Document R4Ev4Zwz5m8dMMnZak9Rq5Qn

Combating the Asbestos Litigation Crisis! C rafting a Scheduled Compensation Solution for Louisiana and the Nation Brittan Ja ckson Bush Introduction "Have you been exposed to asbestos?" On a regular basis, our television poses this question. B efore we have time to formulate an answer, we know that a website filled with information along with a 1-800 hotline waits at the end of the commercial. ofte n, we shrug these advertisements off as mere annoyances and assure ourselves that somewhere, a lawyer is banking on a legal get-rich-quick scheme. After the advertisement concludes, we ponder why asbestos claims still exist, since asbestos' health effects have not plagued recent generations. We fail to recognize, however, that these commercials are the public fagade of a problem facing courts across the country. Asb estos not only affects those with one of its associated health problems, but all citizens, because society must bear the substantial costs of litigating the claims of those injured by asbestos. The cost of asbestos litigation has caused an amount of medical and economic suffering never experienced under American tort law. Asbestos litigation has left plaintiffs without compensation, corporations without assets, courts with crowded dockets, and litigators with hearty bank accounts. U nfortunately, the solutions offered by state governments and the federal government to reform asbestos litigation have been ineffective. Recently, Ra ndo v, Anco Insulations Inc. forced the L ouisiana SSuupprreemmee Court to choose a solution for Louisiana s asbestos litigation crisis. Due to judicial constraints, however, the court was unable to consider the myriad of other solutions 4available in other states. Therefore, the court's decision not only failed to advance any solution to the asbestos litigation problem, but worsened it. The inabili ty of the Louisiana Supreme Court to properly craft a solution for Louisi ana s asbestos litigation problem requires legislative action. This C omment seeks to remedy the asbestos litigation crisis by formulating a state-administered scheduled compensation model that balances the interests of asbestos plaintiffs, defendants, and attorneys. P art I lays out the history of asbestos and its accompanying litigation and explains the jurisprudence behind Louisiana's See discussion infra Part I (discussing the histo ry of the asb esto s litigation crisis). See discussion infra Part II (discussing the pros and cons of consolidation and medical criteria statutes as a solution to the asbestos litigation crisis). 3 Rando v. Anco Insulations Inc., 16 So. 3d 1065 (La. 2009). See discussion infra Part II (explaining the use of asbestos case consolidation and medical criteria statutes as solutions to the asbestos litigation crisis). 1 Electronic copy available at: http://ssrn.com/abstract=1759025 asbestos litigation crisis. Part II examines the pros and cons of the solutions offered by other state legislatures to combat the asbestos litigation problem. Part III analyzes why a stateadministered compensation schedule that incorporates provisions from the 2006 Fa irn ess in Asbestos Injury Resolution Act and the Louisiana Medical Malpractice Act fairly balances the interests of asbestos plaintiffs, defendants, and attorneys. P art V concludes by arguing that the Louisiana Legislature, as well as other state legislatures, should enact a scheduled compensation plan for asbestos injuries. I. T Ahe sbestos Problem The asbestos problem began when asbeStOS tr&nsfor med from a miracle fiber into an occupational hazard that ravaged a society. Asbestos litigation costs negatively affect not only asbestos plaintiffs but defendants and the judicial system. In Louisiana, courts split on whether to adjudicate asbestos claims in the workers' compensation or tort system. The L ouisiana SSuupreme Court recently resolved this split and sent Louisiana courts down a path of increased asbestos litigation costs for plaintiffs, defendants, and the state. A. The Miracle Fiber Asbestos is a group of six different naturally occurring fibrous minerals. Chrysotile, also known as white asbestos, was the primary form of commercial asbestos throughout the United States until the Environmental Protection Agency largely banned the use of asbestos in 1989.7 Like other forms of asbestos, chrysotile does not evaporate or dissolve in water and is resistant to 8 heat, chemical, and biological degradation. Ihe durability of asbestos led to its incorporation in a variety of manufactured products, building materials, friction products, and heat resistant fabrics. With all of its positive characteristics, asbestos became known as "the miracle fiber."10 The miracle fiber became an occupational nightmare for tort law systems throughout the United States. In the early twentieth century, medical professionals began to recognize fibrosis in A ev TATSee Fairness in As bestos Injury Reso lution Act o f 2006, S. 3274, 109th Cong. (2006); L . R .S . 40:1299.41 (2010). See also discussion infra Part III (explaining how a state administered compensation scheduled incorporating provisions from the F AI R Act and the Louisiana Med ical Malpractice Act presents solution for Louisiana's asbestos litigation crisis). 6 U.S. Dept. of Health & Human Services, Toxicological Profile for Asbestos (2001) ( noting the six different types of asb esto s: amosite, chrysotile, crocidolite, tremolite, actinolite, and anthophyllite). Id. (noting that while chrysotile was the primary form of commercial asbestos, amosite and crocidolite were also widely used ). See 40 C.F.R. 763.160 (1989) (larg ely banning the commercial use of asbestos in the United States). 8 id, 9 id, 10 Fact Sheet on Asbestos, Maryland Department of the Environment (2010) available at httpV/www. mde.state.md.us/P rograms /A irP rogram s/As bestos/abo ut__asb estos/index.asp. 2 Electronic copy available at: http://ssrn.com/abstraOl759025 the lungs of factory workers. 11 The common link between victims of the disease was exposure to asbestos within factories. In 1930, medical professionals discovered that inhaled asbestos fibers 13 ~T settled between the air cells of the lungs and caused scar tissue to develop. Ihis condition became known as asbestosis and was recognized as an occupational hazard for those working 14 A with asbestos. Asbestosis results in breathing difficulties, fatigue, and, in serious cases, right 15 ventricle failure. The medical problems associated with asbestos did not end with asbestosis. Factory workers exposed to asbestos soon exhibited signs of lung cancer. In the 1940s, B ritish and American 17 Tdoctors began seriously examining the link between asbestosis and lung cancer. Iheir studies revealed three major findings. (1) the large number of cases involving asbestos workers with lung cancer originating in the lower lobes of the lungs,, ((22)) the latency period between exposure to asbestos and the development of cancer, and (3) the large number of asbestosis victims also 18suffering from lung cancer upon autopsy. The findings comprised the earliest epidemiologic support for the link betw een asbestos and cancer. It was not until the mid- 1950s, however, that 20 any consensus regarding the carcinogenic properties of asbestos was established. Asbestos' most sinister health effect is mesothelioma, an incurable malignant cancer. 21 The most common form of the disease is pleural mesothelioma, and it accounts for 90% of 22 mesothelioma diagnoses. Pleural mesothelioma results in pleural thickening that encases a 23victim's lungs. Pi eural thickening causes chest pain, weight loss, fluid buildup in the abdomen, 4blood clotting, anemia, and bowel obstruction. - W orkers, exposed to asbestos, have a 10% chance of developing mesothelioma, and its average latency period is 30 to 50 years. Upon 11 Barry I. Castleman, Asbestos: Medical & Legal Aspects 7 (2d. ed. 1986). 12 id, 13 id, at 10-11. 14 id, at 9. 15 The Merck Manual of Diagnosis and Therapy 470 (M erck Research Laboratories, 18th ed 2006) 16 Castleman , supra n ote 11 , at 40. 17 id, at 39. 18 Barry I. Castleman, Asbestos. Medical & Legal Aspects 113 (3d. ed. 1990). 19 id, 20 id, at 144. 21 Merck, supra note 15, at 471 22 id, 3 id, (Pleu ral thickening a ffects the membrane covering the pleural cavity which protects human lungs) 4Asbestos Exposure and Cancer Risk, Nat'l Cancer Inst. (2009) available at http://www.cancer.gov/canc erto pics/factsheet/ Risk/asbestos. 25 Merck, supra note 15, at 471 3 diagnosis, mesothelioma is a virtual death sentence with an average survival time of 8 to 15 26 m 27 months. The primary care given to its victims is simply to relieve pain and suffering. 28Asbestos' deadly health problems created the largest mass personal injury tort in history. 29Asbestos litigation will eventually cost nearly $265 billion, which surpasses the litigation costs for tobacco and A gent Orange. 0 Of the $70 billion spent on asbestos litigation since the first asbestos lawsuit, plaintiffs recovered $29 billion compared to legal counsels' $41 billion 31benefit. W hen compared to the $13 billion collected by litigators in to bac co's $246 billion 32 litigation, the disparity between asbestos litigation costs and other mass torts is startling. Th disparity signals an inherent problem in the judicial system's adjudication of asbestos claims. The large number of asbestos defendants causes the disparity between the costs of asbestos litigation and other mass torts. Asbestos litigation has involved an unprecedented number of defendants. Plaintiffs have filed more than 730,000 suits against more than 8,400 defe ndants. Thhere are 400 times more asbestos defendants than the combined number of defendants in the 34litigation over A gent O range, Dalkon Shield, breast implants, Fen Phen, and tobacco. Asbestos litigation costs have taken a toll on major asbestos manufacturers and their ;ustomers. In the 1980s, companies facing massive asbestos liability began filing for bankruptcy in droves because of rising litigation costs from asbestos claims. As of 2007, 78 companies had 36 filed for bankruptcy protection due to asbestos litigation costs. T he need for bankruptcy protection, however, is utilized not only by major asbestos manufacturers but also nontraditional 26 Id. at 472. 27 Id. 28 See, e.g., Stephen J. Carroll et al., Asbestos Litigation Costs & Compensation (2004); M ichelle J. W hite, ERSPAsbestos and the Future of Mass Torts, 18 J. Econ. P . 183 (2004) [ hereinafter Wh ite, Future of Mass Torts]. 29 Carroll et al ., supra n ote 28, at vii. 30 Wh ite, Future of Mass Torts, supra note 28, at 192 ( noting the total costs of Agent Orange litigation ($180 million) and tobacco litigation ($246 billion)). Id. at 195 ( outlining the distribution of asbestos litigation costs among plaintiffs ($29 billion), their attorneys ($20 billion), and defense counsel ($21 billion)). Id. at 192. EGAL TUDMichelle J. ^Vhite, Asbestos Litigation: Procedural Innovations and Forum Shopping, 35 J. L S . 