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NH Senate shelves limits on asbestos injury lawsuits

New Hampshire Union Leader

March 19. 2018 5:52AM

CONCORD — The opposition of leading veteran groups and trial lawyers convinced the state Senate to reject a bill critics said would have limited the legal rights of those with asbestos-related injuries from recovering for damages in court.

Instead the Senate approved late last week a study committee of four lawmakers to examine the legal landscape for asbestos injury claims in New Hampshire courts.

“It is extremely complicated and it would ask us to create an asbestos docket here in New Hampshire that we don’t have,” said State Sen. Sharon Carson, R-Londonderry, who chairs the Senate Judiciary Committee.

“The study committee will look at what can we do to make these claims go through the process faster and create transparency at the same time.”

But the Senate did embrace a second measure (SB 427) to cap how much a company would have to pay out in total damages caused by a company it acquired that had an asbestos history.

New Hampshire has a higher-than-average mortality rate for asbestos-related diseases.

Legal advocates and their clients had claimed the first bill (SB 335) had sought to delay if not deny financial payouts to victims.

“This proposal is designed with one goal in mind — to run out the clock on asbestos victims in New Hampshire so they die before their cases even make it to court,” said Col. Peter J. Duffy, U.S. Army (ret.) of Manchester.

“People who were unknowingly sickened by asbestos deserve justice, and the companies responsible for poisoning them should be held accountable.”

Supporters said its intent was simply to require victims and their lawyers to identify the sources of money they’ve already gotten in or out of court.

Ohio was the first state to adopt an asbestos trust transparency law in 2013; since then 11 other states have followed suit.

Most companies that made asbestos have filed for bankruptcy protection. They often created trusts to settle current and future claims.

As proposed, the legislation would:

• Compel victims to first seek recovery from the bankruptcy trust before filing a civil lawsuit against an ongoing business;

• Force asbestos victims to disclose confidential settlement agreements;

• Alter procedural rules by keeping cases open for years after judgment and;

• Allow corporations to delay trials.

The original bill’s supporters point out lawyers for the victims in New Hampshire who seek damages do not have to identify whether they have already received a settlement from the trust.

Michael McLaughlin, who lobbies for the Property Casualty Insurers of America Association, said while there’s been no case in New Hampshire that could soon change.

“Turn on any cable TV channel and you’ll see the ads of national trial lawyers trolling for the tragic victims of mesothelioma,” McLaughlin said. “They then sell the names of any takers to local law firms.

“There’s been an explosion of this advertising in the past few years in New England. It’s really a matter of time before a case comes here.”

As passed by the Senate, this study committee would complete a report by Nov. 1.

“We would prefer the bill to pass obviously but this allows us to keep working on it,” McLaughlin said.

The Senate passed over to the House the second bill pursued by Crown Cork and Seal, a multinational company based in Philadelphia that makes cork-lined bottle caps.

In 1963, the company exposed itself to lawsuits because it bought Mundet Cork that produced insulation and cement that contained large amounts of toxic asbestos.

Crown only paid $7 million to buy Mundet and sold it off two years later.

But to date it’s paid out $700 million in asbestos injury damage claims.

The Senate-passed bill would limit any company’s future claims to twice what it paid to acquire the “guilty” party; in Crown’s case this would have limited awards to $14 million.

“Crown never sold products in the asbestos industry. They bought a competitor with an ancillary business that did this and to the trial lawyers, it is never enough,” said State Sen. Andy Sanborn, R-Bedford, who backed the measure.

The conservative American Legislative Exchange Council has promoted the legislation that 25 states have adopted in some form.

Sen. Donna Soucy, D-Manchester, said Crown has net sales of more than $8 billion and employs 23,000 people in 25 countries.

“This is hardly two little, Mom and Pop companies,” Soucy said.

“What we are talking about here creates a special exclusion and insulates asbestos companies from all claims to folks dying from cancer. This sets a very bad precedent.”

The Senate approved it, 14-9, largely along party lines with Sen. Lou D’Allesandro of Manchester the only Democrat in support of it.

All 13 Senate Republicans who were present gave their approval.

“I was surprised how easily it went through. You could certainly argue it limited recovery for victims more than our bill would have,” McLaughlin added.

Both measures head to the House of Representatives for its review.

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