JEFFERSON CITY — Just under a quarter of all states now have laws requiring plaintiffs in asbestos lawsuits to fully disclose claims they may have filed with asbestos trusts, a trend that tort reform advocates see as a step in the right direction.
One of the latest states to tackle the issue is Missouri, with two companion measures making their way through the General Assembly.
But the move toward asbestos claims transparency may have to take a back seat if legislators fail to pass a bill into law before the end of their legislative session in May.
Even if House Bill 333 and Senate Bill 347 do not make it to the floor of their respective chambers this session, proponents expect to see the measures reintroduced next session.
Either way, the question remains: why do legal reformers see a need for this legislation in Missouri at this time?
“We know from the Garlock bankruptcy case, as well as many case reports and studies that have come out, that withholding of plaintiff exposure evidence is widespread and problematic nationally, including in St. Louis,” Mark Behrens, a partner with the Washington, D.C., law firm Shook Hardy & Bacon, told the St. Louis Record.
Behrens was referencing a nearly 4-year-old case involving Garlock Sealing Technologies in which it was alleged in a lawsuit that a handful of law firms representing asbestos plaintiffs in civil actions were untruthful about their clients’ exposures, telling different stories through filings with the bankruptcy trust system than were alleged through the suits.
A federal judge eventually sided with Garlock, a decision that reverberated throughout the world of asbestos litigation.
Behrens said ever since the Garlock case, a number of states have moved to pass laws requiring asbestos plaintiffs in civil actions to be fully transparent about claims they have also filed with bankruptcy trusts.
In Missouri, HB 333, sponsored by freshman Rep. Bruce DeGroot, would require asbestos plaintiffs to disclose within 30 days of filing a suit, certain information regarding when they filed claims against an asbestos trust, and the circumstances surrounding those claims.
According to the bill, a trial date in the civil action cannot be set until at least 45 days after the plaintiff has submitted the required information to the court and opposing parties regarding the trust claims.
The information includes the amount of compensation the plaintiff has received or will likely receive, from the trust.
Noting that St. Louis was recently named the No. 1 “judicial hellhole” by the American Tort Reform Association, because of its apparent plaintiff-friendly legal landscape, Behrens said a law like HB 333, and similarly, SB 347, is needed to level the playing field.
“The city of St. Louis has become a major destination for asbestos plaintiffs,” he said. “St. Louis is now about the fifth leading jurisdiction for asbestos filings.”
Behrens, who testified on HB 333 as a national expert, said the measure passed out of two legislative committees and was heading for the House floor, although it would have to be signed into law before the legislative session ends on May 12.
Both Behrens and DeGroot, the freshman Republican lawmaker behind the bill, expect asbestos claims transparency legislation to gain the support of the state’s new Republican governor, Eric Greitens, who reportedly spoke about tort reform during his first State of the State address.
“Too long in this state, trial lawyers have picked our people’s pockets, and it’s time to do different,” Greitens said during the address, according to news reports.
DeGroot, who has filed 17 bills since he first became an active lawmaker in January, has tort reform high on his list of legislative priorities
The goal with HB 333, he said, is to prevent double-dipping among plaintiffs’ lawyers, who often file claims against both asbestos trusts – which cover insolvent companies – and solvent companies in the form of civil lawsuits.
“It’s a matter of fairness,” DeGroot told the St. Louis Record.
DeGroot said asbestos trusts are paying out money to people who don’t really deserve it because they are already getting compensation from solvent companies.
And because the trusts have a finite amount of money, it is only fair to ensure that the people who are getting paid aren’t double-dipping or getting from both pots.
DeGroot said he is concerned about the “guy at the end of the line,” especially people like military veterans, who may be getting short-changed because of others who have gotten money from both the trusts and through civil suit awards.
Plaintiffs’ attorneys who double dip, or fail to disclose that they have also filed claims with asbestos trusts at the time they file a civil action, DeGroot said “what they’re really doing is robbing the guy at the end of the line."
DeGroot said part of the deal for insolvent companies that place money into bankruptcy trusts is that they become immune from civil litigation.
He said when plaintiffs’ attorneys double dip, it becomes unfair to solvent companies, because they are often paying out 100 percent of the compensation even though they may only be, say, 25 percent liable for a person’s injuries.
DeGroot said it may be easy for some to knock his bill, arguing that he is merely supporting big business and not the little guy, but he wants to assure folks that he does, in fact, care for those who have become legitimately injured through asbestos exposure.
It becomes problematic though when greed leads plaintiffs to file claims with bankruptcy trusts and then turn around and file civil suits to attempt to recover for something they’ve already been compensated for, especially when there is a limited amount of money in the trusts.
Furthermore, not divulging that a plaintiff has already attempted to recover through the bankruptcy trust process makes it appear as though they’re trying to hide something.
DeGroot said if his bill makes it to the governor’s desk, he fully expects Greitens to sign it.
“Tort reform is absolutely a priority for Gov. Greitens,” DeGroot said. “He is a business oriented governor …. And our reputation has been up until this time that courts aren’t friendly to businesses – just the opposite.”
Not everyone, however, feels as though the tort system in Missouri is completely unfair.
In an interview with the website Marketplace in March, St. Louis University law professor Thomas Stewart was quoted saying that the city isn’t a chosen venue for asbestos filings because it is plaintiff-friendly but rather because judges there are known for their expertise and efficiency.
“St. Louis litigated tobacco cases, and those tobacco cases resulted in defense verdicts,” Stewart said. “Why didn’t we get the judicial hellhole designation when that happened?”
Clearly, though, the fact that so many states are moving to pass legislation similar to HB 333 and SB 347 shows that many people feel there is indeed a problem.
A map provided by Behrens, the Washington-based defense attorney, shows that as of now, a total of 12 states have passed asbestos claims transparency legislation.
They are Ohio, West Virginia, Tennessee, Mississippi, Wisconsin, Iowa, Oklahoma, Texas, North Dakota, South Dakota, Arizona and Utah.
If Missouri passes asbestos claims transparency legislation, it will become the 13th state to have such a law on the books.