From this position, the continuation of the asbestos claim Transparency (FACT) Act awaits the examination of the full US House of representatives. The Judicial Committee of the House stunned many when it voted to adopt the FACT Act earlier this year.
The steering committee has promised to provide asbestos victims and their advocates the opportunity to testify publicly about the proposed legislation. But the committee apparently broken this promise and voted on the bill, in effect paving the way for the full House to vote on it.
The Committee adopted the FACT Act in May with a vote of 17-14. Although asbestos victims and their advocates are not happy that the measure adopted, they may actually be more outraged that the bill was put to vote first.
Congressional committees are responsible to thoroughly investigate the need for the bill before its revision in a session "markup" and sending it to the floor for a full vote. For opponents of the FACT Act and those who simply believe that it is premature to send the measure to the House floor, the committee skipped the crucial first step to establish that there is a need for legislation transparency.
Although the bill has not yet been scheduled for a vote, a sort of whispering campaign seems to be under way to gain favor among lawmakers who finally vote on it. Hopefully, calls for further investigation to determine if there is indeed a problem here will be heard above the whispers.
Fraud Allegations seem to be more rumor than fact
If the news headlines that followed a report the Office of Government Accountability (GAO) are any indication, the whispering campaign may have actually started in 2011. That's when the GAO has prepared its report in response to a request by the judicial Committee of the House to "conduct a review of asbestos trusts." according to the GAO, it examined:
- how asbestos bankruptcy trusts paid in claims and how these trusts are administered
- How requires trust and payment information is made available to external parties ..
- plaintiff and stakeholders of the defense lawyers, officials of trust, and other interested parties ?? views as to whether more confidence and information applicant must be made available to external parties, and recent efforts to change the current system of trust and processes.
According to the objective nature of its study, the GAO report marked "Asbestos Injury Compensation :. the role and administration of trusts asbestos "But anyway, the purpose and findings of the report took a different tone of the media coverage that followed its release. Headlines proclaimed," GAO Releases Asbestos Trusts Report identifies possible fraud "and" GAO report details secret trusts asbestos. "
While the GAO study how trusts consider applications of abuse and fraud, he n 't uncover widespread misconduct and secrecy as the suggested titles. Here is how the GAO summarized its findings:
"Although the possibility exists that the applicant could file the same medical evidence and altered work histories with different trusts, each trust's focus is to ensure that each application meets the criteria defined in its [trust distribution procedures], which means that the applicant has met the medical history and exposure needed to meet the trustees. trust officials we interviewed that conducted audits, no indicated that these audits have identified cases of fraud. "
Two years later, there is no evidence to support allegations of fraud and abuse widespread in the asbestos trust system. Meanwhile, the Judicial Committee introduced and reintroduced legislation on applications of asbestos bankruptcy trust and held several hearings.
Although the testimony of the hearing, and even the name of the bill, repeated the rhetoric of the "secret" and lack of "transparency", the committee never established its problem fraud or disclosure.
Because he did not, other members of the House outside the judicial commission must now be wondering if there is a problem. At least, they should ask rather than listening to the continuous whispers about the secrecy and fraud in the trust system.
Trivia isolated are not enough to justify Heaviness legislation
Perhaps in an attempt to bolster the legitimacy of its claims, the FACT Act supporters are promoting the opinion of a former judge who handled asbestos litigation to the role of the superior Court of Delaware for two years. Peggy Ableman testified in favor of the FACT Act to the Judicial Committee of the House soon after she joined a leading company in the defense of asbestos as a special advisor.
She recently published an opinion piece entitled "Further secret Asbestos Bankruptcy Claims Must End," a popular legal news site. She tells how "a special case" has gave her "a unique insight into the inherent injustice associated with a system that allows plaintiffs' ?? Trusts claims remain secret and not disclosed as these same complainants are actively engaged in asbestos litigation liability. "
The case concerned an applicant who, in breach of the duty of disclosure Delaware , failed to disclose on bankruptcy trusts. during the two-day settlement negotiations before trial, counsel for the plaintiff has revealed that his client had received two colonies of confidence he did not know before.
Up to this point in the proceedings, the applicant had alleged that she was only exposed to asbestos fibers on her husband's work clothes, not by his own work. the afternoon before the scheduled trial the defense lawyer was informed that the applicant had 20 bankruptcy requests. Ableman suggests that "interface" between trusted systems and litigation could have prevented a fault.
the asbestos issue Ableman had supervised 0 cases. Concluding that his experience in this "special" cases is evidence of "inherent unfairness" in the whole system is a big jump. Too big to justify legislation such as the FACT Act. Especially when other solutions are (and were) available in these situations ?? namely, the disclosure requirements imposed by the court, the procedures of discovery and basic defense lawyer competence.
Although it has been delayed, it seems the adversarial nature of litigation did what he intends to do and discovered the truth.
(Notably, it took the defense team less than a day to find all requests Trust. Identify another source of exposure is an obvious defense to a claim of asbestos it is therefore baffling why the defense team did not investigate the work of the plaintiff history and discover the potential for other responsible parties, earlier.)
Congress should pass for more study, not a vote
the New York Times editorial board also weighed on the FACT Act recently with what is perhaps the most useful opinion to date. The Drafting Committee suggested that lawmakers asked the GAO to "determine if there is a significant fraud in claims of asbestos...." Some would say that this would have been the next step after the GAO study in 2011 or after the first round of hearings.
But FACT Act sponsors and supporters of the reform of civil liability who later responded to the Times say the editorial is wrong. They suggest that the media coverage of 2011 GAO report offers sufficient evidence of fraud and that further study is needed.
But the GAO study 2011, which does not conclude that there was significant fraud, only looked at the role of trusts in asbestos compensation trust. Unlike this study, personal anecdotes and cover new past, a study by the GAO suspected fraud in claims of asbestos would involve examining the approval procedures and litigation.
This is important as watching the two systems could eventually provide legislators with a clear idea of whether there is indeed a problem of fraud and how best to go about fixing if it exists .
Ableman the case appeared to result from a lack of vigilance by both the plaintiff and defense lawyers rather than defects in the system of trust. Once the lawyers on both sides of the negotiating table began to pay attention, the secrets were revealed.
The lawyers are paid to be vigilant and examine every piece of information with a critical eye, even if it comes from their own customers and especially if it comes from their opponent. Trusts must manage their resources for future beneficiaries, not to help the litigants to do their job.
Assuming that there is a truth to rumors about a major fraud problem, would it be wise to place at least part of the charge to secure the settlement system disputes? Before legislating more paperwork for trusts, Congress should at least order the GAO to study the effectiveness of existing tools for the prevention of fraud in the dispute resolution system (eg, the application of sanctions for fraud and abuse of discovery).
Sanctions as the event of dismissal or order for the defendants to pay attorney fees probably give plaintiffs' and defense lawyers more incentive to police each other and to their customers fraud that FACT Act supporters are willing to admit.
hope the House will ignore the whispering campaign and avoid passing the FACT Act. But if the bill surfaced again, hope Congress uses the resources at its disposal to get to the facts.
