Justice for the Soldier or Profits for the Lawyer? | Commentary
By John Brieden Everyone who has served in the armed services in the last century has faced threats both seen and unseen. For some veterans, a great unseen is asbestos — a toxic fiber dangerous many years after surviving the battlefield. Congress authorized creation of asbestos trust funds in 1994 to protect asbestos victims, including veterans who were exposed on the job while they served.
But accessing the roughly $36 billion in asbestos trust funds tends to require a lawyer. Sadly, this has created a second threat to our veterans: unscrupulous trial lawyers, motivated by their own financial interests.
The system of filing a claim against the trust funds has become a toxic cocktail of money, secrecy and greed that threatens the financial viability of these trust funds. Worst of all, veterans are being used as a public relations talking point to prevent reforms that would actually benefit those who have served.
This week, the House Judiciary Committee will consider the Furthering Asbestos Claims Transparency Act. This common-sense bill will protect veterans and other asbestos victims by requiring asbestos trust funds to disclose information on their claims.
This type of transparency is not feared by parties who have nothing to hide. But in the world of asbestos trial lawyers, transparency apparently is a bad thing. Desperate to kill or gut this reform, the trial bar’s talking point is that America’s veterans will be harmed by this straightforward sunshine legislation — a truly bizarre claim.
FACT Act sponsors and veterans’ advocates like me want to preserve the trust funds’ assets for victims; trial lawyers want to preserve an opacity in the system that allows for the unseemly practice of “double dipping” — where lawyers inflate multiple injury awards by deliberately concealing the fact they are making more than one claim against more than one party for the same injury.
This is like the kid at the birthday party who takes two scoops of ice cream instead of one — and then returns for seconds — leaving other kids with no ice cream.
Double-dipping was at the heart of a landmark asbestos bankruptcy case last year, where trial lawyers’ billion-dollar claim against a company, Garlock Sealing Technologies, was based in part on past claims their clients weren’t exposed to dangerous asbestos products made by other companies.
In a rare move, a federal judge unsealed asbestos fund legal documents and found that the lawyers were actually bringing claims against asbestos trust funds at the same time they were claiming their client was injured only by Garlock. The judge ruled that the lawyers had suppressed evidence.
The Garlock case busted the trial lawyers’ party by proving that double dipping is actually occurring. In fact, independent experts such as the GAO and the RAND Institute for Civil Justice have already said the trusts are also susceptible to this fraud.
The FACT Act would stop this unfair practice by fixing the trust fund features that encourage fraudulent claims.
While secrecy in the asbestos legal system makes it hard to know the full extent of this fraud, there is ample evidence the funds are being depleted at a rapid rate — 23 funds have reduced their payments since 2008. An asbestos victim who files trust claims today will receive about half as much, on average, as he would have only seven years ago. Clever lawyers are gaming the system to line their own pockets today and leaving asbestos trust with less money for asbestos victims, including veterans, in the future.
The cunning trial bar won’t accept reforms that would reduce their ill-gotten profits. Skilled in the art public relations and lobbying, they have put significant resources into creating smoke and mirrors around the veterans’ angle of this important legislation.
Assertions the FACT Act will hurt veterans are patently absurd and border on exploitation of this honorable group of heroes.
As a veteran who has spent much of his life advocating for the veterans’ community, it saddens me to see this dirty business in the name of those who have served. Members of the House Judiciary Committee must remind themselves that when this much money is at stake, some trial lawyers have no qualms about hiding behind those who enjoy better public reputations, like veterans.
To paraphrase U.S. Army veteran and poet Charles M. Province — it is the soldier, not the lawyer, who has given us American justice. That is why the best interests of the soldier, not the lawyer, should prevail through the FACT Act.
John Brieden is a former national commander of a major veterans service organization, has served on the boards of several state agencies and is currently serving as a county judge in Texas.
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