Back to Europe for the day.
The House of Commons is anticipating discussions on pleural plaques vis a vis the apparent path of Scotland affirmatively acting to permit plaques claiming via legislation, but England and Wales not allowing compensation and other European countries taking divergent various views. The following remarks are from January 28, and are courtesy of They Work for You.
Stephen Hepburn (Jarrow, Labour)
Will the Leader of the House give us an early debate on pleural plaques? We need to be able to lay down a marker on any Government proposal that might allow future victims of pleural plaques in Scotland to be compensated by the British taxpayer, when future English victims will get nothing at all.
Harriet Harman (Lord Privy Seal, House of Commons; Camberwell & Peckham, Labour)
I thank my hon. Friend for raising this important issue. We are aware of the strength of feeling on this matter, and are firmly committed to ensuring that people suffering from asbestos-related diseases receive the help and support that they need. We hope to be in a position to give the Government's response on pleural plaques soon.
Back to Europe for the day.
This article from a British newspaper reports that the UK government is trying to cut a deal with unions 1) to pay for more scientific research on cancer, and 2) require more compensation from insurers for asbestos victims, but without reinstating pleural plaques claiming. Apparently remaining insurers would be required to pay bills left behind by insolvent insurers. On reading the article, one wonders about linkage between this development and the insurance industry's 8 January 2010 resounding loss in Scotland as various insurers failed to overturn legislation reinstating claiming for pleural plaques in Scotland.
According to today's article:
"Asbestos victims offered £70m support package
Unions divided on plan to set up a research centre and compensation fund - because of exclusions
By Emily Dugan
The Government is set to present a £70m package of help for asbestos victims to trade unions this week. The proposals include setting up a research centre into asbestos-linked diseases; insisting insurers fund compensation for dying victims unable to rely on their employers' insurance; and more money for sufferers of the deadly asbestos cancer mesothelioma.
The proposals, campaigned for by the IoS, are likely to receive a mixed reaction from campaigners seeking justice for thousands of workers who face painful deaths because of negligent exposure by their employers.
The fund and research centre were welcomed last night, but opponents were quick to criticise the Government's decision not to overturn a 2007 law lords' ruling which left sufferers of a condition known as pleural plaques ineligible for compensation. The condition is often a sign of the onset of deadly asbestos diseases.
The proposals were outlined in a private meeting between Gordon Brown, the Justice Secretary, Jack Straw, and concerned MPs last week. Sources confirmed that if accepted by the unions, the plans would be rapidly adopted. But the construction union UCATT called the proposals "morally indefensible".
The establishment of an Employers Liability Insurance Bureau to maintain a "fund of last resort" for victims of asbestos exposure who cannot trace their employers' insurers is the most significant victory, as it will be mainly paid for by the insurance industry.
Mr Straw is understood to have said that overturning the pleural plaque ruling would be too costly, with the Government already facing liabilities of up to £600m because so many public sector workers were exposed to asbestos in previously nationalised industries and in the Armed Forces. Critics believe ministers have surrendered to the powerful insurance lobby.
Andrew Dismore MP, who tabled two bills to overturn the 2007 ruling, said: "If you've got pleural plaques, there's nothing in this package for you. What's on offer is not chicken feed, but it will mean there are lots of people who will not get the compensation they deserve."
The UK is not alone in considering issues related to asbestos claiming and pleural plaques. Instead, the topic already is being addressed in various countries and no doubt will arrive on the table soon for other countries. The issue is unavoidable because asbestos use in the EU and elsewhere actually far exceeded asbestos use in North America (for data go here to see Munich Re's charts summarizing data beginning at page 98 in the appendix). Moreover, the use of amphibole fibers appears to have been more extreme. Various national approaches to pleural plaques are reviewed in a fall 2009 n article that includes papers on the UK decisions, and the law in France, Italy, The Netherlands, Norway, Slovakia, and Spain. The article is here.
Thanks to Albert Azagra to alerting me to the article last fall - he is one of the authors.
Scottish Trial Court Upholds Legislation Reinstating Pleural Plaques Claiming for Scotland (Statute Also Applies to Asbestosis and Pleural Thickening)
A hat tip to Business Insurance for an email alert on Friday advising that a Scottish trial court had just issued an opinion rejecting insurer challenges to Scottish legislation reinstating claiming for pleural plaques. The article is here; it mainly says the insurers are not happy and may appeal. The opinion is online here at the court's website.
For those interested only in outcome, this is a potentially huge loss for both insurers and, in my view, for society. Set out below are some detailed comments on the opinion, and arguments apparently not made by the insurers. The short story is that the trial judge predictably upheld the law as a rational exercise of legislative judgment despite claims that the legislation violates Scottish law and EU law. Also bear in mind that the statute applies beyond pleural plaques and thus explicitly allows claiming compensation for "pleural thickening" and "asbestosis."
