[Senate Hearing 109-348] [From the U.S. Government Publishing Office] S. Hrg. 109-348 ASBESTOS: MIXED DUST AND FELA ISSUES ======================================================================= HEARING before the COMMITTEE ON THE JUDICIARY UNITED STATES SENATE ONE HUNDRED NINTH CONGRESS FIRST SESSION __________ FEBRUARY 2, 2005 __________ Serial No. J-109-2B __________ Printed for the use of the Committee on the Judiciary U.S. GOVERNMENT PRINTING OFFICE 26-796 WASHINGTON : 2006 _____________________________________________________________________________ For Sale by the Superintendent of Documents, U.S. Government Printing Office Internet: bookstore.gpo.gov Phone: toll free (866) 512-1800; (202) 512�091800 Fax: (202) 512�092250 Mail: Stop SSOP, Washington, DC 20402�090001 COMMITTEE ON THE JUDICIARY ARLEN SPECTER, Pennsylvania, Chairman ORRIN G. HATCH, Utah PATRICK J. LEAHY, Vermont CHARLES E. GRASSLEY, Iowa EDWARD M. KENNEDY, Massachusetts JON KYL, Arizona JOSEPH R. BIDEN, Jr., Delaware MIKE DeWINE, Ohio HERBERT KOHL, Wisconsin JEFF SESSIONS, Alabama DIANNE FEINSTEIN, California LINDSEY O. GRAHAM, South Carolina RUSSELL D. FEINGOLD, Wisconsin JOHN CORNYN, Texas CHARLES E. SCHUMER, New York SAM BROWNBACK, Kansas RICHARD J. DURBIN, Illinois TOM COBURN, Oklahoma David Brog, Staff Director Michael O'Neill, Chief Counsel Bruce A. Cohen, Democratic Chief Counsel and Staff Director C O N T E N T S ---------- WEDNESDAY, FEBRUARY 2, 2005 STATEMENTS OF COMMITTEE MEMBERS Page Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont. 2 prepared statement........................................... 90 Specter, Hon. Arlen, a U.S. Senator from the State of Pennsylvania................................................... 1 WITNESSES Brickman, Lester, Professor of Law, Benjamin N. Cardozo Law School of Yeshiva University, New York, New York............... 11 Epstein, Paul E., M.D., Clinical Professor of Medicine, Chief, Pulmonary and Critical Care Medicine, Penn Medicine at Radnor, Radnor, Pennsylvania........................................... 14 Griffin, Donald F., Director of Strategic Coordination and Research, BMWED-Teamsters, Washington, D.C..................... 34 Hoferer, Paul, Vice President and General Counsel, BNSF Railway, Forth Worth, Texas, on Behalf of the Association of American Railroads...................................................... 32 Martin, Michael B., Maloney, Martin and Mitchell, LLP, Houston, Texas.......................................................... 7 Rodman, Theodore, M.D., Retired Professor of Medicine, Ardmore, Pennsylvania................................................... 12 Weill, David, M.D., Associate Professor, Division of Pulmonary and Critical Care Medicine, University of Colorado Health Sciences Center, Denver, Colorado.............................. 9 Welch, Laura, M.D., Medical Director, Center to Protect Worker Rights, Silver Spring, Maryland................................ 5 QUESTION AND ANSWER Response of Dr. Laura Welch to a question submitted by Senator Coburn......................................................... 40 SUBMISSIONS FOR THE RECORD Brickman, Lester, Professor of Law, Benjamin N. Cardozo Law School of Yeshiva University, New York, New York, prepared statement...................................................... 44 Epstein, Paul E., M.D., Clinical Professor of Medicine, Chief, Pulmonary and Critical Care Medicine, Penn Medicine at Radnor, Radnor, Pennsylvania, prepared statement....................... 71 Griffin, Donald F., Director of Strategic Coordination and Research, BMWED-Teamsters, Washington, D.C., prepared statement 73 Hoferer, Paul, Vice President and General Counsel, BNSF Railway, Forth Worth, Texas, on Behalf of the Association of American Railroads, prepared statement.................................. 78 Martin, Michael B., Maloney, Martin and Mitchell, LLP, Houston, Texas, prepared statement...................................... 92 Rodman, Theodore, M.D., Retired Professor of Medicine, Ardmore, Pennsylvania, prepared statement............................... 105 Weill, David, M.D., Associate Professor, Division of Pulmonary and Critical Care Medicine, University of Colorado Health Sciences Center, Denver, Colorado, prepared statement.......... 107 Welch, Laura, M.D., Medical Director, Center to Protect Worker Rights, Silver Spring, Maryland, prepared statement............ 114 ASBESTOS: MIXED DUST AND FELA ISSUES ---------- WEDNESDAY, FEBRUARY 2, 2005 United States Senate, Committee on the Judiciary, Washington, DC. The Committee met, pursuant to notice, at 9:30 a.m., in room SD-226, Dirksen Senate Office Building, Hon. Arlen Specter, Chairman of the Committee, presiding. Present: Senators Specter, Hatch, Grassley, Cornyn, Coburn, Leahy, Feinstein, Durbin, and Carper (ex officio). OPENING STATEMENT OF HON. ARLEN SPECTER, A U.S. SENATOR FROM THE STATE OF PENNSYLVANIA Chairman Specter. Good morning, ladies and gentlemen. The Judiciary Committee will now proceed. This hearing will deal with the proposed legislation on asbestos. We will take up two subjects, although I hope the issue on the Federal Employers Liability Act will be largely resolved. Our principal concern this morning is on the issue of disease caused by asbestos contrasted with disease caused by silicosis or other airborne particles. We are moving along on what I still hope and project will be a very early timetable. As you all know, a draft bill has been circulated. There have been agreements on many of the contested issues as a result of very extensive meetings held among the stakeholders presided over by Judge Becker, former Chief Judge of the Court of Appeals for the Third Circuit, who is with us today. On issues where understandably we cannot find consensus and agreement, decisions have been made on what is viewed as an equitable and appropriate handling of the issue. The matter of asbestos versus silicon is a challenging one, and our preliminary findings are that it is possible to distinguish in almost all cases what is caused by asbestos and what is caused by silicon. And we want to refine that even further to see how we can define that in legislative terms so that individuals who are suffering from both silicosis as well as asbestosis are not precluded from having claims for their silicosis ailments, but that we do not have people who have been compensated for asbestosis go back and have a second recovery which is unjustified. This is a very knotty problem, and it could be enormously problemsome for any proposed legislation. But that is what we are working on. The draft bill was submitted some time ago. A few remaining blanks will be inserted as promptly as we can work them through, with the proposed bill to be filed of record. With respect to the issue on the Federal Employers Liability Act, there has been a concern that those in workmen's compensation not be treated better and people in FELA not be treated worse, that there be an equality. And there have been many, many, many discussions, which is characteristic of what we have done generally. And the parties are again reportedly very close to an agreement, and I am informed that if there is ultimately no agreement, there is an agreement that the bill should provide for language that within a certain time frame the issue would be submitted to compulsory arbitration, which would be a good resolution with the parties agreeing to that kind of conclusion. So we are moving ahead. We have very good attendance today, and with that statement of three and a half minutes, I am going to yield to my distinguished Ranking Member, Senator Leahy. STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR FROM THE STATE OF VERMONT Senator Leahy. Thank you, Mr. Chairman. And I also commend you for starting on time, which is a nice way to do things here. And I commend you for holding the hearings. We have tried very hard in the last 2 years to get a bipartisan consensus on this issue. I was talking to Judge Becker on the way in, and I commended him, as both Senator Specter and I have. His work on this has been herculean, and I think it is one of the reasons why we are this far along. He also said the various stakeholders have worked diligently with him, and I think that is why we are so close to an agreement on many of the aspects of the national trust fund to fairly compensate victims of asbestos exposure. I am worried that it appears that some special interests are trying to limit their liability in cases not related to asbestos through a last-minute and I believe overly broad provision that could jeopardize years of work by both Republicans and Democrats trying to develop an asbestos trust fund. Despite its title, I am afraid that the latest draft would dramatically alter the proof requirements and recovery rights within the tort system for ``any personal injury claim attributable to exposure to airborne dust, fibre, or minerals.'' I put a chart up which shows this. The chart shows the relevant language from the latest asbestos draft. This sort of 11th hour provision was not in the bill reported by this Committee last Congress or in the substitute bill considered by the full Senate last year. It is not limited to so-called mixed dust. It appears to cover hundreds and perhaps thousands of injuries caused by airborne substances other than asbestos, including silicosis, black lung disease, even lead poisoning. That is over-reaching. The Leahy-Hatch medical criteria adopted unanimously by this Committee in the last Congress and agreed to by all the stakeholders addressed only asbestos-related injuries. The purpose of this legislation has always been to address compensation for asbestos victims, not to provide compensation for injuries caused by other material. As a matter of fact, I am glad to see Dr. Laura Welch here for an encore performance before this Committee. She provided insightful testimony and critical assistance with the development of the Leahy-Hatch medical standards for compensating asbestos-related disease that we crafted in the last Congress. It is clear to me that requiring victims to prove that asbestos was not a cause of their injuries in court would preempt State law. It would shift the burden of proving defenses to plaintiffs and greatly expand the scope of liability protection for corporations without adding a balancing or corresponding method of compensation for additional victims. Now, remember, we are taking away people's rights to jury trials in this legislation. In doing that, we should always balance--if you are taking away rights, you have got to balance that with having other rights given to them. Both my grandfathers, my Irish grandfather and my Italian grandfather, worked as stone cutters in the granite quarries of Vermont. Both suffered from silicosis because of the workplace exposures to stone dust. One of my grandfathers I never knew because he died at the age of 35 from that. Now, they did not have asbestos-related disease, so they would not have qualified for compensation under the proposed trust fund. And under this language, they would have faced unprecedented legal hurdles to recover any compensation in a court of law. It is not fair, and I do not find it acceptable. Now, the biggest danger to enacting bipartisan asbestos legislation is over-reaching by some interests for immunity from lawsuits brought by victims with legitimate injuries caused by silica or other substances. So I