Hot-button law

For 36 years, Paul Dylenski installed pipe and boiler insulation at construction sites throughout the Detroit area. When he died of esophageal cancer last year, doctors blamed decades of exposure to asbestos — a fiber long used in insulation and other materials because of its remarkable ability to resist heat.

The history of asbestos dates back to the ancient Greeks, who wove it into their cloth. U.S. industry began using it widely during the Industrial Revolution of the late 1800s. It was found in everything from pipe and boiler insulation to floor coverings, ceiling tiles and roofing materials. By the early 1960s, concerns about the health risks of asbestos began to grow. Along with links to cancer, asbestos also causes the lung disease asbestosis. Although attempts by the federal Environmental Protection Agency to completely ban its use in the 1990s failed, U.S. manufacturers have largely stopped using it because of health and liability issues.

Now there’s a different sort of heat surrounding asbestos. It comes from the friction generated by a controversial piece of federal legislation that would dramatically alter how victims of asbestos exposure are compensated.

Dylenski’s widow, Rae, is among those who fear that the bill heading to the Senate floor could leave her out in the cold.

As it stands now, Rae Dylenski is headed to Wayne County Circuit Court seeking compensation for her husband’s death. She’s among more than 750,000 people nationwide involved in asbestos-related lawsuits. But if Senate bill 852 makes it into law, Dylenski won’t be able to present her case to a jury. Instead, she will have to go before an administrative judge in a non-court system — if she gets any hearing at all.

In addition to removing asbestos cases from the court system, the proposed law would cap payments to victims and set eligibility guidelines. Also, it’s not certain that people who fell victim to certain cancers — including esophageal cancer — would be eligible. A study by the Institute of Medicine of the National Academy of Sciences in Washington, D.C., is now under way to help determine what diseases would be covered.

The legislation establishes a fund that would contain an estimated $140 billion contributed by 10 bankrupt asbestos firms and a number of Fortune 500 companies that used the material in their products.

These would be the big winners if the legislation passes, claims the consumer-protection group Public Citizen. In a report released earlier this year, the Washington, D.C.-based nonprofit claimed that the 10 asbestos companies would save more that $20 billion in payouts over the next 30 years if SB 852 becomes law. At least eight Fortune 500 companies that produced products containing asbestos — including the Big Three automakers, which used the fiber in brake linings — would save hundreds of millions of dollars by having their payouts capped at $27.5 million a year for the next 30 years — no matter how many asbestos claims are launched against them. Working together, these companies spent more than $23 million lobbying Congress in 2003 and 2004 in an attempt to get the legislation passed, according to the Public Citizen’s report “Federal Asbestos Legislation: And the Winners Are ...”

The $27.5 million annual limit “is far less than some companies have paid in recent years,” the report says, “and it is much lower than companies would otherwise expect to pay absent the national trust.”

It is an issue of importance to a significant number of people. In May, the Rand Corporation, a nonprofit research organization, released a study saying that more than 730,000 people have filed asbestos injury claims in the United States since the early 1970s. Altogether, according to the study, they have cost businesses and insurance companies more than $70 billion.

In addition to the capped payments, the legislation would largely take lawyers representing victims out of the picture by limiting attorney payments to 5 percent of the total awarded. As it stands now, when victims win in court, their lawyers typically receive one-third of the settlement.

“It’s going to be very hard for people to find counsel even though they will need it,” says attorney Michael Serling, of Birmingham, who has represented about 500 of the more than 2,300 people who have filed asbestos-related lawsuits in Michigan.

The AFL-CIO is in favor of an administrative system, but wants changes in the proposed law. “There are still problems from our point of view,” says Peg Seminario, director of safety and health for the AFL-CIO.

One important concern, Seminario says, is that the legislation initially has provisions for the dying, but no one else. People who are sick but not dying will have to wait two years after establishment of the administrative system before they can get a hearing. This is so those people who are most seriously ill can have their cases heard first.

“Once the bill goes forward, there are rights for the terminally ill to proceed,” she says. “But for everyone else, there’s nowhere to go for a 24-month period.”

She says there are some 60,000 asbestos victims with non-fatal illnesses across the country, with another 10,000 added to that list every year.

The AFL-CIO is seeking provisions that will make it easier for people with non-fatal illnesses to process their claims during the fund’s first two years.

Seminario says the union also worries about a lack of guarantees for victims if the fund runs out of money. “We’re concerned about what happens if the fund doesn’t work and is shut down,” she says.

The United Auto Workers, on the other hand, is fully supportive of the legislation. Alan Reuther, legislative director for the UAW in Washington, D.C., says the new bill will improve upon what he calls an “adversarial” court system. Under the new setup, “companies aren’t there opposing, litigating and denying,” he says. “That’s why it’s so much quicker and easier for the victims.”

As it is now, Reuther says, “you have the huge delays and the fact that so much of the money is eaten up by attorneys’ costs. For these reasons we think the current system fails miserably.”

Rae Dylenski, who is suing more than 50 companies — including the Ford Motor Co. and General Motors — doesn’t see it that way. She’d rather take her chances in front of a jury.

“I think everyone should have their own choices to go to court,” Dylenski says.