U.S. judges seek remedy for asbestos workers


WASHINGTON -- The policy making arm of the federal courts, in a sharp break with precedent, asked Congress yesterday to provide a financial remedy for potentially millions of workers harmed or killed by breathing asbestos particles.

The request, by the 27-judge U.S. Judicial Conference, was based on a committee's report that the federal courts are overwhelmed by tens of thousands of highly complex lawsuits over who is to pay for the slow-developing cancers and other diseases afflicting individuals who have worked with or around asbestos.

By one estimate, as many as 21 million American workers have been exposed in a significant way to harmful asbestos fibers.

Yesterday's action by the judicial agency appeared to mark the first time that the conference, which normally proposes bills only to deal with the courts' administrative problems, had endorsed a broad piece of legislation to deal with a social problem.

The judges apparently were sensitive about this aspect of their action, taking care to say that they only wanted Congress to "consider" the problem and were not directly recommending the proposal.

Even so, the conference vote, which produced only one dissent, reflected the conference panel's implied conclusion that workers had been harmed by asbestos, and somebody should provide compensation. Those are, in fact, among the central legal issues in all of the cases, which now number 30,000 in federal courts and another 60,000 in state courts. The number keeps going up rapidly.

In Baltimore, state Circuit Judge Marshall A. Levin has been assigned to handle all asbestos cases in that court. The number was at 3,500 in 1989, and rose last year to 6,000 with cases transferred there from other Maryland courts.

Federal courts have been faced in recent years with a wide variety of so-called "mass tort" cases -- stacks of lawsuits based upon harms done to thousands or even millions of people by defective chemicals, drugs or consumer products. But, until yesterday, the federal courts had not suggested that Congress pass a law to deal with such harms. Asbestos cases, however, are now in a class by themselves, conference spokesman David Sellers said.

For years, American manufacturers have been trying to get Congress to pass a nationwide "product liability" law, to make their legal risks uniform and, perhaps, to cut down on jury verdicts ranging into the tens of millions of dollars. Congress has shown no sign of willingness to displace state laws, however.

Asbestos-containing materials were widely used in shipbuilding, as well as in a variety of building construction projects, often as insulation. Exposure to asbestos has been found to cause a number of diseases, including lung cancer.

By then, it may no longer be possible to identify which company made the particular material to which a worker was exposed. Because of that, asbestos manufacturers have argued in court that they should not be held liable, because the law provides remedies only against those identified as blameworthy for the harm done.

All of the lawsuits, even those in federal court, are based on claims of violations of state laws. But, in yesterday's proposal, the Judicial Conference urged Congress to take over the problem and pass what it called "a national solution" that would set up a "single forum" to decide all the disputes. It offered few specifics, saying that it was Congress' task to work out the details.

If Congress is not willing to go that far, the conference suggested, as a "fallback" idea, giving the federal courts the authority to fashion flexible tools to put all of the cases together for common decision.

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