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On the other side of the ledger, the current system is not likely to have adequate resources to fully compensate all claimants. A substantial portion of the resources that are available is used to run the system rather than directly benefit claimants. It is also disorganized, with no oversight to assure that compensation is allocated primarily to those with the most compelling cases.

Changes in Tort Law

Some observers see asbestos litigation as part and parcel of broader problems with personal injury litigation that justify more general "tort reform," especially in cases with thousands of plaintiffs. Many specific measures have been suggested, such as caps on punitive damages, limitations on joint and several liability, and more narrowly specifying the court(s) in which each plaintiff can bring his/her case. These are discussed more fully elsewhere."

A tort innovation peculiar to asbestos is the "pleural registry." In a number of states, this device enables one to make a tentative filing when one learns of one's injury (often upon diagnosis of pleural plaques),12 and thus meet the legal deadline even though no (or minor) impairment has yet occurred. Trial of the claim is delayed until serious symptoms occur. This procedure can postpone many cases - many of which will never progress to debilitating disease - and allow immediate resources to be concentrated on those with the most serious immediate problems. Similar provisions are included in the bills now pending in the Congress.

Proving "Physical Impairment"

Several current bills - H.R. 1586 (Cannon), H.R. 1737 (Dooley), and S. 413 (Nickles) - build on the pleural registry concept by requiring that, before they can proceed further with an asbestos suit, plaintiffs must make a prima facie case that they have a physical impairment and that exposure to asbestos has been a substantial contributing factor. Until such time as impairment can be established, statutes of limitations and other time limits would be held in abeyance. If a non-malignant case is established, claims for cancer must be put aside until that disease becomes evident (a two disease rule). If a state court does not apply such principles, the bills would authorize removal of cases to federal court. There are also restrictions on venue (i.e., which courts have jurisdiction) and on consolidation of cases."

The bills differ in particulars, but each specifies exactly how physical impairment and causation are to be established. Factors to be considered include

11 See CRS Issue Brief 11397056, Products Liability: A Legal Overview, by Henry Cohen.

12 Pleural plaques resemble calluses. They are patches of tough sinewy tissue which form on the inside of the chest wall and show up in chest x-rays. They are generally thought of as an indicator of asbestos exposure rather than a disease.

13"H.R.1586 also has provisions to: limit non-economic damages, prohibit punitive damages, allocate responsibility according to proportional liability (including liability of the claimant), require disclosure of other sources of compensation, and require proof of specific types of negligence in the case of sellers of asbestos products other than manufacturers.

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