NYT Columnist Accuses Asbestos Victims of Scamming Civil Justice System

New York Times columnist Joe Nocera called recent asbestos litigation a “scam” and complained that “tens of thousands” of asbestos cases are “bogus” and “phony,” despite no evidence of widespread fraudulent asbestos claims.

Nocera dedicated his most recent column to attacking victims of asbestos exposure and their attorneys. Not only does Nocera significantly overstate the problem of fraudulent asbestos claims, he accused asbestos litigants of falsely attributing lung cancers to asbestos exposure to obtain damage awards.

From Nocera's December 2 column:

It's hard these days for smokers to sue tobacco companies because everyone knows the dangers of cigarettes. Instead, [Rep. Carolyn] McCarthy has become part of a growing trend: lung cancer victims who are suing companies that once used asbestos.

With asbestos litigation well into its fourth decade -- the longest-running mass tort in American history -- you'd think the plaintiffs' bar would have run out of asbestos companies to sue. After all, asbestos lawsuits have bankrupted more than 100 companies. Yet McCarthy has found more than 70 additional companies to sue, including General Electric and Pfizer. Asbestos litigation, says Lester Brickman, a professor at Yeshiva University and perhaps the most vocal critic of asbestos lawsuits, “is a constant search for viable defendants.” Because asbestos was once such a ubiquitous product, there is always somebody else to sue.

Let me stipulate right here that exposure to asbestos can be deadly. The worst illness it causes is mesothelioma, a rare form of cancer that essentially suffocates its victims to death. If it were only the real victims of asbestos-related diseases who sued, there would be no issue. That's how the tort system is supposed to work.

But, over the years, plaintiffs' lawyers have brought tens of thousands of bogus cases. They took doctors on their payroll to industrial sites, where all the employees would be screened for signs of an asbestos-related disease. They found some real cases, of course -- along with many that could never have stood up in court. Nonetheless, by bundling real cases with phony ones -- and filing giant lawsuits -- they took down one company after another.

Nocera is disturbed by the fact that McCarthy, a smoker, has opted to sue asbestos manufacturers instead of tobacco companies. But regardless of the individual merits of McCarthy's suit (which hasn't been decided yet), it is wholly irresponsible for Nocera to use it as evidence of “tens of thousands” of other bogus claims -- especially since there's no concrete evidence of widespread asbestos litigation fraud. When Congress asked the United States Government Accountability Office to audit these trusts (set up at the asbestos companies' initiative), the GAO reported that audits had not "identified cases of fraud."

Moreover, Nocera's characterization of the current state of asbestos litigation is misleading. It is true that many asbestos companies have gone bankrupt -- but according to Nocera's own editors, asbestos companies “often were aware of the dangers but concealed the risks from workers and the public.” That is, some companies knowingly exposed people to asbestos, which causes an array of horrific diseases like mesothelioma and lung cancer. Furthermore, the reason the plaintiff's bar hasn't “run out of asbestos companies to sue” is because not only did companies specifically set up trusts to field future claims, some companies continue to import and use asbestos. In fact, the United States imported more than 1100 tons of asbestos last year “to meet manufacturing needs.” Asbestos is still found in millions of buildings across the country, including offices and schools.

Nocera also ignores that there are already legal protections in place to prevent frivolous legal claims from advancing, as well as to prevent dishonest plaintiffs from being unfairly compensated. No judge would allow “tens of thousands” of fake lawsuits to proceed. But this doesn't seem to matter to Nocera, who thinks only “real victims” of asbestos exposure should be allowed to bring claims.

It is unclear who might fit Nocera's description of “real victims.” Representative McCarthy has lung cancer, but because she also smoked cigarettes in addition to being exposed to asbestos, she evidently doesn't count as a “real victim.” In fact, Nocera says, “the right thing for her to do is drop this lawsuit.”

Typically, it's up to the civil justice system to determine which victims are “real,” but apparently Nocera would prefer to decide these things for himself.

Photo by Flickr user Daryl Mitchell