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Should smokers with occupational asbestos exposure be shut out?

In October, Congresswoman Carolyn McCarthy, a longtime smoker, filed a lawsuit for lung cancer she has medical evidence to show was caused by exposure to asbestos when she was a teen and young adult. She was primarily exposed while doing laundry for her father and brother, both boiler makers, whose clothing came home covered in the deadly fibers. Because of her smoking, however, her lawsuit brought a storm of criticism.

A New York Times columnist called McCarthy’s case proof that “asbestos litigation is a giant scam.” Citing a 2011 Government Accountability Office report demonstrating that fraudulent claims are rare and that asbestos trusts are fully capable of dealing with it, the not-for-profit media accuracy group Media Matters for America called his reporting “wholly irresponsible.”

Now, a law professor from Yeshiva University is making eerily similar claims about lawsuits brought by smokers with asbestos-lung cancer. During the 80s and 90s, he says, a number of law firms sponsored free lung cancer screenings for union members at factories that generated around 500,000 claims for non-malignant diseases. In the end, however, only between four and 12 percent of the claimants turned out to have asbestos-related diseases, he says. When those free screenings ended in the early 2000s, he says, asbestos-lung cancer claims dropped off -- until recently.

It’s no surprise that some people who develop asbestos-lung cancer are smokers. Smoking increases the lung cancer risk for anyone, but for people with past asbestos exposure, smoking is believed to increase the risk dramatically. As the professor acknowledges, asbestos trusts will only pay claimants who have medical evidence demonstrating the damage to their lungs was caused by asbestos.

Yet just as in the discredited New York Times report, the professor seems to think the smokers’ claims could not possibly be legitimate, despite the required evidence and the GAO’s findings on fraud. He paints a picture of asbestos trusts willingly forking over up to $100,000 for completely baseless claims, which law firms then use as “seed money” to finance bogus tort claims in our courts.

The truth is that mesothelioma and asbestos-lung cancer are extremely serious, agonizing, and costly to treat. If smoking causes someone’s cancer, then it’s not asbestos-lung cancer and asbestos companies aren’t responsible. If negligent exposure to asbestos and that exposure caused the cancer, however, it’s only right for the company or companies responsible to be held to account.

Source: Legal Newsline, “Professor says asbestos cases from smokers, like N.Y. Congresswoman, on the rise,” Heather Isringhausen Gvillo, Jan. 22, 2014

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