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After Billions Paid In Settlements, Asbestos Lawsuits Continue

Jan 7, 2003 | Minneapolis-St. Paul Star Tribune It's the litigation that won't go away.
Asbestos lawsuits, a fixture of the U.S. court docket for more than 20 years, show no sign of abating.

The cost of injury to the hundreds of thousands of Americans exposed to the material is in the tens of billions of dollars and climbing. The cost already dwarfs the financial losses from the terrorist attacks on the World Trade Center and Florida's 1992 Hurricane Andrew - combined.

The companies with sufficient assets to stand the legal barrage are becoming fewer and fewer as firms with the greatest exposure seek the protection of federal bankruptcy laws.

New estimates forecast another 20 to 30 years of settlements totaling billions more as second- and third-generation victims develop long-latent asbestos illnesses, including deadly mesothelioma.

Larry Fix is an example of how long it takes for asbestos exposure to manifest itself as a disease.

Fix, a 55-year-old Navy veteran of Vietnam, mixed asbestos with plastics in a coloring process in 1969 for a Winona, Minn., plastics company. Fix, who now lives in Mankato, took the job three days after his discharge from the Navy and worked there for two years while he attended vocational school for electronics training.

Twenty-seven years later, after a career spent repairing machines for Xerox, Fix's doctor told him he had a tumor in his lung. During surgery to remove the tumor, Fix's doctor discovered it was in the lung lining, the area where mesothelioma appears.

"He asked if I'd been exposed to asbestos. I said, 'Yeah,'" Fix recalled. "He said, 'You have a year, maybe two, to live.'"

That was six years ago. Fix, who is married and has three children, managed to outlive the initial prognosis but hasn't been able to work since 1997 because of the disability.

"It was a real shock," Fix said of the lung disease. "For the first three or four months, my wife, Diane, and I couldn't look at each other without crying."

Fix said he regularly visits with other mesothelioma victims, people who sometimes die within six to nine months of receiving their diagnosis.

"I thank God every day" to be alive, Fix said.

Fix is one of 600,000 people who have filed claims against 6,000 different defendant companies, according to a comprehensive study of asbestos litigation prepared by the Rand Institute for Civil Justice and released last year. He has received a number of settlements but can't discuss the terms due to confidentiality clauses.

So far, $54 billion has been spent on asbestos claims, with the total projected to grow to between $200 billion and $265 billion when all the cases are settled, according to the Rand study.

"All accounts agree that, at best, only about half the final number of claimants have come forward," the report concludes. "At worst, only one-fifth of all claimants have filed claims to date."

While few of the cases go to trial, the litigation is complex because of the multiple defendants and multiple plaintiffs and degrees of injury involved. Increasingly, claims are from people who have yet to manifest any condition that affects their daily lives. The Rand study said that nearly two-thirds of the $54 billion paid to date has been for such cases.

"As the litigation evolved, the circle of plaintiffs moved outward," said Bruce Jones, an attorney with the Minneapolis firm of Faegre & Benson who represents business defendants. "As the circle of plaintiffs widened, so did the circle of defendants to anything that contained asbestos, even a small percentage."

A move is expected in Congress to limit asbestos awards, and a case to limit asbestos lawsuits is pending before the U.S. Supreme Court.

The Rand study said half of the successful asbestos claims are eaten up by transactional expenses, including lawyer's fees.

But plaintiff's attorneys said that is a necessary cost of doing business in a risky area where a plaintiff may get nothing and that it would be wrong to cap awards and fees.

"These are not frivolous lawsuits. These are not lawsuits against the fast-food industry," said Michael Polk, a Hastings, Minn., attorney who specializes in asbestos cases. "These people are sick, they're dying. This is the worst death."

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