hope those who are pushing this overly broad sort of last-minute--I hate to call it a Christmas tree, maybe Christmas present might be better-- legislation will step back and realize that we are trying-- let's not kill the greater good by some last-minute, special interest legislation. The second issue we are addressing today should be easier to resolve in a fair manner. FELA, the Federal Employers Liability Act, is a unique statute. It has provided workers' compensation benefits for railroad workers and provided compensation tort law for injuries to railroad workers such as asbestosis. The latest asbestos draft bill overrides FELA for victims of asbestos exposure. But by preempting FELA, the proposal also eliminates the railroad workers' compensation program, even though all other workers' compensation programs remain intact in the bill. I think we can change that because it would not be fair. I commend the representatives of the railroad workers for coming to the table to bargain in good faith for special awards under the proposed trust fund. I hope the representatives of the railroads will do the same. I look forward to working with the Chairman, and I want to commend him again for the enormous amount of time and effort he has put into this, and Senator Feinstein and other members of the Committee and the stakeholders. We can resolve these efforts. We can bring about a solution. Mr. Chairman, I will put the rest of my statement in the record. This was somewhat long, but I wanted people to understand that we are getting so many calls in my office from all the stakeholders, and I wanted them to know just where I was. And, of course, Senator Hatch and I worked so hard on this last year to get the medical criteria in there. Thank you. [The prepared statement of Senator Leahy appears as a submission for the record.] Chairman Specter. Thank you very much, Senator Leahy. When you talk about hard work on this bill, it applies far and wide, with what Senator Hatch and you did last year in originating the idea of the trust fund, which after a lot of analysis, is, in my judgment, the only way we are going to move toward a solution here. And we have had very lengthy hearings, and Senator Feinstein has been in the forefront last year and again this year. She and I sat--she is considering a bill of her own or perhaps we will work a bill out. The legislative process here I think is all going to--I am optimistic it will all come together in the end. How we will parse it through and how we will work it through remains yet to be seen, and that is precisely what we are doing. Again, I think the number of meetings where Judge Becker has presided are now 38 in number, in addition to many, many individual meetings and calls on a continuing and constant basis. During the league championship game in Philadelphia a week ago Sunday, Judge Becker was working on Sunday calling some of the witnesses who are on this panel. And I was not totally cooperative while the game was in play, but a little during half-time and a little during a break. And I will tell you that Judge Becker handed me the cell phone after talking to some of these people while McNabb was running, and I declined-- and not respectfully. I just declined. Well, we have asked the stakeholders to produce witnesses today. We have offered two slots for AFL-CIO. They felt that our lead witness would be their spokesperson on this issue, and she is Dr. Laura Welch, Medical Director for the Center to Protect Worker Rights, a research and development institute affiliated with the building and construction trades of AFL- CIO. She has held faculty positions at Yale, George Washington University, is the author of over 50 peer-reviewed publications and technical reports in the field of occupational and environmental medicine. She has many years of experience in medical surveillance programs for asbestos. Dr. Welch received her medical degree from the State University of New York at Stony Brook in 1978 and a bachelor's from Swarthmore College in 1974. We have, as is our custom, established a 5-minute rule which we would ask you to observe, and there will be time to amplify your views during the question-and-answer period. And I think it best to start with 5-minute rounds among the members so that people get at least a chance to ask without waiting throughout the entire morning. But we will have multiple rounds, and we will be here as long as any member has questions and as long as any panelists have something that they want to add. So you are the lead-off, Dr. Welch. Thank you for joining us and the floor is yours. STATEMENT OF LAURA WELCH, M.D., MEDICAL DIRECTOR, CENTER TO PROTECT WORKER RIGHTS, SILVER SPRING, MARYLAND Dr. Welch. Thank you very much for the opportunity to appear here, and as everyone has heard already, I had the honor of assisting the Senate in developing the medical criteria going into this legislation. So I will have some comments on how I think this Section 403 integrates with that. But I understand that the main concern is that cases of asbestosis would also be filed as injury due to other dust, such as silica. I really do not think that is a problem. Asbestosis and silicosis really are different diseases, and they are separable from each other based on the history of exposure, the chest X- ray, and pulmonary function testing. I was able to read Dr. Epstein's testimony before coming here this morning, and he is going to discuss it in more detail. So I am just going to defer to him to describe how silicosis and asbestosis are different. But really, the history is different, the X-ray is different, the pulmonary function tests are different. They are really fairly easy to separate. Senator Leahy has already pointed out but I want to re- emphasize that the medical criteria for this fund were designed to identify and compensate workers or individuals with asbestos-related diseases. And I think a lot of work went into the development of criteria that do not compensate for diseases that are not related to asbestos. The X-ray and pulmonary function test criteria that are in the bill identify asbestosis and the pleural disease caused by asbestos. And, in addition, the medical criteria require a physician statement that asbestos was a substantial contributing cause to the disease that is being put forth for compensation and excluding other, more likely causes of that pulmonary condition. So essentially the medical report will say this is asbestosis and that the physician has considered other cases such as silicosis and is not a more likely cause. So it is really set up so an applicant has to have significant lung disease with impairment caused by asbestos to be compensated under the fund. So we are not going to be seeing other diseases like silicosis being compensated under this fund. So in some ways, this term that has been used of ``mixed dust disease,'' and I wanted to just state that the textbook definition of mixed dust pneumoconiosis has nothing to do with asbestos. Mixed dust pneumoconiosis is caused by simultaneous exposure to crystalline and silica and other dusts, like iron oxides, coal, and graphite. So asbestosis and silicosis together are not mixed dust disease. And I know that the other doctors on the panel are going to talk about how likely that is to occur. There may be some that have both diseases, but that is really very rare. Now, let me make a couple comments on the specific language of the bill. The language was up there a little while ago, but it states that, ``To proceed with a civil suit for a disease attributable to an airborne, dust, fibre, or mineral, the claimant must prove that their functional impairment was not caused by exposure to asbestos.'' And as a physician, I think that is an impossible statement to respond to. I cannot swear exposure to asbestos made no contribution to a person's lung disease. Almost everyone who has lung disease in this country from silica or from anything else will have had some exposure to asbestos, and the bill would require me to say there was no contribution from that. I can make an affirmative statement that this is asbestosis, that asbestos is a substantial contributing cause, that it is the primary cause, that the disease is another disease. But to say there was absolutely no physiologic contribution at all from asbestos is really not medically possible. So I have a lot of concern with that particular language. In addition, the scope of the diseases and exposures covered by the term ``personal injury claim attributable to exposure to airborne dust, fibre, or minerals,'' I started to make a list, and that term ``mineral'' alone encompasses over 500 different substances. It includes all metals and metal compounds. So there is a range of lung diseases that would be impacted by that language. In addition to asbestosis and silicosis, it would include chronic beryllium disease, asthma that is caused by wood dust or other dusts, cotton dust disease, coal workers' pneumoconiosis. There is a list as an appendix to my written testimony that goes through that in more detail. And then, in addition, minerals cause diseases that are not lung disease: lead poisoning, mercury causes kidney disease, arsenic causes neurologic injury, chromates cause contact dermatitis. It is a very long list. So any person with a personal injury claim, for example, lead poisoning, would have to submit the evidence required in 403, even though the disease of lead poisoning has nothing to do with asbestos exposure and might not even need a chest X-ray for diagnosis. And when I was making my list of other conditions and exposures, I would say that the language could cover personal injury claims for medical malpractice as well because there are metals that are used as therapeutic drugs. Lithium, for example, is used to treat bipolar disorder. Platinum is a cancer chemotherapeutic that is used for a lot of different agents. And I do not think the intent of this legislation was to reach out into other areas that are not even product liability. But the way I read it, it would. Chairman Specter. Dr. Welch, your time is up. Could you summarize, please? Dr. Welch. Okay. The only other point I wanted to make was everybody has had exposure to asbestos who was alive in the 1970's. There is asbestos in everyone's lungs. So the requirement that if you had asbestos exposure you come under this bill would include an untold number of people. So I would agree with Senator Leahy's initial comments. My impression is that the range of diseases, conditions, exposures that are included under this language is way too broad, and trying to solve a problem of this combined asbestosis and silicosis that as a physician specializing in the field I do not see presents a problem. So thank you very much, and I could answer questions. [The prepared statement of Dr. Welch appears as a submission for the record.] Chairman Specter. Thank you, Dr. Welch. We will be coming back to you for questions, which will give you an opportunity to amplify your testimony. Our second witness is Mr. Michael Martin from the law firm of Maloney, Martin and Mitchell in Houston. For 15 years, he has been a specialist in environmental toxic torts after his father was diagnosed with asbestosis. He represented families suffering from occupational diseases--silicosis, asbestosis, and many others. He has been a member of the Texas State Legislature, was twice named Texas