365 (2006) [ hereinafter Wh ite, Procedural Innovations]. For a further discussion of the rise in asbestos claims see Carroll et. al, supra note 28. See Wh ite, Future of Mass Torts, supra note 28, at 192 ( comparing the differences in plaintiff, defendant, and attorney compensation statistics between asbestos, Ag ent Orange, Dalkon Sh ield, breast implant, Fen-Phen, tobacco, lead, firearm, and fast-food litigation). Mark D. Plevin et al., Wh ere Are Th ey No w, Part Fo ur: A Co ntinuing History of the Companies that have Sough t Bankruptcy Protection Due to Asbestos Claims, Mealey's Asbestos Bankr. Rep. 8 (Feb. 2007) [hereinafter Plevin, Where Are They Now?] (showing companies filing for bankruptcy protection due to asbestos litigation costs as of February 2007). For a further discussion of bankruptcies associated with asbestos see Eric D. G reen et al., nn urv m awPrep ackaged Asbestos Bankruptcies: Down But Not Out, 63 N.Y.U A .S .A . L . 727 (2008); Douglas G. AVIS EVsmith, Resolution of Mass Torts in the Bankruptcy System, 41 U.C. D L. R . 1613 (2008); Mark D. Plevin et ex eval., Pre-Pa ckaged Asbestos Bankruptcies: A Fl awed Solution, 44 S. T . L. R . 883 (2003) [ hereinafter Plevin, Pre-Packaged]. Plevin, Where are They Now?, supra note 35. 4 asbestos defendants with primary business interests in shipbuilding, flooring, and automotive part manufacturing. Most asbestos bankruptcies establish a bankruptcy trust to compensate 38asbestos claims. Unfortunately, asbestos bankruptcy trusts are often quickly depleted and fail to 39 properly compensate plaintiffs. Mass asbestos bankruptcies hinder a plaintiff s ability to seek recovery against a single 40 ~r traditional asbestos defendant. Therefore, plaintiffs are now suing dozens of nontraditional asbestos defendants to garner the recovery they normally would have received from a single 41 ntraditional defendant. Often, nontraditional defendants have only exposed their plaintiffs to 42asbestos in extremely small quantities. The nontraditional defendant phenomenon increased the number of defendants in asbestos litigation and poses difficult causation and damage allocation 43 determinations for the courts. Asbestos was once the miracle fiber. But the mix of asbestos exposure to more than 27 million individuals , asbestos' dire health effects, and rising litigation costs destroyed asbestos' 44 miraculous appeal. Plaintiffs now face a litigation scheme where compensation is only available by suing dozens of defendants, and defendants must sacrifice their own economic well being to litigate asbestos claims. ^What was once the miracle fiber is now nothing more than a nightmare. B. The L ouisiana Problem Until recently, Louisiana possessed a unique problem in modern day asbestos litigation. Throughout the state, the Louisiana circuit courts of appeal waged judicial warfare over the applicability of the 1952 Louisiana Workers' Compensation Act's Occupationall DD isease 37 Id. I use the term "traditional asbestos defendants" to represent companies with a p rimary business interest in incorporating asbestos into products and asbestos mining. Johns- Manville Corp, Ph iladelphia Asbestos Corp, and Lake Asbestos of Quebec, Ltd. are examples of traditional asbestos defendants. The term "nontraditional asbestos defendants" is used to represent companies who used products containing asbestos in their normal course of business. Nontraditional asbestos defendants do not actively incorporate asbestos into a product and include companies with a primary business outside of asbestos mining and incorporation. See Plevin, Pre~Pa ckaged, supra note 35, at 888 ( noting that asbestos bankruptcies are often filed under an expedited bankruptcy procedure under Ch apter 11 of the U.S. Bankruptcy Code and establish a bankruptcy trust to compensate future asbestos claims). See Henry Hansmann & Re inier Kraakman, Toward Unlimited Shareholder Liability for Corporate Torts, 100 aleY L. J. 1879, 1895 n. 42 (1991) (describing the rapid depletion of the Johns-Manville asbestos bankruptcy trust after only 25,000 of more than 140,000 claims were adjudicated). See Wh ite, Procedural Innovations, supra note 33, at 369. 41 Id. 42 Stephen J. Carroll et al., Asbestos Litigation xxix (2005) [ hereinafter Carroll Et Al., Asbestos Litigation]. See discussion infra Part III.B ( discussing the need for plaintiffs to utilize nontraditional tort theories to prove causation of an asbestos injury in the tort system). 44 Carroll et al., Asbestos Litigation, supra note 4422,, aatt 19; Whhiittee, PP,rocedural Innovations, supra note 33, at 365. 5 Amendment (The Amendment) to individuals affected by mesothelioma. At the time, the circuit courts were split on whether recovery for mesothelioma damages was exclusively under the A mendment or Louisiana tort law. 46 In 1952, the Louisiana legislature adopted the Occupational Disease Amendment to the Louisiana Workers' Compensation Act.47 The A mendment responded to the extension of 48workers' compensation coverage across the country at the time. Initially, the A mendment was a general coverage statute providing recovery for all occupational diseases under Louisiana's w orkers' compensation system. The legislature modified the Amendment, however, and adopted a scheduled workers' compensation statute only covering diseases enumerated under the statute. I n 1975, the Louisiana legislature changed the Amendment and enacted a general 51 coverage statute. The Amendment provided coverage for poisoning or diseases resulting from contact with 16 52 | classifications of elemental compounds. It also provided coverage for specific diseases such as 53asbestosis, silicosis, dermatosis, and pneumoconiosis. Prior to the Amendment's enactment, occupational disease victims sought recovery against their employers in tort." 4 The Amendment's exclusivity clause, however, barred any action in tort against one's employer for occupational diseases covered in the Amendment. Therefore, employees under the Amendment were unable to seek a remedy in Louisiana tort law for asbestosis, silicosis, dermatosis, and pneumoconiosis. In addition, the Amendment barred suits for diseases and poisoning caused by substances within 56the 16 elemental-compound classifications. 45 La. rev. Stat. 23:1031.1 (1952). Rando v. Anco Insulations Inc., 16 So. 3d 1065, 1071 (La. 2009) ( noting the Louisiana Suprem e Court's decision to grant writs to resolve the split among the Louisiana circuit courts of appeal regarding mesothelioma coverage under the Amendment). See Johnson v. Ashland Oil Co., 684 So. 2d 1156 (La. 1 Cir. Ct. App. 1996); Gautreaux v. Rheem Mfg. Co., 694 So. 2d 977, 979 (La. 4 C ir. Ct. App. 1996) (noting the exclusion of asbestos injuries other than asbestos under the Amendment); but see Adams v. Asbestos Corp. Ltd., 914 So. 2d 1177, 1183 (La. 2 Cir. Ct. App. 2005); Brunet v. Avondale Indus., 772 So. 2d 974, 984 (La. 5 Cir. Ct. App. 2005), reh'g denied, 2000 La. App. LEXIS 3470 (2000) (noting the Second and Fifth Circuit's inclusion of asbestos injuries other than asbestosis under the Amendment). 47 Wex S. Malone, Louisiana Workmen's Compensation Law & Practice 218 (Supp. 1964) ( noting the practice in other states of extending worker's compensation coverage). 48 Id. 49 H. B. 1098, 1952 Leg., 19th Reg. Sess. (La. 1952). Malone, note 47 (explaining the Louisiana legislature's decision to enact a scheduled worker's compensation statute). 51 La. Rev. Stat. 23:1031.1 (1975). a ev tat52 L . r .S . 23:1031.1(A)(1)(a) (1952). a ev tat53 L . r .S . 23:1031.1 (a)(2-6) (1952). alone54 M , supra n ote 47 ( explaining the general practice of employees seeking recovery for occupational diseases against their employers under the tort system). 55 La. Rev. Stat. 23:1031.1 (F) (1952). 56 Id. 6 The Louisiana circuit courts of appeal split over the interpretation of the Amendment's coverage and exclusivity clauses. For years, Louisiana courts held that the Amendment covered diseases not specifically enumerated in the statute. Some of the non-enumerated diseases held to be within the Amendment's parameters included bullous emphysema caused by spray paint exposure, pneumoconiosis, pneumonitis from a chemical spray, lung injuries from spray-on detergent and sandblasting, and trinitrotoluene (TNT) toxemia from TNT dust. The circuit courts also explicitly addressed asbestos injury coverage under the Amendment. The first circuit in Johnson v. Ashla nd Oil GJo. held that mesotheliom a was not compensable A 58 n under the Amendment. Because mesothelioma was not listed as a covered disease, and asbestos was not specifically listed as a toxic substance under the Amendment, the Johnson court 59 reasoned that the only remedy for asbestos injuries other than asbestosis was in tort. I n Gautreaux v. Rh eem Ma nufacturing Go., a two-judge plurality on a five-judge panel in the fourth circuit held that lung cancer caused by asbestos was not compensable under the Amendment. Alth ough the plurality reasoned that lung cancer was not a specifically listed disease under the statute, it was willing to grant coverage under the Amendment for diseases 61 Tcaused by substances not specifically listed in the statute. The court, nonetheless, ruled that 62asbestos' did not meet one of the elemental-compound classifications under the A mendment. In addition, the determination regarding asbestos' elemental makeup was made without any expert 63 testim ony. The plurality reached its decision over a strong dissent. The dissenting justices held that A 64 -r asbestos was a covered substance under the elemental classifications in the Amendment. I he dissenters reasoned that the Amendment's language allowing for coverage of diseases caused by oxygen and its compounds included all compounds containing oxygen, and since asbestos See Au stin v. Travelers Ins. Co., 79 So. 2d 383 (La. Ct. Ap p. 1955) (holding that toxemia from exposure to TNT dust was compensable under the Amendment) reh'g denied (1955) , and cert. denied (1955); B ernard v. La. W ild Life & Fisheries Comm., 152 So. 2d 114 (La. Ct. App. 1963) (holding that employee's injuries from exposure to a chemical spray were compensable under the Amendment) reh g denied (1963), and Cert. ref d (1963); Riley v. Avondale Shipyards, 305 So. 2d 742 (La. Ct. App. 1974) (h olding that injuries from employee's inhalation of detergent solution was compensable under the Amendment ) reh 'g denied (1975); Zeringue v. Fireman's Fund Ins. Co., 271 So. 2d 613 (La. Ct. App. 1975) (holding that an employee's contraction of bullous emphysema from exposure to spray painting produ cts was compensable under the Amend ment). See Johnson v. Ashland Oil, 684 So. 2d 1156 (La. 1 Cir. Ct. App. 1996). In Rando, the Louisiana Supreme Court cited Terrance as the case stating the First Circuit's interpretation of the Ame ndment, Rando v. Anco Insulations Inc., 16 So. 3d 1065, 1074 (La. 2009). H owever, the court in Terrance relied on the reasoning from Johnson in its i, Terrance v. Dow Chem. ru ling 2007) 59 Jo hnson, 684 So. 2d at 1158. 