Sunday, October 21st, 2012
Former U.S. Senator Arlen Specter of Pennsylvania died this month at the age of 82, from Non-Hodgkin lymphoma. Sen. Specter served in the Senate for 30 years, from 1981 to 2011.
Obituaries called Specter a centrist and a moderate, but he was more accurately called a wild card. In his career he took positions both pleasing and infuriating to partisans across the political spectrum. He was a Democrat from 1951 to 1965, a Republican from 1965 to 2009, and then a Democrat again.
Along with Specter’s many accomplishments was one spectacular failure. He worked for years to pass bills to compensate asbestos victims through a trust fund, while shielding companies from asbestos liability. None became law.
The asbestos compensation issue is one that will be with us for a long time. Through most of the 20th century asbestos was widely used as fireproofing in building and other materials. Although a link between asbestos and lung disease had been suspected for a long time, medical studies showing a beyond-a-shadow-of-a-doubt link between asbestos and the deadly cancer mesothelioma were not published until the 1960s.
The asbestos industry fought hard against regulation of asbestos. Because of industry pressure the government did not establish workplace standards until 1994, and to this day asbestos has not been completely banned in the U.S. As many as 10,000 Americans are still dying of asbestos-related diseases each year.
Needless to say, a whole lot of sick people, and their survivors, have sued asbestos companies for damages. In the 1980s asbestos and tobacco companies inaugurated the “tort reform” movement, hoping to change law to reduce their liability. Arlen promoted his trust fund idea as a way to protect business while getting asbestos victims the compensation they deserve.
The trust fund argument sounds good to a lot of people, especially people sympathetic to the defendants. An argument can be made that trust funds are good for plaintiffs, too, if the defendant is going bankrupt. In fact, courts have sometimes set up such trust funds as part of bankruptcy proceedings, with mixed results. In the many court-ordered asbestos compensation trusts around the nation, experience shows they often lack transparency and may not be handling the money honestly.
But there were serious drawbacks beyond that to Arlen’s plan. For example, it was charged that the FAIR (Fairness in Asbestos Injury Resolution) bills that Arlen submitted to the Senate over the years did not provide enough money for genuinely fair compensation to asbestos’s many victims. Again, this has happened to trusts set up by bankruptcy proceedings. Often the amount of money set aside for the trust seriously underestimated the number of people who have been damaged. Sometimes trusts are suspended; sometimes plaintiffs receive a few pennies on the dollar of what they were supposed to receive.
The bills also placed an unreasonable burden on plaintiffs to prove their health problems came from a particular exposure to asbestos. In the case of mesothelioma, which can take 20 or more years to develop after exposure, proof might be hard to come by. For that reason, Arlen’s FAIR bills would only have compensated people who could prove they were exposed to asbestos in their jobs. A worker might have been compensated, but a spouse who developed mesothelioma from washing the worker’s asbestos-covered clothes — which has happened — would not.
One of the arguments for the FAIR bills was that a lawsuit might take years to be settled and the plaintiff compensated. But the FAIR bills called for drawing all pending claims and litigation into the trust payment system, meaning it would have begun with a backlog of cases that might have taken years to review.
Arlen Specter’s 2005 FAIR bill received a surprising amount of opposition from Republicans, usually a group keen on any kind of liability protection. By then many conservatives had convinced themselves that most mesothelioma claims are bogus — those 10,000 deaths every year notwithstanding — and were more interested in passing laws making it more difficult for asbestos victims to file lawsuits than in setting up trust funds.
Specter’s long Senate career ended in 2010, when he lost a Democratic primary challenge. Republican Pat Toomey won the 2010 general election and now sits in Specter’s old Senate seat.