Monthly's 10 Best Legislators, law degree from South Texas College in 1985, and a bachelor's from the University of Texas in 1982. Thank you for joining us, Mr. Martin, and we look forward to your testimony. STATEMENT OF MICHAEL B. MARTIN, MALONEY, MARTIN AND MITCHELL, L.L.P., HOUSTON, TEXAS Mr. Martin. Thank you, Mr. Chairman, and it is an honor and a privilege to be before you here today. I find it ironic, actually, that I am standing here or sitting here before you talking about silicosis when this august body declared war on silicosis in 1932 when the disaster surrounding silicosis first hit this country. And here we are in 2005 still talking about the issue. I have spent a large part of my legal career specializing primarily in silicosis cases. I really do not do much other types of occupational lung disease cases. And some of my clients that are currently active and on file and have cases are individuals who are truly sick at young ages. My client Rafael Martinez is a victim of a bilateral lung transplant at the age of 32. My client Rick Mahar in Washington is a victim of a bilateral lung transplant at the age of 42. These gentlemen have had their lungs taken out of their body, and hyalinized silicotic nodules and conglomeration of silicotic nodules were found as a product as a result of their employment as sandblasters, which involves very intense exposure to silica dusts. But it cannot be said in looking at the pathology of those gentlemen, which we have and can confirm, that there is not some asbestos in their lungs because as Dr. Churg, who I think everyone on the panel is familiar with, as noted in his book, ``The Pathology of Occupational Lung Disease,'' over the past 50 years some 50 million workers were exposed to asbestos, and if you add to that the general environmental exposure to asbestos, everyone in this room can qualify as a person who was exposed to asbestos. No doubt Mr. Mahar and Mr. Martinez, two people who suffer from acute silicosis and are victims of a rapidly progressive disease that caused their lung transplantations, certainly had asbestos in their lungs, but they did not have asbestosis. And as I look at Section 402 or 403(a), as provided and demonstrated before the Committee, the primary problem I see from a pleading practice as a lawyer is that it requires me as a lawyer representing a silicosis victim on claims that are substantially smaller in number across the country than asbestos cases, it requires me to plead a negative. It requires me to plead that something does not exist. If I file a pleading for acute silicosis or accelerated silicosis or chronic silicosis, that should be dispositive. If I file a pleading for berylliosis or if I file a pleading for hard metal lung disease, all of which are diseases caused by other minerals or heavy metals, that should be dispositive. But what this language does is shifts the burden of proof to me to prove that something does not exist, and then requires me to say that my client was never exposed to asbestos, which I probably can never do if you take Dr. Churg's opinion on its word that most workers in the workplaces across the country and in the industrial environment have been exposed to asbestos. So this double-negative scenario that the language presents under 403(a) is very problematic, and it creates this risk: It creates the risk of throwing a person like Rick Mahar, a victim of a bilateral lung transplant, into the Asbestos Trust, where he does not belong, where he would not get compensation, and for his family, his future is in great question. And to throw him into a trust would potentially delay the resolution of his claim and ultimately result in the extinguishment of his claim because that trust is not designed to provide him a remedy. Moreover, those companies that are potentially responsible for creating the trust are not responsible for causing his disease. So there is a fundamental unfairness on both sides if you include silica, silica-related claims, mineral dust claim in the same breath with asbestos, which has been a ubiquitous substance involving high numbers and large numbers of litigation. In summary, Mr. Chair, I think it is important that we look at this language very carefully and identify the fact that it shifts the burden inappropriately, and it creates the risk that clients who are truly ill from silicosis or other serious lung diseases not associated with asbestos will have their remedies extinguished and not have any recourse at all to secure and provide some security for the future of their families and themselves. With respect, we would hope that 403(a) be relooked at in terms of narrowing its scope and application. [The prepared statement of Mr. Martin appears as a submission for the record.] Chairman Specter. Thank you, Mr. Martin. For the record, it should be noted that Senator Grassley and Senator Hatch have departed for a Finance Committee hearing. Senator Grassley is Chairman and Senator Hatch is the senior member. And thank you for your testimony, Mr. Martin. We will be coming back to you to utilize your experience to see if you have some ideas as to how we can insert the legislative language. You have had experience in the field and as a legislator as to how we do it, how we separate them out to be sure that people who have disease from silica can collect but not collect it twice. Our third witness is Dr. David Weill from the University of Colorado Health Sciences Center in Denver, Associate Professor of Medicine, Associate Director of the Lung Transplant Program, diagnosed and treated numerous patients with asbestosis or silicosis, and is a certified so-called B reader. He has recently been involved in reviewing such matters and lawsuits, a medical degree from Tulane, and a bachelor's also from Tulane. Thank you for joining us, Dr. Weill, and the floor is yours. STATEMENT OF DAVID WEILL, M.D., ASSOCIATE PROFESSOR, DIVISION OF PULMONARY AND CRITICAL CARE MEDICINE, UNIVERSITY OF COLORADO HEALTH SCIENCES CENTER, DENVER, COLORADO Dr. Weill. Senator Specter, Senator Leahy, and members of the Judiciary Committee, thank you for the opportunity to testify before you about silicosis and asbestosis. I am board certified in internal medicine and pulmonary medicine and have diagnosed and treated silicosis and asbestosis patients. Last spring, I was invited to serve as a visiting professor in Beijing, China, where I saw hundreds of cases of asbestosis and silicosis, and many of these cases were very advanced. The Chinese experience, of course, was sobering and far different from what I have seen in the United States, where genuine cases of these diseases are, fortunately, quite rare. It is critical to understand that asbestosis and silicosis are very distinct diseases. They are not easily confused in practice, and it is very rare for one person to have both diseases. There are several different types of silicosis, but in the United States today, chronic simple silicosis is the most common form. It is characterized by rounded nodules, like tiny marbles, found principally in the upper lobes of the lungs. In its lower grade forms, simple silicosis usually does not result in respiratory impairment, although it may progress over time. When progression does occur, it tends to be slow and depends on several factors, most importantly whether or not exposure continues. If there is respiratory impairment, it typically is restrictive or involves both restriction and obstruction. Unlike silicosis, which is characterized by the presence of small nodules in the lungs, asbestosis involves fibrosis in the area of the lungs where oxygen exchange takes place. Asbestosis can result in both a restrictive pattern of disease-- effectively a reduction in the lung volume--and interference with the gas exchange process. From a pathologic, radiographic, and clinical perspective, asbestosis and silicosis are very distinct diseases. It is theoretically possible for one person to have both diseases, but in my clinical experience in the United States, I have never seen a case like this. Even in China, where I saw workers with jobs involving high exposure to asbestos and silica, I did not see anyone or review the chest X-rays of anyone who had both silicosis and asbestosis. I would now like to talk about the recent increase in silica litigation. In the last few years, I have reviewed numerous diagnoses in the ongoing Texas MDL concerning silicosis liability. Almost invariably these cases have involved alleged simple chronic silicosis in low perfusion categories where there is no significant respiratory impairment due to silica exposure. From a medical standpoint, it is puzzling to see so many ostensible silicosis cases in such a short period of time. Although the statistical evidence is imperfect, few would question the proposition that industrial dust control mechanisms have made silicosis much less common today than it was a generation ago. This conclusion is supported by reviews of death certificates undertaken by NIOSH, which reports that ``Over the past several decades, silicosis mortality has declined from well over 1,000 deaths annually in the late 1960's to fewer than 200 pre year in the late 1990's.'' This decline should be associated with fewer and fewer silica lawsuits. Instead, my experience is that silica lawsuits are sharply increasing. I have several observations about this: First, nearly all of the litigation diagnoses come not from treating physicians, but from screening companies that provide their diagnostic services to plaintiffs' law firms. Second, among the 3- to 400 silicosis claims I have reviewed, only two involve actual silicosis. Third, many of the silicosis plaintiffs whose films I have reviewed have also been diagnosed by plaintiff experts, at one time or another, with asbestosis. In most of these cases, the plaintiff was X-rayed twice. The first X-ray was taken typically as part of an asbestosis screening conducted several years ago and resulted in the conclusion that the plaintiff had abnormalities consistent with asbestosis. Subsequently, the plaintiff returned for a second X-ray and a new silicosis diagnosis was based on the second film which, in all instances, was very similar to the first film. Silicosis was not mentioned in the first report and asbestosis wasn't mentioned in the second report. In other cases, the claimant was X-rayed only once, yet received two different diagnoses based on the same film. This must be litigation driven because there is no medical explanation for it. There are real cases of silicosis, but the majority of silicosis diagnoses I have seen in litigation are simply not valid. As a physician, I find this very concerning. The current rise in silicosis lawsuits cannot be explained medically. Most of these claims have involved workers who originally filed asbestosis claims, but it is exceedingly rare for a patient to have both diseases. As based on characteristic chest X-ray findings and other clinical factors, it should not be difficult for a doctor to distinguish between these two conditions. Genuine confusion in a medical setting would be rare. Thank you, Mr. Chairman. [The prepared statement of Dr. Weill appears as a submission for the record.] Chairman Specter. Thank you very much, Dr. Weill. Our next witness is Professor Lester Brickman, from the Benjamin Cardozo School of Law, Yeshiva University of New York. His expertise includes administrative