For more specifics on the opinion and some commentary see below. My personal view is that the legislation is misguided because societies have so many more pressing needs that we cannot afford to pay compensation for all biomarkers/conditions. Specifically, it seems to me lines must be drawn, and that societies and companies should not pay compensation for biomarkers/conditions that mark past "exposure" but do not impair day to day life, do not impair ordinary bodily function in general, and do not involve changes to the cellular mechanisms that actively regulate cells and, thus, regulate cancers and the endocrine system. Compensation instead should be reserved for the approaching waves of claims arising from new science and medical monitoring claims related to genetic alterations that really do matter.
On the topic of future claims and science, see Gary Marchant's many papers, which are for the most part collected here. Mr. Marchant is a lawyer, scientist, and former Kirkland litigator. He is now a professor of law at Arizona State University. His roles there include: Executive Director & Faculty Fellow, Center for the Study of Law, Science, & Technology, and Lincoln Professor of Emerging Technologies, Law and Ethics. See especially Marchant, Personalized Medicine and the Law, 44 Ariz. Att'y 12 (2007). See also Gary Marchant See Gary E Marchant, Robert J Milligan, & Brian Wilhelmi, Legal Pressures and Incentives for Personalized Medicine, 3 Personalized Medicine 391 (2006)(related topics in terms of litigation pressures)(the article is available here).
The opinion by Lord Emslie is long -- it runs about 116 pages and consists of 248 numbered paragraphs. The first 70 pages are devoted to some procedural history, and a significant amount of analysis regarding standing, with the latter encompassing analysis under applicable EU directives and UK law. The opinion also includes some interesting history and analysis regarding the role of the Scottish Parliament as a result of changes in the structure between the UK countries and the advent of EU law. For a US lawyer, the discussion was educational.
The scope of the legislation needs to be understood. To that end, here are key excerpts from the opinion.
" In these proceedings for judicial review the petitioners are major insurance companies. Together they challenge the lawfulness of a recent Act of the Scottish Parliament which came into force on 17 June 2009. Both prospectively and retrospectively the Damages (Asbestos-related Conditions) (Scotland) Act 2009 bears to make pleural plaques and certain other asbestos-related conditions actionable for the purposes of claims of damages for personal injuries. According to the petitioners, this unfairly burdens them with additional liabilities under indemnity insurance policies to the extent of hundreds of millions - perhaps billions - of pounds, and they now seek declaratory and reductive orders from the court in that connection. This is resisted by the compearing respondents who are (first) the Lord Advocate as representing the Scottish Ministers, and (third to tenth) a number of individuals with diagnosed pleural plaques who seek, or at least intend to seek, damages on that account from their former employers. A First Hearing on the parties' competing contentions has now taken place before me over periods totalling 22 days."
 So far as relevant for present purposes, the Damages (Asbestos-related Conditions) (Scotland) Act 2009 provides as follows:
"1. Pleural Plaques
(1) Asbestos-related pleural plaques are a personal injury which is not negligible.
(2) Accordingly, they constitute actionable harm for the purposes of an action of damages for personal injuries.
(3) Any rule of law the effect of which is that asbestos-related pleural plaques do not constitute actionable harm ceases to apply to the extent it has that effect.
(4) But nothing in this section otherwise affects any enactment or rule of law which determines whether and in what circumstances a person may be liable in damages in respect of personal injuries.
2. Pleural Thickening and Asbestosis
(1) For the avoidance of doubt, a condition mentioned in sub-section (2) which has not caused and is not causing impairment of a person's physical condition is a personal injury which is not negligible.
(2) Those conditions are -
(a) asbestos-related pleural thickening; and
(3) Accordingly, such a condition constitutes actionable harm for the purposes of an action of damages for personal injuries.
3. Limitation of Actions
(1) This section applies to an action of damages for personal injuries -
(a) in which the damages claimed consist of or include damages in respect of -
(i) asbestos-related pleural plaques; or
(ii) a condition to which section 2 applies; and
(b) which, in the case of an action commenced before the date this section comes into force, has not been determined by that date.
(2) For the purposes of sections 17 and 18 of the Prescription and Limitation (Scotland) Act 1973 ... (limitation in respect of actions for personal injuries), the period beginning with 17 October 2007 and ending with the day on which this section comes into force is to be left out of account.
4. Commencement and Retrospective Effect
(2) Sections 1 and 2 are to be treated for all purposes as having always had effect.
(3) But those sections have no effect in relation to -
(a) a claim which is settled before the date on which subsection (2) comes into force (whether or not legal proceedings in relation to the claim have been commenced); or (b) legal proceedings which are determined before that date."
 As regards Scotland only, therefore, the Act confers on pleural plaques and on two other asymptomatic asbestos-related associated conditions the status of non-negligible and thus actionable injury. It is true that this mirrors the position de facto conceded in many claims over the previous twenty years or more but, given the asymptomatic, non-disabling, non-disfiguring and non-causative nature of these conditions, the petitioners now challenge this development as an unwarranted contravention of the established need for real or material "damage" in order to complete a cause of action in negligence. In this respect, according to the petitioners, the Scottish Parliament in passing the Act has contrived to do the opposite of many foreign legislatures which, faced with an intolerable escalation of claims by "... the worried well", have brought in measures to negate the actionability of pleural plaques. And, it is said, the Parliament has done so by means of a blatant controversion of established (and indeed agreed) medical fact."
