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A growing number of state courts are adopting measures to reorganize their backlogs of asbestos cases to ensure that the sickest plaintiffs have their cases heard first. Some plaintiffs’ lawyers are objecting to the move, saying that it denies plaintiffs with legitimate claims who are not yet showing signs of illness the right to pursue their suits. The reorganization has been enacted in several courts, including those in New York City; Syracuse, N.Y.; Seattle; Boston; Chicago; and Baltimore. It entails creating “inactive dockets,” which temporarily remove claimants from the active civil docket until they can show physical manifestations, such as cancer or a disability, to support an asbestos claim. Michigan recently took center stage in the debate between plaintiffs’ lawyers and asbestos defendants. Sixty asbestos defendants including the Dow Chemical Co. and the Kinney Vacuum Co., petitioned the Michigan Supreme Court to adopt an inactive docket. In court papers, the petitioners say that the cost of past and future asbestos litigation-estimated at around $200 billion-has reached roughly the same amount it will cost to rebuild Iraq. Claims by nonsick plaintiffs comprise 90% of asbestos litigation, they assert, and are forcing “traditional” asbestos defendants-companies that produced asbestos-into bankruptcy. More than 60 defendant companies have gone bankrupt, according to the petition, and asbestos victims and their survivors are recovering only fractions of their awards from bankrupt defendants. “Manville is paying five cents on the dollar,” asserted Mark Behrens, of the Washington office of Shook Hardy & Bacon, one of the authors of the amici brief filed in Michigan, referring to the bankrupt Johns Manville Corp., one of the largest producers of asbestos. Judges are taking it upon themselves to manage their asbestos dockets, either with the creation of a formal registry like an “inactive docket,” or by dismissing claims of nonsick plaintiffs without prejudice, and preserving their right to sue at a later date, Behrens said. “It’s competition for the same dollars,” Behrens said. “Cancer victims’ lawyers know there is not an infinite amount of money out there and every dollar that goes to someone who is not sick is a dollar less to compensate cancer victims.” Denying rights Frederick M. Baron of Baron & Budd in Dallas, a firm with about half of its practice in asbestos, said that the measures are unfair, because people who pay their taxes and have legitimate claims recognized under state law will not be able to access their courthouse. “Inactive dockets are code words for depriving people of their rights to access justice in the civil courts,” Baron said. “Cutting out people’s rights is the classic definition of tort reform.” The Michigan petition is the first to ask a state supreme court for an inactive docket. On the federal level, the American Bar Association has filed a report to Congress endorsing a “medical criteria” approach. Similar to the inactive docket, the plan would establish a “minimum impairment threshold” that must be met in order to file an asbestos claim, while suspending the statutes of limitation on non-malignant claims. The most austere federal bill, the Fairness In Asbestos Injury Resolution Act of 2003, recommends inactive dockets, as well as the creation of a federally supervised trust fund to pay out asbestos claims. That bill, introduced by Senator Orrin G. Hatch, R-Utah, is expected to reach the Senate floor in October. McAree’s e-mail address is [email protected]

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