alternatives to mass tort litigation, a member of the New York State Bar Association Committee on Professional Ethics, the Committee of Professional Responsibility of the New York Bar. He has been consulted for the United States Office of Education, the National Science Foundation, Council on Legal Education for Professional Responsibility, master of law degree from Yale, a law degree from Florida and bachelor's from Carnegie Mellon. Thank you for being with us today, Professor Brickman, and we look forward to your testimony. STATEMENT OF LESTER BRICKMAN, PROFESSOR OF LAW, BENJAMIN N. CARDOZO LAW SCHOOL OF YESHIVA UNIVERSITY, NEW YORK, NEW YORK Mr. Brickman. Thank you, Mr. Chairman, Senator Leahy, in his absence, and Members of the Committee. I welcome the Committee's interest in addressing a critical issue in the proposed FAIR Act. As proposed, the FAIR Act would preclude claimants with asbestos-related conditions from bypassing the National Asbestos Compensation Program and filing ostensible silica claims in State and Federal courts, seeking recovery for what is, in reality, the asbestos-related condition or, even worse, filing a claim with the program and then seeking additional money for the same medical condition by pursuing silica claims in court. Without this provision, the same entrepreneurial lawyers and their allies who brought us the elephantine mass of asbestos claims will simply continue the litigation under another name. Indeed, this is already happening. A Federal MDL proceeding in Texas on silicosis is overseeing over 10,000 silicosis claims. As the chart being shown illustrates, over 60 percent of these silica claimants have previously filed asbestos claims with the Manville Trust. One would expect a similar result for silica lawsuits pending in other jurisdictions. Let me explain what is going on. First, the very consideration of asbestos litigation by the Congress is motivating lawyers to switch to silicosis. Today, you have already heard doctors testify that there is no medical explanation for the recent and rapid increase in silicosis claims. Indeed, there is a broad consensus and the statistics indicate that the incidence of silicosis is decreasing. Yet, when the Congress started to focus seriously on asbestos litigation reform, entrepreneurial lawyers and their allied mass screening enterprises began to shift to the manufacturer of silica lawsuits. Now, here are some astounding figures. For 26 years, until 2001, a major silica defendant faced as few as zero and as many as a few hundred claims a year. In the next few years, in the most recent few years, as legislation began to be seriously considered by the Congress, claims shot up into the thousands, reaching as many as 20,000, as the chart shows. That your serious consideration of asbestos litigation stimulated this sharp rise in silica claims is not merely conjecture on my part. Heath Mason, the co-owner of the mass screening entity, N&M, has testified that the Hatch bill was bad for his asbestos business, but good for his silicosis because ``it gets lawyers to have to change gears on what they think is going to work.'' As one asbestos silica attorney ventured, ``Why reinvent the wheel?'' These mass screenings are manufacturing silica claims at a rate never seen before. Second, the silicosis claims are being brought in the same relatively few ``magic'' jurisdictions where asbestosis claims have been brought. As the current chart shows, Texas and Mississippi account for the vast majority of silicosis claims. For one defendant, they account for 90 percent of the claims filed against it. Third, advertisements routinely list screenings for both asbestos and silica. Note, the advertisement for a May 2002 screening, with states in capital letters. Well, first, you have the billboard that reads, ``Have you been tested? Asbestos/Silica Disease Screening.'' And now you have the advertisement reading, ``Asbestosis, mesothelioma, cancer, lung cancer or silicosis.'' Fourth, in using the same advertisements, the same screening companies, the same carefully selected B readers in the silica cases that they have used in nonmalignant asbestos cases, the lawyers are retreading their prior asbestos diagnoses into silica diagnoses for the same alleged injuries. So it is not surprising, as I mentioned before, that approximately 60 percent of silica plaintiffs in the silica MDL have received two diagnostic reports--one for asbestosis and one for silicosis. Dual diagnosing, as we have heard, occurs in various ways. Dr. William Oaks, for example, issued one report where he interpreted the X-ray as consistent with silicosis and without pleural plaques and in the other report, written on the same day, with regard to the same X-ray, interpreted as consistent with asbestosis. With dual diagnoses, lawyers can get two claims for the price of one or perhaps for a modest add-on. Heath Mason testified that his screening company pays one of his doctors $50 extra to write a second diagnostic report for silicosis based upon the same tests the doctors relied upon to diagnose asbestosis Chairman Specter. Professor Brickman, your time is up. Could you summarize it. Mr. Brickman. Yes, I will. Thank you. The FAIR Act, Mr. Chairman, should close this loophole. I understand that this is not a silica bill, and I do not expect that it will deal with pure silica claims, but it should not be possible to evade the National Asbestos Compensation Program by means of the entrepreneurial, if not fraudulent, conduct that I have described. Thank you, Mr. Chairman. [The prepared statement of Mr. Brickman appears as a submission for the record.] Chairman Specter. Thank you, Professor Brickman. We will turn now to Dr. Theodore Rodman, retired pulmonary physician who developed an expertise in occupationally related drug diseases early in his career. He began his career at the University of Pennsylvania Medical School and recently retired as a professor of medicine at Temple. He has examined and participated in the care of hundreds of patients with asbestos- related lung diseases and reviewed X-rays on thousands of such patients. He is a member of numerous professional organizations, such as the American Thoracic Society, the American college of Chest Physicians, and the American Federation for Clinical Research, an M.D. from Penn and a bachelor's from Dickinson Law School. Thank you for coming to Washington today, Dr. Rodman, to give us the benefit of your expertise. STATEMENT OF THEODORE RODMAN, M.D., RETIRED PROFESSOR OF MEDICINE, ARDMORE, PENNSYLVANIA Dr. Rodman. Thank you very much, Mr. Specter, for giving me the opportunity to address the Judiciary Committee. Somehow or other I got the wrong understanding that the statement could be as long as 10 minutes. So I am certain that I will be cut off by you. Much of what I have to say is repetitive of what Dr. Weill had said. And although I have never met nor spoken to Dr. Weill, I endorse his statement in its entirety and would adopt it as my own. I am a 77-year-old pulmonary physician who retired about 4 years ago. After about 50 years of practice, teaching and research, I ended my career as a professor of medicine at Temple University Medical School. I began my medical career at the University of Pennsylvania Medical School and was on its faculty for a number of years. Early in my career, I developed an interest in occupational lung diseases. In the following half-century, I examined and participated in the care of hundreds of such patients. I have reviewed X-ray studies on thousands of such patients. By virtue of its industrial base, the Delaware Valley, with its shipyards, power plants, oil refineries and manufacturing facilities, has had no shortage of patients with occupationally related lung disease. The commonest exposure by far was to asbestos in shipyard and construction industry workers. We also saw many who had been exposed to silica, primarily those who worked in mines, quarries, tunnels, and foundries. Of the hundreds whom I examined, I can remember only one or two who gave a clear-cut history of significant occupational exposure to both asbestos and silica--not surprising, considering the disparity in occupations in which asbestos and silica exposure occur. Among the thousands of chest X-rays, which I reviewed in asbestos- and silica-exposed individuals, I cannot remember a single chest X-ray which showed clear-cut findings of both asbestos exposure and silica exposure. During the decades of the 1970's, 1980's and 1990's, in connection with the asbestos litigation, I evaluated a large number of litigants. Not one of them had medical records suggesting a history of significant silica exposure. I found evidence of asbestos-related changes in many. I found no evidence of silica-related changes in any. I found no evidence in the reports of any physician, whether retained by the plaintiff or the defendants, that concluded that the patient had silica-related changes. On the basis of this personal experience, I have concluded that both asbestos- and silica-related changes and disease are common, but rarely occur in the same patient. The medical literature and textbooks with which I am familiar are consistent with my conclusion. In contrast, when we took care of the anthracite coal miners, combined occupational lung disease was seen commonly in the same patient. These miners were exposed to both coal dust, producing coal workers' pneumoconiosis, black lung, and silica, from drilling into stone, producing silicosis. The changes of both occupational lung diseases were readily apparent. This combination was, and still is, known as mixed- dust pneumoconiosis. It is seen rarely in patients with asbestos-related disease because they are rarely exposed to silica. At this point, I was going to show a number of color illustrations, but I think that would be time-consuming, and I will postpone that hopefully for later. In conclusion, my experience in the asbestos litigation in the Philadelphia area has created in me the impression that the plaintiffs' attorneys had assembled a small collection of medical experts who were willing to perceive on chest X-rays and testify that asbestos changes were present when, in fact, none was. This impression was recently supported by a carefully controlled research study done at Johns Hopkins Medical School, in which review of these X-rays by a panel of impartial expert pulmonary radiologists confirmed the absence of asbestos- related changes in the vast majority of these X-rays. I have been told that there has been a dramatic increase in the United States in the number of silica injury lawsuits, many initiated on behalf of plaintiffs who had previously received monetary awards for asbestos-related injuries. Based upon my experience that asbestos-related disease and silicosis very uncommonly occur in the same individual, and based upon my observations in the asbestos litigation in the Philadelphia area, I strongly recommend that medical evaluation for litigation purposes of such litigants should be done by an impartial group of physicians, free of any vested monetary interest in finding silicosis present or absent. This medical evaluation should include a careful review of all available prior medical records and X-rays. I have finished what I have to say. [The prepared statement of Dr. Rodman appears as a submission for the record.] Chairman Specter. Thank you, Dr. Rodman. We