Insurers Held Back on Specifics
The opinion indicates the insurers held back on providing specifics on their policies, and on their estimates of the future amounts that will be paid as a result of this legislation. Thus, Lord Emslie explained as follows:
78] Another contention forcefully advanced by the respondents was to the effect that issues of locus standi could not be determined where the petitioners' position as insurers had not been the subject of detailed and precise averment, submission or vouching. Deficiencies in this area had, it was said, been flagged up months ago; calls for further specification had been made in the respondents' Answers; yet the petitioners had stubbornly declined to reveal their true hand. Even now only specimen policies had been produced (productions 6/65-68); there was no way of telling what policy terms would actually apply in any individual case; for the future, the petitioners had sought to reserve their position on the construction and application of policies; and, significantly, the proper law of relevant insurance contracts could not be ascertained. If such contracts were not subject to Scots law, so the argument ran, they might not even be engaged by the 2009 Act which had effect only in Scotland.
 Massive unresolved uncertainties as to cost levels: In the debate before me it was, I think, acknowledged on all sides that estimation of the overall costs associated with this legislation was far from straightforward. Given the long latency period for asbestos-related conditions including pleural plaques, it was hard to estimate the number of individuals who might have been exposed in past decades. Moreover no-one could predict what proportion would develop asbestos-related conditions, nor what percentage of asymptomatic conditions would actually come to light. Judging the number of pleural plaques claims which might emerge in future years was thus an inexact science with many uncertain variables. Even the approximate cost per claim was hard to pin down - understandable, perhaps, now that claims are apparently being intimated at levels several times higher than the pre-Rothwell average. Against that background, the Scottish Government's approach was largely based on evidence of the current situation as modified by actuarial and demographic considerations. The insurance industry, on the other hand, sought to rely on UK Government estimates (which were themselves uncertain) before taking a percentage which was said to represent Scotland. The latter approach may have allowed individual insurers to withhold commercially sensitive data which might be of value to competitors. In these circumstances, overall estimates ranged from perhaps £100 million, on the Government side, to the insurers' potential maximum of £8.6 billion. If the Scottish percentage were to be reduced, the figure of £8.6 billion would come down as well, but that would still leave an "order of magnitude" difference between the competing estimates. (emphasis added)
The Insurers Standard Approach Produced a Predictable Result
The opinion is a disappointment in the sense that there is really very little that is "new" in the opinion for persons familiar with the debate regarding whether compensation should be paid for pleural plaques, and so the legislation was not struck down. The trial judge, Lord Emslie, of course is not responsible for whether the parties present anything new or instead simply present the usual arguments. The absence of anything new in the opinion gives one the impression the insurers simply presented the usual arguments without attempting to present NEW evidence or argument on science and pleural plaques as it relates to the number of pleural plaques cases waiting to be identified, and the potential costs. Plainly, the insurers made a conscious decision not to present a comprehensive analysis of the potential loss, a decision one assumes is driven by concerns regarding public disclosures, financial statements, and general reticence to commit to a particular position on a particular topic.
I certainly will not claim expertise on Scottish law or EU law, and so my comments are worth the price you are paying for the analysis. That said, the opinion presents in essence a question that is familiar to US lawyers -- when will a court strike down a legislative act? The opinion uses some words and phrases different than we might use in the use in arguing that issue here, but makes plain the reality that deference is owed to the judgments of the elected legislative branch. Indeed, from the words and analysis, I took away the impression that UL law calls for even more deference than is shown under US law. I also was left with the opinion that the insurers merely put forth a pro forma challenge to delay a probably inevitable affirmance of the legislation, and so are managing the process so that litigation expenses are far less than the savings obtained from delaying or inhibiting the future onslaught of pleural plaques claiming.
What else might have been done by the insurers? From the perspective of this armchair quarterback, the insurers might have had a real chance to win - and might have done some societal good - if they presented a compelling case on the science to show that society cannot afford to pay for the presence of biomarkers (plaques) that are biologically inactive and instead are mere markers of a past exposure, much like a scar marks a past physical insult. On that basis, one could (I think) rightly distinguish pleural plaques from biomarkers that show actual cellular level changes that actually disrupt ordinary bodily functioning (e.g. genomic changes caused by chemical). One might also try to help the Court see that thousands of biomarkers out there, and to understand the differences between pure markers of past exposure, and genomic changes that disrupt cell function. A small part of that potential argument is laid out at section X (pages 31-33) of this paper I submitted in opposition to the pleural plaques Consultation in England.
The argument I would have pressed also would have shown that there are ample reasons to expect that pleural plaques claiming in the UK actually may be far worse than it is has been in the US. Why? In short, because the UK has had such a large shipbuilding industry that used so much asbestos, because amphiboles were widely used in the UK thanks to Cape Industries and T & N (among others), because EU use of asbestos vastly exceeded use in North America, because new CT scanners find 60% plaques far better than do x-rays, and because pleural plaques claiming is driven by lawyers and entrepreneurial behavior instead of science. Id at sections 2.2, 3.1-3.3, 7.10.1, 9.8.