60 Gautreaux v. Rheem Mfg . Co 61 Id. at 978. 62 Id. at 979. 63 Id. (Culotta, J., concurring). 64 Id. at 980 (Byrnes, J. , dissenti t 7 A 65 -r contains oxygen, its diseases are covered under the Amendment. I he dissent also stressed the agreement of assured compensation by an employer in exchange for a plaintiff's right to a 66remedy in tort underlying workers' compensation. T herefore, liberal coverage interpretations must be accompanied by liberal exclusivity clause interpretations to preserve the workers' 67 p compensation system. I inally, the dissenting opinion stated that the legislature likely did not 68 mean to include asbestosis while excluding other diseases caused by asbestos. The second circuit in Adams v, Asbestos Corp, refused to follow the reasoning in Gautreaux A 69 -p and held that mesothelioma was a compensable disease under the Amendment. The court in Adams reasoned that asbestos' elemental composition brou ght it under the elemental-compound A 70 | classifications in the Amendment. It also reasoned that the legislature would not intend for 71 different coverage for individuals with different diseases caused by the same substance. Finally, the court stated that the legislature's failure to include mesothelioma as a sp ecifically listed disease under the Amendment was due to its lack of knowledge about mesothelioma at the time of the Amendment's passage. 72 In Brunet v, Avondale Industries Inc,, the fifth circuit held that asbestos-related diseases were 3covered by the Amendment. ' The court reasoned that one must look to the elemental-compound A 74 -p classifications within the Amendment if a particular disease is not specifically listed. Ihe 75 majority also attacked the weak procedural posture of Gautreaux. Ihe majority criticized the use of the Gautreaux decision as binding precedent given that its plurality opinion only garnered 76 support from two judges on a five-judge panel. I inally, the court stressed the importa nce of the 77fact that the legislature included asbestosis in its list of specifically covered diseases. The majority argued that asbestosis' inclusion was likely a signal to cover all diseases caused by 78asbestosis' causative agent, asbestos.78 T he court stated that a liberal coverage interpretation 65 Id, (noting that a junior high level student would recognize that asbestos was a compo 66 Id, at 983. nd containing oxygen 67 Id, at 984. 68 Id, 69 Ad ams v. Asbestos Corp., 914 So 2d 1177, 1183 (La. 2 Cir. Ct. App. 2005) 70 Id, at 1182. 71 Id, at 1183 72 Id, 73 Brunet v. Avo ndale Indus., 772 S o. 2d 974, 984 (La. 5 Cir. Ct. App. 2000) 74 Id, at 982. 75 Id, at 980. 76 Id, 77 Id, at 983. 78 Id, 8 would further the policy of workers' compensation by relieving the economic burden of injured 79 workers while diffusing the costs of doing so in the channels of commerce, The split among the Louisiana circuit courts of appeal shows that the systems of workers compensation and asbestos tort recovery are inherently at odds with one another. While workers' compensation guarantees quick and modest compensation for injuries, asbestos plaintiffs 80 ~r frequently want to avoid the system to gain larger recovery in tort. I he theoretical battle between workers' compensation and asbestos tort recovery presented the Louisiana Supreme Court with a estion major qu in Ra ndo v. Anco Insulations Inc, !1 The court was given the option of placing asbestos injury claims into a low cost and efficient workers' compensation system or 82shifting asbestos claims into the Louisiana tort system, Although the effects of the court's decision have yet to be seen, Ra ndo drastically changed asbestos litigation in Louisiana and set the stage for Louisiana's asbestos litigation crisis. C. L ouisiana Fa lters, The Rando v, Anco Insulations D<ecision I n Se ptember 2005, Ray R ando, a retired pipefitter, was diagnosed with mesothelioma, In November of 2005, R ando initiated a tort suit against his former employers, alleging asbestos exposure during his time as a pipefitter from 19 7 0-19 7 2.84 As a result of the Louisiana Supreme Court's holding in A ustin v. Abney Mills Inc., the trial court applied the law in place during the 85time of Rando's significant exposure to asbestos, The trial court dismissed defendants' motion for summary judgment, arguing that Rando's disease was covered under the A mendment and barred by the Amendment's exclusivity ci 86 T he court held that asbestos was not a disease-causing substance and that mesothelioma was not an enumerated disease under the Amendment, After trial, the jury found in favor of Rando and 88awarded general damages of $2,8 million an d $402,000 n special damages, 79 Id. 80 Lori J, Khan, Untangling the Insurance Fibers in Asbestos Litigation, Toward a National Solution to the Asbestos Injury Crisis, 68 Tul, L, Rev, 195, 228 (1993), See Rando v, Anco Insulations Inc,, 16 So, 3d 1065 (La, 2009), 82 Id. at 1071, 83 Id. 84 Id. Id.', see Austin v, Abney Mills Inc,, 824 So, 2d 1137 (La, 2002) ( accepting the significant exposure theory in Louisiana asbestos cases and requiring the application of the law in place at the time of an individual's significant exposure to asbestos), Ra ndo, 16 So, 3d at 1073, 87 Id. 88 Id. 9 The defendants appealed the trial court's decis ion, which was upheld by the Louisiana F irst Circuit Court of Appeal. The first circuit followed Te rrance v. Dow Ch emical Co., which held that the Amendment did not include mesothelioma as an enumerated disease or asbestos as a 90disease-causing substance. The court also upheld the trial court's causation and damages 91 determi nati ons. The L ouisiana SSuupreme Court granted writs to resolve the circuit split over mesothelioma and asbestos coverage under the Amendment. The Louisiana Supreme Court affirmed the first circuit's ruling and held that mesothelioma was not an enumerated disease under the A 93 | p Amendment. In addition, the Court held that asbestos was not a disease-causing agent under the 94elemental-compound classifications in the A mendment. The Ra ndo majority used the canons of interpretation from the Louisiana Civil Code to interpret the Amendment's coverage.95 While the majority agreed that the Amendment broadened the scope of workers' compensation, it held that mesothelioma was not a covered 96disease under a clear and unambiguous interpretation. The court argued that the language stating that `[a]n occupational disease shall only include those diseases hereinafter listed" bar 97 coverage for mesothelioma, because mesothelioma was not specifically stated in the statute. T he majority also reasoned that an interpretation including mesothelioma would have been outside of the legislature's intent because mesothelioma was not recognized as a disease caused by asbestos exposure in 19 5 2.98 The majority rejected the argument that asbestosis' inclusion in the Amendment signaled the legislature's intent to cover all diseases caused by asbestos 99exposure due to the limited knowledge of asbestos' health effects in 1952. 89 Id. at 1074. 90 Id. See also Terrance v. Dow Chem. Co., 971 So. 2d 1058 (La. 1 Cir. Ct. App. 2007), cert, denied, 970 So. 2d 534 (La. 2007). 91 Rando, 16 So. 3d at 1074. 92 Id. See also supra Part I.B. (discussing the split within the Louisiana circuit cou rts of appeal over asbestos injury coverage under the Amend ment). 93 Rando, 16 So. 3d at 1074. 94 Id. at 1094. a iv ode95 Id. at 1075; see L . C . C art. 9 (2009) ("When a law is clear and unambiguous and its application does not lead to absurd consequences, the law shall be applied as written and no further interpretation may be made in search a iv odeof the intent of the legislature."); L . C . C art. 10 (2009) ("When the language of the law is susceptible of adifferent meanings, it must be interpreted as having the meaning that best conforms to the purpose of the law."); L . iv ODEC . C art. 11 (2009) ("The words of a law must be given their generally prevailing meaning. Words of art and technical terms must be given their technical meaning when the law involves a technical matter."). Rando, 16 So. 3d at 1078. 97 Id. at 1079. 98 Id. 99 Id. 10 The elemental-compound classifications in the Amendment provided compensation for diseases resulting from contact with . . . oxygen, nitrogen, carbon, and their compounds . . . [and] metals other than lead and their compounds."100 A lthough the majority did state that asbestos was an oxygen and metal compound, it rejected the argument that asbestos was a disease-causing substance under any of the elemental-compound classifications in the Amendment. 101 The majority also reasoned that Louisiana's adoption of a general coverage workers' compensation statute in 1975 limited the scope of the elemental-compound classifications in the AAmendment. 102 TIhe court determined that a liberal interpretation of the elemental-compound classifications would compensate diseases resulting from exposure to over 10390% of all elemental compounds known to man. The majority concluded that a liberal 104 interpretation rendered language in the statute superfluous. Justice Victory's dissent attacked the majority's h olding that asbestos was not a disease- causing agent under the elemental-compound classifications in the AAmendment. 105 JI ustice Victory argued that the majority's characterization of asbestos as an "oxygen or metal compound" required its inclusion under the A mendment because the Amendment covered 106diseases resulting from oxygen and metal compounds. The dissent also reasoned that the remedial policy of workers' compensation supported a liberal interpretation of the Amendment 107 that includes asbestos as a disease causing agent. Justice Victory also argued that the majority's interpretation was not compatible with the 108policy behind workers' compensation. H e stated that the majority's interpretation limited the amount of covered diseases to an "extremely narrow and arbitrary list."109 T he dissent found that coverage of asbestosis and not mesothelioma established a compensation system where co workers exposed to the same disease-causing agent received different coverage due to the agent's disease manifestation. 110 T he exclusion of certain asbestos disease manifestations was 100 Id. 101 Id. at 1080. 102 Id. 103 Id. 104 Id. 105 Id. at 1096 (V icto ry J 106 Id. 107 Id. at 1099. 