gave you a little extra time because of the confusion in information which you received. We turn now to our final witness on this panel, Dr. Paul Epstein, clinical professor of medicine at the University of Pennsylvania, board certified with a specialty in internal medicine and a subspecialty in pulmonary diseases. He spent a large portion of his career studying occupational lung disease and is certified at the National Institute of Occupational Health Safety, NIOSH, by its highest qualification rating as a so-called B reader of chest X-rays, people who have been occupationally been exposed to potentially toxic dust, such as asbestos, silica and coal dust. Over the past 30 years, he has personally examined 17,000 individuals who have been exposed to these substances. His medical degree is from Tufts and his bachelor's from Princeton. Thank you for joining us, Dr. Epstein, and we look forward to your testimony. STATEMENT OF PAUL E. EPSTEIN, M.D., CLINICAL PROFESSOR OF MEDICINE, CHIEF, PULMONARY AND CRITICAL CARE MEDICINE, PENN MEDICINE AT RADNOR, RADNOR, PENNSYLVANIA Dr. Epstein. Thank you, Chairman Specter, and thank you, Senator Leahy and other Members of the Committee. I appreciate your asking me to testify today. I would like to describe a little about the diagnosis of dust-related diseases of the lung. When an individual inhales certain types of potentially toxic dust, the lung may react by developing some scar tissue. This combination of the presence of dust in the lung, the development of scar tissue, is known by the medical name pneumoconiosis. There are several different kinds of pneumoconiosis, and the most common are asbestosis and silicosis. Both asbestosis and silicosis are caused by long-term inhalation and retention of particular kinds of dust in the lung. Although each of these diseases requires a substantial amount of dust retention, a longer and more consistent daily exposure to silica dust is required in order to produce silicosis than the amount of asbestos needed to produce asbestosis. Lung diseases like asbestosis and silicosis are both characterized by scar tissue formation and take a long time to develop after the initial exposure. The time lapse between exposure and the onset of lung disease related to that exposure is called the latency period. And for both asbestos and silica exposure the latency period is at least 20 years. There is an individual susceptibility to the scar-producing effects of both asbestos and silica, so that if two individuals work side-by-side, one may develop the disease while the other may not. While both diseases share common factors, such as dust inhalation, scar tissue formation and a long latency period, each of them has a very different clinical appearance and can be recognized easily by their relatively distinct patterns of abnormality on the chest X-ray. For instance, asbestosis produces linear, streaky or feathery patterns on the chest X-ray, predominantly in the lower portions of the lung. This pattern of asbestos-related scar formation is almost always accompanied by patches of thickening of the membrane that covers the outer surface of the lung. These thickened patches are known as pleural plaques or pleural thickening. Frequently, the pleural plaques caused by asbestos exposure contain calcium that can be seen on the chest X-ray. Silicosis has quite a different appearance on the chest X- ray. In this disease, the deposits of scar tissue occur in a distinct, rounded, nodular pattern, similar to the appearance of buckshot, and they are predominantly at the top of the lung rather than at the bottom of the lung. The rounded nodules of silicosis are not accompanied by pleural plaques or by pleural thickening. In other words, the X-ray appearance of these two dust-related diseases are vastly different. Abnormalities on breathing tests are also somewhat different in people who have asbestosis as compared with those who have silicosis. In asbestos, the characteristic changes cause a restriction of the amount of air that can fit inside the lungs, and there is a decrease in the efficiency of the lung tissue in taking up oxygen. These changes occur relatively early in the evolution of asbestosis, even when chest X-ray abnormalities are mild. On the other hand, people with silicosis often have no abnormalities on their breathing tests until the rounded nodules proliferate in great numbers and become larger in size. At that point, the volume of air in the lungs may decrease, and there may be a decrease in the person's ability to exhale air rapidly from the lungs. When people have both diseases, that is, both asbestosis and silicosis, the characteristic clinical and X-ray manifestations are each discernible as separate features and the diagnosis of dual disease processes can be made with relative ease. Over the course of the last 30 years, I have personally examined approximately 17,000 individuals who have been occupationally exposed to asbestos. These workers have held many different jobs, including those of shipyard workers, oil refinery employees, construction workers, steel mill employees, chemical workers, insulators, electricians, painters and riggers, to name a few. Additionally, I have evaluated many workers who are occupationally exposed primarily to silica, including coal miners, sandblasters, stone quarry workers, glass makers and refractory brick manufacturers. A large number of these workers were exposed to both silica and asbestos. While it is theoretically possible to have combined disease consisting of asbestosis and silicosis, it has been my clinical experience that the overwhelming majority of patients I have seen with asbestos-related disease have no evidence of silicosis. In fact, I can recall no more than about a dozen or so individuals who have had combined asbestosis and silicosis. And these were people who had substantial occupational exposure to silica, often in jobs that were separate from their subsequent jobs that involved exposure to asbestos. Chairman Specter. Dr. Epstein, your time is over. Could you summarize, please. Dr. Epstein. Yes. For this reason, it is my professional opinion that the dual occurrence of asbestosis and silicosis is a clinical rarity. Thank you. [The prepared statement of Dr. Epstein appears as a submission for the record.] Chairman Specter. Thank you very much, Dr. Epstein. Mr. Martin, you have been in the field. You have been a legislator. You think we can improve the formulation of a statute. What suggestion would you give us? Mr. Martin. I do think you can improve it, and this is what I would suggest. I think, in looking at 403, what you have to do is move away from the idea that a plaintiff has to require to prove a negative. I would suggest, as a solution to that, the issue of disclosure; that what a plaintiff should do under the circumstances the distinguished members of the panel have related to today, where there are retreads or double filings, is that a plaintiff should disclosure that up front. If he has already filed an asbestos claim, that should be disclosed, and that should be the point from which you legally then move. If a client walks into my office and he says, ``Well, I have already filed a claim for asbestos,'' my radar is going to go up because I agree with the panel that it is rare. I have had two cases involving asbestos and silicosis together in my entire career. And so I think one of the other questions that you have to look at in that disclosure is did these men who are attempting to file an additional claim for silicosis, what was their actual exposure at the workplace and did they really have exposure to silica? In those two instances, the two gentlemen sandblasted, which involved intense exposure to silica, resulting in their contraction of silicosis, and then later they were assigned to another job where the had to cut couplings for asbestos insulation on pipe, and they did both for several years. Chairman Specter. Dr. Epstein, you say that the medical determination is clear-cut on the X-rays? Dr. Epstein. Yes, it is. Chairman Specter. So why should there be a problem of someone who has collected from asbestos exposure, asbestosis, mesothelioma, being able to collect from silicosis if he or she has not actually been exposed to silica, if the evidence is conclusive as to what is the cause? Dr. Epstein. First of all, these are very rare, overlapping diseases. I think that part of the answer to that question is that the individual with asbestosis is probably more commonly impaired severely by that type of abnormality than is the person who has silicosis. The number of people who have silicosis at the present-- Chairman Specter. If someone has collected from the Asbestos Fund, and he makes a claim for silicon exposure, and you take a look at the X-rays, and except in these very, very rare cases, it is demonstrated that he suffered from asbestos, then isn't he precluded from collecting from this silicon claim? Dr. Epstein. Yes. Chairman Specter. Professor Brickman, what is so complicated about defeating, you used the term ``entrepreneurial'' in a pretty heavily pejorative, derisive comment, some entrepreneurial activity is still regarded as legitimate in our society, but where you have an array of experts here--Dr. Welch, from AFL-CIO, and Dr. Epstein, Dr. Rodman, Dr. Weill--and you could look at the X-rays and tell. They come in and make a claim for exposure to silica, and the X-rays give you the facts. So what is the problem? Mr. Brickman. In part, Mr. Chairman, 403 I think is being misrepresented. It does not say that you have to show you have-- Chairman Specter. Never mind 403. Answer my question. What is the problem? You come in and make a claim for silica, and the X-rays show it is asbestos. Are you not ruled out automatically? Mr. Brickman. I am not speaking to the content of 403. So I do not claim any expertise in terms of the language. I do not see a problem in the way in which the implementation would occur. You do not require negation of exposure. You require negation of the cause of impairment, and that is a critical difference that I think would explain why the testimony against the provision really does not meet the test. If you claim impairment, then you must show that the impairment was not caused by asbestos. The medical testimony this morning is quite clear that the diagnosis of asbestosis is a reliable medical diagnosis when done by reliable medical experts. Chairman Specter. My red light went on during the middle of your answer, and I adhere meticulously to the time limits, so that I can ask my colleagues to do the same. Senator Leahy? Senator Leahy. Thank you, Mr. Chairman. I assume that there will be the ability to file follow-up questions with some of them. Chairman Specter. By all means, sure. Senator Leahy. Dr. Welch, after I started this process, about 2\1/2\ years ago now, held the first Committee hearing on asbestos litigation, all of the medical testimony we have had, including yours, has involved asbestos exposure only. The Leahy-Hatch medical criteria in the bill, is designed to apply to asbestos disease only, they do not apply to silica diseases. Now, I understand from your testimony today that there is no basis in medicine for the concern of some of the business community that asbestos claims could be transformed into claims for diseases caused by other dusts, asbestosis, silicosis, other dust diseases, different ones that