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OCTOBER 5, 1999, TUESDAY

SECTION: IN THE NEWS

LENGTH: 5482 words

HEADLINE: PREPARED STATEMENT OF
RICHARD A. NAGAREDA
ASSOCIATE PROFESSOR
SUBJECT - S. 758
THE FAIRNESS IN ASBESTOS COMPENSATION ACT OF 1999
BEFORE THE SENATE JUDICIARY COMMITTEE
SUBCOMMITTEE ON ADMINISTRATIVE OVERSIGHT AND THE COURTS

BODY:

Summary
S. 758 represents a fair, practicable, and innovative solution to the asbestos litigation -- one that merits enactment by this Congress.
In the absence of federal legislation, the essential features of the asbestos litigation will not somehow go away: Plaintiffs' lawyers will continue to have a powerful economic incentive to bring forth large number of claims on behalf of unimpaired persons, having already expended the fixed costs to develop legal and factual expertise concerning asbestos in earlier phases of the litigation. At the same time, defendants have no reason to resolve expeditiously asbestos claims, absent some set of ground rules to govern the quality of claims to be presented for compensation in the future. The upshot is a kind of litigation gridlock, accompanied by what, to date, has been a fruitless search for some legal vehicle by which to resolve future asbestos claims.
The framework established by this Act would be vastly superior to the legal environment likely to emerge in the absence of federal legislation. Specifically, a comprehensive solution to the asbestos litigation effected by way of federal legislation would be superior -- from the standpoint of both asbestos victims and democratic accountability -- to the patchwork quilt of private compensation plans likely to emerge otherwise. In addition, federal legislation to address specifically the asbestos litigation would reduce the pressure for dramatic, and potentially unwise, changes to general principles of civil procedure and bankruptcy law.
The Act represents an appropriate -- indeed, necessary -- exercise of federal power. It places the federal government in the position of a facilitator and coordinator of private dispute resolution. It does not impose a bureaucratic solution to the asbestos problem but, rather, seeks to replicate arrangements already fleshed out by experienced attorneys in the private sector. Any workable national solution to the asbestos litigation will necessarily entail some degree of intrusion upon matters that otherwise would remain subject to state authority. This Act does so only as much as necessary to implement its underlying priorities for compensation and, even then, only as a last resort.
Finally, the priorities set by the Act are right on the merits. The Act appropriately seeks to maximize the resources available for compensation of impaired persons by barring claims on behalf of persons who do not meet specified criteria for medical impairment as well as claims for punitive damages. The Act prefers private dispute resolution to the deadweight loss of continued litigation in the tort system; and it prefers to put money in the hands of asbestos victims rather than the pockets of their lawyers.
* * *
Mr. Chairman and Members of the Committee: My name is Richard A. Nagareda, and I am an Associate Professor of Law at the University of Georgia. Since joining the legal academy in 1994, I have dedicated my teaching and research to the subject of mass tort litigation. As indicated in the attached c.v., I have published three articles in major law reviews on the subject, addressing class action settlements in the asbestos area1 as well as ongoing litigation over silicone gel breast implants and tobacco products.2 My objective in these writings has been to examine comparatively the many vehicles -- class actions, bankruptcy, federal regulation, and national legislation, among others -- advanced in recent years to effect comprehensive solutions for particular areas of mass tort litigation. In addition to my academic writings, I regularly teach a seminar in which my students discuss a set of reading materials assembled by me on the subject of mass tort litigation and then proceed to prepare research papers under my supervision on unresolved legal issues in the area. At the outset, let me emphasize that I seek to assist the Committee from the standpoint of an academic commentator interested in finding fair and practicable solutions to mass tort problems. At no point since joining the academy have I done any consulting work for any party, law firm, court, or other organization with respect to asbestos cases or any other area of mass tort litigation. Nor have I otherwise accepted, either directly or through my law school, any financial support from any such persons in connection with my academic research and writing. My views are, quite simply, my own.
I have reviewed S. 758, the Fairness in Asbestos Compensation Act of 1999, and urge you strongly to enact it into law. In this era of divided government, I applaud the bipartisan effort to move forward this legislation. Indeed, I believe that S. 758 represents the last, best hope for a fair and comprehensive solution to the problems posed by asbestos litigation, not only for asbestos victims and defendants but also for the judicial system as a whole.
