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When it’s not really about Transparency and Fairness

Isn’t it funny how “fairness” is often used as a weapon that is turned against those who are being victimized? California’s neighboring state, Arizona, has just put in place a new law that is designed to stop a great evil. According to the state’s governor, that evil is double recovery for asbestos victims. It “must be stopped.” And this new law, he says, will promote an “environment of transparency and fairness.”

The legislation will require victims of asbestos-related illness, such as asbestosis and mesothelioma, to submit a sworn statement of every claim they have made or plan to make. As attorneys there note, the state already has laws to prevent this. Then what could be the real purpose of this new law?

For one, it creates numerous, additional hurdles for those who have diseases like mesothelioma to obtain compensation for their illness. It creates a paperwork trap, designed to snare asbestos victims in a game of find the missing documents. They have to furnish complex documentation for any claims they have filed and problematically, “or reasonably anticipates filing” and what is more, they then must update all of these filings.

This law also will allow defendants in asbestos cases to argue that third party is liable for all or part of the claim. Of course, this is why a claimant may have multiple claims pending with different asbestos trusts, but in this instance, with this provision, defendants will always argue someone else is responsible for this victim’s illness.

This will allow litigation to drag on, and the defendants hope, allow the disease to progress and render the plaintiff unavailable for testimony. And if a asbestos victim fails to provide a required document or update a claim, this section contains an explicit threat to the asbestos victim that they can be sanctioned and made to pay the attorneys fees of the defendant.

 

The law specifically references a section of the statutes that applies sanctions for filing “unjustified actions.” The section, 12-349, is generally applicable to every action in a court in the state, but it is likely that it is highlighted within the new statute to intimidate victims in the hopes they won’t file any claims.

What is remarkable is that the governor sees the greater harm in the possibility that some victims could receive some compensation from more than one source as a greater problem than the fact that people are dying of a terrible disease.

A disease that they developed because other people lied and disregarded their health in order to increase profits. But we should not be worried about these individuals, who are being robbed of their very lives? No, instead, according to the governor and his supporters, the real danger is that a victim of asbestos might receive a double recovery.

Of course, the real purpose of this law is to create additional hurdles and delays in the claims process, whereby they hope that the asbestos victims die before they can testify in a courtroom. The asbestos industry knows how compelling that testimony can be.

They know that if a victim dies prior to trial, their damages become an abstraction, and can be made to seem less real to a jury, as compared with when the living, coughing victim is present in the courtroom.

Sadly, as daily news reports raise the specter of asbestos in homes and buildings across the country, suggesting that asbestos cases are unlikely to disappear for a long time, this is how state legislatures spend their time.

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