EXPOSING WHAT NADER HAS WROUGHT

BY MICHAEL J. BENNETT, Author of “The Asbestos Racket”

“Nader has co-opted the press; he has no electorate; he is accountable to no one.”
David Sanford, ex-Nader Raider

“Just whom is our legal system designed to help?

That was the question Barbara Meters asked in introducing a remarkable expose on ABC-TV’s 20/20 on Jan. 14. The report, “A Lawyer’s Dream,” narrated by John Stossel, was the first major media expose of tort litigation-glamorized by Ralph Nader for a generation as America’s best answer to environmental and occupational problems. In fact, the only real beneficiaries of tort litigation are the lawyers. The victims, except for a few who win big jury verdicts, get only a few thousand dollars; the companies sued, which quickly stop making dangerous products once the dangers were known, are often bankrupted; workers lose jobs; insurance companies fork over billions. Ultimately, the rest of us pay as consumers and taxpayers.

The expose was also the other half of what I had wanted to put into my 1985 series for The Detroit News and my 1991 book, The Asbestos Racket: An Environmental Parable, but, quite frankly, both I and my publishers were afraid to tackle. Getting the public to accept the fact that the Environmental Protection Agency (EPA) had bungled regulation of asbestos was difficult enough; persuading people that toxic tort lawyers were ambulance chasers would have been impossible.

Yet anyone who has followed the course of asbestos, as well as Superfund litigation over the years knows the answer to Walter’s questions is – and always-has been the lawyers. Until now, however, that question couldn’t even be asked by or among journalists for fear that Nader and his acolytes would accuse them of being “tools” of “special interests.” The jargon, of course, is the modem equivalent of being called “a capitalist lackey.” But, for a generation, Nader and the environmentalists have so mesmerized the media that being labeled a “toot’ for “dial interests,” as opposed to the “public interest” as defined, by Nader was as bad as being called a Communist in Joe McCarthy’s day. Any hope of being accepted as a “legitimate” reporter would be forfeit.

Stossel, however, is emerging as the journalist others have to emulate, because he is blazing the path they will inevitably have to follow – because that’s where the stories are. Nader and his acolytes are no longer the source of scandalous stories about others; they are the scandalous stories. Nader has already criticized Stossel’s earlier heretical reexaminations of environmental/ consumer issues, and will undoubtedly attack him even more fiercely now. Nader’s criticism, however, will undoubtedly be counter-productive because he cannot deny the facts as laid out by Stossel: Almost $9 billion has been paid out in verdicts and settlements of cases brought on behalf of more than 500,000 alleged asbestos victims in, as Stossel reported, “the longest and most expensive law suit in history.”

More than six billion, however, has gone to the lawyers, and the average paid the victims has been in the tens of thousands. One lawyer, Ron Motley, was reported by Stossel to have made $300 million; another, Peter Angelos, is reported only to have earned “hundreds of millions.” Whatever the exact amount, it was enough for Angeles to buy the Baltimore Orioles baseball team and negotiate purchase of the Tampa Bay Buccaneers, a football team.

Seventeen companies which once produced and sold products containing asbestos, a natural mineral which is still considered by scientists to be the most effective – and safest – insulating, fire-retarding and braking material known have gone bankrupt. Tens of thousands of employees have lost their jobs. One business survivor, The Keene Company, a once thriving conglomerate which employed 4,000 people, now has six employees.

Keene has paid out more than $530 million in claims – with $320 million going to lawyers because it’s president Glenn Bailey made the mistake a quarter-of-a-century ago of purchasing for $8 million a subsidiary that made ceiling tiles containing asbestos. If it had been held accountable only for the injury its products were responsible for under the worst possible scenario, Keene’s payments to victims would have been only a fraction of the $530 million. But under the legal doctrine of` joint and several liability,” it inherited debts of the defunct companies.

Bailey called this “legalized extortion” in an interview with Stossel. Bailey “deserves to go out of business,” Angeles told Stossel in reply. But Bailey wasn’t aware of the dangers of asbestos at the time he bought the subsidiary, Stossel responded. “That’s what he says,” Angelos replied, “it serves him right”

Angelos’ contemptuous dismissal of Bailey echoes Nader’s own arrogance in setting up himself, his fellow lawyers and environmentalists as the sole judge of the “public interest.” More than 20 years ago, Peter Shuck, a former Nader’s Raider who has gone on to become a professor at Yale Law School, pointed out the fundamental flaw in Nader’s philosophy. “His Nader’s promiscuous use of the phrase, public interest, and it’s diabolical opposite, the `special interests’ raises serious moral questions with which Nader has never grappled. Having invoked `the public interest’ ad nauseam Nader seems convinced that he knows what it is. But what in fact is the public interest and where does it lie?”

The answer, interestingly, was supplied three years before Shuck asked the question by James Ridgeway, a writer for The New Republic who had been the first reporter to use Nader as a source. “Since the court has become the arena where the post-industrial society is adjusted, every citizen needs a lawyer – not a legislator – to look after his interests,” Ridgeway wrote in 1969, “Nader and many young lawyers are working towards a new definition of a governmental system in which lawyers are a commanding elite. Nader’s fundamental task is not so much to protect consumers as it is to organize his own constituency, the legal profession, for assumption of power in a post-industrial society.”

Neither lawyers nor the courts are competent, however, to either assess illness nor compensate for them except in strictly limited circumstances. Courts can assign responsibility or blame in circumstances where individuals did or did not take actions which clearly resulted in injury, a driver running a red light, for example, causing a second driver to swerve and collide with a third car. ‘In the asbestos case, however, the first driver was the equivalent of a manufacturer who was aware during the Depression of possible health problems with asbestos but had no legal obligation at the time to inform workers.

The second was the federal government, which deliberately refused to enforce a 1938 law regulating excessive exposure to dusts because of World War II needs. The third were workers who smoked cigarettes, which multiplied asbestos exposure risks 80 to 92 times over. Whatever the law, no one was without blame.

If only for that reason, when asbestos cases did go the juries, the verdicts were usually unpredictable. A court in Brooklyn, the site of the shipyard where adverse health effects had been most clearly documented, for example, threw out a fairly clear-cut case in the same week in which another jury in California awarded several million to a plaintiff whose exposure was extremely limited and whose death was due to unrelated causes.

The California jury was probably more heavily influenced by media reports than the Brooklyn jurors who were more familiar with actual conditions. Neither jury was informed the actual number of persons dying from asbestos-related disease in the 70’s, the period when the mortality rate was the highest because exposure levels were at their peak in 1944, was only 150-a-year. Nor were told of a simple statistic that conveyed the lack of concern about workplace safety during World War 11: Three hundred thousand died, 66,000-a-year, in workplace accidents during the war as compared to 250,000 on the battlefield. In 1993, 6,200 deaths occurred in the workplace.

Plaintiffs’ attorneys, however, “bundled” tens of thousands of cases before the courts, many of there brought on behalf of plaintiffs whose exposure to asbestos had been minimal, at worst. The law not only permits, but also encourages claims when “victims” Merely suspect they may, at some point, become ill as a consequence of even the most limited exposure. Since, as a practical matter all the cases couldn’t possibly be tried on their merits, “administrative” remedies had to be adopted. Disposing of all or most of the cases by such “administrative” methods meant, however, the plaintiffs lawyers still collect their one-third contingency fee-without running the risk of losing before a jury. Their hourly rate approaches $30,000-an-hour, according to one law journal.

The moral is simple, and was best expressed by Federal Judge Jack Weinstein, “The lawyers make the laws, and the first law the lawyers make is that the lawyers shall be paid.”

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