Asbestos and the Massachusetts Senate Race
Friday, October 19th, 2012
One of the most closely watched races for U.S. Senate is going on in Massachusetts. Incumbent Republican Sen. Scott Brown and Democratic challenger Elizabeth Warren are running for the seat once held by the late Sen. Edward Kennedy.
Warren, a Harvard Law professor, is known for being an advocate for consumer protection and corporate accountability. A few weeks ago, however, Sen. Brown began running television ads accusing Warren of representing big corporations against asbestos victims.
“Elizabeth Warren’s not telling the truth about her career,” the narrator says in Brown’s ad. “Elizabeth Warren was a key lawyer in an asbestos case working for a big corporation. Warren helped Travelers Insurance restrict payments to victims of asbestos poisoning. The results were disastrous for the victims. The insurance company saved millions. And Elizabeth Warren got paid 40 times what they paid victims. Elizabeth Warren’s just not who she says she is.”
Warren said that her role in the case was as a bankruptcy expert, and her legal work was to secure a $500 million trust to pay asbestos victims. This week, Sen. Brown apologized for some of his ads against Warren, but he has not retracted all of his claims.
What really happened?
The case involved the Johns-Manville Corporation. For much of the 20th century Johns-Manville was the largest producer of asbestos products in the world. The products included asbestos shingles, insulation, and other building materials.
Beginning in the 1960s, thousands of individual and class action lawsuits were filed against Johns-Manville by people suffering from mesothelioma cancer, asbestosis, and other diseases caused by exposure to asbestos from Johns-Manville products. The company filed for Chapter 11 bankruptcy protection in 1982. One of the conditions of the bankruptcy resolution was the formation of a trust to be used to pay the claimants.
Later, some claimants filed direct action lawsuits against some of Johns-Manville’s insurers. The legal issues were complex but mostly involved questions of the original bankruptcy court’s jurisdiction and allegations that insurers had withheld information about Johns-Manville products.
One of the insurers, Travelers Insurance, and several claimants settled on the creation of a $500 million trust fund, but other insurers objected. In 2008, Warren was brought into the case by Travelers as a bankruptcy expert. Her job was to secure the trust fund. In effect, she was working for both Travelers and the asbestos victims.
The case eventually went to the Supreme Court. Warren’s arguments on behalf of the $500 million fund prevailed. Unfortunately, after Warren had left the case, a lower court ruled that Travelers did not have to pay the trust. Litigation continues, although Warren is no longer involved. The important point is that Warren was working for both the victims and for Travelers to secure the trust fund.
In the Massachusetts Senate race, the Warren campaign fired back at Scott Brown with two television ads featuring family members of asbestos victims. In one, the widow of a shipyard worker who died of Mesothelioma praised Warren for her work on behalf of the victims.
“Elizabeth Warren went all the way to the Supreme Court to try to get more money for asbestos victims and families,” the widow, Virginia Jackson, said. “Now Scott Brown is attacking Elizabeth Warren about her work. Scott Brown is not telling the truth. He’s trying to use our suffering to help himself. He ought to be ashamed.”
Brown then accused Warren of hiring actors to play the grieving survivors. This week the :Associated Press reported that Brown withdrew this accusation and apologized.