108 Id. at 1095. 109 Id. at 1101. 110 Id. at 1099. d i ssenting ) 11 5 111 r therefore contrary to the goal of the workers compensation scheme. F inally, the dissent argued that the legislature's inclusion of coverage limitations throughout the Amendment, such as the exclusion of compensation for tuberculosis, supported a liberal interpretation of the 112Amendment allowing coverage for diseases not specifically excluded. The Ra ndo decision shows that Louisiana is not immune to the burdens of asbestos litigation. W hile the Louisiana Supreme Court could have shifted all asbestos claims into an efficient workers' compensation system, the court's decisio n placed asbestos in the tort system, which has historically failed to efficiently adjudicate asbestos claims. Th erefore, Louisiana must search for a solution to its impending asbestos litigation crisis. II. Searching Sfor a olution The Louisiana Supreme Court s ruling in Ra ndo opened the floodgates for asbestos litigation in Louisiana by requiring asbestos plaintiffs in the second and fifth circuits to seek recovery in the tort system. 13 Alth ough the Louisiana judiciary has yet to study the effect of the Ra ndo decision on asbestos filings in Louisiana, the decision is likely to increase asbestos claims in Louisiana. Th erefore, Louisiana must craft a solution that adequately adjudicates asbestos claims while limiting litigation costs. Louisiana could look to other states that have enacted procedural mechanisms, including consolidation and medical criteria statutes, to efficiently resolve asbestos litigation costs. A, The Consolidation Solution 114 |A sbestos case consolidation occurs throughout the country. In consolidation, claims are 115grouped together because they possess a common question of law or fact. The specific purpose 116 behind asbestos consolidation is the quick and efficient resolution of asbestos cases. 111 id, 112 id, at 1103. 113 id, at 1074. 114 Victor E. Schwartz, et al., ASBESTOS LiTiGATiON AND TORT LAW: TRENDS, ETHICS, & SOLUTIONS: Addressing the "Elephantine Mass" ofAsbestos Cases: Consolidation Versus inactive Dockets (Pleural Registries) epp evand Case Man agement Pl ans Th at Defer Claims Filed by the Non -Sick, 31 P . L. r . 271, 280 (2003) [herein after Sch wartz, ASBESTOS LiTiGA TiON] (noting the practice of asbestos consolidation in Virginia and W est Virginia); V ictor E. Schwartz & Rochelle M. Tedesco, Litigation in Mississippi Today: A Symposium: The L aw of Unintended Consequences in Asbestos Litigation, How Efforts to Streamline the Litigation Have Fu eled More issCl aims, 71 M . L. J. 531 (2002) [ hereinafter Sch wartz &Ted esco, Unintended Consequences] (noting the practice of asbestos consolidation in Mississippi and Texas). A EVGene R. Shreve, Reform Aspirations of the Co mplex Litigation Project, 54 L . L. R . 1139, 1142 (1 994). 116 id, 12 In theory, consolidation has several positive effects. The joinder of numerous claims involving similar injuries and questions of fact promotes judicial efficiency by streamlining the 117 n discovery and liability portions of a case. F urthermore, consolidation gives jurisdictions facing massive amounts of asbestos claims a mechanism to lower the litigation costs of plaintiffs, 118 defendants, and the courts. TI he practical effects of consolidation, however, negate its theoretical positives. 119 [M\/| odern asbestos consolidations bear little resemblance to the first consolidations nearly 30 years ago. The first consolidations normally involved a small number of cases, usually around five, with 120 ~r very similar claims and questions of liability. I he rise in asbestos litigation, however, 121 | expanded consolidations into actions with hundreds and even thousands of plaintiffs. In addition, large consolidations often involve plaintiffs with dissimilar claims and liability 122 questions against dozens of unrelated defendants. Defe nd ants in mass consolidations face heavy discovery burdens that require investigations of thousands of dissimilar claims against multiple defendants along with massive potential 123 m liability costs. I he risk of massive liability and high litigation costs often forces defendants to 124 r settle consolidated asbestos claims. Consolidations are now characterized as a form of judicial 125 blackmail because of the increased pressure on defendants to settle. In addition, judges, facing hundreds to thousands of claims, often dispense with discovery procedures for many claims in 126 the spirit of judicial efficiency. Consolidation also negatively impacts asbestos plaintiffs. Mass asbestos consolidations often group plaintiffs with serious asbestos injuries, such as mesothelioma and lung cancer, with 117 Sch wartz, ASBESTOS LITIGATION, supra n ote 114. 118 Id. 119 Id' See The Fairness in Asbestos Compensation Act of 1999', Hearing on H.R. 1283 Before the H. Comm. on the Ju dicia ry, 1 06th Cong. 89, 91(1999) (prepared statement of illiam N. Eskridge, Jr., Professor, Yale Law School). 121 Id. at 191; M obil Corp. v. Gaughan, 563 S.E. 2d 419, 421 (W. Va. 2002) (M aynard, J., concurring) (noting that a V est Virginia asbestos consolidation involved thousands of plaintiffs; 20 or more defendants; hundreds of different work sites located in a number of different states; dozens of different occupations and circumstances of exposure; dozens of different products with different formulations, applications, and warnings; several different diseases; numerous different claims at different stages of development; and at least nine different law firms, with differing interests, representing the various plaintiffs. Add itionally, the challenged conduct spans the better part of six d ecad es.). 122 C ini Supra, note 121. See Mobil Corp., 563 S.E. 2d at 421 (M aynard, J., concurring). 124 See, e.g., Corsey v. E.D . Bullard Co., Civ. No. 95-0069 (Miss. Cir. Ct. J efferson County Sept. 16, 1998). In a mass asbestos consolidation case, the judge, after the trial of 12 plaintiffs, pressured defendants to settle the cases of nearly 1700 other plaintiffs. See also Victor E. Schwartz & Leah Lorber, A Letter to the Nation S Trial Judges: How M RIAL DVOCthe Focus on Effi ciency is Hurting You and Innocent Victims in Asbestos Liability Cases, 24 A . J. T A . 247, 255 (2000) [ hereinafter Sch wartz & L ober, A L etter]. EV125 See Charles Silver, "We're Scared to Death": Class Certification and Blackmail, 78 N.Y.U. L. R . 1357, 1421 (noting that while class actions and mass consolidations are different, both still pose the risk of creating a bargaining scale more faivorable to plaintifffss). 126 So chw & L ober, A L etter, supra note 124, at 258. 13 plaintiffs claiming only breathing difficulty or no physical impairment at all. 127 Unimpaired plaintiffs with minor or no asbestos injury other than exposure now account for a large number 128of asbestos claims filed throughout the country. Knowing that defendants facing massive liability are more likely to settle, attorneys are more inclined to join unimpaired plaintiffs to 129consolidated asbestos cases. Because consolidation encourages large settlements, the majority 130 of asbestos recovery in consolidations is going to individuals without a serious asbestos injury. Consolidation risks diverting resources away from truly injured claimants and into the hands of unimpaired plainti ffs. P ublic policy suggests that the tort system should be directed toward holding defendants who are true wrongdoers responsible and compensating only plaintiffs who 131are truly injured. The consolidation method fails to achieve this end and cannot be the proper solution to the asbestos litigation crisis. B. The Medical Criteria Statute Solution As opposed to consolidation, medical criteria statutes represent the strongest procedural stance against asbestos litigation costs. Since 2004, O hio, Georgia, F lorida, Texas, Kansas, and Sq outh Cp arolina have enacted medical criteria statutes. 132 I| n addition, courts in other states established inactive docket programs similar to medical criteria statutes without statutory 133 "T authorization. Ihe statutes establish an inactive docket, allowing only plaintiffs with serious asbestos injuries to advance through the court system. 134 M|\/|edical criteria statutes require 135 plaintiffs to assert prima facie evidence of a serious asbestos injury to gain court access. Claims that do not meet the prima facie evidence requirements are dismissed or suspended until 136 sufficient evidence of an injury is presented. In addition, some states limit asbestos 137 consolidation and require asbestos claims to have a significant connection to the jurisdiction. 127 See Sch wartz &T ed esco, 128 Id. Unintended Coonsequences, supra n ote 114, at 533. See Matthew L. Cooper, Too Far or Not Far Enough? Michigan Supreme Court Administrative Order 2006-6 ET ERCY EVand Its Impact on Asbestos Litigation in Michigan, 85 U. D . M L. R . 407, 418 (discussing the use of asbestos consolidations by plaintiffs' attorneys as leverage for mass asbestos settlements); see also Schwartz, ASBESTOS LITIGA TION, supra note 114, at 285. Sch wartz & Ted esco, 131 Id. at 536. Unintended Coonsequences, supra n ote 114, at 533. Philip Zimmerly, The A nswer is Bl owing in Procedure: States Turn to Medical Criteria and Inactive Dockets to LA evBetter Facilitate Asbestos Litigation, 59 A . L. r . 771, 778 (2008). 133 Id. 134 Id. at 780. LA tatSee, e.g. , F . S . 774.204(1) (2007) ("Physical impairment of the exposed person, to which asbestos or silica exposure was a substantial contributing factor, is an essential element of an asbestos or silica claim. ); see also Ga. Code Ann. 51-14-4 (2007); Kan. Stat. Ann. 60-4902(a) (2006); Ohio Rev. Code Ann. 2307.92 (2007); S.C. Code Ann. 44-135-50(A) (2007); Tex. Civ. Prac. & Rem. Code Ann. 90.003(a)(1)(B) (Vernon 2007). 136 7 -i go Zimmerly, supra note 102. 137 South Carolina's statute specifically limits asbestos case consolidation and case transfer within its state courts. ode nnSee S.C. C A . 44-135-20(A)(5) (2006). G eorgia and Florida require plaintiffs to be domiciled in the state or la tat a ode nnsuffer their injury due to some interaction with the state. See F . S . 774.205 (2007); G . C .A . 51- 14-9(a) (2007). 14 M edical criteria statutes and inactive docket programs have limited asbestos filings in particular jurisdictions, and New York, Texas, M ississippi, and Ohio have seen decreases in asbestos between 35 and 90%. 