By Abrahm Hurt
TheStatehouseFile.com

INDIANAPOLIS — Legislation working its way through the Indiana General Assembly that would limit asbestos lawsuits is a version of a model law crafted by the American Legislative Exchange Council and pushed by the U.S. Chamber of Commerce.

Testimony by proponents of House Bill 1061 told the Senate Civil Law Committee on Monday said that the issue is about transparency and fairness to those affected by asbestos.

But lawyer Kathy Farinas, who represents asbestos victims across the state, said the bill is not needed because Indiana already has a court that has effectively ruled on these cases for years.

The American Legislative Exchange Council, a conservative organization that writes state-level legislation for lawmakers across the country, first developed the bill in 2007. The U.S. Chamber of Commerce, which lobbies on behalf of business interests, has been traveling from state to state to urge lawmakers to pass the proposed legislation.

Rep. Matt Lehman, R-Berne, who authored Indiana’s version of the bill, said the first part would look at Indiana’s statute of repose, which deals with when a claim can be filed by a plaintiff in a liability case.

“Our law has been struck down by the courts,” he said during testimony. “The concern I have here is I do think it is the responsibility of this legislative body to make public policy. Not the judicial branch but the legislative branch.”

The proposed law, which recommends a 10-year statute of repose, would refer the timing of when a lawsuit can be filed to a summer study committee.

Two other parts of the bill, if enacted, could have an immediate impact on the Indiana cases pending in Marion Superior Court.

One would require plaintiffs, within 30 days, to file a form with the court detailing any settlements they might have received from the national trust funds set up when asbestos makers went bankrupt decades ago. Current lawsuits have been directed against other businesses whose employees might have become sickened by asbestos exposure.

The other part of the bill would bar a plaintiff from filing a lawsuit over asbestos exposure until they actually become sick. Proponents said it would make sure that sick people get their cases heard first.

Mark Behrens, who represents the U.S. Chamber Institute of Legal Reform, said plaintiffs’ attorneys delay filing trust claim forms because they don’t want the jury to hear about other asbestos exposure they may have had.

“The average person with mesothelioma will file 20 different trust claims and recover about a half a million dollars,” Behrens said during his testimony. “That is relevant information that the jury should decide if a local small business is a defendant in a case, but by delaying the filing of those claim forms they can hide that information from the jury.”

Behrens is also a lawyer for Shook, Hardy & Bacon in Washington D.C. and co-chairs their public policy practice group.

Farinas said the legislation is not necessary because she is already required to give the defendants the trust claims that she files for her clients. She also disputed his claim that lawyers delay filing trust claims to hide information from the businesses being sued.

“We just firmly believe there’s a big difference in what’s discoverable versus admissible and making these trust claim documents prima fascia evidence of wrongdoing that goes to a jury can only confuse them,” she said.

Farinas said she is most concerned about efforts to change Indiana’s statute of repose to 10 years, which hurt her clients’ ability to sue to recover damages for asbestos exposure.

“Science shows that asbestos diseases will never show up within the first 10 years of exposure,” she said during her testimony.

Farinas said the bill also contains language that says a physician is not allowed to diagnose an asbestos-related injury unless 15 years have passed from exposure to diagnosis.

Farinas said the statute of repose portion of the bill is unique to Indiana and not included in other states that have passed similar legislation.

“This bill is a national model that is being, I like to say, a square bill trying to be put in round Indiana hole,” she said.

FOOTNOTE: Abrahm Hurt is a reporter for TheStatehouseFile.com, a news website powered by Franklin College journalism students.