Posted by Brendan Fischer on March 20, 2014

Asbestos Hazard Danger SignWisconsin could become the latest state to narrow access to the courts for asbestos victims in a bill up for a vote on March 20, joining a national coordinated effort that can be traced back to the American Legislative Exchange Council (ALEC) and the U.S. Chamber of Commerce.

Rep. Andre Jacque, a member of the ALEC Civil Justice Task Force, introduced Assembly Bill 19 in April of 2013. A version of the legislation passed the Wisconsin Senate last week on a nearly party line vote, and is now before the Assembly. It resembles the ALEC "Asbestos Claims Transparency Act," which was adopted as a "model" by members of the ALEC Civil Justice Task Force in 2007. In December of 2012, Ohio became the first state to pass the legislation. In the 2013 session, nearly identical legislation has been introduced in Wisconsin, Oklahoma, Illinois and Texas.

The legislation would benefit corporations like Crown Holdings, a Fortune 500 company with over $8 billion in annual sales that has worked with ALEC for years to legislate its way out of compensating asbestos victims, as well as ALEC member Honeywell International, which has faced significant asbestos liability in recent years.

The bill could allow corporations like Crown Holdings or Honeywell to delay a lawsuit until a victim files claims with any other asbestos or personal injury "trust funds," which are accounts set up after a company goes bankrupt to pay claims to injured parties. This requirement, advocates say, is intended to drag out a case until after a sick victim dies -- an especially pointed concern given that asbestos cancer victims usually die within a year after being diagnosed. Families often don't continue litigation after the victim dies, and juries change their assessment of the case, advocates say.

Asbestos-related diseases kill at least 10,000 Americans every year, in many cases from mesothelioma, an incurable and painful cancer caused by exposure to asbestos. For decades, asbestos was used for insulation and industrial purposes, and the diseases particularly affect veterans, firefighters, construction workers, and individuals who worked in factories with high-heat machinery. In Wisconsin, veterans groups have been some of the most vocal opponents of the legislation: veterans make up just 8 percent of the population, but are 30 percent of mesothelioma cases.

ALEC, Chamber Connections Are Clear

When the legislation was introduced in Texas in 2011, ALEC sent a so-called "issue alert" to ALEC legislators in that state urging the bill's passage. Like many ALEC bills, the model language was slightly amended to make it consistent with Texas statutes, but ALEC still acknowledged H.B. 2034 was an ALEC model bill. "This legislation is based on ALEC's Asbestos Claims Transparency Act and would reduce the potential for fraud and gamemanship with respect to asbestos claims. ALEC strongly supports H.B. 2034," the message reads.

Wisconsin's legislation, Assembly Bill 19, even more closely tracks the ALEC model legislation than the Texas bill.

In December of 2012, Ohio became the first state to pass the ALEC asbestos bill, which the Chamber publicly applauded: "'As Ohio goes, so goes the nation,' and we hope this will result in a domino effect," said Lisa Rickard, president of the U.S. Chamber's Institute for Legal Reform.

The Wall Street Journal editorial board -- which at the time included Stephen Moore, an ALEC "advisor" -- published an editorial in support of the Ohio bill after it passed in 2012, and has acknowledged that the Ohio bill was based off of ALEC model legislation.

Sponsors Say the Bill Has Nothing to Do with ALEC?

The Wisconsin bill's sponsors, Rep. Andre Jacque and Sen. Glenn Grothman -- both ALEC members -- deny that ALEC had anything to do with AB 19. Andrew Cook of the Wisconsin Civil Justice Council also said his group did not consult with ALEC on the bill.

According to the drafting files, Rep. Jacque asked the Legislative Reference Bureau to draft a bill based on the Ohio legislation. Yet as a member of the ALEC Civil Justice Task Force, Rep. Jacque surely knew that the Ohio bill was based off of the ALEC model.

In fact, at ALEC's meeting in Chicago last summer, Mark Behrens of the DC law firm Shook Hardy & Bacon gave a presentation to the task force titled "Asbestos Bankruptcy Trust Reform: Fighting Fraud and Preserving Resources."

The Wisconsin Civil Justice Council, which is pushing the bill in Wisconsin, is also no stranger to ALEC. In 2011, for example, just a few months after Wisconsin passed a comprehensive tort reform bill that tracked ALEC model legislation (which ALEC lobbied on and whose passage it celebrated), the Wisconsin Civil Justice Council's Cook gave a presentation to the ALEC Civil Justice Task Force titled "Wisconsin: Straight Out of the Gates."

Like the ALEC-supported voter ID laws that spread across the country in recent years, supporters of the Asbestos Claims Transparency Act claim the law is necessary to stop fraud, despite no persuasive evidence of significant fraud or abuse from asbestos trusts. In fact, there are hardly any cases in Wisconsin, period: just nine asbestos claims were filed in 2012, despite the state having around 80 asbestos related deaths each year.

Brendan Fischer

Brendan Fischer is CMD's General Counsel. He graduated with honors from the University of Wisconsin Law School.