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By Rose Hoban
Mesothelioma is a dreaded form of cancer. The cancer grows on the protective covering of organs, whether it be lungs, stomach, even the heart. As it grows, it makes the organs stiff and unresponsive, killing patients pretty quickly.
Only 7 percent of people diagnosed with mesothelioma, no matter where in their bodies, survive more than five years. Only 20 percent survive for two years. That’s in contrast to prostate cancer which now has a 99 percent five-year survival rate and breast cancer, which has a 90 percent five-year survival rate.
The vast majority of mesothelioma patients developed the disease from exposure to asbestos and most of those exposures took place at work.
“It takes very little exposure, so [you perform] brake jobs just for a month or two, that could be sufficient of what could cause mesothelioma,” said Janet Ward Black, an attorney who handles mesothelioma patients’ claims in court.
So many patients end up suing their old employers, charging them with negligence, and asking them for expenses and damages when they’re diagnosed.
Patients must move quickly to get their affairs in order, but they need to be deliberate, Black said.
Because mesothelioma is so closely tied to industries such as mining, building and manufacturing, many companies have been sued repeatedly by sickened former employees to cover their expenses for medical treatment and lost wages. Many of those companies reorganized their debts by declaring bankruptcy, setting up trust funds to compensate patients and avoid further litigation.
The first of these trusts was set up by the Johns-Manville Corporation in 1982, when the company put aside $2.5 billion to cover asbestos-related claims, both present and future. Since then, according to a 2007 report by the American Academy of Actuaries, “nearly all of the major manufacturers” have declared bankruptcy to protect themselves from lawsuits.
There are about 60 such trust funds, which “answer for the liability of the most culpable companies,” to cover the costs for current and future claims against manufacturers of products ranging from flooring tiles to pipe insulation to car brakes to cigarette filters. Trusts do get some funding from the parent companies’ stock, but that only pays for a limited part of the trusts.
The 2005 report by the RAND Corporation estimated that more than 760,000 people have filed such lawsuits since the establishment of the first trust fund. Some of the trusts have been so swamped by claims that they now only pay out pennies on the dollar. Patients now find themselves applying to multiple trusts to collect the money they need. Patients are also trying to sue their old employers to cover their expenses.
It was within this context that Sen. Mike Lee (R- New Hanover) presented SB 470, which only allows patients 30 days from filing a civil suit to complete applications to all the trusts for which they might be eligible.
Right now patients have several years after diagnosis to file a claim.
“By requiring people to file their trust claims within 30 days after the filing of complaint, we help to make sure that the dying and their families will see that trust money while they’re still alive,” said Mark Behrens, from the U.S. Chamber Institute of Legal Reform. “And it’s substantial money.”
“I have a Manville claim form right in front of me. It’s 11 pages and you sign on the twelfth page,” Lee said, holding up the claim form for one of the big trusts. “This asks all the questions about where your client was exposed, you fill this out and you just disclose that in the state court action.”
Mesothelioma patient Mark Arrowood said it’s not that simple.
“I don’t think [committee members] understand that if you have mesothelioma that you cannot just approach all trust funds for blanket claims,” Arrowood wrote in an email to NC Health News. “You have to look back 20 to 30 years (typical time for the disease to appear) and pinpoint the manufacturer of the specific product you were exposed to.”
“For the many people who worked construction jobs, this can be extremely difficult to pinpoint let alone prove,” wrote Arrowood, 43, who has worked in the housing industry since 2000. He was diagnosed two years ago and had to have extensive surgery and chemotherapy. “If and when they can pinpoint exposure and a specific product manufacturer [they] can then proceed with a claim.”
Arrowood said it can take a year or more to get a determination from a given trust fund and when it comes, it might be only a small part of the medical costs incurred.
But the bill stipulates that a defendant who believes the patient can file other claims with one of the trusts can ask for a delay until the trust has paid up.
“[It] will be too late to assist with medical care and in most cases will be going to the family since the victim in most cases will not survive to see the claim realized after such a delay,” he wrote. “No one in this situation is being ‘double paid’ since claims are difficult to prove in the first place.”
Arrowood’s attorney, Janet Ward Black, said she believes the law is designed to “delay, delay, delay” payouts to patients by large trusts and small employers.
“I have claims in my office where it took more than 10 years to get a claim filed,” Black said during the meeting.
She noted that most mesothelioma patients die within two years of being diagnosed.
State or federal
“There are other states that have been active with similar laws,” said Lee, who at one point, held up a U.S. map with some of the states colored in. “I can’t go state by state but there are more than just two or three states that have these laws.”
But that was one of the questions: Why the bill was being heard in North Carolina now, even though no mesothelioma cases have been filed in North Carolina courts in more than two decades. Due to a technicality, Black said mesothelioma cases in this state have been filed in federal court, which is separate from state court.
“All these provisions in this bill will benefit no North Carolina corporation,” she said.
That troubled former judge Rep. Joe John (D-Raleigh) who said he had struggled with the bill because he felt it sought to change the rules for civil cases in North Carolina for no reason.
Just after John spoke, the committee voted on the bill, passing it 6-4 along party lines. The bill goes next to the House floor, but it will have to return to the Senate to reconcile changes made in some of the provisions.
When the committee was finished, Black offered a rationale why the U.S. Chamber of Commerce had sent one of their representatives to speak at this committee hearing: the U.S. Chamber and other state Chambers want bills in as many states as possible to protect large manufacturers from liability.
To date, 12 states have passed similar legislation, but another eight have refused.
“When they go to South Carolina, they can say, ‘Look, North Carolina just passed this,’” Black explained. “And they’ll just be going, ‘Oh, North Carolina, yeah,’ not realizing that no one is filing cases here.”
Arrowood was more blunt.
“It is clearly bought and paid for by companies who knowingly exposed people to asbestos and are hoping to delay or avoid paying claims they are responsible for,” he wrote.