can be differentiated upon pulmonary exams, X-rays and so on. Now, if that is correct, diseases causes by exposure to non-asbestos-related dust, fiber and minerals, would not meet the asbestos medical criteria you helped the Committee draft a couple years ago. Am I correct in that? Dr. Welch. That is correct. Senator Leahy. The latest draft Asbestos Bill requires victims of silica exposure, other airborne dust, fibres or minerals, to submit medical evidence that proves asbestos exposure did not cause their injury, basically proving a negative. If a non-asbestos victim could not meet this high evidentiary standing in court, then my understanding, they would be barred from suit, and they would be precluded from receiving any recovery in the trust fund. Dr. Welch. That is correct, because their disease would not meet the criteria under the trust fund, so they would not get compensation in the trust fund. But this languages seems to me to say they could not get compensation anywhere else either unless they could prove all these negatives, which in my opinion you really could not do. So they cannot be compensated under the trust fund because they do not have asbestosis, but they cannot go anywhere else either. Senator Leahy. Some of the testimony today has been that people of a certain generation are going to have, including myself, are going to have some level of asbestos in their lungs from an unknown source, is that correct? Dr. Welch. Correct. Senator Leahy. I love the expression ``those of a certain age,'' and now that I am 64, I understand it better. So would a doctor be able to determine that asbestos exposure absolutely did not cause a patient's impairment? Dr. Welch. I do not think he could say that. Senator Leahy. Mr. Martin, you have been a legislator too, as the Chairman has pointed out. I do not have all my questions with a celestial tone with it. But I am concerned that preemption of silica claims in this bill could leave silica victims, like my own grandfathers, without any remedy in court or the Asbestos Trust Fund. After all, we are taking away a right to jury here. Now, you have represented people exposed to silica for more than two decades I think you said in your testimony. During that time, have you ever been asked to prove that another airborne substance did not cause your client's injury during those 20 years? Mr. Martin. No, never. It has never become an issue. And I plead what I plead, and I have to prove what I plead. Either I meet my burden of proof or I do not. It is as simple as that, and that is the way the legal system has worked since the Founding Fathers wrote the Constitution. Senator Leahy. In fact that sort of suggests my next question. I mean are you aware of any other area of law where victims are required to plead and prove the substance other than the one alleged in the complaint was not a causal factor in their injuries? Mr. Martin. No, I am not, and it is nonsensical to have to prove something that should not even be relevant at trial because it is not part of what is being argued or pled as the injury in question. Senator Leahy. I understand from some of the business community that they are concerned that victims would be allowed to double dip, receive double recovery unless we include this expansive language in the draft. This so-called mixed-dust language in the latest bill does not preclude double recovery because nothing in the language hinges on whether a victim has recovered from the Asbestos Trust Fund. It seems simply to create an unprecedented shift in the burden of proving defense for claims outside the scope of asbestos. I have not tried any cases for a long time, but am I correct in that? Mr. Martin. Yes, I think you are, and I think the problem is, is that I do not think the language does solve the problem of double dipping or double recovery. I think it just attempts to preclude a greater number of victims who are not in the asbestos world and exposed to other dusts and other minerals, many of which I provided pictures of in my testimony. So I think the problem is, is that by including everybody in this group, you are stripping rights of a certain group of people, whereas there might be a narrow way you could craft this thing to deal with the double-dipping issue. Senator Leahy. Thank you, Mr. Chairman. Chairman Specter. Thank you very much, Senator Leahy. Senator Cornyn? Senator Cornyn. Thank you, Mr. Chairman. I think we can all agree that the Asbestos Trust Fund is designed to compensate people who are sick as a result of asbestos-related disease, and is not designed to compensate people for exposure to other carcinogens or create other medical problems. That is one of the reasons why I have concerns, for example, about a provision that is currently in the bill to compensate for colorectal cancer. Dr. Epstein, are you aware of any medical justification for tying the inhalation of asbestos fibres to colorectal cancer? Dr. Epstein. There have been a number of articles in the medical literature that have suggested that colorectal cancer is associated with asbestos exposure. I personally have gone over the literature in detail. That is not my opinion. But there is opinion within the medical literature that says that that is correct. Senator Cornyn. I admit that my understanding of the human anatomy is pretty elementary, but the idea that you can inhale an asbestos fibre and end up with cancer in your rectum or in your colon seems pretty far-fetched. Dr. Epstein. It does if you think of it as being inhaled. But frequently what happens is that the asbestos is inhaled in the lung, it is coughed up and is then swallowed. But in my opinion, that is not a valid cause of colorectal cancer. Senator Cornyn. Thank you for explaining that. That had not occurred to me. Professor Brickman, I know that you have talked to us a little bit about the abuses of mass screening of people who claim to have asbestos-related or silica-related disease. This bill, as currently written, provides up to $600 million for screening of potential claimants to the asbestos fund. Does that cause you any concerns, or how can we make this bill as strong as possible to prevent the kind of abuses that we see here demonstrated on your chart, where we hear from the medical experts that it is clear when somebody has silica-related disease as opposed to asbestos-related disease, but you have people here apparently claiming both? Mr. Brickman. Senator Cornyn, as you know, I have written extensively on the subject of asbestos litigation and have focused on asbestos screenings, writing a fairly substantial law review article on it, in which I describe the entrepreneurial model, which I would depict as reality rather than characterize it in any other way. That article sets forth what I see is occurring in asbestos litigation. And what I see now occurring in silicosis litigation: the same B-readers, the ones that the Manville Trust professional staff referred to generically as ``Dr. Bogus,'' are being hired by the same plaintiff lawyers, in some cases some new plaintiff lawyers, by the same screening entities, the same kind of false witness memories being implanted to generate witness testimony. These are the facts that I empirically support in my written statement. I believe you have the same thing going on now with silicosis litigation as occurs in the asbestos litigation. You have the phenomenon of the retreading of claims, which I have described in far more detail in my prepared statement, and what you also have now which is in anticipation of the possible passage of the FAIR Act is the bypass procedure, and this is not a medical cardiological process. The bypass procedure is where somebody who would otherwise claim 1/0 asbestosis who is unimpaired and who, under the FAIR Act will not get compensation, instead will claim 1/0 silicosis, because the same B reader, at the same time he reads the X-ray fills out two forms, 1/0 asbestosis, 1/0 silicosis. Or in the second model, the same X-ray is read as 1/0 asbestosis, and then two, three, 4 years later by that same B reader or a different B reader is read as 1/0 silicosis, because it saves money not to have to take a second X-ray. This is the reality that the Committee needs to deal with in terms of drafting language. If the bypass works, then the defendant community that is paying the $140 billion will have to pay tens of billions more again for what would have been asbestosis claims, but are now being dressed up as silicosis claims. Senator Cornyn. I see my time has expired. I will wait till my next round. Thank you, Mr. Chairman. Chairman Specter. Thank you, Senator Cornyn. Senator Feinstein? Senator Feinstein. Mr. Chairman, actually, this is one of the most informative panels I have heard on the issue, so I want to just thank everybody. Obviously, you all know what you are talking about, so it is very much appreciated. Let me just ask a couple of questions just to cement this. I guess everybody agrees that asbestosis and silicosis are easily distinguishable. Does anybody not agree to that? [No response.] Senator Feinstein. Are there any other asbestos-related diseases that could be confused with silica-related diseases? Dr. Epstein? Dr. Epstein. If I may answer that, the answer to that question is no. They are really quite separate diseases. Senator Feinstein. Anybody differ with that? Dr. Welch? Dr. Welch. Well, asbestosis definitely causes lung cancer, and there is some information that silica is a cause of lung cancer, but I do not think it is really relevant to this issue because then you would be having to say that, that you are manufacturing claims of lung cancer in a different jurisdiction. But just to be precise, they both can cause that. Not mesothelioma, however. That is uniquely due to asbestos. Senator Feinstein. As one who has worked on this issue, and I know the Chairman knows this, and I know Judge Becker knows it too, this is a huge issue. It is really a potential deal- breaker. It is very hard to solve. I would like to ask that each one of you kind of look at the language and come up with some recommendations for us. I particularly think that we do have to prevent dual claiming. I do not know how you would work sanctions for fraud, but I certainly think dual claiming. I think disclosure that was mentioned today, that a claimant would disclose dual claims. I think the occupational history is important to be in the bill so that when you evaluate it, that is in the bill. My own view is, as we have discussed, Mr. Chairman, that Dr. Rodman was one that did at the end of his written testimony present a possible solution and it is really a medical screening panel. How you set that panel up to really avoid a huge bureaucracy I think is a problem, but I think some of these criteria are important to include in that. I am very concerned by the growth in silica cases in court now. I do not know how you prevent someone from going to court. Assuming we can make the clear distinction of what the Asbestos Trust would apply to, I do not know how you say to others, ``You do not have any remedy.'' Does anyone have a suggestion there? Mr. Brickman. Senator Feinstein, if I may, what we have involved here is the economics of mass litigation. The purpose is not to prevent somebody from going to court. Because of the economics of mass litigation, the cost to a defendant to prove that somebody claiming silicosis actually has something