The history and essential facts behind the asbestos litigation are both well known and ably documented in the testimony presented in favor of the legislation during the July 1, 1999 hearing before the House Judiciary Committee. The experience gleaned from the asbestos litigation over the span of recent decades establishes several starting points for the discussion of S. 758. After noting these points, I set forth the reasons for my conclusion that S. 758 stands as a fair and practicable solution -- in particular, one superior to the legal environment likely to emerge in the absence of federal legislation.
Starting Points
There are three significant starting points for any debate over federal legislation in the asbestos area:
- Currently-pending asbestos cases involve large numbers of persons with little or no physical impairment. This feature of the asbestos litigation not only is likely to continue in the future, it also forms the basis for a kind of litigation gridlock capable of being broken only on a comprehensive basis.
Leading commentators have observed that "up to one-half of asbestos claims are now being filed by people who have little or no physical impairment. Many of these claims produce substantial payments (and substantial costs) even though the individual litigants will never become impaired."3 These claims, moreover, have considerable settlement value when bundled together in large numbers with claims brought on behalf of persons who are genuinely impaired.4 This feature of the ongoing litigation over asbestos is the predictable consequence of two underlying phenomena: the nature of latent disease and the economic incentives for both plaintiffs' law firms and defendants.
Asbestos-related impairments can result from both cancerous and non- cancerous diseases -- mesothelioma being a classic example of the former and asbestosis a common illustration of the latter. The crucial feature of these diseases consists of a latency period -- typically, extending over decades -- between asbestos exposure and the onset of physical impairment.

5 The result is that, at a given time, there will be a group of persons with asbestos-related impairments and a comparatively larger group of persons who merely have been exposed to asbestos, only some of whom will ever become impaired.
From the standpoint of a plaintiffs' law firm, the economics of asbestos litigation are such that there is every reason to push forward not merely the claims of those who are physically impaired but also those of persons who merely have been exposed to asbestos and may never become impaired.6 This economic incentive flows from the repetitive character of the factual and legal issues in mass tort cases generally. To put the point briefly: The fixed costs associated with winning a few pathbreaking early victories in mass tort litigation are considerable, but the marginal costs of pursuing additional claims -- that is, claims that raise similar legal and medical issues and that flow from similar factual situations -- are comparatively low. Having expended the time and resources to win an initial set of victories, in other words, plaintiffs' law firms have every reason, from an economic standpoint, to attempt to spread their fixed costs over an ever-increasing number of claims.
It bears acknowledgment that early asbestos lawsuits -- undertaken at considerable risk and personal expense by the plaintiffs' attorneys involved -- served to bring to light the misconduct of the asbestos industry more quickly and in greater depth than those misdeeds would have emerged in the absence of such innovative litigation. But acknowledgment of the considerable social good achieved by early asbestos lawsuits -- now, decades in the past -- should not blind one from the recognition that current asbestos litigation is increasingly focused upon unimpaired persons.
All of this creates the makings for what can best be described as a form of litigation gridlock. In the absence of a long-term, comprehensive approach to the disposition of asbestos cases as a whole, defendants have little reason to seek the expeditious resolution of claims short of the approach of actual trial dates. From defendants' standpoint, settlements in pending cases -- particularly, settlements in cases brought on behalf of as-yet-unimpaired persons -- serve no purpose but to enhance the economic attractiveness of still more lawsuits with ever-decreasing merit. Defendants, in other words, have little reason to seek the resolution of current cases absent the development of ground rules for the types of claims that can be brought forward for payment in the future. Thus, the gridlock: Plaintiffs' law firms have economic incentives to bring more cases, which defendants have no incentive to resolve expeditiously absent some form of assurance about the quality of future claims.
- Reliance upon litigation in the ordinary tort system has resulted in an unconscionable deadweight loss of resources that could be better devoted to the compensation of asbestos victims.
The litigation gridlock described above has genuine costs. The Judicial Conference Ad Hoc Committee on Asbestos Litigation reported in 1991 that, for each dollar expended in asbestos litigation, only 39 cents were paid to asbestos victims. The remainder was consumed by transaction costs -- principally, attorneys' fees.7 In addition, the Committee reported that asbestos cases were subject to delays twice the length of those experienced by other civil litigants.8 I am aware of no empirical research on transaction costs in asbestos litigation during more recent years -- an era in which the medical and legal issues involved in such cases have become familiar to the point of rote repetition. There is reason to doubt, however, that transaction costs have dropped precipitously from those observed earlier by the Ad Hoc Committee. Neither the influx of claims on behalf of unimpaired persons nor the economic incentives of plaintiffs' lawyers or defendants have changed in the interim.
