All the world knows that use of asbestos in the United States skyrocketed during World War II but took a nosedive after the public started realizing its health hazards. Between 1973 and 2005, total domestic consumption dropped from 803,000 metric tons to 2,400. So says the National Cancer Institute, a part of the U.S. National Institutes of Health, a federal agency.
The WSJ editorial board apparently didn’t get the memo. Its members seem not to realize that an enormous drop-off in asbestos use would eventually result in an equally large decline in provable asbestosis claims.
So today the editors rail against the "tort bar" — bet you didn’t see that coming — for "blanketing" dozens of "second-tier players" like W.R. Grace with weak asbestosis claims and thus pushing the companies into bankruptcy. (Please ignore for the moment that in 2005 a federal grand jury indicted Grace and seven executives for knowingly exposing hundreds of workers to asbestos in a Montana vermiculite mine. The case remains pending.) The occasion this time? The bankruptcy judge presiding over Grace’s proceeding ruled that she won’t estimate the amount of Grace’s liability to asbestosis claimants until — wait for it — the claimants submit proof that they actually have asbestosis!
Leave it to the WSJ to argue that an example of the system working as it should proves the system’s fundamental badness.
Blawgletter confesses that we don’t know a great deal about asbestosis claims or how the bankruptcy estimation process works or if the Grace judge has set up a sensible process. But we do know that the WSJ’s editors almost daily attack the civil justice system as if it usually produces unfair outcomes. As if the judiciary seldom gives Corporate America a break. And as if our Founding Fathers must have forgotten how untrustworthy citizens are when the Founders enshrined, in the seventh amendment to the Constitution, the right to have a jury be the final arbiter of fact disputes in civil cases.
