"You never let a serious crisis go to waste. And what I mean by that it's an opportunity to do things you think you could not do before."
--Rahm Emanual, Mayor of Chicago and former White House Chief of Staff
In the dark cloud that is the ongoing Veterans' Affairs scandal, Mayor Emanual's words offer a silver lining. With the resignation of the head of the VA and calls for criminal investigations, we see a chance for veterans' issues to get the reform they deserve -- yet it seems that President Obama and other Democrats might be a bit tone-deaf to actual challenges facing our vets.
Certainly, "reform" promises a long list, and U.S. Senate Veterans' Affairs Committee Chairman Bernie Sanders (I-Vermont) illustrated that he's among those facing the political music in announcing the Restoring Veterans' Trust Act, which outlines a litany of changes.
But, as a civil justice observer, might I add one missing item to the agenda? It's certainly not up there with immediate healthcare needs, but new federal court rulings threaten to open old wounds for many who made the ultimate sacrifice, albeit decades after they served.
A bit of background: You've seen those ads seeking victims of mesothelioma, which is a cancer caused by asbestos, right? Compensation for those tragedies is nearly always in the millions of dollars, and connecting lawyers with victims has made "mesothelioma" the most expensive of Google's search words.
Well, a disproportionate number of "meso" victims are veterans. A recent study indicated that, while vets are only 8 percent of the U.S. population, they are 30 percent of mesothelioma victims. The reason is that military equipment, including Navy ships, used a lot of asbestos. It can take decades to kill you, but those "meso" cases are hitting the courts today.
Asbestos litigation is the nation's longest-running personal injury issue. More than 60 companies have gone bankrupt over their liability. Now, huge changes are afoot in the industry, involving trust funds set up as part of those bankruptcies.
The trust funds have been private, administered largely by victims' attorneys. That is rapidly changing, with transparency laws already passed in three states (Wisconsin, Ohio, and Oklahoma) and proposed in North Carolina. The idea is to prevent lawyers filing one set of "facts" with trust A, then another set with trust B, and alleging yet another story at trial.
It's not just states: The Furthering Asbestos Claim Transparency Act, or FACT Act, passed the U.S. House of Representatives last year.
Transparency efforts got a significant boost in January with a federal bankruptcy case against the gasket manufacturer Garlock Sealing Technologies, where, as Reuters reported, "[the judge] found what he called a 'startling pattern' of abuse by plaintiffs' lawyers [and] may have shifted the landscape of asbestos litigation with a ruling in favor of manufacturers." And the National Law Journal reports that insurance companies argue that "this court's opinion suggests pervasive fraud on the part of asbestos claimants and their counsel."
Two things make this a veterans' issue:
First, while many trust fund claims were no doubt driven by lawyers, they were signed -- under penalty of perjury -- by veterans or their survivors. Of course, people just signed whatever the lawyer told them to sign. But, as the Garlock case showcased, companies have made it clear that clients, not just lawyers, are subject to questions, thus reopening some old cases.
Secondly, anybody actually "gaming" the system reduces the funding available for legitimate claims, meaning that veterans seeking trust fund compensation are paid less than they would have been otherwise.
To see how veterans' groups are front-and-center, you only need look at Wisconsin, which passed a state FACT Act this year. Alerted by FACT opponents, groups like the Wisconsin VFW and the Wisconsin Military of the Purple Heart expressed concerns that vets face more hurdles for compensation.
Republicans, usually known for supporting military issues, found themselves accused of being anti-vet. But then the state AMVETS group supported the legislation, saying that "in short, this bill is about transparency and fairness to protect our veterans with an emphasis on availability on assets for our current and future veterans."
Even before the current VA scandal, I was among those pleading for bipartisan engagement in the wake of Garlock and state FACT movements. But when U.S. Sen. Jeff Flake (R-Arizona) introduced S. 2319, the Senate version, contending that the "FACT Act would ensure that asbestos bankruptcy settlement trusts are able to fully compensate future claimants by preventing fraud," I was disappointed to see that it only had GOP cosponsors.
Since my plea to Sen. Patrick Leahy (D-Vermont) and his Democratically controlled Judiciary Committee fell on deaf ears, how about some attention from Sen. Bernie Sanders and his Veterans' Affairs Committee?
Mayor Emanual had it right. The GOP will not let this serious crisis go to waste, and Democrats should embrace the chance to do the right thing for those who have made the ultimate sacrifice.
Sara Corcoran Warner is publisher of the non-profit California Courts Monitor and National Courts Monitor websites.
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