Asbestos bill focuses on full disclosure in lawsuits

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A last-minute change to a bill passed by the state Senate on Wednesday would let judges decide when it is appropriate to temporarily halt asbestos-related lawsuits.

As passed by the state Assembly on May 8 last year, Assembly Bill 19 would have forced judges to stay asbestos or other personal-injury cases until plaintiffs had filed legal claims against all the parties that reasonably could be blamed for the plaintiffs’ illnesses or injuries. The legislation was meant to prevent “double dipping” into the trusts, which many companies have established to shield themselves from lawsuits and to provide compensation to victims.

Proponents of the bill have said plaintiffs have been known to link their illness to one cause when pursuing a claim against a particular trust and then cite a different set of circumstances when going after another defendant. Critics, though, have said the required stays would put asbestos victims at risk of dying before getting their day in court and, because the Legislature would be mandating judicial procedures, infringe on the separation-of-powers doctrine.

Following the amendment Wednesday, AB 19 still would prevent cases from proceeding until all reasonable claims against bankruptcy trusts had been filed. But the new version would let judges decide if victims have not been as forthcoming as required and if, as a result, the proceedings should be stayed.

On the Senate floor, state Sen. Glenn Grothman, R-West Bend, said the change was needed to get the legislation passed. AB 19 has languished for months largely because of objections raised by veterans groups’ representatives, who expressed concerns that the required delays would result in some of their members dying before obtaining compensation for an asbestos-related illness. Many of those who served in World War II, for example, were exposed to the carcinogen on ships.

Grothman, who was the author of the amendment adopted Wednesday, said the new version should appease critics concerned about unnecessary delays and still achieve the goal for the legislation.

“If you read the bill,” he said, “the bill is all about disclosure.”

Reached by phone after the Senate hearing, Jill Rakauski, a Wisconsin lawyer who represents asbestos victims, said her clients are not being unreasonable when they cite several sets of circumstances as possibly contributing to their illnesses. She said most of her clients are veterans, and many of them went to work in factories after leaving the service.

“It’s a rare client,” Rakauski said, “who can come and say, ‘Listen, I was exposed to asbestos this one time and from this one product.’”

Support for the bill has been expressed by representatives of construction, manufacturing and insurance companies, according to the state Government Accountability Board’s website. Many of the businesses in those industries carry liability for asbestos exposure that occurred decades ago.

But critics of AB 19 have noted that asbestos-related lawsuits remain relatively rare in Wisconsin. Fourteen were filed in 2011, nine in 2012 and seven in 2013, according to records published on the state court’s website.

The scarcity of the cases has prompted critics to question the basic premise of the legislation. Some have said Republican lawmakers mindlessly introduced AB 19 simply because it bears a resemblance to so-called model legislation promoted by the American Legislative Exchange Council, a conservative group.

On a day when Democrats repeatedly attacked Republican-sponsored legislation, state Sen. Fred Risser, D-Madison, called AB 19 “the cruelest bill” up for consideration. The amendment, he said, did little to reduce the threat to asbestos victims.

“The essence is to drag things out,” Risser said, “and hope they die off.”

Whatever delays the bill might cause in legal proceedings, the amendment also delayed the proposal’s becoming law. Because of the change, the legislation must now be approved again by the Assembly before going to Gov. Scott Walker.

Grothman said he thinks some parts of the amendment were unnecessary, such as one provision that would make the bill apply only to future cases, but said he was willing to compromise to get the legislation passed.

“There is evidence,” he said, “that sometimes people sue one company when they know full well there is going to be a future lawsuit against a different asbestos trust.” Follow @TDR_WLJDan