that would come under the compensation program and therefore would not be eligible, would be several thousand dollars. It could be three, four, five, six, seven thousand dollars. You multiply that by 10,000, 20,000, 30,000 claimants and you being to see the dimensions of the problem. What you need therefore is to have a procedural device so that the court can dismiss the claim very early on before there are large expenses incurred. That way the plaintiff gets his day in court, but the defendant does not have to spend $10,000 to prove that he really comes under the compensation program and should not get a silicosis award. Senator Feinstein. What would that process be? Mr. Brickman. I can provide language I think that would--it is similar to what is being suggested now, but I could certainly provide language procedurally that would accomplish that. Senator Feinstein. See, I have a problem with this language because I agree that the plaintiff should not have to prove a negative and it seems to me that this is meant to be for people who are sick, therefore medical criteria are important, therefore a medical screening panel as a deciding point with some references I think is important. I mean what really complicates this is the dramatic growth of silica cases now in court. If you have any further comments, I would very much like to hear them. Mr. Martin. Senator, if I may, I mean when I first started handling silicosis cases it was kind of like boutique litigation. I mean there were not but 150 cases on file in Texas I think back in the 1980's all together amongst five or six firms. I think the key, as opposed to a medical panel, which might be a little too bureaucratic and costly, I think the key is disclosure. If someone has filed a previous asbestos claim and is coming back into the litigation system, they ought to be able to have to show a good reason for doing that. This language does the opposite. It creates a situation where a victim who has not been in the litigation system, but who has a very debilitating disease such as silicosis or hard metal lung disease, has got to prove that he is not guilty before he even gets to prove his own case. So I think to look at it from the other perspective, from that perspective, and say these guys up here, maybe they ought to be disclosing that they had a previous lawsuit on file as the trigger point for something else happening to perhaps address Professor Brickman's concern about the cost and the burden that is placed on the litigation system. Mr. Brickman. May I briefly respond? Disclosure is a necessary but not a sufficient response because that does not-- I fully agree that disclosure should be part of the bill, but it is not sufficient because it does not deal with the economic costs imposed on a defendant to prove that this is a national program case that is, that it falls under the FAIR Act, and not one that should be eligible in the tort system. Senator Feinstein. So what would you do? Mr. Brickman. I would provide the Committee with language, which I will go back to my office and draft, that I think will deal with that procedural problem of creating an early dismissal process before all of the costs need to be incurred. Senator Feinstein. Thank you. Thank you, Mr. Chairman. Chairman Specter. Thank you, Senator Feinstein. Senator Coburn? Senator Coburn. Thank you, Mr. Chairman. And thank each of you for your testimony. I had a good time late last night reading it because we did not have a 48-rule with which I had the time to do it. I have just a couple of comments. No. 1, as a practicing physician the difference between the restrictive and obstructive patterns seen in these two diseases is not uncommon at all. We see it all the time. There are mixed disease patterns. My question to each of you is how many times have you seen true clinical silicosis and true clinical asbestosis in non- smokers? Anybody ever seen that? Dr. Weill. Senator, are you talking about those two diseases in one patient? Senator Coburn. In the same patient at the same time. Dr. Weill. I have never seen it. Senator Coburn. Anybody here ever seen, in a non-smoker, true clinical asbestosis and true clinical silicosis? Dr. Welch. But I think the testimony was even in the smoker, people do not see them combined, so smoking is not that relevant. Senator Coburn. I understand, but I am asking specifically about non-smokers? Dr. Rodman. I have no recollection, Senator, of having seen it, but theoretically it is possible, and therefore it almost certainly has occurred on occasion. Senator Coburn. Okay. Now take away the smoking restriction, how often has this panel seen active clinical disease manifested both by chest X-ray and pulmonary function tests and diffusion capacity of the lung, how many times have you seen that in your entire careers in this panel? Dr. Epstein. Very rarely. I've seen maybe a couple of such cases. Dr. Rodman. The same response, I have never. I have no recollection, but I am 77 years old. [Laughter.] Senator Coburn. I use that excuse all the time, doctor. I am 40-years-old and I have never seen it. Mr. Martin. I have had two clients. Senator Coburn. With clinically proven, medically documented pleural plaques and pulmonary nodules-- Mr. Martin. Yes. And the distinguishing factor is that along with that, they had specific job histories that involved intense exposure to silica and asbestos both. Senator Coburn. Dr. Welch? Dr. Welch. Yes. I would agree, I have not seen a combined case of the two. I would also want to point out, an occupational history is really important. Senator Coburn. I agree. Dr. Welch. And that is a major criteria in differentiating the two, as well as the X-ray. Senator Coburn. Dr. Welch, would you do me a favor? I read your resume a moment ago. Would you, after this, give to the Committee, if we may, your references on small-cell, large- cell, adenocarcinoma of the lung related to asbestosis for me so I can review that? Dr. Welch. Sure. Actually there was a paper just published this month that is very helpful in asbestos lung cancer. Senator Coburn. Thank you very much. I would love to have that. So I just want to make the point, you know, the old adage I was taught when I was in business is ``greed conquers all technologic difficulty,'' and what we are seeing in the personal injury case is that, as the Congress moved to consider asbestosis, the technologic difficulty was to get somebody to read an X-ray a different way for money so that a different claim could be made. We need to not shy away from that. That is what this is all about. This is about making sure people who have true injury get true compensation and that that compensation goes to the people who are injured more than it goes to the trial bar. And we need to not shy away from trying to be very rigorous in placing demands that false claims cannot be made out of this asbestos trust and then turned around and turned into something else, because what I see coming is us sitting down to have a silicosis trust, and I do not think we are that very far away. So I believe it is important that people who are injured are compensated, and I want them compensated. But I want us to be real clear about the game that is going on in this country today in the courts that does not have anything to do with my patient's true injury, but has everything to do with how you manipulate the system. Dr. Welch? Dr. Welch. If I could comment on that. I mean I think that there is a difference between the burden of disease in this country from asbestos and from silica. If there are claims that are not silicosis, do not have an impairment, do not have the occupational history, that is a problem. But the asbestos claims that have come forward in this country, the vast majority of them are people who are really sick, mesothelioma, lung cancer. I just want to remind people, the reason there is an asbestos problem, asbestos disease and this bill, is because so many people were exposed and so many people were sick, not because plaintiff lawyers made up bad cases. We would not be creating a billion dollar trust fund if there was not illness out there. So I am just afraid that the discussion begins to seem like, oh, the whole problem--that you would have to have a silicosis bill because there are bad claims. I mean we have an asbestos bill because people are sick. Senator Coburn. I do not deny that we have an asbestos bill because people are sick, but I also would not deny the fact that a lot of people have claimed asbestosis when clinically they do not have it, and are seeking compensation for an injury based on exposure, when there is no true injury there. And I think the data will show that true in lots of the claimants. Mr. Brickman. If I may add, Senator, the vast majority of asbestos claims, claims of disease from exposure to asbestos that have been brought in this country, there have been 850,000 claimants. Each one sues 60, 70, 80 different companies. So you can do the math. The vast majority of those claimants have no medical illness caused by asbestos as recognized by medical science. At least 500,000, maybe 600,000 of those claimants do not have an illness. They have sued in the system. They generate $50,000, $60,000 $70,000 it used to be $100,000 worth of payments made, of which they get about half and the lawyer takes about half for fees and expenses. So I would take issue with Dr. Welch's characterization. I call it Senator, diagnosing for dollars. Senator Coburn. It also is a reflection on my profession as well for not standing up for what is true and diagnosing for dollars. Chairman Specter. Thank you, Senator Coburn. Dr. Welch, how would you solve the problem? How would you structure the system to compensate the asbestos victims who are truly sick, and be sure that the so-called double dipping does not occur? Dr. Welch. Well, I am neither a lawyer nor a legislator, so my opinion is-- Chairman Specter. Puts you in a pretty good position. [Laughter.] Dr. Welch.