138 The success of medical criteria statutes led some scholars to believe that the statutes are the 139solution to the asbestos litigation crisis. KMAedical criteria statutes, however, are not a panacea to the asbestos problem for several reasons. First, medical criteria statutes fail to adjudicate valid 140 c asbestos injury claims through procedural barriers. Second, retroactive application of the statutes fails to preserve claims and reduce strategic behavior by plaintiffs' attorneys. F inally, medical criteria statutes do not limit asbestos claims, but instead shift claims to other 141 jurisdictions. W hile the effort to compensate only serious asbestos injury claims is admirable, medical criteria statutes exclude plaintiffs with minor injuries and the potential for future injuries through 142procedural barriers. Stringent pleading standards requiring extensive prima facie medical 143 Aevidence of a serious asbestos injury pose procedural difficulties for plaintiffs. At the pleading stage, plaintiffs must show physical impairment to which asbestos exposure was a significant contributing factor because claims for economic asbestos injuries, like medical monitoring, are 144 p barred. Consequently, plaintiffs are now required, at the pleading stage, to assert prima facie medical evidence showing causation of injuries, with latency periods spanning several 145 ~r decades. Ihe need to assert prima facie evidence requires plaintiffs to acquire numerous medical and employment records from their defendant--employers, a practice normally reserved 146 R 5 for the discovery process. Because discovery mechanisms do not attach after a Case S EV itig138 Mark A. B ehrens, What's New in Asbestos Litigation, 28 R . L . 501, 524 (2009) ( noting the decrease in asbestos filings in states with a medical criteria statute or inactive docket program) [hereinafter Behrens, What's New]. See, e.g., Mark A. Behrens, Stewardship for the Sick, Preserving Assets for Asbestos Victims Through Inactive EX ECH EVDocket Programs, 33 T . T L. R . 1, (2001) [hereinafter Behrens, Stewardship]; Paul F. Rothstein, What ISSCourts can do in the Fa ce of the Never-endng Asbestos Crisis, 71 M . L. J. 1 (2001) [ hereinafter Rothstein, Wh at Co u rts]. See Jordana Mishory, Riding the Herd, Scores of South Florida Silicosis Cases Are in Jeopardy After Fraud IAMI AILY US EVAllegations in Texas Bring Tough Judicial Scrutiny, M D B . R ., June 12, 2006, at 8 (noting legislator's concerns that Florida's medical criteria statute for asbestos and silicosis injuries establishes too stringent a pleading standard for plaintiffs). Behrens, What's New , supra note 138, at 539 (noting the increase in asbestos claims in California, Delaware, and Illinois). Zimmerly, supra note 132 (explaining medical criteria statutes' exclusion of minor asbestos injury claims). 143 Mi shory, supra note 140 ( noting that medical criteria statutes pose procedural difficulties for plaintiffs in states with notice pleading). 144 Id. 145 Randy Manilo ff, An Inactive Asb estos Do cket: Understanding the R,sks, Mondaq Bus. Briefing, Apr. 16 2003, ERCKavailable at 2003 WLNR 10830999; M , supra note 15 (noting the latency periods for asbestos injuries). 146 Sree Sc wierk iewicz . Sorema N.A., 534 U.S. 506, 512 (2002) (noting how the discovery and summary judgment process is used to shape the prima facie elements and issues of a case). 15 placement on an inactive docket, the ability of plaintiffs to retrieve documents detailing their 147work history and employers' use of asbestos is severely hindered. The exclusion of plaintiffs with only a minor asbestos injury defeats the purpose of tort litigation. W hile some plaintiffs may be at risk of death from lung cancer and mesothelioma, others suffer from the increased costs associated with the need to monitor for a potential asbestos 148illness or difficulty in breathing. W hile minor asbestos injuries may not manifest into major health problems, asbestos exposure can result in financial injuries that impact the lives of 149 r victims. F urthermore, the tort system is in place to compensate not only plaintiffs with serious physical injuries but all plaintiffs injured by another, including those only suffering from minor 150physical and economic injuries. By excluding claims for minor asbestos injuries, medical 151 criteria statutes produce many unadjudicated claims and uncompensated plaintiffs. ledical criteria statutes also pose due process concerns as a result of retroactivity provisions requiring plainti ffs who filed claims prior to a medical criteria statute's enactment to reassert 152 p p their claims showing prima facie medical evidence of an asbestos injury. I lorida, Georgia, and n Ohio retroactively applied 153 p medical criteria statutes to existing asbestos claims. Lach jurisdiction's retroactivity provision was challenged in the court system. While Ohio upheld its pp 154 retroactivity provisions, courts in I lorida and Georgia declared retroactivity unconstitutional. However, both interpretations present problems for states considering medical criteria statutes as a solution to asbestos litigation. Maniloff, supra note 145. erck148 M , supra note 15, at 470 (noting the wide range of possible asbestos injuries). See Bowers v. Westinghouse Llec. Corp., 522 S.L.2d 424, 431 (W. Va. 1999) ( noting the important public health policy behind compensating individuals with an increased need for medical monitoring due to the tortuous act of another ); Ay ers v. Jackson, 525 A.2 d 287, 312 (N.J. 1987) (noting that m ed ical m onitoring recovery m a y enable early detection of a future health problem and decrease the liability of future defendants). a IV ode0 L . C . C art. 2315 (stating, " Every act whatever of man that causes damage to another obliges him by whose fault it happened.") (emphasis added). See Schwartz & Lober, A L etter, supra note 124, at 258 ( explaining the rise in unimpaired asbestos plaintiffs), ALL TQueena Sook K im, G-I Holdings Ba n kruptcy Filing Cites Exp osure in Asbestos Cases, ^V S . J., Jan. 8, 2001 , at B12 , available at 2001 WL-WSJ 2850312. Maniloff, supra note 145. 153 See Fla. Stat. 774.204 (2010); (LexisNexis 2010). ODEGa. C nnA . 51-14-1 HIO LV ODE(2010); O R .C nnA . 2307.92 154 See Wilson v. AC&S Inc., 169 Ohio App. 3d 720, 2006-Ohio-6704, 864 N.L.2d 682 ( holding that retroactive application of provisions in Ohio's medical criteria statute did not burden an invested right and could be applied to asbestos claims filed prior to the statute's enactment); but see D aimler Chrysler Corp. v. Ferrante, 637 S.L.2d 659 (Ga. 2006) (holding that provisions of Georgia's asbestos claims statute requiring plaintiffs to produce evidence establishing that their exposure to asbestos was a substantial contributing factor to their medical conditions affected plaintiffs' substantive rights and could not retroactively be applied to their claims). See also In re Asbestos Litigation, 933 So. 2d 613 (Fla. Dist. Ct. App. 3rd Dist. 2006) (holding that Florida's "Asbestos and Silica Compensation Fairness Act" could not be applied to plaintiffs suffering from nonmalignant asbestos injuries who had received a trial date prior to the statute's enactment); Williams v. Am. Optical Corp., 985 So. 2d 23 (Fla. Dist. Ct. App. 4th Dist. 2008) (holding that that Florida's "Asbestos and Silica Compensation Fairness Act" cannot be retroactively applied to prejudice or defeat causes of action already accrued an in litigation 16 First, medical criteria statutes provide an incentive for strategic behavior by plaintiffs' attorneys. Alth ough legislation cannot completely discourage strategic behavior, medical criteria statutes encourage plaintiffs' attorneys to flood courts with asbestos claims prior to a medical criteria statute's enactment to avoid the statute's stringent pleading requirements. For states not allowing retroactivity, the result of this strategic behavior is a crippling mass of asbestos cases remaining on their courts' dockets.155 States allowing retroactivity, however, risk destroying valid claims or making claims dormant for a number of years. Th e c atch - 22 presented by retroactive application shows that simply dismissing claims or placing them on an inactive docket is a fatal flaw within medical criteria statutes because under each approach, strategic behavior is encouraged or claims are impeded. This problem signals the need for a solution that reduces the benefits of strategic behavior while still preserving valid injury claims. Sc econd, medical criteria statutes increase asbestos litigation in other jurisdictions. 156 BRy excluding vast amounts of claims in some jurisdictions, asbestos litigation is growing in jurisdictions without medical criteria statutes. 157 TI raditional asbestos havens such as Tlexas and South Carolina are being replaced by jurisdictions more hospitable to asbestos claims, and courts nn | 158 in California, Delaware, and Illinois are experiencing a rise in nonresident asbestos claims. T he shift in asbestos litigation has even prompted plaintiffs firms specializing in mass torts to 159establish offices in states without medical criteria statues. Even though jurisdictions with medical criteria statutes are experiencing a lower number of asbestos filings, the asbestos problem still remains. The burdens of asbestos litigation, however, must now be borne by fewer states with an even greater concentration of asbestos claims than ever before. Therefore, medical criteria statutes fail to curb asbestos litigation and instead encourage forum shopping by asbestos plainti ffs. See Jordana Mishory, No Turning Ba ck, Ju dge Ru les Law that Required Plain tiffs to Su bmit Med ical Histories IAMI AILY USCan't be Applied Retroactively, M D evB . R ., Aug. 8, 2006, at 1 available at 2006 WLNR 25547302 (noting the over 2,500 cases pending on the Miami -Dade Circuit Court's docket prior to the passage of Florida's medical criteria statute). See discussion infra Part III. The failure of medical criteria statutes to impact claims at the national level suppo rts the need fo r federal asb esto s to rt refo rm. Part III will discuss the failure of the federal government to pass such legislation and call for a state solution that prevents the shifting of asbestos claims to other jurisdictions by formulating a state- administered compensation schedule that adequately reduces the need for plaintiffs' attorneys to employ strategic behavior and increase the asbestos litigation burden on other jurisdictions. 157 DBehr What's New, supra note 138, at 539 (noting the increase in asbestos claims in California, Delaware, and Illinois) 158 Id., see also Victor E. Schwartz et al., Litigation Tourism Hurts Ca lifornians , 21-20 Mealey's Litig. Rep. Asb. 20 (2006) (noting that in Cali fo rnia over 30% of asbestos plaintiffs are nonresidents and lack any connection to the fo rum). The term traditional asbestos haven is used to describe jurisdictions that historically have been a popular forum for asbestos plaintiffs. ailyCortney Fielding, Plaintiffs Lawyers Turn to L.A. Courts for Asbestos Litigation, D J. (L.A.), Feb. 27, 2009, (Verdicts & Settl eme nts) , at 1 . 