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September 16, 2002
Volume 80, Number 37
CENEAR 80 37 p. 9
ISSN 0009-2347


LITIGATION

ASBESTOS CLAIMS CRISIS LOOMS
Companies seek Supreme Court help to stop massive West Virginia trial

MARC REISCH

About 250 companies have petitioned U.S. Supreme Court Chief Justice William H. Rehnquist to stay a huge asbestos trial soon to get under way in West Virginia.

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HAZARD A worker removes asbestos from pipe insulation.
PHOTO BY TODD BUCHANAN
Should the trial proceed and go against the defendants, it could add millions of dollars in liabilities and push the weaker firms to file for bankruptcy protection. And even the strongest among them--including General Electric, the Union Carbide subsidiary of Dow Chemical, 3M, ExxonMobil, Royal Dutch/Shell, and Honeywell International--fear the trial would push them into settlements they should not have to make.

"If this patently unconstitutional trial plan succeeds in coercing mass settlement claims, then the results will be more meritless claims and more unconstitutional trial plans," wrote defense attorney Walter Dellinger in a petition to delay the trial that was filed in July and subsequently denied by the West Virginia Supreme Court.

The defense attorneys object to the format of the trial, which is scheduled later this month in Kanawha Valley circuit court. It lumps together employers, building owners, and manufacturers of products containing the cancer-causing mineral against 8,000 claimants, and thus, they say, violates their clients' due process rights.

According to a briefing prepared last year for Congress on asbestos lawsuits by the RAND Institute for Civil Justice, more than 500,000 asbestos claimants have filed millions of claims. The targets of those claims span more than half the industries in the U.S. economy. And the ultimate cost to insurers and corporations to resolve those claims could reach $200 billion.

The huge and complex problem asbestos claims pose, not only for the economy but also for the court system, has involved the U.S. Supreme Court before. In 1999, the Court rejected a $1.5 billion class-action asbestos settlement involving Fiberboard Corp. because of too many dissimilar claims from plaintiffs. And it called for congressional action because the complexity of the asbestos issue "defies customary judicial administration."

Congress has still failed to act. Meanwhile, defendants and plaintiffs continue to seek redress from the courts. Since 1982, when the well-known asbestos producer Johns Manville declared bankruptcy, others have sought court protection, too. They include boiler maker Babcock & Wilcox, engineering firm Burns & Roe, and insulation producers Pittsburgh Corning and Owens Corning. New to the list in 2001 were W.R. Grace, GAF, and wallboard maker USG.



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