At the very least, there is considerable reason to doubt that transaction costs are anywhere near as low as they could be. Notwithstanding that plaintiffs' law firms increasingly have assigned much of the day-to-day handling of asbestos claims to lower-cost paralegals9 and have developed a working knowledge of which sorts of claims have genuine settlement value based upon prior dealings with their defense counterparts, there is no indication that plaintiffs' law firms have correspondingly reduced the contingency fees that they retain from any compensation payments ultimately made by defendants. The result is a contingency fee system predicated upon the presence of substantial litigation risk but applied in a context in which such risk is no longer present.10 Apart from the costs borne by those actually involved in the litigation, the influx of asbestos cases in state and federal courts imposes a burden upon the judicial docket -- one that affects not merely the handling of asbestos lawsuits but also the expeditious resolution of all other pending litigation in the court system.
- There is today a compelling need for a comprehensive solution through federal legislation, as previous efforts by the private sector alone have met with failure on legal grounds or with only modest practical success after lengthy delay.
It comes as no surprise that the private sector would have tried to use existing legal mechanisms to put into place the kind of ground rules capable of breaking the litigation gridlock: namely, ground rules that limit the sorts of cases that can legitimately be presented for compensation in exchange for commitments from defendants to pay expeditiously legitimate claims. The principal vehicles for these kinds of ground rules have consisted of settlements in either mandatory class actions under Rule 23(b)(1) of the Federal Rules of Civil Procedure or in opt-out class actions under Rule 23(b)(3). Recent Supreme Court decisions, however, have invalidated those efforts as inconsistent with the terms of Rule 23 in its current form.11 But, in so doing, the Court has called upon Congress to consider the enactment of measures similar in substance through the more legitimate vehicle of federal legislation.12 Apart from the class action arena, several firms within the asbestos industry -- most prominently, Johns Manville -- have sought to resolve their outstanding liabilities through reorganization proceedings in bankruptcy. The academic literature on these bankruptcy proceedings has long documented both substantial delays in the actual payment of compensation to asbestos victims and, more generally, formidable structural reasons to believe that such proceedings will systematically undercompensate future claimants.13 In addition to these significant practical problems, there remains uncertainty over the extent to which current law empowers the bankruptcy courts to resolve future mass tort claims at all.14 In sum, wholly private vehicles short of federal legislation have sought to achieve comprehensive solutions for the asbestos litigation with only minimal success.
A Federal Solution, Compared to What? Consideration of S. 758 must begin with an informed assessment of what the world would look like in the absence of such legislation. Not even the most expert observer can predict the future with complete accuracy but, based upon the incentives of plaintiffs' law firms and defendants, one can advance two central points:
- A comprehensive solution to the asbestos litigation effected by way of federal legislation would be vastly superior -- from the standpoint of both asbestos victims and democratic accountability -- to the patchwork quilt of compensation plans likely to emerge otherwise.
Absent federal legislation, the underlying economic incentives described earlier will not somehow go away. Rather, plaintiffs' law firms will have every reason to continue to bring forth claims on behalf of unimpaired persons, and defendants will have every reason to stonewall, absent some system of ground rules for future claims. Without federal legislation, the major plaintiffs' law firms in the asbestos area and the remaining asbestos defendants each would be on their own: Each would seek to cut as advantageous a series of deals with its counterparts as it could, simply as a way to break the litigation gridlock. What is likely to emerge, in short, is a patchwork quilt of agreements between particular plaintiffs' firms and particular defendants -- some deals, perhaps, more favorable to asbestos victims in certain respects and some less favorable in others than S. 758.
The significant advantage to S. 758 is that it would create a forum for one-stop shopping on the part of persons seeking redress from asbestos defendants. The compensation that any given victim ultimately receives would not depend upon sheer chance -- namely, the particular plaintiffs' law firm that happened to represent the person and the particular deal that the firm might have in place with those defendants to whose products the person happened to be exposed. Instead, compensation would turn upon an assessment made by neutral medical and legal experts, drawing upon standards that would be debated in the ordinary legislative process, or -- if the plaintiff ultimately chose to sue -- upon an individualized determination by a jury.
