot of other things. "'Consistent with' doesn't mean caused by," Kazan says. "When a doctor sees you for a broken arm, he can't diagnose from looking at it whether you fell off a skateboard or fell down the stairs. The X-rays in these cases show minimal changes consistent with a hundred other explanations, including smoking and air pollution, living in an urban setting, life on our planet."


Fred Baron says he doesn't shed any tears for the companies he's been putting under siege for the past three decades and sending to the bankruptcy courts. To him, asbestos litigation is going just fine, and he expects it to "rock on" into the future.

"These aren't bankruptcies where they lock the doors and sell it all off; these are reorganizations," he says. Johns Manville, the biggest asbestos producer in history, employs more people now than it did in 1982, when it filed for bankruptcy and began setting up a trust to pay past and future claims, he says. The reorganized company is still in the building-products business as a division of Berkshire Hathaway.

Claimants to the trust get a nickel or a dime on the dollar, "but that's how it works," Baron says. "The bottom line is everybody stands in line and gets the same percentage."

Even after the 20 bankruptcies filed in the past two years, he says, money continues to flow. Last year, 60,000 claims were settled. Workers with no breathing impairment now collect an average of $60,000 total against multiple defendants, as opposed to the $80,000 to $100,000 two or three years ago, Baron says. "Mesothelioma cases that were getting 4 or 5 million are now getting 2. It's false to say there are people getting nothing."

Baron contends workers were victimized by asbestos even if they have not developed breathing problems, and they deserve their day in court. "The American system isn't set up so that if you don't have a $5 million claim, you don't get to sue," he says. To that end he is gearing up a constitutional argument against reform based on the principal that asbestos claims are brought in state courts, and the federal government has no power to tell the states who can sue.

Iola and his colleagues say Baron's legal argument sounds high-minded and principled, but it does not square with other moves he has taken lately, such as negotiating "prepackaged bankruptcies" with some of the still-solvent defendants. "We're the ones fighting that. We want access to the courts," says Iola, who says he is tired of Baron's tactics. "Fred likes the bankruptcies, because he can settle a bunch of his cases and pocket the fees. I used to admire him, but Fred's about the money and his huge homes and planes, the power and friends he has, the access. He's forgotten about the victims."

Despite what Baron says, there are a growing number of sick asbestos victims who will get next to nothing. The defendants with stark liability--companies with documented histories of callous behavior--are out of the game, Kraus and Iola say. Today, the Manville trust--which is named as a defendant in nearly every suit--settles mesothelioma claims for $200,000, pays $10,000 of that in cash and promises to pay the rest if and when it can.

In early September, Iola says, he turned away the case of a 46-year-old Tyler woman with the disease whose only exposure to asbestos was from dust her father brought home on his clothes from a Pittsburgh-Corning insulation mill. The company filed for bankruptcy last year under a crush of unimpaired claims, so all the mother of three will be able to collect is about $50,000 from a bankruptcy trust, Iola says. "There is nobody to sue."

Interestingly, as a junior lawyer at a Dallas firm in the early 1970s, Baron started into asbestos litigation on behalf of workers at the same mill. As recently as June, he retold the story at a legal conference in Washington, recounting the blows he struck for justice and workplace safety back when he was young.


On and off since 1982, the manufacturing and insurance industries have pushed Congress to relieve them of their asbestos woes. The most recent, a proposal in 1998 to take the issue out of the courts and settle claims administratively, gathered support from Republicans and tort reformers but died because of equally strong opposition from labor, Democrats and trial lawyers.
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