The Facts about the Fact Act

“Sticks and stones can break my bones, but words can never hurt me.”

It’s an old children’s rhyme that psychologists today say is wildly inaccurate. The truth is that words can hurt: just look at the recent news stories about teen suicides caused by verbal online bullying. It’s plain to see the harm caused by degrading language pointed at a sensitive teenager.

But what about words that, on the surface, appear neutral – or even positive? Is it possible that these “innocent” words can send a destructive message too?

We think so – and present HR 4369, the “FACT” Act of 2012, as a prime example.

Today, May 10, the Furthering Asbestos Claim Transparency (FACT) Act of 2012 will be heard on the floor of the United States House of Representatives. It sounds like a great bill; after all, who would object to transparency for asbestos claims? Even more, who would object to the facts? We sure don’t. But is that really what the FACT Act is about? And is this a helpful or harmful bill for the thousands of men and women suffering from asbestos-related diseases who are awaiting funds from the bankruptcy trusts established by the companies responsible for their ill health?

First, lets’ look at the issue of facts and transparency. Decades ago the Occupational Safety and Health Administration (OSHA) said that “it was aware of no instance in which exposure to a toxic substance has more clearly demonstrated detrimental health effects on humans than has asbestos exposure.” That sounds pretty factual (and transparent) to us. So it follows that the companies that knowingly exposed workers to asbestos (more on that knowingly part in a future blog) should be held accountable for their actions. Again, pretty straightforward.

But the FACT Act would change that. Rather than simply developing a horrific illness, scientifically relating the illness (such as mesothelioma) back to asbestos exposure and asking the folks responsible for your tragedy to pay you fairly, the FACT Act puts new burdens on the asbestos trusts, the very vehicles designed to compensate asbestos victims.

So how does the FACT Act enact these burdens and what do they mean to the men and women who have, through our court system, been duly awarded compensation for their severe injuries?

HR 4369 offers two equally disturbing proposals. 1) It would require the trusts to publicly disclose extensive, individual and personal claim information, including information about a victim’s exposure and work history; and 2) it would allow the companies at fault for the asbestos exposure (the defendants) to demand whatever additional information they want from the trusts – all at any time and for virtually any reason.

Given that there is no abuse of the trust process, it is highly unlikely that the backers of the FACT Act are genuinely concerned about making things work better. Rather, the bill seeks to override state law regarding the discovery/disclosure of information. In the process the FACT Act would dramatically slow the claims process, benefiting not the victims of the asbestos tragedy but the companies responsible for this tragedy.

We think the message here is indeed clear — not because of the FACT Act but despite it. This bill would encumber the asbestos trust system in order to discourage people from making claims and prolong the process for those who are stalwart enough to try.

The facts of the FACT Act are wrong. And the purveyors of the bill are manipulating language with the intent to harm, far more than sticks and stones.

We hope the members of the House have the vision to see through this “transparency.”