To provide the best chance for the preservation of resources to compensate those persons who happen to become impaired later rather than sooner, many difficult value choices are needed. As I detail later, I am confident that S. 758 makes the right value choices -- most importantly, in its preference for the compensation of impaired persons over the unimpaired.

The major point for present purposes is that these value choices should be made openly through a process amenable to democratic discussion and oversight, not through an intricate matrix of agreements insulated from the public eye.
The notion that a patchwork quilt of compensation plans would emerge in the absence of federal legislation is not simply a matter of guesswork or speculation. In the aftermath of the Supreme Court's invalidation of the opt-out class settlement in Amchem Products v. Windsor, one prominent asbestos defendant -- Owens Corning -- announced the creation of a "national settlement program" precisely of the sort described: namely, a series of agreements between that company and particular plaintiffs' law firms, setting forth various means for the submission and payment of asbestos claims in the future.15 Were the asbestos litigation confined to a small number of defendant companies, agreements of the sort pursued by Owens Corning might make for a workable solution -- one that would forestall the need for federal legislation. The simple fact, however, is that the asbestos litigation is not nearly so confined; rather, recent years have witnessed ever-expanding attempts to implicate still-solvent companies with only tangential involvement, if that, in the manufacture or sale of asbestos-containing products.16 Rather than effect a viable solution, a patchwork quilt of agreements involving a myriad of plaintiffs' firms and defendants would only add to the confusion and frustration of asbestos victims. Indeed, such a patchwork system would amount to a full-employment bill for lawyers on both sides: Only they would know the terms of the various deals, which would not be matters of public record. And only they would have the legal expertise needed to wind their way through the multiple agreements that would be implicated in most asbestos cases, which characteristically involve multiple defendants.
- Federal legislation to address specifically the asbestos litigation would reduce the pressure for dramatic, and potentially unwise, changes to general principles of civil procedure and bankruptcy law.
In addition to a multitude of private compensation plans, the legal world without S. 758 likely would include a second, and potentially more troubling, feature: namely, intensified efforts to revamp in fundamental ways the legal principles that govern class action settlements and the treatment of future claims under the Bankruptcy Code. I mentioned earlier the legal obstacles encountered in recent years by those who have attempted to use class actions and bankruptcy proceedings as ways to impose a set of ground rules for asbestos claims. Confronted with the Supreme Court's unfavorable decisions in Amchem Products and Ortiz, those who would seek so to use class action settlements would have every reason to redouble their efforts to modify Rule 23 to permit such vehicles. In fact, that effort would not have to start from scratch, as the Advisory Committee on Civil Rules already has put forward a proposal that would loosen the strictures upon class certification under Rule 23 for purposes of settlement.17 Likewise, the National Bankruptcy Review Commission has advanced a proposal to amend the Bankruptcy Code to provide explicitly that reorganization proceedings may resolve future claims18 -- a move that prompted substantial criticism from one Commission member currently serving on the federal bench.19 It is beyond the scope of the present hearing to address the legal intricacies of these reform proposals. The central point, for present purposes, is that the pressure upon plaintiffs and defendants to find some viable vehicle by which to establish ground rules for asbestos claims will not disappear in the absence of S. 758. To the contrary, that pressure will continue to build and could manifest itself in demands for far more sweeping changes in the law.
From the standpoint of one who has studied mass tort litigation in its various recent forms, I remain open to the prospect that, over time, general lessons might be drawn from experience in multiple areas of mass tort litigation -- lessons that might lead to worthwhile proposals for change in generally applicable bodies of law like Rule 23 and the Bankruptcy Code. Whatever direction that process of legal reform might take, however, it should be based upon experience over a broad range of contexts -- indeed, experience not confined simply to mass tort litigation but encompassing other problematic areas of the civil docket.
There is a familiar adage in the legal world that "great cases make bad law." Here, it would exceedingly unwise and short sighted to set in motion a process of reform in generally applicable federal law based simply, or primarily, upon the unique experience of the asbestos litigation. The beauty of S. 758 is that it would enable this Congress to address the problem of asbestos litigation but to leave for another day the larger question of whether to reform in fundamental ways the law of class actions or bankruptcy.
