IN THE ASBESTOS cases, the conventional liability suit works dramatically badly. The system is breaking down. The Manville Corporation's decision to file for bankruptcy is a warning that the rapidly growing burden of litigation cannot be handled through the normal processes of the courtroom. One reason is the sheer volume of it. Some 16,500 suits have already been brought against Manville alone, and, by the company's estimate, it can expect another 32,000. But the greater reason is the nature of cancer, which may appear decades after exposure to asbestos and leaves no clue as to which exposure, to which product, may have caused the disease.
Plaintiffs have trouble collecting from companies that may be liable, and the companies have trouble collecting from their insurance carriers. The only people who can be sure of extracting much benefit from this procedure are the lawyers. Manville says that in the first half of this year it spent $8.6 million on the asbestos litigation, of which only one-fifth actually went to the people who had been injured. Where did the rest go? Into legal fees, of course -- Manville's and the plaintiffs'. These cases reveal the American legal system at its worst. It is intolerable that, of the millions spent and perhaps billions to come, such a wretched trickle of compensation should reach the unfortunate people who have actually suffered from the terrible diseases that asbestos caused.
There's a better way to handle it. The model ought to be the workmen's compensation system, with a couple of important differences. Congress is already considering several bills, and Manville's flight to the bankruptcy court is a signal that there isn't all the time in the world to make decisions. The right solution is a special claims board that can make prompt awards, under a uniform nationwide standard, out of one consolidated fund.
Who contributes to the fund? To begin with, the companies that have produced asbestos, and asbestos products, over the past generation. Next, their insurance companies, to whom it would be worth quite a lot to buy their way out of 30 years' litigation ahead over which of them is liable for what exposure. Finally, the federal government. In some instances, federal regulations actually required the use of asbestos products. If the industry can be blamed for reacting slowly and reluctantly to the mounting evidence of danger to health, the same thing can be said of the federal government.
The present reliance on individual suits means that one person may receive a large judgment if he was exposed while working for a profitable company -- i.e, Manville -- while another person, with similar illness, gets nothing because he worked for a company that has since gone out of business. One person may be well compensated, while another gets nothing because he can't prove the circumstances of his exposure in, say, the 1950s.
A national claims board can extend equal compensation to people suffering equal injuries without plunging into the questions -- frequently unanswerable -- about which exposure, or which product, may have been responsible. That is justice of a kind that the courts, in these cases, are incapable of rendering. The victims of asbestos are people who have suffered grievous harm. They are entitled to compensation without long delays, without waiting for successive court appeals and without having to turn over two-thirds of their settlements as lawyers' fees.