Finally, the opinion (and thus, apparently, the insurers' arguments) do not address the availability of payments from asbestos trusts (chapter 11 trusts, the T & N trust in the UK, or private trusts). Id. at sections 5.1-5.3.
The UK government continues to ponder a consultation posing questions including whether to reinstate tort claiming for pleural plaques and/or whether the government should make payments to all persons with plaques. The latest pronouncement from the UK government was made yesterday (12/15/09) and is here. The statement does not commit to a decision date. The original planned answer date was over a year ago.
For eight detailed, prior posts on the UK pleural plaques topic, look to the left for the category "pleural plaques." Here is a detailed opposition paper (37 pages) I submitted to the UK government outlining my view opposing payments for pleural plaques. The gist of the argument is that money and time is best spent supporting research to prevent, manage, or full cure cancer instead of making payments because of the presence of a marker (a pleural plaque) of past inhalation of asbestos fibers. Making payments for "markers" is unwise social policy because today's exploding science almost daily generates new data and finds new "markers" for past exposures. The markers include, for example, genetic changes caused by past exposures to various substances. The following two paragraphs from my submission provide specific examples of the growing prevalence of "markers."
"10.3 Scientific Journals Regarding Markers: Markers of past events and/or future risks
are now common enough that scientific journals are devoted specifically to the
discussion of markers for conditions and risks. Indeed, two of these journals are
sensibly known as Disease Markers and Cancer Biomarkers. See generally
10.4 Exponential Increase In Genomic Testing: Thanks to continuing and
exponentially increasing advances in science, literally hundreds of tests are now
available to identify persons with genomic patterns that include a particular set of
characteristics that may mark a risk of future disease. According to one legal
commentator, "[a]s of August, 2007, there were 1300 facilities performing tests
relating to more than 700 genetic conditions, compared to 110 facilities and 111
conditions in 1993." See generally Robert Milligan, Coverage and
Reimbursement for Pharmacogenomic Testing, 48 Jurimetrics The Journal of
Law, Science & Technology, No. 2, 137, 142 (Winter 2008) (Symposium: Law
and the New Era of Personalized Medicine). Thus, there is truly an exponential
rate to the increase in methods for and facilities involved in identifying "markers"
for potential risks.
Update on the Update: Through the written question and answer process, the UK government issued an October 21 acknowledgment here that it does not have a date in mind to announce a decision on pleural plaques, but the response will be made "as soon as possible."
"Julia Goldsworthy (Falmouth & Camborne, Liberal Democrat)
To ask the Secretary of State for Justice when he expects to announce his decision on compensation for those with pleural plaques; and if he will make a statement.
Bridget Prentice (Parliamentary Under-Secretary, Ministry of Justice; Lewisham East, Labour)
The House of Lords decision has raised extremely complex and difficult issues which have required very careful consideration within Government. It has also been important to look beyond the issue of pleural plaques itself to consider how people who have been exposed to asbestos can be supported much more widely. We are actively considering all these issues in order to be in a position to publish a final response as soon as possible."
Update: Go here for the full text of debates in official form or here for the same text arranged by speaker and topic on TheyWork forYou.
The pleural plaques dance/debate continued yesterday in the UK House of Commons. The latest move is an apparently futile bill seeking to reinstate the ability to make claims for pleural plaques. Here is the link to a media story. The House of Commons comments should be online in a day or two. The Brown Administration still has not taken a firm position.
Here is the prior post that includes a paper I submitted to argue why it would be a grave mistake to reinstate plaques claiming.
"Asbestos-related illness decision may be overturned
7:59am Saturday 17th October 2009
By Rob Merrick »
VICTIMS of an asbestos-related illness were given fresh hope of compensation yesterday.
A Bill to overturn a Law Lords ruling denying payouts to sufferers from pleural plaques - a scarring of the lungs, that can trigger mesothelioma and lung cancer - cleared the Commons.
But ministers made it clear they stood ready to block the Damages (Asbestos-Related Conditions) Bill in the House of Lords, if necessary.
They have argued that only five per cent of pleural plaques sufferers develop asbestos-related diseases and that changing the law would open the floodgates to other compensation claims worth billions.
It is 15 months since the Government signalled it would not overturn the 2007 ruling, however, it has not confirmed the decision after Labour MPs reacted with outrage.
Yesterday, Justice Minister Bridget Prentice apologised to MPs after admitting a final decision was no closer, adding: "That is very frustrating for everyone concerned."
As a result, ministers had little choice but to allow the backbench Bill to pass to the Lords. It was given a third reading by 51 votes to zero.
But the Bill has less than four weeks to clear the Lords and Ms Prentice admitted that ministers would step in to prevent it reaching the statute book if necessary.
