Wisconsin Lawmaker Defends Asbestos Lawsuit Changes

Asbestos-exposure lawsuits would be slowed until plaintiffs reveal how many businesses their attorneys plan to go after under a bill introduced Thursday by a Republican lawmaker, who said the measure would prevent lawyers from hiding multiple claims in hopes of maximizing awards.

Rep. Andre Jacque of De Pere told the Assembly Judiciary Committee during a public hearing that his bill would inject transparency into asbestos claims. The bill would help judges and jurors see how many defendants may be at fault for one person’s illness, ensuring they divvy up damages fairly, he said.

“This is simply, again, helping better understand the totality of the circumstances,” Jacque said.

Trial attorneys contend the measure is designed to slow cases down in the hopes plaintiffs will die and protect corporations from making payouts.

Asbestos is a fibrous, heat-resistant mineral that’s been used for centuries for insulation, fireproofing and building. Dry asbestos can crumble into a powder, which can release fibers into the air and cause health problems, including cancer.

Many of the companies that manufactured asbestos products have filed for bankruptcy and established trusts to cover damage claims. People who contend still-solvent companies contributed to their health problems can file civil lawsuits.

But business advocates contend attorneys who file lawsuits often don’t disclose they’ve filed claims against the bankrupt companies as well, preventing judges and juries from properly divvying up liability and shrinking payouts.

The business lobby says it works like this: An attorney representing a worker with an asbestos-related illness might file a lawsuit against a solvent company whose products the worker believes played a role in sickening him. Meanwhile, the attorney quietly pursues claims against multiple trust funds set up by bankrupt companies whose products also contributed to the worker’s problems. The approach ensures no one distributes liability across all the companies and increases the chances of larger payouts.

“By hiding the exposure to the bankrupt companies’ products from the jury, plaintiffs’ counsel seek to recover an unfair settlement (or verdict) from the defendants. Then, by later recovering from the bankruptcy trusts, the plaintiff’s counsel can ‘double dip,”‘ Trevor J. Will, a Milwaukee attorney who specializes in defending companies in asbestos cases, said in written testimony.

Under Jacque’s bill, judges would have to order a plaintiff in a civil suit to disclose all trust claims they’ve filed or plan to file within a month of filing the suit. Once the plaintiff makes the disclosures, the judge could not schedule a trial any sooner than six months out. If a plaintiff announces they plan to file a claim, the judge would have to stay the proceedings until the filing happens.

Plaintiffs also would have to provide everyone involved in the lawsuit with all documents and discovery materials related to the claim actions. Defendants would be entitled to a reduction in their payouts based on money the plaintiff has already won through trust claims.

Ohio lawmakers passed a similar bill last year, and legislators in Oklahoma and Illinois are currently considering such measures.

Democrats on the Wisconsin committee questioned the need for it after asbestos damages attorney Jill Rakauski told the panel only nine new asbestos cases were filed last year. Democrats said the bill is designed to create so many hoops that plaintiffs will die of their diseases before they can navigate all the red tape.

“The first thing you learn as a defense lawyer is delay is your friend,” said Rep. Evan Goyke, D-Milwaukee, a former state public defender.

Jacque took offense to those allegations, calling them “sickening” and “an affront to the legislative process.”

Jeff Pittman, president of the Wisconsin Association of Justice, a group of trial attorneys, apologized to Jacque, but insisted the bill would “delay justice.”

Will, the attorney, countered most plaintiffs with mesothelioma already die before their cases end. He insisted delays would happen only if plaintiffs “drag their feet” on disclosing trust claims.

“The core issue is full disclosure,” he said. “If you know you have a claim, you can’t sit on it. You can’t play games with it.”