17 Consolidation and medical criteria statutes do not adequately resolve the asbestos litigation problem, and states must formulate new remedies to counteract asbestos' stranglehold on the judicial system. Th ese remedies should allow states to efficiently resolve asbestos claims without sacrificing the interests of plaintiffs, defendants, and other jurisdictions. One plan not yet enacted at a state level may provide the necessary remedy: the adoption of a scheduled asbestos compensation fund. III. T S C She cheduled ompensation olution The failure of medical criteria statutes and consolidation signals the need for a national solution. W hile the federal government attempted to enact federal asbestos litigation reform with the Fairness in Asbestos injury Resolution Act (FAiR Act), political and business interests halted the act's passage. Therefore, the Louisiana legislature must reform asbestos litigation at the state level. The Louisiana solution, however, must adequately balance the interests of all parties in asbestos liti gation and address the criticisms that led to the FAIR Act's failure. Louisiana can achieve these ends by enacting a scheduled compensation plan that incorporates the substantive provisions of FAIR Act under the procedural framework of the Louisiana Medical M alpractice Act. A. The Fa iled Federal Solution In 1997, the United States Supreme Court called for an administrative solution to the elephantine mass of asbestos claims and litigation costs in the United States. In 2006, Senator Arlen Specter, respon ding to the Supreme Court's request, proposed the FAIR Act to the United States Senate. The 2006 FAIR A ct, at its core, would establish an administrative 162 Acompensation schedule providing recovery for individuals adversely affected by asbestos. An 163administrative staff would run the compensation fund and process asbestos claims on a no- 164fault basis and in a nonadversarial setting. The administrative staff would promulgate procedures for filing claims and establishe a payment schedule based on a cla imant's injuries and 0 See Ortiz v. Fibreboard Corp., 527 U.S. 815, 821 (1999) (describing asbestos litigation as an "elephantine mass" that defies customary judicial administration and requires national legislation); Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 628 (1997) ("[A] nationwide administrative claims processing reg ime would provide the most secure, fair, and efficient means of compensating victims of asbestos exposure."). Elise Gelinas, Asbestos Fraud Should Lead to Fa irness, lWhy Congress Should En act the Fa irness in Asbestos d evinjury Resolution Act, 69 M . L. R . 162, 169 (2009) (noting Congress' failure to enact previous versions of the FAIR Act and Senator Arlen Specter's proposal of the 2006 version of the act). Fairness in Asbestos Injury Resolution Act of 2006, S. 3274, 109th Cong. 2 (2006) ("[The purpose of this Act is to] create a privately funded, publicly administered fund to provide the necessary resources for a fair and efficient system to resolve asbestos injury claims that will provide compensation for legitimate present and future claimants of asb estos exposure as provided in this Act."). 163 id. at 101 ("There is established within the Department of Labor the Office of Asbestos Disease Compensation, which shall be headed by an Administrator."). 164 id. at 112. 18 medical 165 history. The FAIR Act's compensation model would establish a $140 166 ncompensation fun d. Defe ndant companies, their insurers, and prior asbestos defendants' 167 Dbankruptcy trusts would be the primary financiers of the compensation fund. Recovery under 168 rthe fund would be disbursed according to a tiered compensation schedule. Compensation would range from $25,000 for claimants requiring medical monitoring to $1.1 million for 169 claimants diagnosed with mesothelioma. Unfortunately, Congress did not enact the FAIR Act due to immense pressure from political 1 70and business grou ps. l,u C ritics believed that the compensation fund's no- fault model would 171increase claims by individuals without a serious asbestos injury. Critics also feared that the 172 rise in claims would bankrupt the compensation fund and require a federal bailout of the fund. Conversely, legislators felt that the fund's compensation levels did not properly punish 173 n defendants and their insurers. F urthermore, financial actuaries argued that the fund failed to subrogate workers' compensation claims and allowed claimants to double dip in both state workers' compensation programs and the compensation fund.174 Asbestos defendants also split on their support for the FAIR Act. D efendants facing massive asbestos liability, like McD ermott International and United States Gypsum, stated that a no_fault compensation system allowed them to compensate claimants while avoiding anywhere from $600,000 to $3 billion in litigation costs. On the other hand, defendants with limited asbestos liability argued that payment obligations under compensation funds bail out large corporations 165 Id. at 101 ("[The Administrator sh all be responsible for] promulgating such rules, regulations, and procedures as may be necessary and appropriate to implement the provisions of this Act."). 166 Id. at 221. 167 Id. at 201--226 ( outlining the contributors and payment methods under the Asbestos Injury Resolution Fund). 168 Id. at 233. imes169 Stephen Labaton, Asbestos Bill is Sidelined by the Senate, N.Y. T , Feb. 15, 2006 available at http,//www .nyti mes.com/2006/02/1 5/politics/15asbestos.htm l?pagewanted = 1 &ei=5088&en = 8818b422c430a43a&ex = 1 297659 600& partner=rssnyt&emc=rss. 170 Id. ong ec171 152 C . R . S875, 881 ( daily ed. Feb. 9, 2006) ( statement of Sen. Bennett ). The G eneral Accounting Offi ce has found that, in general, creating a trust fund results in twice as many claims as that predicted at the time of its creation. The Fairness in Asbestos Injury Resolution Act of 2006: Hearing on S. 3274 Before the S. Comm. on the Ju dicia ry, 1 09th Cong. 15 (2006) (statement of Douglas Holtz_Eakin, Director, Council on Foreign Re lations) (arguing that a future Congress will most likely use taxpayer dollars to bail out the fund instead of reducing claim values or heightening eligibility standards). Id. Labaton, supra note 169. SSUE RIEFSee Current Issues in Asbestos Litigation, I B (A m. Acad. of Actuaries, Wash ington, d.c.) f eb . 2006, at 8 (noting the Academy's letter to Senators Specter and Leahy regarding the risk of double dipping by plaintiffs in the Fair Act's compensation fund and workers' compensation programs). IMESSee Julie Creswell, Large and Small Busin esses Part Ways on Asbestos Bill, N.Y. T , Feb. 9, 2006. United States Gypsum's parent company, USG, stated that an administrative compensation scheduled would save them roughly $3 billion in litigation costs. McDermott International stated that a compensation schedule would save them roughly $600,000 in litigation costs. Id. 19 176 ~r while punishing small businesses, Ihe intense backlash from political and business critics ultimately led to the failure of the FAIR Act on February 14, 2006, when the Act failed to survive a budget objection in the Senate, 177 At this point, the possibility of a federal scheduled compensation plan looks grim, Since Senator Specter's attempt to pass the landmark legislation in 2006, no legislator has proposed the FAIR A ct again, Ih us, the asbestos litigation crisis seems to continue without any federal solution in sight, Calls still remain for a scheduled compensation plan, similar to that proposed by the FAIR Act.178 T herefore, in an effort to combat federal inactivity, states must enact scheduled compensation. In the wake of Ra ndo, Louisiana has a prime opportunity to be the proving ground for state-administered scheduled compensation by enacting a scheduled compensation plan based on the substantive principles in the FAIR Act and the procedural framework of the Louisiana Medical Malpractice Act. 179 B. The Need for State A\d^n ini stered Scheduled (So mpensation 1. A Fa ir Recovery System for All Pa rties Through Scheduled Compensation Scheduled compensation solves many of the problems associated with asbestos litigation while fairly balancing the interests of plaintiffs, defendants, and attorneys. F or plaintiffs, the establishment of a compensation fund possesses several advantages. Scheduled compensation ensures timely and appropriate recovery for plaintiffs suffering from an asbestos injury in a no- 180 | fault system. In the traditional tort system, plaintiffs are often forced to file suit against 181multiple defendants to gain adequate recovery. The need for plaintiffs to sue multiple defendants to gain adequate recovery often results in difficult proximate cause questions for 182 ~r plaintiffs. These questions often force plaintiffs to use nontraditional tort theories, such as id. (noting the financial difficulties imposed on smaller corporate defendants A.^V. Chesterton and Hopeman Brothers by the FAIR Act's required payments). Labaton, supra note 169. See, e.g., Gel inas, supra note 161 ( discussing the reasons why Congress should enact a scheduled compensation system), see also Christopher J. O'Malley, Breaking Asbestos Litigation 's Chokehold on the American Judiciary, LL ev2008 U. I . L. R . 1101 (2008) (discussing the benefits of a scheduled compensation system). See discussion infra Part III.B.3. ( explaining the procedural framework of the Louisiana Medical Malpractice Act and its possible application in a Louisiana Scheduled Asbestos Compensation Plan). 