Under the Government's proposals, only the existing 6,500 pleural plaques sufferers would receive "no fault" payouts of up to £5,000, funded by the taxpayer, rather than insurance companies.
Future victims would receive no damages until a serious disease developed, by which time an employer or insurance company may have disappeared, making it harder to prove liability."
I'm headed to London this weekend to chair an asbestos litigation conference starting On Tuesday the 29th, so this seems a good time for an update on new speakers added to the conference roster and on some UK developments regarding asbestos litigation.
Conference Update: Two additional conference speakers have been added. One speaker will address new research regarding the impact of the chapter 11 asbestos trusts in the United States. Some of the research data was released in the US earlier this month and quite explicitly proves that indeed the chapter 11 bankruptcies have a significant impact on the litigation fortunes of the defendants that remain in the tort system. The research was undertaken by Bates White and will be presented by Peter Kelso. Additional upcoming research on asbestos bankruptcies also will be discussed.
Another speaker was added to address the evolving topic of litigation as a target of investors. Litigation investment will be addressed in two ways. First, Selvyn Seidel of Burford Advisors will explain the nature of the business and how and why it is expanding. Second, additional speaker Andrew Evans will describe the emerging market in which defendant companies may pay other companies to take over some or all litigation risks in, for example, asbestos litigation. Mr. Evans is part of a business known as Litigation Resources Group that has its roots in Bates White work on the economic realities of asbestos litigation.
Conference registration is still open at the online site here. The conference runs all day on Tuesday the 29th and a half-day on Wednesday the 30th. I'm speaking on the 30th as part of a panel on asbestos trusts.
Pleural Plaques: Trade unions in the UK this week started ratcheting back up their efforts to persuade the UK government to enact legislation that would reinstate damages claims for pleural plaques. This September 24 article from the UK asserts that the unions expect "betrayal":
"Unions will again call on the Government to restore compensation for pleural plaques sufferers at the Labour Party Conference next week.
Gordon Brown was presented with a campaign video produced for the Trade Union and Labour Party Liaison Organisation by Jim Kennedy, political officer of construction union UCATT, this week.
Unions are demanding a new law to overturn the Law Lords' 2007 decision that sufferers of the asbestos-related disease do not need compensation.
Mr Brown promised the TUC Congress that ministers would examine the question when Parliament returns. But UCATT warned earlier this year that they were expecting "betrayal" on the issue"
Asbestos in Schools Hysteria in the UK: Hard to believe the way asbestos-in-schools history is now repeating itself in the UK via essentially hysterical UK news articles that fail to take any lessons from like prior hysteria in the US. Thus, this article from the UK's Mirror newspaper rather hysterically reports that 50,000 law suits are expected against uninsured UK school councils for allegedly causing asbestos-related disease. The article states:
"Test case may lead to 1000s of asbestos compensation claims
By Mark Ellis 23/09/2009
A test case may open the floodgates to thousands of compensation claims for asbestos-related cancers, a court heard yesterday.
And it could create a massive financial burden on education budgets for generations to come.
The warning comes amid fears that many comprehensive schools built in the 60s are riddled with the potentially lethal material.
It also adds weight to the Mirror's Asbestos Timebomb campaign. Lord Justice Moses at London's civil appeal court heard that 50,000 cases against largely uninsured councils are expected over the next 40 years.
And he set the stage for a landmark ruling by allowing council chiefs at Knowsley, Merseyside, to appeal a £240,000 award.
The case involves Dianne Willmore, 49, who blames her time as a pupil for her incurable lung cancer.
Asbestos timebomb: For more information on the Daily Mirror's campaign visit our blog."
UK reporters actually interested in facts and reality would do well to take lessons from the US experience. Asbestos-in-buildings hysteria swept the United States in the 1980s as EPA and plaintiff's lawyers predicted waves of deaths of janitors and school teachers, and thousands of lawsuits arising from injuries to be attributed to the presence of asbestos in school buildings. Ultimately, the hysteria ended because defendants W. R. Grace, U.S. Gypsum and National Gypsum gathered and analyzed literally tens of thousands of air samples in school buildings. The samples were analyzed and evaluated by world-class experts, including Rich Lee and Morton Corn (Dr. Corn earlier was a highly senior OSHA official and oversaw a dramatic but thoughtful reduction in the PELs for asbestos) . Their peer reviewed articles and testimony ultimately stemmed the tide of hysteria because they proved that in most but not all instances, the indoor air in schools contained no more asbestos fibers than did outdoor air. They also proved that even if fibers are being released in a certain spot in the building, the fiber levels a few feet away are still normal. Morton Corn proved this by, among other things, using air sampling to monitor fiber levels at various points in a room in which he was using a baseball bat to strike an asbestos-containing ceiling material.
Meanwhile, asbestos-in-buildings lawsuits at first flourished in the mid to late 1980s and early 1990s but then faded away hen the plaintiff's bar realized that the cases were very hard to win and expensive to litigate. Indeed, my then-partner Pat Lamb and I went to trial for W.R. Grace back in 1995 on asbestos-in-buildings claims brought by the Chicago Board of Education and numerous suburban school districts. After several days of trial, the claims settled for a very modest fraction of the demand.
