Ex-judge: Durbin's alternative to asbestos-claims bill aims to protect 'cash cow'

U.S. Sen. Dick Durbin (D-IL)   Contributed photo

In what is widely being interpreted by critics as a watered-down alternative to the Furthering Asbestos Claims Transparency (FACT) Act, U.S. Sen. Dick Durbin (D-IL) proposed legislation late last week that would require companies to file annual reports about products containing asbestos to the Environmental Protection Agency.

Known as the Reducing Exposure to Asbestos Database (READ) Act, the bill would also require companies to disclose publicly accessible locations where these products have been present over the previous year.

Critics, however, said the real problems in this area of the law are tied to flaws in the judicial system relating to how asbestos lawsuits are currently being adjudicated, and they said READ is a politically motivated bill designed to assuage Durbin’s financial supporters.

“The fact that you have sympathetic victims (in asbestos-exposure lawsuits) does not change the fact that the judicial system is being manipulated, and that’s where the problem is," former Delaware Superior Court Judge Peggy Abelman recently told Illinois Business Daily. 

Abelman said plaintiff’s attorneys are increasingly using loopholes within the current system to distort and suppress information regarding compensation trust funds set up by defendants to deal with asbestos-exposure claims. Abelman is now special counsel at McCarter & English in Wilmington, Delaware.

Abelman served on the bench in Delaware for nearly 30 years and handled the bulk of the state’s asbestos-related claims, between 600 and 700 cases, over the last three years of her tenure. 

She testified on behalf of the FACT Act before the U.S. Senate Judiciary Committee, on which Durbin serves, last month. The primary focus of her testimony was the allegedly unethical practices employed by plaintiff’s attorneys in seeking settlements for victims. In many cases, Abelman said individual defendants are singled out when multiple defendants are likely contributors to deadly cases involving the exposure to asbestos.

Durbin was quick to criticize FACT during the hearing, arguing that the measure would hurt victims in these types of cases. Durbin argued that the bill “puts onerous burdens on victims and asbestos trusts, but does nothing to protect innocent Americans from exposure to asbestos.” Durbin also said victims would be compelled to compromise their personal privacy due to the creation of a public database, which he said would make citizens' personal records ripe for cybercriminals, and that information in the registry could be used to discriminate against victims when it comes to employment and loans.

In an interview with Arizona Business Daily last month, former Washington Attorney General Robert McKenna, a partner at Orrick, Herrington and Sutcliffe LLP and a recognized leader in the development of data protection and privacy regulation, pushed back on Durbin's claims about identity theft.

“There really is no issue in regard to identity theft … and no risk that people’s confidentiality would be compromised because confidential medical records would not be allowed to be disclosed,” McKenna said. “Bankruptcy courts already have a great deal of authority to protect sensitive information of all types and those rules would continue to be in place.”

The FACT Act is sponsored by U.S. Senator Jeff Flake (R-AZ).

Prominent among Durbin’s financial backers are members of the asbestos bar, led by attorneys from the Alton, Illinois-based Simmons firm. This group alone has donated more than $136,000 to the senator’s past two election campaigns.

“I think Senator Durbin and the trial attorneys have a lot of control in this area, and they are a very strong, well-organized group," Abelman said. "They make huge amounts of money in this litigation. It’s a cash cow ... I can’t imagine what it must be like when you also have to factor that these law firms have basically funded your election."

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Orrick, Herrington & Sutcliffe LLP U.S. Senator Jeff Flake U.S. Senator Richard Durbin

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