What are the implications of the new presidency for US asbestos victims?

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A huge issue for victims of mesothelioma and other asbestos-related disease is the long latency period between original exposure and the onset of symptoms. During this time, which is often many decades, asbestos fibres inhaled by the victim can cause genetic changes in the body.

Once shortness of breath, a chronic cough, chest pain and extreme tiredness are felt, it’s often too late to successfully treat the disease. Although chemotherapy, radiotherapy, and surgery may all be an option, they rarely alter the patient’s life expectancy to any significant degree.

So what happens when an asbestos victim or their family tries to claim compensation in America for asbestos-related illness, and how might the new Trump presidency affect their chances of obtaining justice?

When companies can’t afford to pay

The American system allows companies to file for Chapter 11 Bankruptcy if they’re struggling to repay their liabilities. This is a corporate insolvency solution whereby the company reorganises and restructures, but can continue in business as long as they pay their debts.

One of the rules of the system is that a trust fund must be established to meet any claims for compensation. As far as asbestos victims are concerned, this can limit the amount they receive, as the level of payout depends on how well the trust is funded.

Making multiple claims

If exposure occurred at more than one workplace, someone suffering an asbestos-related illness can file a claim against each employer/trust fund. So although people are able to make multiple claims, a person employed by the same company for most of their working life, may be restricted in terms of how much they receive.

The company concerned has no control in relation to these funds. They are in the hands of trustees who are responsible for managing investment, and also appear in court in place of the company when required.

To prevent a single large claim from diluting or consuming a fund, ‘payment percentages’ are used to calculate individual payouts. If someone successfully claimed $50,000 for example, they may only receive 25% of this amount if that is the payment percentage used by the trust fund concerned.

How might the new presidency affect asbestos victims?

There has been talk of Donald Trump further limiting compensation amounts available to asbestos victims. He has suggested that payouts may be capped at a lower amount, which could leave victims and their families with little justice.

Under the broad spectrum of ‘tort reform’ in America the liability of the companies that exposed employees to this deadly carcinogen with no protective equipment or asbestos training, may be further reduced.

The categories of claimable compensation include the medical expenses incurred by the patient, loss of earnings, funeral costs, plus payment for the emotional distress suffered by the victim and their family.

Hopefully these victims of negligence won’t be deprived of financial compensation to help them practically, or the emotional aspect of making their employer accountable for their negligent actions.

Further Reading

http://uk.reuters.com/article/us-usa-asbestos-lawsuits-idUSBRE84A0J920120511

https://www.lexisnexis.com/legalnewsroom/litigation/b/litigation-blog/archive/2013/12/11/asbestos-bankruptcy-trusts-a-2013-overview-of-trust-assets-compensation-amp-governance.aspx