Today, asbestos-in-buildings claims do not exist in the US except in the non real world of chapter 11 cases where science and state law are routinely ignored. Why? Because Congress' section 524(g) gives economic power to claims that lack merit by giving claimants votes the debtors need to exit chapter 11, thus leading debtors to pay money to settle claims that plaintiff's do not in fact bring or win in state courts. This pattern once again highlights that chapter 11 decision-making for tort claims is seldom grounded in reality.
Asbestos - London Delays (Again) On Providing a Formal Position on Pleural Plaques Compensation But Offers Some Hints as to What's Ahead
Contrary to prior statements, Lord Chancellor Jack Straw of the Ministry of Justice said yesterday in Parliament that the government's formal follow up on the pleural plaques consultation will be provided "after" the summer recess. He indicated the response will include steps aimed at improving tracking of records that will assist plaintiffs, which are records regarding employment locations and employer insurance. He also intimated plans to have the UK lead the way on asbestos-related medical research. Specifically, he said:
"Jack Straw (Lord Chancellor, Ministry of Justice; Blackburn, Labour)
On 30 June, the Government published to the House two reports on the medical aspects of pleural plaques, one from the chief medical officer's expert adviser and a second from the Industrial Injuries Advisory Council. The Government will give further consideration to the issue of compensation for people diagnosed with pleural plaques before publishing a final response after the recess.
In addition, we are actively considering measures to make the United Kingdom a global leader in research on the alleviation, prevention and cure of asbestos-related diseases, and to help speed up compensation claims for those who develop serious asbestos-related diseases such as mesothelioma. The latter includes examination of the process for tracking and tracing employment and insurance records, as well as looking into the support given to individuals who are unable to trace such records." (emphasis added)
Further discussion was as follows, or read it online here at the website of "They Work for You."
Stephen Hepburn (Jarrow, Labour)
Will the Secretary of State assure us today that pleural plaques sufferers will not be treated any differently in terms of compensation regardless of whether they lodged their claim prior to the 2007 Law Lords judgment or after it and of whether live in Scotland, England, Wales or Northern Ireland?
Jack Straw (Lord Chancellor, Ministry of Justice; Blackburn, Labour)
As I said, we are giving active consideration to that. I understand my hon. Friend's concern, but we have to make our own decisions in this jurisdiction. I am sure that, in turn, my hon. Friend will wish to pay very careful attention to the conclusions of the expert appointed by the chief medical officer and to IIAC; they came to unanimous conclusions, including those backed by the three trade union representatives.
Nigel Dodds (Belfast North, DUP)
Following on from the Scottish Government's decision to legislate in this area, did the Secretary of State note the recommendation of the relevant Department in the Northern Ireland Assembly that there should be a change in legislation to allow those with pleural plaques to sue in the courts and get compensation? Also, following on from what Mr. Hepburn said, whereas the regions of devolved government will have taken action to redress this terrible injustice to those who suffer from pleural plaques, will it not be perverse if the only area where people cannot claim is England and Wales?
Jack Straw (Lord Chancellor, Ministry of Justice; Blackburn, Labour)
As I said, or implied, in answer to my hon. Friend, it is the essence of devolution that different decisions can be made. It would be very curious indeed if the result of devolution was that each jurisdiction had to follow the decisions of the other. We are seeking to consider the evidence very carefully, and I commend the evidence of the chief medical officer's expert's report and IIAC to all hon. Members, whichever constituency they represent.
Asbestos Claiming - British Government Apparently Takes a Wise Decision Not to Reinstate Compensation for Pleural Plaques
A July 10 article in the Mirror reports (bitterly) that the British government has taken a decision not to reinstate compensation for pleural plaques. The decision follows up on last summer's government Consultation paper available here. The decision apparently will be formally announced this coming week ahead of the July 20 recess date for Parliament. The apparent decision in London stands in marked contrast to Scotland's mistaken decision to legislate to reinstate compensation for pleural plaques, a decision presently under legal attack as described here back in April.
According to the Mirror article, the government in London has made the wise decision not to encourage pleural plaques claiming. Specifically, the government apparently will not pass legislation to overrule the Rothwell decision by the House of Lords. The gist of the Rothwell was the holding that pleural plaques are not compensable because they virtually never cause any physical impairment or pain, and therefore there is no compensable injury. According to the Mirror article, the government will, however, establish an online research center for asbestos-related disease and will pay compensation of £5,000 to about 6,500 persons whose claims predate Rothwell.
According to the Mirror article, unions are unhappy with the decision taken by the government. However, one hopes that on reflection, the unions and their members will appreciate the wisdom of the long-term decision. Why? There are myriad reasons, most of which I described in a detailed paper submitted last fall in opposition to the extreme parts of the proposals set out in the UK government's Consultation paper. Overall, the big picture point is that experience in the US has proven that paying compensation to persons without impairment is bad policy that drains away resources (medical, financial, judicial, and governmental) that should be focused instead on coping with the terrible burdens inflicted by mesothelioma tumors and certain other asbestos-related cancers that tend to arise in some parts of the body for persons with material amounts of work in certain occupations.