The Appropriate Role of the Federal Government
In an era of widespread skepticism over the use of federal power, Congress rightly should take care before enacting national legislation in an area as hotly disputed as the asbestos litigation. Here, however, there are substantial reasons to consider federal legislation an appropriate -- indeed, necessary -- exercise of federal power.
- The Act places the federal government in the position of a facilitator and coordinator of private dispute resolution. It does not impose a bureaucratic solution to the asbestos problem but, rather, seeks to replicate arrangements already fleshed out by experienced attorneys in the private sector.
The fundamental policy choices and structure of S. 758 stem not from the mind of a federal bureaucrat -- much less some law professor -- but, instead, from arrangements hammered out through intensive negotiations between leading asbestos plaintiffs' and defendants' lawyers. Specifically, the determination to focus the limited remaining resources of defendants upon the compensation of impaired persons as well as the detailed medical criteria spelled out in the Act stem from the nationwide class action settlement entered into by some twenty defendants in Amchem Products.
After an extensive hearing at which prominent opponents presented their strongest case against the settlement terms, the United States District Court for the Eastern District of Pennsylvania nonetheless approved those terms as fair.20 Subsequent decisions from the Third Circuit and ultimately the Supreme Court have made clear that a class action under Rule 23 is simply an impermissible means for such a settlement.21 But in so holding, both courts remarked upon the bold, innovative character of the compensation system crafted by class counsel and defendants.22 If anything, the need for fundamental value choices to be made about the allocation of compensation amongst asbestos victims underscored for these appellate courts the need for legislative action.
- The Act displaces state authority only as much as necessary to implement its underlying priorities for compensation and, even then, only as a last resort.
In order to focus the resources of defendants upon the compensation of impaired persons, S. 758 necessarily bars those who have not met its impairment criteria from suing in state or federal court (Section 401). As an additional safeguard against the bundling of stronger claims with weaker ones, S. 758 also prohibits -- in the absence of defendants' consent -- the use of procedural devices that would "determine asbestos claims on a collective basis" (Section 402). These measures undoubtedly tread upon matters of tort law and litigation procedure that, absent S. 758, would remain within the province of state law. Any viable comprehensive solution for the asbestos litigation, however, must operate at both the state and the federal level. Limitations applicable only in the federal courts would simply have the effect of channeling the claims of unimpaired persons to the state court system.
S. 758 displaces state authority only to the extent needed to implement the value choices that underlie the medical criteria therein. If anything, S. 758 reflects an abiding respect for state tort law, directing arbitrators in proceedings under Section 307(f) to "apply the law . . . that would be applied by a court designated by the claimant which would have jurisdiction" over the particular asbestos defendant whose liability is at issue.
Whatever might be said about S. 758, one cannot claim that the federal government has rushed in to take charge of the asbestos litigation in preference to the states. Rather, the experience of recent decades has made it abundantly clear that reliance upon the traditional dual system of courts is prescription for continued chaos in this area.
Making the Right Value Choices
Even if federal legislation would be preferable to the legal world that likely would emerge absent such action, it remains crucial for any federal legislation to make the right value choices in its compensation framework.

I am confident that S. 758 does so.
- The Act appropriately seeks to maximize the resources available for compensation of impaired persons by barring claims on behalf of persons who do not meet the criteria for medical impairment as well as claims for punitive damages.
The many bankruptcies that have already befallen members of the asbestos industry underscore dramatically that the goal of compensating asbestos victims must be pursued with sensitivity to the limited resources available for that purpose. Rather than risk a shortfall of resources for those persons who happen to manifest impairment later rather than sooner, S. 758 makes the safe and prudent choice to focus the available resources of defendants upon those persons who are actually impaired. Likewise, S. 758 focuses available resources upon compensation rather than punitive damages that -- from the standpoint of asbestos victims -- serve simply as a lottery-like windfall for a small number of individuals in the near term.
- The Act appropriately prefers to put money into the hands of asbestos victims rather than to enrich unduly their lawyers.
