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Two Bay Area attorneys have emerged as central players in a national political battle over asbestos litigation reform that is also pitting two of the nation’s largest bar associations against each other. On one side is Steven Kazan of Oakland’s Kazan, McClain, Edises, Abrams, Fernandez, Lyons & Farrise, who represents seriously ill asbestos victims and is a member of the American Bar Association’s commission on asbestos litigation. On the other side of the debate is San Francisco attorney Mary Alexander, president of the Association of Trial Lawyers of America. At the heart of their dispute is Senate Bill 413, which would allow only those who meet certain medical criteria to be eligible to file suit over exposure to asbestos. The bill is being debated in the Senate Judiciary Committee, where it’s being championed by committee Chairman Sen. Orrin Hatch, R-Utah. Kazan wants the bill passed so that the funds available to asbestos victims aren’t diluted by claimants without serious illness, ensuring that very ill victims receive a larger share. “This bill is not tort reform,” he said. “It’s preserving the tort system for those who need it tomorrow.” Alexander says the bill is unconstitutional because it prevents some claimants from getting their day in court. At the core of the debate is the bill’s requirement that all claimants must undergo an examination by a physician before a suit can be filed. The bill would essentially separate “malignant” claimants from “non-malignant” ones. Alexander is adamantly opposed to the bill. “We want no medical criteria,” she said. “The pre-filing criteria in this bill — talk about barring somebody at the courthouse steps!” HIGH STAKES The acrimonious tone of the argument between Kazan and Alexander underscores what’s at stake: millions of dollars in settlements. “We see so many seriously injured people that are unable to receive significant recovery because the less injured are taking money from the system,” said Stephen Tigerman of San Francisco’s Harowitz & Tigerman who, like Kazan, represents primarily patients with mesothelioma, an asbestos-related cancer. The problem, said Kazan, is that there is only so much money set aside in corporate trusts for asbestos claims, and the exploding number of suits has sliced up a finite amount of money. If runaway asbestos suits continue, there won’t be any businesses left to sue, Kazan reasons. “I don’t care about these companies,” Kazan said. “I care they survive to take care of these sick people.” Alexander agrees that change may be needed to control the exponential growth of asbestos suits, though she said ATLA does not have an alternative plan. “I’m not prepared to talk about that now — but we’re willing to look at it,” she said. Alexander and ATLA contend that the proposed reforms could undermine tort law and keep millions of Americans from getting their day in court. “We’re recognizing that there are limited amounts of funds,” she said. “But this is not the way to fix it — to inhibit access to the courthouse and right to trial by jury.” Alexander claims the legislation would be unfair to many ill people. “There are people who don’t meet the criteria that are on oxygen. It’s one of the examples of what’s wrong with the statute.” In a letter to the ABA and at the ABA’s House of Delegates meeting in February, Alexander delivered a rebuke of its support of the asbestos legislation. “One could liken the situation to saying a person infected with HIV through a tainted transfusion should have no legal rights unless she contracts AIDS,” she said. Alexander’s passionate remarks elicited an angry response from Kazan. He fired off a letter to ATLA, saying Alexander’s remarks were “troubling” and “offensive.” “The heart of the matter is addressed but misidentified . . . when you write that the ABA commission proposal will impact ‘the right of hundreds of thousands of Americans who suffer from asbestos-related disease.’ That is nothing but sophistry, and you should know better,” Kazan wrote. STEADY STREAM OF SUITS According to a RAND Institute for Civil Justice study, more than 600,000 asbestos-related claims have been filed in the United States, which cost businesses more than $554 billion by the end of 2000. Over the past decade, the study found that 65 percent of compensation was paid to people with non-cancerous conditions. Claims have been filed against more than 6,000 companies, and at least 60 companies had filed for bankruptcy by spring 2002 under the weight of asbestos liability. The use of asbestos in the U.S. manufacturing industry began in the 1930s and continued until Occupational Safety and Health Administration regulations were enacted in the early 1970s. In the 1980s, as workers aged, asbestos-related diseases began emerging, and with them a steady stream of suits against manufacturers. In 1982, Johns-Manville Corp., at the time the largest maker of asbestos-containing products, declared bankruptcy because of its asbestos liability. Over the next 10 years, other makers of asbestos-containing products began to go broke. Since the 1980s, chest X-ray screenings have become the principal means by which many asbestos attorneys find new clients. Now, in cities throughout the country the scene is the same: A motor home rumbles into the parking lot of a hotel or a union hall. People wait to enter the coach, and about 10 minutes later come back out again. The X-rays are then sent to a radiologist who looks for irregularities in the lungs. In the late 1990s the U.S. Supreme Court ruled against two separate “global” class action settlements, and Chief Justice William Rehnquist wrote in his concurring opinion in one of the cases that the asbestos problem needed a legislative solution. In February, the ABA’s commission on asbestos litigation embraced reform. Shortly thereafter, Senate Bill 413 was introduced by Sen. Don Nickles, R-Okla. Since serious asbestos diseases can take up to 40 years to become life-threatening, the bill and the ABA guidelines would give potential claimants more time before they have to file. Currently claimants who aren’t sick but have evidence of asbestos exposure must file quickly to stay within each state’s individual statute of limitations. The legislation could have an impact on the practices of attorneys like Alan Brayton of Novato’s Brayton Purcell, whose clients include people who have been exposed to asbestos but don’t yet have symptoms. “We represent over 1,500 individuals who have been diagnosed with nonmalignant asbestos-related disease,” Brayton said. “Our best estimate is that over 50 percent of those with nonmalignant asbestos-related disease would not meet the criteria under the Nickles bill,” he said. Since the bill would apply to all cases that have not started trial, “it would eliminate a remedy for over 800 [of our clients], some of whom have had their cases pending for over two years.” LOBBYING EFFORTS Kazan and Alexander are spending a lot of time in Washington these days. While Nickles’ bill has gained the backing of Hatch, Sen. Patrick Leahy, D-Vt. — the No. 2 on the Senate Judiciary Committee — has yet to step on board. In February, the AFL-CIO sent a letter to senators urging them to oppose the reform bill. Last week Kazan and ABA President Dennis Archer were among people testifying before the Senate Judiciary Committee in support of the legislation. Archer, the former Democratic mayor of Detroit, summed up the ABA’s support for the new bill: “Asbestos litigation in this country is spiraling out of control. Many seriously ill people are dying before they get their day in court, while others are denied compensation as dozens of corporations go bankrupt.” However, with the trial lawyers association and the AFL-CIO opposed to SB 413, getting Democratic support may be tough. One alternative outlined at the hearing, proposed by David Austern, general counsel of the Manville Personal Injury Settlement Trust, would set up a complex trust fund arrangement in which a certain amount of money would be contributed by businesses with asbestos liability. It would also establish a set payout to victims based on their illness, with more money going to mesothelioma victims. But for Kazan and Alexander, the establishment of medical criteria remains a contentious issue. “I can state that the average value of my cases has gone down dramatically,” Kazan said. “And unless we can do something to stem the tide of these lawsuits, there’s not going to be any money left for any of the victims.” “We’re not for that concept because what you’re doing is unconstitutional,” Alexander fired back. “We shouldn’t have any pre-filing criteria.”

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