Ultimately, the folly of paying compensation to the unimpaired is evidenced by the tidal waves of claims that swamped US courts and asbestos trusts to the point they ceased to provide anything even remotely close to justice for injured persons or corporate defendants, as has been detailed by Professor Lester Brickman, with key excerpts set out in the opposition paper. Ultimately, claiming by the unimpaired became so enormous and costly it rendered the Johns-Manville asbestos trust insolvent more or less on the day it opened its doors, causing it to shut down operations in 1990, two years after it opened in 1988 after 6 years of legal wrangling. Then, after about 5 more years of lawyering, the Manville trust reopened but paying only a tiny fraction of the amounts that would otherwise be available to mesothelioma victims.
For more specifics, read the Manville trust history here on the Manville Trust website. Then read Judge Weinstein's 2009 paper lamenting the reality that the US legal system has done at best a lousy job dealing with mass tort issues. Judge Weinstein's words deserve special heed because he was central to Manville, Agent Orange and other mass tort cases described in his thoughtful paper. Also read the 2005 RAND report that details developments in the US asbestos claiming process. Finally, read through at least some of Professor Lester Brickman's voluminous law review articles and Congressional testimony regarding the disastrous developments in mass asbestos-claiming by unimpaired persons.
The unions and their members also should heed the growing need to focus on cancer because the cancer situation is only going to get worse in the UK for - at least - another decade and perhaps much longer. Specifically, after the UK Consultation was issued last summer and after oppositions to the Consultation were submitted in fall 2008, the case against paying compensation for pleural plaques became even more compelling when a cadre of highly qualified and experienced UK researchers published a landmark medical article further detailing the growing UK epidemic of mesothelioma tumors. The article explains that widespread and long-running use of amphibole asbestos fibers in the UK has resulted in the UK having the highest mesothelioma rate in the world. The conclusions and work of the group, lead by the much-honored Professor Julian Peto, are summarized here, and an online paper is here. The work of the research group is ongoing until at least 2015 - a clinical research description for the ongoing work is here. The citation for the landmark paper and related online paper are:
Rake C, Gilham C, Hatch J, Darnton A, Hodgson J, Peto J. Occupational, domestic and environmental mesothelioma risks in the British population: a case-control study. British Journal of Cancer. 2009;100:1175-1183.
Peto J, Rake C, Gilham C, Hatch J. Occupational, domestic and environmental mesothelioma risks in Britain: a case-control study. Health And Safety Executive Research Report RR696 (2009) published online here.
After an updated review, the UK's Industrial Injuries Advisory Council (IIAC) has issued a June 30, 2009 paper announcing that it continues to recommend against paying compensation for pleural plaques because plaques are not actually disabling. The IIAC announced online last fall that it was considering the topic and invited comments. The panel concluded that plaques should not be compensated as an industrial disease because the plaques are very seldom symptomatic and do not by themselves correlate to an increased risk of cancer. Instead, they are simply markers of past inhalation of asbestos fibers. The paper is 60 pages long, and includes a detailed review and table summary of medical literature on pleural plaques as they relate to disaility or cancer risk.
According to a very pro-claimant article in the Scotsman, the UK government will consider this report before meeting its self-imposed deadline of July 21 for stating a view on the pleural plaques consultation that was started last year. Specifically, the article states:
"Though the IIAC said its report was not meant to advise on the issue of civil compensation, the Ministry of Justice said its decision would be "informed" by the report, which would "make an important contribution to the debate".
July 4 seems like an appropriate day for a post on whether our legal forerunners in London will follow us in making the mistake of passing legislation to reinstate obtaining compensation for persons with pleural plaques. (To digress for a moment, I happened to be in London a few years back on one of the five days they had for oral argument in the appellate court on pleural plaques. It was a treat to hear US precedents cited to a British court after all the time spent in law school reading musty old British cases - who could forget the rule in Shelley's Case. )
Back on topic, there was more committee debate on July 1 on the pleural plaques legislation, but no real action. You can read it all here on a very nicely done volunteer website known as TheyWorkfor You. The bottom line is that once again it was said that the government will announce a decision before summer recess, but no specifics were offered.
Due to how the UK government publishes its online draft legislation (to the great frustration of the volunteer group) the website does NOT include the full text of the legislation. Instead, you have to go to the official website here to get the text of the bill.
This May 12, 2009 post updates a post of Wednesday, April 22, 2009 regarding pleural plaques and asbestos issues in the UK.
The UK press is now reporting that the UK government has now publicly stated that it will not make its decision on pleural plaques legislation until some time prior to Parliament's summer recess. The statement can be seen here in context, but it's brief. The statement says:
"Jack Straw (Lord Chancellor, Ministry of Justice; Blackburn, Labour)
Of course, I fully acknowledge the concern of my hon. Friend and other hon. Members on both sides of the House about that issue. Consideration of the responses, of which we have received quite a number following publication of our paper on the way forward, is taking longer than we anticipated, because of the complexity involved. However, I certainly intend that we should come to conclusions before the summer recess."