A key feature of S. 758 consists of its Section 503(a), which limits to 25 percent the contingency fee that a plaintiffs' lawyer may obtain from compensation payments to asbestos victims. This limitation is entirely appropriate in the context of a mature mass tort, like asbestos. Here, there simply is not the level of legal or factual uncertainty that supports the use of higher contingency fee percentages in other areas of mass tort litigation. Upon enactment of S. 758, the ground rules for the bringing of asbestos claims in the future will be well known, such that the plaintiffs' bar -- indeed, non-lawyers as well -- can easily determine whether a given asbestos claim has merit. Under such circumstances, a failure to place a cap on contingency fees would amount to a substantial and unmerited transfer of wealth from future claimants to lawyers.23
- The Act expresses an appropriate preference for private dispute resolution over litigation in the tort system. At the same time, the Act preserves asbestos victims' ultimate right to sue in court.
S. 758 seeks to preserve the civil litigation system for those cases that raise novel factual or legal issues and, in so doing, to avoid the consumption of scarce judicial resources in the handling of repetitive claims in large numbers. Hence, the emphasis upon mediation as a necessary predicate to the filing of a lawsuit. In this respect, the mediation framework set forth in S. 758 does not differ markedly from common practice in other areas of civil dispute, where efforts at private dispute resolution routinely precede a trip to court.
The essential deal embodied in S. 758 is that asbestos victims must meet the medical criteria for impairment and, in exchange, defendants must stop stonewalling. Specifically, once appropriate identified under Section 303, defendants -- no less than asbestos victims -- must participate in mediation, during which both sides are obligated to make "good faith offers" to resolve the claim in question (Section 306(e)). And the entire mediation process takes place under specified time limits, unlike the settlement process in the ordinary tort system. For defendants, in particular, the mediation process is not merely another avenue for delay; rather, in the event that the plaintiff thereafter elects to submit his claim to arbitration, the arbitrator is empowered to penalize defendants for inadequate offers in mediation (Section 307(j)). Arbitration, however, is completely voluntary on the plaintiff's part (Section 306(f)(2)); one instead may proceed directly to litigation if unsatisfied with the results of mediation.
The preservation of the plaintiff's ultimate right to sue serves to induce genuine compromise by defendants at the mediation stage. Likewise, the limitation of recovery to compensatory damages -- and, of course, the prospect of further delay while a lawsuit works its way through the judicial docket -- serve as appropriate inducements for plaintiffs to consider seriously the offers made to them in mediation.
- The absence of specific dollar amounts for compensation stands as a realistic response to the complexity of the compensation determination and will leave asbestos victims no worse off in terms of the resources available for redress.
Some observers have criticized S. 758 for its failure to set forth particular compensation amounts for each asbestos-related disease or otherwise to specify an overall dollar amount to be set aside by defendants to compensate victims. Under this line of reasoning, the Act forces victims to relinquish the opportunity to seek compensation in the absence of impairment but does not give victims a "sure thing" in return.
There are two major flaws in this reasoning. First, the recitation of specific dollar amounts is meaningless in practical terms in the absence of resources on defendants' part to compensate those who meet the medical criteria of the Act. As to the resources that any given defendant has available for this purpose, the Act certainly will have no negative effect. If anything, the opposite is likely to be true: Because the Act will enhance the predictability of the asbestos litigation in the years to come and otherwise will reduce the need for continued expenditures in defense costs, the Act will enable defendants to draw more effectively upon the capital markets to support their ongoing business enterprises24 -- a development that can only enhance their ability to pay compensation in the future.
Second, the complaint that the Act sets forth no "sure thing" in dollar terms dramatically underestimates the complexity of the compensation determination. The class action settlement in Amchem Products was able to include a detailed set of dollar amounts only because that settlement was limited to a relatively modest number of defendants (willing to share their historical settlement data) and concerned only occupational exposures to those particular defendants' products. S. 758 quite rightly describes a comprehensive framework for the asbestos litigation -- one applicable to all defendants and all exposure settings. It simply is not possible -- or, for that matter, desirable -- to specify in advance a compensation grid when the potential combinations of defendants and factual circumstances are effectively infinite. That said, however, any determination of compensation for a particular victim -- whether achieved through mediation, arbitration, settlement agreement, or judgment at trial -- would remain just as enforceable in the courts as before the Act.
Conclusion
S. 758 represents a fair, practicable, and innovative solution to the asbestos litigation -- one that merits enactment by this Congress. Indeed, in this instance, federal legislation is long overdue.
END

LOAD-DATE: October 6, 1999

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