Lawyers worry bills would delay asbestos cases

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Two state bills are drawing boos from some personal-injury attorneys who see a threat to the timing that can be crucial in asbestos-related lawsuits.

Jill Rakauski, one of the few Wisconsin lawyers who regularly files asbestos-related lawsuits, said the bills would lengthen the time needed to take an asbestos claim to court. And time, she said, too often already is in scarce supply when the chief witness, a person suffering an illness stemming from the known carcinogen, often is in danger of dying.

But state Rep. Andre Jacque, R-De Pere, the author of the Assembly’s version of the bill, said his proposal would prevent plaintiffs in the lawsuits from “double-dipping,” or obtaining compensation for their injuries from one company or defendant and then turning to another to claim the same compensation. He said Assembly Bill 19 and its companion, Senate Bill 13, primarily are meant to protect personal-injury trusts, which were established by many of the companies that faced large numbers of asbestos-related claims as a way to protect themselves and compensate victims.

Both versions of the bill were introduced Feb. 15 and referred to the state Senate and Assembly judiciary committees. Hearings have not been scheduled.

He said double-dipping is “ultimately drawing funds down from trusts that would otherwise be available to help other plaintiffs. So this helps with the solvency of the funds.”

Neither bill mentions asbestos. But both Rakauski and Jacque said most personal injury trusts have been established in response to asbestos-related claims.

Both bills would require plaintiffs who file personal injury claims, such as an asbestos-related claim, against a company or other entity in Wisconsin to first identify any personal injury trusts they either have filed claims against or plan to file against. If the plaintiffs indicate they have not filed claims but intend to, all court proceedings would stop until that step has been taken.

The bills would let defendants identify personal-injury trusts they believe plaintiffs might have claims against, and courts could order plaintiffs to file claims against those trusts. Not until all of those hurdles had been crossed could court proceedings get under way.

Jacque said the bills would let juries know how many claims for compensation have been submitted in a personal-injury lawsuit. Having that information, he said, would help jurors decide how much defendants should pay.

“This is really helping get everybody to the table sooner,” he said. “There shouldn’t be anything that is being at all unfair to victims. But this is certainly unwelcome to the plaintiff’s attorneys.”

Bob McCoy, an Illinois attorney who handles asbestos cases in Wisconsin, said he regularly discloses information about claims that are made against personal-injury trusts in cases he is working on.

“It’s information,” he said, “that’s always submitted to defense attorneys.”

Rakauski, though, said the proposed rules only would increase the already great danger that plaintiffs in these cases will die before their cases are heard. She said plaintiffs often are the only people who reliably can state when and where they were exposed to a certain asbestos-containing product.

The Mayo Clinic medical care organization describes mesothelioma, a type of cancer strongly linked to asbestos exposure, as an aggressive and deadly disease that rarely is treatable.

Rakauski also questioned whether double-dipping really is common in Wisconsin. She said only a few asbestos cases are filed in the state every year. Nine were filed in 2012 and 14 in 2011.

Of those filed in the past decade, Rakauski said she only can think of one, John D Pender v. Sprinkmann Sons Corporation et al, that resulted in a verdict in favor of the plaintiff. That verdict for $1.5 million was overturned on appeal, she said. She said most asbestos-related cases end up being settled out of court, a fact that makes the proposed legislation unnecessary.

Jacque said steps still should be taken to prevent abuse.

“If there isn’t a problem, how is this making a new one?” he said. “What’s the harm?”