Meanwhile, union groups and their supporters have continued to agitate for legislation to once again allow claiming for pleural plaques. A "members bill" was introduced and discussed in Parliament. The discussion can be read here, and reveals that at least some of the legislators are ill-informed on the issues.
My personal opinion is that London will rue the day if it allows plaques claiming to go forward. Plaques claiming in the US was a disaster for companies and Chapter 11 trusts that were swamped by claims from persons with little or no impairment. The April 22 post links to my detailed set of reasons regarding why plaques claiming should not be reinstituted.
Here is the link to the full text of the first ruling in the insurer's lawsuit seeking a declaration to invalidate to the Scottish pleural plaques legislation.
In the opinion, the trial judge (Lord Glennie) exercised his discretion not to grant the insurer's motion to stop the legislation from taking effect. In reaching that decision, the court considered various factors and somewhat assessed the merit of the insurers' two overall challenges. First, the insurers argue that the law is outside the "legislative competence of the Scottish Parliament on the grounds of its incompatibility with certain Convention rights. They rely in particular upon Article 6 of the European Convention on Human Rights (Right to a fair trial) and Article 1 of the First Protocol thereto (Protection of property). The petitioners also mount a challenge to the Act on grounds of irrationality, or Wednesbury unreasonableness, and arbitrariness."
In weighing the merits, the trial judge offered the following preliminary and summary assessment of the insurers' arguments:
"It is sufficient that I say that, in my opinion, the petitioners have demonstrated a prima facie case that both Articles 6 and Article 1 of the First Protocol are engaged in that the Act does appear to me to remove from the courts and determine in a manner adverse to the petitioners a critical question arising in all pleural plaque cases, namely whether the claimants in any such case have suffered damage so as to make the negligent exposure to asbestos actionable. Unless and until the Act comes into force, each of the cases currently sisted, at least insofar as it is based upon the existence of pleural plaques and not on other injury or damage, will fail, because at common law negligence is not actionable without proof of damage. If and when the Act comes into force, that line of defence will be removed. The pursuers in such cases will still, of course, have to prove other aspects of their case, such as negligent exposure to asbestos and quantum, but they will no longer have to prove, or attempt to prove, that the pleural plaques themselves constitute damage so as to make the negligence actionable. Mr Dewar submitted that it was always within the competence of the Scottish Parliament to alter the Scottish law of delict. I accept this. Insofar as the Act has prospective effect, this is a powerful point. But in so far as it has retrospective effect, the force of that submission is much reduced, since the Act retrospectively removes from the defenders in existing cases, and in new cases based upon exposure before the Act comes into force, a line of defence upon which they could legitimately expect to succeed. That brings Article 6 into play, or at least arguably so. Mr Dewar also argued, under reference to Article 1 of the First Protocol, that an immunity to a claim could not be a "possession"; however, it seems to me that if a certain claim is a possession (see Maurice v. France (2006) 42 EHRR 885 at paras.63-66), there is at least a good arguable case that a certain defence must fall into the same category.
 I have more difficulty with the petitioners' contention that the policy of the Act does not reflect any legitimate public or general interest. It is well-established that the courts will afford the legislature a wide margin of appreciation or, as it is put in the domestic context, will concede to the legislature a discretionary area of judgment in determining what is in the public or general interest: see e.g. Adams v. Scottish Ministers 2004 SC 665 at para., per the Lord Justice-Clerk (Gill). The issue will always involve a detailed examination of the facts. I was initially attracted to the simple proposition underlying the Dean of Faculty's submissions, which emphasised the fact that the Act sought to compensate, at enormous expense to insurers, a narrowly defined class of persons who, although having been exposed to asbestos, had as yet suffered no illness or injury meriting compensation. But Mr Dewar explained that the Act seeks to compensate those in respect of whom it can be established, because of the presence of pleural plaques, that asbestos fibres has penetrated the lungs and the pleura. This seems to me to carry some conviction. While it appears to be true, on the available evidence, that such persons have suffered no physical injury or incapacity, they are more likely than others to suffer from anxiety that their exposure to asbestos dust, having caused penetration of asbestos fibres to the lungs and pleura (as evidenced by the existence of the plaques), will go on to cause an asbestos-related disease; and there is a risk, in such cases, that the penetration of asbestos fibres to the lungs and pleura will in fact cause such a disease. In those circumstances, the Scottish Parliament has taken the view that they ought to be entitled to claim compensation, if not for any present physical disability, then at least for that anxiety and the risk of the condition worsening. The arguments will no doubt be more fully developed at the first hearing. Whilst on a fact sensitive issue of this sort I cannot dismiss the petitioners' case as unarguable, and I therefore must hold that they have demonstrated a prima facie case, it does not seem to me on the arguments advanced so far that it is a prima facie case which should be regarded as particularly strong."