Lawyer testifies proposed asbestos lawsuit changes are ‘flawed’ (UPDATE)

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A bill meant to bring transparency to asbestos and other personal lawsuits is flawed, a leading proponent of the bill testified Thursday, although the principle behind the proposed legislation is sound.

Assembly Bill 19 would prevent personal injury plaintiffs’ cases from moving forward until those plaintiffs produce any claims they intend to file against trusts that were established by bankrupt companies to compensate personal injury victims.

Trevor Will, a lawyer who has defended many companies in asbestos cases, testified Thursday that lawyers now regularly “game the system” to obtain larger reimbursements for plaintiffs.

But the bill, which seeks to correct some of those abuses, is flawed, Will said. For one, he said, the legislation should contain a provision to ensure that plaintiffs who are in danger of dying can give a deposition, even if their case has been stayed to ensure they have filed all of their claims against bankruptcy trusts.

Will said the bill should be changed to “state that the judge can permit this discovery to go forward if the plaintiff is in extreme condition. I think that everybody would agree that is an appropriate change that ought to be made in this bill.”

His remarks came at a public hearing of the State Assembly’s Judiciary Committee, which did not take a vote on the bill Thursday. For the proposal to become law, it still must pass the full State Assembly and Senate and be signed by the governor.

Will also questioned a provision in the bill that would not allow a court to schedule a trial in a personal-injury case until 180 days after the required claims disclosures had been made. Nancy Rottier, legislative liaison for the Director of State Courts, expressed concerns about the same provision.

The author of the bill, state Rep. Andre Jacque, R-De Pere, conceded the bill has some flaws. He said he is not a lawyer and that the bill was drafted by a staff member of the Legislative Reference Bureau. He said the issues dealt with in the bill were outside that staff member’s “area of expertise.”

Jacque said he got the idea for the bill in part from talking to members of the Wisconsin Civil Justice Council, a group that advocates for tort reform. Another inspiration, he said, was an article published by Forbes magazine in October 2011, titled “GAO Report Details Secrecy of Asbestos Trusts.”

“The genesis of this was really due to my overall interest in tort reform,” Jacque said. “That began last session.”

Parts of Jacque’s bill closely mirror a proposal published on the Internet by the American Legislative Exchange Council, which writes model legislation meant to further free-market principles. But Jacque denied that ALEC’s “Asbestos Claims Transparency Act” was the source of the language in this bill.

He instead pointed to a law that Ohio legislators passed late last year. Other states, such as Oklahoma, Illinois and Texas, are considering similar proposals.

“We are dealing with trust claims,” he said in an interview outside of the hearing room. “It’s a subject which is going to be the same – the transparency issues are going to be the same from state to state.”

Will encouraged the committee to amend the bill but keep its principle, which he argued would help prevent abuse of the bankruptcy trust system. He said lawyers have been known to say their clients were exposed to asbestos at one particular case in a regular lawsuit, and then later, when they file a claim with a bankruptcy trust, claim the exposure occurred under a completely different set of circumstances. He said requiring that all claims be filed in court before a case can proceed will help ensure that the facts being presented do not change from one venue to another.

Opponents of the bill contended it is designed to slow down lawsuits in the hopes plaintiffs will die from their ailments before the litigation can be completed. They also argued few asbestos cases are filed every year and the majority of those are settled out of court.

Jacque told the committee Thursday that the bill would help judges and jurors better understand which particular defendants may have caused a plaintiff’s ailments, ensuring defendants pay their fair share. He called opponents’ claims “sickening accusations.”

The Associated Press also contributed to this report.