Message to Asbestos Defense: Solve the Problem, Cure the Cancer

In 1935 about 250 lawyers, executives and insurance lobbyists convened in Philadelphia to discuss the growing threat of lawsuits over asbestos exposure. They decided "the greatest bulwark against the future disaster of the [asbestos] industry was the enactment of properly drawn laws" which would "eliminate the jury" and "eliminate the shyster lawyer and quack doctor." They talked about the disease and the cancer risks, but nobody talked about removing asbestos, or replacing it, or investing money in treating the disease.

Fast forward almost 70 years. Look at where we are. Hundreds of thousands of Americans dead from asbestosis, lung cancer and mesothelioma. Millions of Americans with dangerous levels of asbestos fibers in their lungs and lung linings. Millions occupationally exposed to asbestos, and millions exposed at home. $54 billion spent on litigation, over half of which was consumed by "transaction costs," including defense lawyer fees and defense medical expert fees. Over 70 companies have gone belly up in the bankruptcy courts. Since January 2000, 23 companies have sought shelter from the tort claims in the bankruptcy courts. Smart guys are predicting another $200 billion worth of litigation costs in the next 50 years. A sense of nihilism still pervades the medical community. Not a single government or industry sponsored medical research and treatment program for mesothelioma victims exist.

Just last week, on March 28, 2003, a very polished, very smart, and highly paid corporate lawyer for a prominent blue chip Washington D.C. defense firm stood before an audience of insurance adjusters, corporate lawyers and risk analysts at the Nikko Hotel in San Francisco and again spouted the party line. How do we solve this asbestos disease mess he asked? How do we end the epidemic of mesothelioma and cancer, especially among children and young adults? How do we stave off future bankruptcies, protect jobs, increase shareholder value and save lives? How do we end the needless suffering? Answer: we spend more insurance money to hire more medical experts to cook up more "scientific" papers confirming that our flavor of asbestos tastes good and is less toxic!

With a straight face the corporate lawyer suggested that the reason why juries have awarded mesothelioma victims millions of dollars in damages is because the asbestos industry has not invested sufficient resources in establishing their "core defenses," i.e., the bizarre defense that chrysotile asbestos does not cause meso (despite the fact that 95% of asbestos used in the U.S. was chrysotile and every neutral government agency that ever studied the question has resoundingly confirmed the nexus). He wrote in his rigorously researched paper (which contained a stunning 112 citation-rich footnotes), in the context of advocating for more corporate money to hire more experts to do more research in order to attack the carcinogenicity of chrysotile:

Additional research . . . should be given high priority. This task has been given even greater urgency by a still small but highly disturbing increase in secondhand exposure claims by individuals who allege that they contracted mesothelioma after being exposed as children to asbestos fibers brought home on their fathers’ clothing or from asbestos-containing products in their homes. This is a subject on which additional pathology, toxicology and epidemiology research is urgently needed [to defend lawsuits]." 1

Let’s get this straight. The corporate lawyers and their experts have already extracted at least $20 billion from the asbestos companies and their insurers since the late 1960s in fees, costs and expert reports, but more money is urgently needed to finally win the asbestos war? After 70 years of ducking, weavind, denying, discrediting and deceiving, we need to spend more scarce dollars chasing the fantastic notion that asbestos does not cause mesothelioma? I’ve got an idea. Instead of investing all those billions in another bogus pseudo-scientific courtroom prop, why not solve the problem at its roots? No, I’m not talking about killing all the trial lawyers. I’m talking about finding a cure for mesothelioma.

Not once did the corporate sharpie from Washington DC talk about investing in a cure. Wouldn’t that be the best defense? Admit your fault, say you’re sorry, and work like a dog to find a cure so that mesothelioma is not an automatic death sentence. Mesothelioma has been reported in the medical literature since the late 1940s. But the asbestos companies have never ever made any effort to fund a research program to eradicate mesothelioma. If the asbestos companies were smart, if they hired smart lawyers who gave good advice, if they hired smart doctors more interested in curing the disease than apologizing for it, they could’ve saved billions in costs, fees and awards.

Instead, they continue to waste their money on robot lawyers and their wind-up medical experts who it seems have little interest in stopping the flow of mesothelioma cases at their roots. They continue to obsess on causation. They continue to blame the victims, and their lawyers, and even judges who have the courage to implement novel strategies for resolving cases. They continue to blame "runaway" juries whenever they lose. They continue to drag cancer claimants through the mud in endless depositions that produce nothing but more misery, more hardship and more "billable hours" -- the holy grail of the defense attorney. They continue to search for loopholes and technicalities that will get the guilty company off the hook and strip the victims of their rights.

Perhaps it’s too late for the asbestos companies who remain and their lawyers to get religion. When I helped found MARF in late 1999, two major former asbestos companies, W.R. Grace and Owens Corning Fiberglass, agreed that the time had come to invest in a cure. Both joined MARF with the intention of raising money from their corporate brethren for the medical cause. But both eventually bailed out with the help of their bankruptcy lawyers. OCF gave MARF a note for $900,000 that for all intents and purposes is worthless. Meanwhile, we continue to see that suave pink panther on the television hawking their insulation products -- OCF even found the money to sponsor a basketball tournament, although they continue to owe millions to mesothelioma victims.

It’s time to "think outside the box" here folks. Instead of deny, deny, deny, why not admit your fault, apologize for your mistakes and invest in a real solution -- a cure? Stop listening to the sage advice of your hired guns. Their main interest is the perpeutation of the litigation. Even in bankruptcy they make out like bandits, billing the debtor millions and millions every month, money that should be used to compensate cancer victims and find a cure.2

Call me an idealist, but I dream of a day when the asbestos companies put many trial lawyers out of business by admitting fault and making mesothelioma curable.

Roger Worthington

March 31, 2003