180 Judicial Conference Ad Hoc Comm. on Asbestos Litig., Rep. of the Ad Hoc Comm. 27-28 (1991) (noting the impo rtance of establishing timely and appropriate compensation fo r plainti ffs s u ffering from a legally cognizable asbestos injury in an administrative compensation system), See Vh ite, Procedural innovations, supra note 33, at 369 ( noting the need for asbestos plaintiffs to file suit against numerous defendants due to bankruptcies induced by asbestos litigation costs), 182 T p I he identification problem stems from two causes, Tirst, many asbestos products carry no manufacturers label, Second, plaintiffs often are exposed to several different asbestos products in their workplace, resulting in causation by multiple defendants and an inability to recall specific manufacturers, See Jeffrey C, Endress & Step hen G, Sozio, Market Share Liability, A One Theory Approach Beyond DES, 1 DET, C.L. REV, 1, 8-9 (1983) , see also Case v, Fibreboard Corp,, 743 P.2d 1062, 1066-67 (O kla, 1987) (describing ho w identification of an asbestos m an ufacturer is almost impossible when the materials were in stalled years before the plaintiffs exposure), 20 183 | market share and alternative liability, to prove causation. Louisiana and other jurisdictions, though, do not welcome market share or alternative liability, and many plaintiffs suffering from cognizable asbestos injuries are denied recovery because they cannot meet the causation 184 burden. Furthermore, the allocation of damages across multiple parties also poses risks for many plaintiffs. F or example, many states have adopted comparative fault schemes that allocate a 185 ~t percentage of fault to each liable party. The rash of asbestos-related bankruptcies has led to a 186 | massive number of insolvent defendants. In addition, plaintiffs cannot always identify all the 187defendants contributing to their injury. As a result, plaintiffs' damages awards may shrink significantly if a large percentage of liability is apportioned to an insolvent or absent 188defe ndant. Plaintiffs' recoveries are also significantly diminished by the contingency fees 189 ~t under their representation contracts with attorneys. Therefore, the traditional tort system fails plainti ffs due to difficult causation burdens and the diminishment of awards by comparative fault systems and contingency fees. The principles of nonadversarial and administrative adjudication of asbestos claims in the FAIR A ct eliminate causation and damages concerns for plaintiffs. Because plaintiffs only need to show a cognizable asbestos injury, plaintiffs are not forced to use nontraditional tort theories 190 p such as market share or alternative liability. F urthermore, the establishment of a single solvent compensation fund eliminates the need to assert numerous claims against multiple defendants. See George v. Hous. Auth., 906 So. 2d 1282, 1287 (La. Ct. App. 2005) (stating that [mjarket share liability imposes pro rata liability in the ratio of market share of each manufacturer of a fungible product that is so generic that the individual manufacturer cannot be identified. Th e key ele ment enabling complainants to recover under the market share theory in a fungible produ cts case is the shift of the burden of proof from the plaintiff to the defendantmanufacturers, requiring them to show that they did not manufacture the offending product. ). See also Gaulding v. Celotex Corp., 772 S.W.2d 66, 68 (Tex. 1989) (noting that "[alternative liability relaxes the plaintiffs burden of identifying the actual tortfeasor and thus may allow the plaintiff to prevail when the traditional rules of causation would prevent recovery. When independent acts of negligence are simultaneously committed by two or more tortfeasors and only one act results in injury, the plaintiff is relieved of his burden of proof. The burden shifts to the defendants to exculpate themselves."). 184 See George, 906 So. 2d at 1287 ( noting that no Louisiana court has ever endorsed the market share liability theory). See also Quick v. Murphy Oil Co., 643 So. 2d 1291, 1294 (La Ct. App. 2004) (noting the United States Fifth Circuit Court of Appeal's rejection of alternative liability and Louisiana's endorsement of traditional tort theories). 185 See La. Civ. Code Ann. art. 2323 (2010); Ky. Rev. Stat. Ann. 411.182 (LexisNex,s 2010); Fla. Stat. 768.81 (2010) (establishing a pure comparative fault standard allocating a percentage of fault to each liable party); A ODE NN KLA TATbut see G . C .A . 51 -11 -7 (2010); O .S . tit. 23, 13 (2010) (establishing a comparative fault standard barring recovery to plaintiffs who could have avoided the consequences of a defendant's negligence by exercising reasonable care). See Plevin, Where are They Now?, supra note 35. 187 id, For a further discussion of insolvent and absent defendants in comparative fault cases, see Gerald W. B o sto n, AYTON EVApportionment of Harm in Tort Lawi A Proposed Restatement, 21 D L. R . 267 (1996); Steven B. Hantler eo ub ol yet al., Mo ving Toward the Fu lly informed Jury, 3 G . J. L. & P .P ' 21, 46 (2005). OFSTRASee Lester Brickman, Eth ical issues in Asbestos Litigation, 33 H evL. R . 833, 841--842 (2005) (noting that plaintiffs' lawyers charge contingency fees in asbestos litigation ranging from 25% to 50%, with a plurality of contingency fees charged at 40%). 190 p airness in Asbestos Injury Resolution Act of 2006, S. 3274, 109th Cong. 111--115 (2006). 21 W ithout the risk of an insolvent or absentee defendant, plaintiffs' recovery will not be diminished in states with a comparative fault regime. Th erefore, scheduled compensation limits the causation burden for plaintiffs while ensuring adequate recovery. In order to counteract the massive contingency fees charged by plaintiffs' attorneys, scheduled compensation funds must cap attorneys' fees. F ee caps, however, must be weighed against the costs and potential losses attorneys may incur by having to adjudicate claims in an administrative scheme. By providing fees weighed against attorney costs, a scheduled compensation plan can reduce the incentive for strategic behavior by plaintiffs' attorneys and prevent attorneys from shifting Louisiana asbestos claimants into jurisdictions without fee caps. As a result, scheduled compensation, unlike medical criteria statutes, discourages strategic behavior by plaintiffs' attorneys filing asbestos claims. Asbestos defendants and their insurers also benefit from scheduled compensation. n 191Defendants have paid tens of billions of dollars for defense counsel in asbestos litigation, and asbestos litigation costs will eventually total $265 billion. Scheduled compensation, however, provides several remedies to lower this cost. Scheduled compensation funds establish the required contribution amounts from defendants, their insurers, and asbestos defendant 193 bankruptcy trusts. n F urthermore, scheduled compensation allows defendants to pay contributions over a number of years to ensure defendants' economic viability. Therefore, defendants can accurately project their asbestos liability and manage economic resources in a way that ensures financial solvency. Most importantly, scheduled compensation operates in a nonadversarial setting and eliminates the need for asbestos defense 195 counsel, which 196substantially limits litigation costs for asbestos defendants. By lowering the litigation costs of asbestos defendants and their insurers, scheduled compensation decreases the risk of insolvency that many asbestos defendants currently face. 2. /Addressing the (/riticis^ns of the FAIR /ct Alth ough scheduled compensation plans possess many benefits, political and business 197interests derailed scheduled compensation at the federal level. Because medical criteria 191 Wh ite, Future of Mass Torts, supra note 28, at 192. 192 Carollet al., supra note 28. S. 3274, 201-226. Id. 195 Id. at 101. See Creswell, supra note 175 ( noting the decrease in litigation costs for asbestos defendants under an administrative compensation schedule). See supra Part 111 .A. ( discussing the F AI R Act and its failure due to political and business criticisms). 22 198 statutes and consolidation fail to resolve asbestos claims adequately, state-administered scheduled compensation presents the best solution to the asbestos crisis. State-administrated scheduled compensation, however, must adequately address the concerns with the FAIR Act. By adopting scheduled compensation plans that address the criticisms of the FAIR act, states can formulate a proper solution to the asbestos crisis. The risk that a mass influx of asbestos claim would bankrupt a federal compensation fund was a major criticism of the F AI R Act. State_admi nistered scheduled compensation, however, can alleviate this criticism through several measures. Alth ough scheduled compensatioion on a national level cannot turn away claimants based on jurisdictional connection, states enacting scheduled compensation can establish jurisdictional barriers, such as requiring a claimant to have been exposed to asbestos within a jurisdiction's boundaries.200 B y establishing jurisdictional barriers, a state compensation fund can eliminate claims for minor asbestos injuries that have no significant connection to the state. In addition, states must require plaintiffs to produce prima facie medical evidence in order to recover compensation. Unlike the prima facie requirements imposed by medical criteria statutes which exclude minor asbestos injuries, states can establish guidelines for asserting minor asbestos injury claims such as asbestos exposure requiring medical monitoring and difficulty in breathing. By establishing guidelines for minor asbestos injuries, as opposed to simply excluding such claims, states can weed out meritless claims while still providing recovery for minor and major asbestos injuries. The inclusion of minor asbestos injury claims in a compensation schedule also reduces the need for plaintiffs to migrate claims to other jurisdictions. Th rough significant exposure and medical evidence requirements, states can limit meritless claims and ensure their compensation fund's solvency. The effect of scheduled compensation on workers' compensation covering asbestos injuries is another major concern. Critics of the FAIR Act cla imed that a federal compensation fund encouraged plaintiffs to double dip into both the fund and workers' compensation systems allowing workers' compensation coverage for asbestos injuries. 201 Th is concern is important after Ra ndo because the Louisiana Supreme Court only allowed recovery in workers' 198 c D Mf Jee supra Part II (discussing the inadequacy of consolidation and medical criteria statutes in solving the asb esto s litigation crisis). Creswell, supra note 175. 200 W\a/hile medical criteria statutes ultimately do not properly adjudicate asbestos claims for other reasons, the provisions within them establishing jurisdictional barriers should be included within a state administered scheduled compensation plan. For an example of jurisdictional barriers enacted under medical criteria statutes, Jee FLA. a ODE nnSTAT. 774.205 (2007); G . C A . 51-14-9(a) (2007). 201 J9upra, note 1I 7744. 