By: Matthew J. Chase
Asbestos can be blamed for hundreds of thousands of deaths and
injuries and has the potential to be blamed for hundreds of
thousands more deaths and injuries over the next few decades.
Asbestos has forced nearly seventy corporations into bankruptcy,
has caused a near crisis in the insurance industry where it has
raised questions of industry wide solvency, and has resulted in
tens of thousands of lost jobs and millions of lost pension fund
dollars. A single substance has caused all of these
tragedies: asbestos. Though the use of asbestos largely
ended in the mid-1970s, the long latency period of asbestos-related
bodily injuries has made this a modern problem. Nearly
300,000 asbestos personal injury cases are currently before courts
throughout the United States, and hundreds of thousands more are
expected over the next few decades. The Supreme Court labeled
the asbestos litigation problem an “elephantine mass.” The
massive number of asbestos claims have clogged court dockets,
unnecessarily delayed compensation for asbestos victims, and raised
the transaction costs of bringing asbestos claims to an enormous
level. Citing these other problems, Congress has responded by
attempting to create a national solution to the asbestos
problem.
Over the last decade, both houses of Congress have proposed
several bills aimed at solving this problem, yet none have been
enacted. In 2003, Senator Orrin Hatch proposed the Fairness
in Asbestos Injury Resolution Act of 2003 (“FAIR Act”) before the
Senate Committee on the Judiciary. After a long series of
hearings, compromises, and amendments, the bill passed in the
Committee and was sent to the full floor of the Senate for further
debate and ultimately a final vote. While most of the
contention surrounding the bill concerns the total value of the
fund, other provisions require amendment or adoption in order for
the FAIR Act to achieve its purpose of a nationwide solution to the
asbestos problem.
Part I of this Note will consider the current problems
associated with asbestos claims in the state and federal courts and
in the insurance industry. Part II and III analyzes the
background of the FAIR Act, the mechanics of the Act, and how it
will help the current asbestos litigation problems. Part IV
discusses ways to improve the asbestos bill to ensure that it will
become law and will be a successful and permanent solution to the
asbestos litigation problems.