WSJ Misrepresents Personal Injury Law In Support Of ALEC Effort To Deny Asbestos Relief In Ohio

This post was originally published on Media Matters for America’s blog and can be found here.

A Wall Street Journal editorial echoed right-wing talking points to endorse an Ohio bill that would restrict asbestos victims from proving their claims at trial. But the editorial, which claims "rampant fraud" exists in asbestos-related litigation, provides no evidence of systemic abuse, conceals the fact that multiple companies can be legally responsible for asbestos injuries, and fails to disclose that the state legislation is a corporate-funded American Legislative Exchange Council bill pushed by top Republican ALEC officials.

Asbestos kills 10,000 people annually through cancer and catastrophic lung damage. Asbestos is still legal despite the fact that it is the proven cause of an ongoing epidemic, which is why companies that continue to produce or use asbestos may be sued for asbestos-caused disease. A victim can pursue legal relief against a bankrupt asbestos company by filing a claim against its trust. Personal injury law - tort law - generally holds that multiple actors can be legally responsible for the same injury and sued separately.

The WSJ, however, obscured this general tort principle in the editorial and misleadingly accused asbestos victims of "double-dipping" by filing claims against multiple companies who may all have contributed to the harm:

The [tort] reform drive remains alive in the states, including Ohio, which is poised to become the first in the nation to clamp down on the abuse of asbestos bankruptcy trusts.

[...]

[T]he trusts have not stemmed the flood of asbestos suits. That's because the plaintiffs' attorneys have taken to "double dipping"--first gaining payouts from multiple bankruptcy trusts, then filing lawsuits against solvent companies that had only a peripheral involvement in the asbestos business.

The reason behind the "flood" of asbestos suits is the heavy use of a product in the 1970s that has a latency period between 20 to 50 years, so many people who were exposed to the product are just now reporting the disease with a mortality peak expected in 2015. The WSJ, however, dismisses the litigation of these victims - projected to be as many as 100,000 in the next decade - as "rampant fraud." But the WSJ's evidence of a widespread "scam" consists of the actions of one lawyer's attempt to cover up an error the sanctioning court itself said was "innocuous" and "an obscure issue in a case fraught with dozens of more compelling issues."  Furthermore, the WSJ does not explain why all or what sort of "peripheral" asbestos-caused harm should be insulated from liability, contrary to basic personal injury law.

Instead, the editorial repeats talking points of the U.S. Chamber of Commerce, in support of a bill not only modeled after ALEC legislation, but pushed by a Republican state senator, Bill Seitz, who was also co-chair of ALEC's "Civil Justice Task Force." After the bill passed the Ohio legislature, Lisa A. Rickard, president of the U.S. Chamber's legal arm, stated:

"This bill will go a long way toward eliminating fraud in asbestos litigation, discourage 'double dipping' by plaintiffs' lawyers, and ensure that companies and bankruptcy trusts both pay their fair share of recoveries to claimants. It will also help Ohio manufacturing companies and protect jobs by ensuring that companies are not bankrupted by fraudulent claims."