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The following phrases have been used recently to define the current state of asbestos litigation in the United States “a pit,” an “endless saga,” a “runaway job-eating blob,” an “elephantine mass.” For those who practice in this litigation, the phrases ring true. The crisis, by which it has accurately become known, is multi-faceted. Dockets are clogged; the vast majority of claims are brought by unimpaired individuals who prematurely sue to avoid the bar of the statute of limitations; claims are brought against new target defendants that never manufactured asbestos-containing products; claims are forum-shopped to plaintiff-friendly jurisdictions where the claimants never lived or worked to maximize damage verdicts; and plaintiffs are consolidated with thousands of other claimants whose lawsuits are wholly unrelated in respect to occupation, method of exposure or disease. These tactics create an unwieldy mass that often puts defendants in the untenable position of having to pay to buy their peace, even where there has been no discovery. Enough said. The system has run amuck. Even worse, legitimately ill claimants suffering from asbestos-related cancer or mesothelioma cannot get their day in court because bloated dockets of unimpaired claimants force the sick to wait. Meanwhile, the pot of available compensation shrinks as the shrinking numbers of defendants seek bankruptcy protection. Indeed, bankruptcies have claimed more than 60 defendant companies, 35 since just 1998. The new victims of the asbestos litigation are the displaced workers whose retirement savings are erased when their employers buckle under the weight of their asbestos liabilities. The costs of asbestos litigation are astronomical. A Rand Institute for Civil Justice study determined that there were 600,000 claims pending at the end of 2000. By that time, $54 billion had been spent on asbestos defense and indemnity. Over 90,000 claims were filed in 2001 alone. Some have predicted that even though asbestos is now used only sporadically in the United States, claims could continue unabated until at least 2030 due to long latency periods associated with asbestos-related disease — there could be nearly 3.1 million claims pending by 2030. By that point, defense and indemnity costs could soar to between $200 and 275 billion, more than the costs associated with cleanup of all of the nation’s Superfund sites, the Hurricane Andrew disaster and the September 11th attacks — combined. THE NEED FOR REFORM The need for federal legislation to reform the asbestos litigation crisis is well established. The 1991 Report of the U.S. Judicial Conference Ad Hoc Committee on Asbestos Litigation, appointed by U.S. Supreme Court Chief Justice William Rehnquist, described the “most objectionable aspects” of asbestos litigation as follows: “Dockets in both federal and state courts continue to grow; long delays are routine; trials are too long; the same issues are litigated over and over; transaction costs exceed the victims’ recovery by nearly two to one; exhaustion of assets threatens and distorts the process; and future claimants may lose altogether — the worst is yet to come — unless Congress acts to formulate a national solution.” Similarly, in Amchem Products, Inc. v. Windsor, 521 U.S. 591 (1997), the majority opinion, and the opinion that concurred in part and dissented in part, chronicled the long history of asbestos litigation, the problems the litigation has posed for decades for the federal courts and for legitimate victims, and the need for a federal legislative response. Likewise, in Ortiz v. Fibreboard Corp., 527 U.S. 815 (1999), Justice Souter, writing for the Court, observed that “the elephantine mass of asbestos cases — defies customary judicial administration and calls for national legislation.” In a concurring opinion, Chief Justice Rehnquist agreed that the asbestos litigation crisis “cries out for a legislative solution.” Despite the Supreme Court’s repeated invitation, Congress has failed in the past to address the growing asbestos litigation crisis. In view of historical congressional inaction, recent editorials in prominent national newspapers such as The Wall Street Journal, The Washington Post, The Chicago Tribune and The Los Angeles Times, have demanded federal legislation to respond to the ever-expanding asbestos litigation crisis and the variety of problems it creates for the economy, American businesses, employees, shareholders, investors, and deserving victims and their families. Even several prominent plaintiffs’ lawyers who represent seriously ill asbestos claimants have joined the rising chorus of voices calling for a national legislative solution to the asbestos litigation problem. These lawyers emphasize that the current system drains resources and fails to ensure that deserving victims receive fair compensation and their day in court. For example, Steven Kazan, a leading California plaintiffs’ attorney who represents asbestos cancer victims obtain damages for fear or risk of developing cancer exclusively, recently testified before a U.S. Senate Judiciary Committee hearing that: “[U]nless Congress acts now, those who do become sick [because of asbestos exposure] will suffer a double misfortune — when they contract cancer and again when they fail to receive the compensation they are entitled to because people who aren’t sick have taken all the money.” Kazan and other plaintiffs’ lawyers have joined forces with the group of asbestos defendant companies, trade associations, and third parties that is pushing hard for federal legislation to address the crisis. THE ABA ENTERS THE FRAY Against this backdrop, the then-President-Elect of the American Bar Association (ABA), Dennis Archer, commissioned a task force in November 2002 to study the current state of asbestos litigation and make recommendations for legislative reform. The ABA Commission on Asbestos Litigation (“Commission”) was led by the Honorable Nathaniel R. Jones, retired Judge of the 6th U.S. Circuit Court of Appeals, and included representatives of both the plaintiffs’ and defense bars. In addition to analyzing previous studies of the asbestos litigation system, standing orders of courts that have attempted to limit suits by unimpaired claimants and numerous settlement agreements covering non-malignant claims, the Commission conducted extensive interviews of ten pulmonologists who have testified in asbestos litigation for both plaintiffs and defendants. The Commission decided that the most effective way to reform the system was to set a medical criteria threshold that nonmalignant claimants must meet to access the courts. Furthermore, to discourage the filing of premature claims by unimpaired claimants, the Commission determined that the statute of limitations should be tolled until claimants can demonstrate objective evidence of impairment. The Commission recommended a resolution to the House of Delegates, the policy-making body of the ABA that would establish the following pre-conditions to suit for any nonmalignant claimant:

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