23 202compensation for individuals stricken with asbestosis. Workers' compensation systems, however, are generally administered at the state level. Therefore, while the FAIR Act did not prevent double dipping in state workers co^upensation schemes, state legislatures can certainly prevent double dipping between a state's workers' compensation system and compensation fund. States can prevent double dipping by enacting exclusivity clauses similar to the clauses found in most workers' compensation statutes. By mirroring the exclusivity clauses found in workers' compensation statutes, state legislatures can enact exclusivity clauses barring recovery from the compensation fund when a claimant has already recovered under a state's workers' 204compensation scheme. In addition, exclusivity clauses should bar recovery in workers' compensation for claims adjudicated under a scheduled compensation plan. Because states can exert control over their workers' compensation system and asbestos compensation fund, state- administered scheduled compensation can adequately address the workers' compensation concerns of the FAIR Act's critics. Most importantly, scheduled compensation, unlike medical criteria statutes, promotes self sufficiency in adjudicating asbestos claims. W hile medical criteria statutes do not adjudicate the 205 majority of asbestos cases, scheduled compensation quickly determines the merits of all claims and grants the necessary compensation for claims showing a cognizable asbestos 206 R injury. By providing an efficient means of adjudicating minor and major asbestos injuries within a jurisdiction, scheduled compensation reduces the need for plaintiffs to seek out other jurisdictions to adjudicate their claims. T herefore, state-administered scheduled compensation actually reduces asbestos litigation as opposed to shifting asbestos litigation into other jurisdictions. T hus, scheduled compensation not only efficiently solves jurisdictions' asbestos litigation problems; it also achieves this end without sacrificing the judicial efficiency of other states. The massive amount of claims currently pending in the court system, as well as a possible rash of claims prior to a scheduled compensations plan's enactment, require compensation plans See Rando v. Anco Insulations Inc., 16 So. 3d 1065 (La. 2009). See He H. D rummo nds, The Sister S<overeign Statess.' Prreemption and the Second Ttwwentieth Ce ORDHAMRevolution in the Law of the American Wo rkp lace, 62 F evL. R . 469, 493 (1993) (noting that workers' compensation for most Americans is a state law and explaining the traditional role of workers' compensation at the state level). See also Alessi v. Raybestos-Manhattan, Inc., 451 U.S. 504, 524 (1981) (noting that workers' compensation rewards are subject to the state's police power). a ev tat204 For an example of an exclusivity clause under worker's compensation see L . r .S . 23:1032 (2010). See supra Part II.B. ( discussing the inability of medical criteria statutes to adequately adjudicate claims). 206 The term "cognizable asbestos injury" includes not only physical asbestos injuries such as mesothelioma and asbestosis but also economic asbestos injuries such as medical costs requiring medical monitoring damages. 24 207 n to achieve two necessary ends. F irst, scheduled compensation plans must subrogate previously filed claims into scheduled compensation. Second, jurisdictions must establish scheduled compensation as the sole remedy for all future asbestos injury claims. One method that can achieve these ends is to retroactively apply a scheduled compensation plan to previously filed claims. Unfortunately, states with medical criteria statutes have held retroactivity 208 ~r unconstitutional. T his does not mean, however, that retroactivity clauses cannot work in a scheduled compensation system. In decisions that overturned retroactivity provisions in medical criteria statutes, courts in Georgia and F lorida specifically addressed cases where a lack of prima facie evidence under the medical criteria statute retroactively dismissed or shifted asbestos 209claims onto an inactive docket. Retroactivity clauses in a scheduled compensation plan, however , do not retroactively dismiss or impede a claim's adjudication. Instead , retroactivity preserves and shifts claims into an administrative adjudication scheme. Therefore, courts may not strike down retroactivity, because scheduled compensation gives plaintiffs a lower burden of proof and does not retroactively dismiss claims for minor asbestos injuries. Furthermore, if courts do strike down retroactive application, legislation making scheduled compensation the sole remedy for all future asbestos injury claims still offers a proper solution for future asbestos litigation in a jurisdiction. W hen combined with legislation making scheduled compensation the sole remedy for asbestos injuries, retroactivity clauses adequately shift pending and future claims into the compensation schedule. W hile retroactivity concerns pose difficulties for scheduled compensation, Louisiana law likely enables the retroactive application of a scheduled compensation plan. The Louisiana Civil Crode addresses the retroactive application of procedural and substantive laws. 210 tThe Cp ivil Cpode retroactively applies procedural laws while allowing retroactive application of substantive laws 211 Q when intended by the legislature. Scheduled compensation makes procedural and substantive changes to asbestos recovery. As a result, scheduled compensation can apply retroactively, provided that the Louisiana legislature establishes a clear intent to retroactively apply the substantive portions of a scheduled compensation plan. arroll et al207 C . ., supra note 28 (noting that asbestos litigation spawned over 730,000 asbestos claims). 208 Supra note 154 ( outlining the decisions of courts in Florida, Georgia, and Ohio over retroactive application of dical criteria statutes). id, a iv ode nn210 See L . C . C A . art. 6 (2010) ("In the absence of contrary legislative expression, substantive laws apply prospectively only. Procedural and interpretative laws apply both prospectively and retroactively, unless there is a leg is lative expression to the contrary."). 211 d, 25 3. The L ouisiana Scheduled Asbestos Compensation Pi an The final hurdle for state administered scheduled compensation is the establishment of the compensation fund and its procedural framework. W hile the idea of a state administered compensation fund may seem foreign to many, states already administer compensation plans in other litigation arenas. For example, the Louisiana Medical Malpractice Act establishes a statutory recovery cap with payment through a Patients Compensation Fund. The Medical Malpractice Act also provides guidelines for collecting contributions to the fund and establishes 213procedural mechanisms for resolving medical malpractice suits. Under the statute, plaintiffs' 214claims are first adjudicated by a medical review panel. The medical review panel's determination is not a final adjudication, and plaintiffs may file an action in the court system 215after the review panel renders its decision. The medical review panel's decision s not binding 216 on the trial court, but it is submitted to the trial court as expert testimony. The Louisiana Medical Malpractice Act provides a sound procedural framework for a state- administered asbestos scheduled compensation plan. Of course, the framework provided by the Medical Malpractice Act must be slightly modified to achieve the goals of scheduled compensation. Like the Medical Malpractice Act, Louisiana's scheduled compensation system should adjudicate all asbestos claims through an administrative asbestos review panel. In an asbestos review panel, claimants will only need to assert prima facie medical evidence of a 217legally cognizable asbestos injury. However, the asbestos review panel, unlike medical review panels, will operate in a nonadversarial setting, and its determination will be binding upon 218 d |p claimants. Because the Louisiana Constitution provides the right to an appeal for all decisions affecting the rights and property of individuals, asbestos review panel decisions should be a ev tat nn2 L . R .S .A . 40:1299.44 (2010) (establishing a Patients' Compensation Fund for victims of medical malpractice in Louisiana). A EV TAT nnL . R .S .A . 40:1299.44(A)(5) (2010) (establishing procedures for collecting funds from contributors to the Patients' Compensation Fund). A EV TAT nnL . R .S .A . 40:1299.47 (2010). Medical Review Panels are the first step in the adjudication of a medical malpractice action in Louisiana. Malpractice claims must first go through the medical review panel, and claims filed in court prior to a determination by the medical review panel are dismissed as untimely. The Medical Review Panels consist of three healthcare professionals and are chaired by a nonvoting atto rney member. Id. 215 Id. a ev tat nn216 L . R . S .A . 40.1299.47(H) (2010) ( "Any report of the expert opinion reached by the medical review panel shall be admissible as evidence in any action subsequently brought by the claimant in a court of law, but such expert opinion shall not be conclusive^]''). a ev tat nn217 L . R . S .A . 40.1299.47 (2010). In medical review panels, plaintiffs are required to prove (1) the standard of care of their treating physician, (2) a breach of the standard of care, and (3) causation between the breach and the plaintiff's injury. U nder a Louisiana scheduled compensation plan, a legally cognizable asbestos injury would include all physical and economic injuries caused by asbestos exposure. Id. Medical Review Panels are adversarial in nature and plaintiffs and defendants present evidence regarding the standard of care and breach of that standard by the healthcare physician. 26 219appealable to a state court. The panel's decisions, however, should be given deference by the appellate court in order to limit the number of appeals filed. W hile the Medical Malpractice Act provides a sound procedural framework for a Louisiana scheduled compensation system, the FAIR Act provides the necessary substantive basis for a Louisiana system through its nonadversarial and no-fault method. By combining the procedural framework of the Medical Malpractice Act with the substantive provisions of the FAIR Act, Louisiana can establish a fair scheduled compensation system that adequately compensates plainti ffs while limiting the litigation costs of asbestos defendants and the state. V. Conclusion The impending consequences of the Ra ndo decision require legislative action. The combination of the federal government's failure to enact asbestos litigation reform and the negative impacts of other jurisdictions solutions leaves the responsibility of combating asbestos litigation squarely on the shoulders of the Louisiana legislature. This problem provides Louisiana the opportuni ty to be at the forefront of combating asbestos litigation at the state level. Louisiana and other states must answer this call by enacting a scheduled compensation system that adopts the suggestions provided in this Comment to efficiently adjudicate asbestos claims. Louisiana has the opportunity to create a scheduled compensation model that is fair to plaintiffs, defendants, attorneys, and the court system. Th erefore, the Louisiana legislature must enact a scheduled compensation plan to combat asbestos litigation's stranglehold on the judicial system. Brittan Ja ckson Bush 219 La. Const. art. I, 19. 27