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The Pennsylvania General Assembly is the latest state legislature to address what some consider the “invasion of the unsick” — a dramatic spike in asbestos claims filed by workers alleging exposure to the product without showing any impairment. Twenty members of the state Legislature have launched a bill that, among other things, proposes setting medical criteria requiring that claimants show actual impairment before they bring actions for asbestos exposure, to give priority to genuinely impaired workers. Legislation similar to Pennsylvania’s has become law in Ohio, Georgia and Florida within the last year. A similar Texas law takes effect in September. The legislative activity is an attempt to address the increase in asbestos claims filed by the unimpaired. It also follows in the wake of revelations of alleged abuse in mass screenings and claims filings that emerged during U.S. Senate Judiciary Committee hearings held over the last three years on the Fairness in Asbestos Injury Resolution Act, as well as in federal multidistrict litigation over silica exposure in Texas. The proposed 2005 federal act, which cleared the Judiciary Committee and now awaits a vote by the full U.S. Senate, would take asbestos claims from the existing system and instead process them through a federally administered fund. The fund would compensate current and future asbestos claimants on a no-fault basis using standardized medical criteria and corresponding claims awards. ENTERING THE FRAY But delays in the federal legislation have led some states to try to make their own way, said Mark A. Behrens, a partner in Shook, Hardy & Bacon’s Washington office who represents asbestos and silica defendants and writes on related issues. States are “jumping into the fray” because people are “becoming aware of the asbestos litigation environment as it actually exists,” Behrens said. When he first got involved in the litigation five years ago, he shared “the common misperception” that it involved “people with substantial exposure to asbestos who were really sick suing companies who made the product — a perception that did not reflect the reality of what I discovered,” Behrens said. “Since 2000, the litigation has been marked by a majority of claims by people who are not sick, and the target defendant of today has a remote connection to asbestos,” he said. “People thought it was a problem of the past. Now that they are becoming aware it’s a major problem, they’re starting to do something about it.” But Carlton Carl, spokesman for the American Trial Lawyers Association, called the states’ medical criteria bills “the equivalent of legislators playing doctor and also the equivalent of saying someone who had an operation and got HIV through a blood transfer isn’t sick and hasn’t been injured.” The trial lawyers assert that legislatively mandated medical criteria will bar court access particularly to the unsophisticated blue-collar worker. “It’s saying, ‘If you’ve been injured this much you don’t get compensation, and if you’ve been injured that much you do get compensation,’” Carl said. “We’ve always preferred letting judges and juries make these decisions, not politicians and insurance companies.” Daniel J. Mulholland of Forman Perry Watkins Krutz & Tardy in Jackson, Miss., which represents asbestos and silica defendants, called medical criteria legislation “a very positive thing” but warned that the “devil’s always in the details.” Mulholland’s experience as one of the lead lawyers in the federal multidistrict silica litigation, In re Silica Products Liability Litigation, No. 03md1553 (S.D. Texas), in which the presiding judge excoriated plaintiffs’ lawyers and their medical experts in an advisory opinion, tells him defendants and courts will have to be vigilant to make sure plaintiffs are complying with the medical criteria in place. “The issue will be whether they try to pass [noncompliant or substandard medical records] off as compliant,” he said. In six states, the unimpaired have no cause of action to litigate asbestos tort claims: Arizona, Delaware, Hawaii, Maine, North Carolina and Pennsylvania. John C. Lobert, senior vice president, state legislative affairs at Property Casualty Insurers Association of America of Des Plaines, Ill., said California and Michigan are in the organization’s sights for medical criteria legislation in the upcoming legislative season.

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