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In NH, a battle over asbestos lawsuits and transparency

New Hampshire Union Leader

February 11. 2018 11:57PM

CONCORD — New Hampshire has a higher-than-average mortality rate for asbestos-related diseases, according to a leading environmental group.

Legal advocates claim a pending bill seeks 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.”

But supporters maintain the intent of this measure (SB 335) is simply to require victims and their lawyers to identify the sources of money they’ve already gotten in or out of court.

“The problem is simple; it is about double-dipping,” said state Sen. Harold French, R-Franklin, in testimony to the Senate Judiciary Committee last week. “This bill is not about limiting peoples’ rights to their actual damages.”

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

“Given their success, similar legislation should be enacted in all states to prevent double recovery and allow for just allocation of fault at trial,” said John Wagner, a nationally known lawyer based in Ohio who has defended multinational corporations against asbestos lawsuits in state and federal courts.

Eva Bleich, a lawyer from Exeter, told the Senate panel her husband, Joseph, died 16 months ago from mesothelioma.

“The people who did this knew the entire time they were killing people and I don’t think they are the ones our society wants to protect,” Bleich said.

There is no national asbestos law. New York and California are known as states with a legal structure that encourages suits, while Georgia, Texas and Florida are among those that place heavy restrictions on them.

According to legal analysts, New Hampshire falls in the middle of the spectrum.

Veterans hit hard

The annual rate of asbestos-related mortality in the U.S. is 4.9 for every 100,000 deaths.

New Hampshire’s rate is 6.2, with more than 1,200 residents dying from asbestos-triggered diseases from 1999 to 2013, according to the Environmental Working Group Action Fund.

There are much higher rates in certain parts of the state — including Coos County at 10.6, Sullivan County at 8.1 and Strafford County at 7.6.

Asbestos was once widely used in a number of industries that employed many people in New Hampshire, including construction, pulp and paper production, manufacturing and mining.

Veterans are disproportionally afflicted with asbestos-related diseases.

While they make up 8 percent of the U.S. population, they account for roughly 30 percent of Americans who contract mesothelioma, a cancer that attacks the lining of the lungs, stomach and other organs. Its only cause is asbestos.

Rep. Al Baldasaro, R-Londonderry and a retired Marine, was a leading adviser to President Trump’s 2016 campaign on veteran issues.

“This is a big business protection bill,” Baldasaro said.

Senate Judiciary Chairman Sharon Carson, R-Londonderry, pointed out many veteran groups across the country endorsed this measure as it was proposed in other states.

Kevin Grady, a member of the State Veterans Advisory Committee, said his group is against it.

“Anything that slows that process down is not something we are interested in,” Grady said.

“This puts in a bunch of extra legal steps.”

Legislation’s provisions

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

Specifically, 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.

Advocates for this bill 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.

“They should be able to collect from both those entities with respect to those groups,” said Nina Caroselli, executive vice president of the Riverstone Group, a Manchester-based insurance organization that deals with asbestos-related litigation.

“The issue we face in the court system is we don’t have the transparency we need into the bankruptcy trust system.”

Supporters of the bill point out surviving members of someone who dies from asbestos-related disease can still recover damages.

The Senate panel has yet to make its recommendation on this bill to the full Senate.

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