--somewhat maybe uninformed. But what I hear is the problem is people are filing claims for silicosis who do not have silicosis, that lawyers may be manufacturing claims just based on an X-ray. And if you were to examine that case at all, if anyone were to examine that case from a distance even, they are probably unlikely to have an exposure to silica that is sufficient to cause disease, and the X-ray may not be characteristic. So from my point of view, if people are paying those claims, that is the problem, and if people are not paying those claims, they will go away. So I do not quite see why you have to craft this legislation. I do not like to think that cases go into court that you could just file any case and you get paid on it, and that is the kind of implication that the testimony is giving, that these claims that clearly are not silicosis are getting paid. So I do not know how you would solve that in the language. I think Mr. Martin had a good suggestion, that you identify the people who have an asbestos claim, because once you have asbestosis--and this bill does not compensate all the people who applied to Manville Trust. I mean it is more narrow. It is people with impairment. It is not junk cases. I mean this bill does not compensate junk cases. So if people have been compensated under this bill, given the criteria that are there, for most of them it is likely they do not have silicosis, and so they would have to affirmatively prove they have something else to go forward. The burden on those people would probably need to be higher, because as we are saying, we do not expect a lot of combined disease. Chairman Specter. Mr. Martin, you talked about identification of having made an asbestos claim preliminarily. How would you follow up on that in subsequent litigation for somebody who tries to collect on silicosis where there really is no bona fide basis? Mr. Martin. You craft it this way. A plaintiff who has filed a previous asbestos suit would have to disclose that in his pleadings up front. Then in order to overcome a presumption of preemption under the bill, he would have to rebut that presumption by establishing that silica is truly a significant contributing cause of the disease. Chairman Specter. Are you starting to deal with a negative there, proof of a negative? Mr. Martin. Yes, but it is predicated on disclosure, you see. Chairman Specter. Your proof of a negative is different from the other proof of-- Mr. Martin. Well, I do not want to be inconsistent, Senator, I truly do not in terms of my criticism of proving a negative. But the issue here is disclosure. If an individual has previously filed an asbestos lawsuit, he should disclose that. That should be the first step. And then some way, whether you create a presumption or not is maybe not the best way to craft it because I am just kind of thinking out loud and brainstorming. Some way, if he truly does have an asbestos disease--and I think everybody on the panel agrees that that would be a very rare instance--that there be some mechanism where he would be able to prove that this is a significant cause, but otherwise, he has to deal with the issue that he has already filed this old suit here. I think that is where you start from, as opposed to starting from somebody who never filed a lawsuit before for asbestos. Chairman Specter. So there would be a provision in our Federal bill which would impose a disclosure requirement on a plaintiff who sues in some other forum at some other time, and the Federal legislation would deal with a presumption to impact on litigation in some other court, in some other forum, which relates to silica? Mr. Martin. Something along those lines. I am thinking in generalities as opposed to specific language, but it is triggered off disclosure that someone knows that a previous lawsuit for asbestos was filed. Then, you can craft some language that would attempt to deal with Professor Brickman's concern about letting this thing generate too much cost too quickly and being able to address it earlier. I do not know whether that would be through a presumption or some other language. I would have to sit down and craft it. Chairman Specter. It is not going to be dealt with in a summary fashion. It is not going to be dealt with until there is an examination of the proofs, the X-ray. My red light just went on, but it does not apply to answers--only to questions. [Laughter.] Mr. Martin. I think you are exactly right. There has to be some medical threshold involved there in order to meet that-- once that disclosure is made, there has to be some medical threshold established that silica or hard-metal lung disease or cobalt exposure or something else is involved. Chairman Specter. Senator Feinstein? Senator Feinstein. Clearly, there is a problem. If you go from 2002, with 3,500 cases, to 2003, with 22,000 cases, you have a net gain of cases of 17,000 in a year which indicates to me that something is afoot. I would like to hear from both Professor Brickman and Dr. Epstein. They both seem to have some reaction to Dr. Welch not to be adversarial, but to hopefully come up with a solution here. Mr. Brickman. Well, one possible solution or, perhaps that is too strong a word, resolution for the silicosis epidemic would be to stop consideration of the FAIR Act. That would reduce the pressure on plaintiff lawyers to retread their cases. Senator Feinstein. Do you mean just drop an asbestos bill-- just forget it? Mr. Brickman. I predict you would have fewer silicosis claims if you dropped the FAIR Act because that is the reality. This is an entrepreneurial venture, and is a function of the profitability of the claiming process. How much does it cost to generate a claim? It generally costs somewhere about $1,000 to $1,500 for a plaintiff's lawyer to generate a claim. That is through a screening process. Then, it is a question of how much do you get in return for putting that claim in, and that is a function of how many Sec. 524 (g) trusts are being created and what they pay, what solvent defendants are paying and so on. So the reality is, I mean, as I have testified, and I think there is a considerable volume of evidence on this point, that the silicosis epidemic occurs in perhaps one, maybe two places only--the courts and maybe Dr. Welch's office. But in the Mayo Clinic, in hospitals around the country, in pulmonologists' offices, you do not see silicosis. You only see it in certain courts. There is a disconnect between medical science and what is happening in certain courts, and that disconnect is a mirror image of what has happened with asbestosis claiming, with nonmalignant asbestosis claiming. It is deja vu all over again. Senator Feinstein. Since you mentioned Dr. Welch's name, would you like to respond to that or do you just want to avoid it? Dr. Welch. Well, I am going to ignore the insult, but I do want to say we did spend a lot of time when this bill was starting talking about what claims were, what diseases were, their projections of diseases. And of the asbestos claims, there are a lot of claims that are made for people who are not impaired, and so when you talk about these numbers of claims-- but in terms of dollars paid out, it is primarily paid to people with impairment and people with cancer. We are still seeing 2,500 mesotheliomas, most of which are caused by asbestos, every year in this country, a lot of lung cancers. So the burden of disease--I just want to make it clear-- that there are people with asbestos-related disease who are impaired, sick and dying from it. If there are a lot of junk claims as well, my understanding is most of those claims wed not be compensated under this trust because they would not have any impairment. And once someone has an abnormal X-ray, an occupational history and impairment, they are beginning to meet the criteria that would fit under this bill, depending on what their occupational history is. So you can sort of have both. You can have a lot of junk, but people are not getting compensated for that. Senator Feinstein. Dr. Epstein and then Dr. Rodman. Dr. Epstein. I think that there is less of a disparity between Dr. Welch's opinion and mine, certainly about impairment. I would like to point out that probably all of the physicians in this room understand that in order to have silicosis, in order to develop that disease, you have to have a large amount of exposure to silica. This is not a whiff of silica. This is a lot of silica over a long period of time. Now, the Congress has experience in dealing with this type of problem before. In fact, the Federal Coal Mine, Health and Safety Act did deal with the problem of who comes through the door. And the way the Congress decided to act in the past was that there had to be a certain provable amount of exposure in order to get in the door and be compensated under that act. I think that that may be one of the ways of dealing with this problem, at least have some threshold beyond which an individual can claim silicosis. Senator Feinstein. Thank you. Dr. Rodman? Dr. Rodman. I have a very strong personal conviction that we are skirting around a very big and important issue, and that is the presence of a few bad apples or-- Senator Feinstein. Turn on your microphone, please. Dr. Rodman. My personal conviction is that a major problem that we have not yet addressed directly is the presence of some bad apples in the legal profession and perhaps more bad apples in the medical profession. As long as there are doctors who, on paper, are well qualified, who are willing to read a chest X- ray which they once said showed signs of asbestosis and re-read it or read a second X-ray on the same patient which does not differ significantly, as showing silicotic changes, I do not think the law will have sufficiently addressed this problem. Senator Feinstein. Thank you. Thank you, Mr. Chairman. Chairman Specter. Thank you, Senator Feinstein. Senator Cornyn? Senator Cornyn. Thank you, Mr. Chairman. As I understand the language that is on the board up here and the process, if someone has a claim of asbestos-related exposure or injury, we are in the process the proposal is to create a $140-billion fund, which is a no-fault, nonadversarial process by which they can be compensated for their asbestos disease. That is the goal. But if they do have asbestos-related disease and they file a lawsuit after that fund is created, then the court could, and should, say you are in the wrong place. You should not be in court. You should be filing your claim against the fund. So it just makes good sense to me to say that there ought to be some threshold to show that your disease is not related to asbestos if you file a subsequent civil lawsuit. And from what I hear of the medical experts here all arrayed is that ought to be relatively easy for a well-qualified physician to do, to read an X-ray and distinguish between silicosis-related disease and asbestos-related disease. Would you agree or disagree or have I missed something, Dr. Epstein? Dr. Epstein. I would agree with that. Senator Cornyn. Dr. Rodman? Dr. Rodman. I would agree, except that my experience has been that many X-rays that I read as showing no signs of asbestos-related changes were differently read by other physicians whose credentials on paper were good and who did see asbestos-related changes when I think none were present. And I think this was-- Senator Cornyn. That is the scandal you alluded to in some parts of the medical profession and even legal profession as well. Unfortunately, we are always going to have unscrupulous people who occasionally will take advantage of the situation. Dr. Weill. Senator, may I make one comment? Senator Cornyn. Doctor? Yes, sir. Dr. Weill. I think one way to deal with the unscrupulous nature of some of the B readers out there-- Senator Cornyn. Let me ask you, please, will you tell me whether you agree or disagree that it ought to be relatively easy on the X-ray to distinguish between asbestos- and silicosis-related disease so you could make this sort of showing relatively straightforward. Dr. Weill. Yes. In an ideal world, and certainly in the clinical setting, it is easy. However, in the world in which we live, I think because of some unscrupulous B readers, we are in situation where, if your entry into the system is simply to get a B read on an X-ray that is abnormal, that is too low of a threshold. And I think what we ought to do is what some countries in Europe that I visited do is set up panels. I know that may be bureaucratically difficult to do and cumbersome, but it really helps validate the system and validate the diagnosis. Senator Cornyn. Our time is a little short. I wanted to ask Mr. Martin, you and Professor Brickman had a discussion about disclosure and whether that would be adequate. First of all, let me ask you are you involved in this multi-district litigation in Corpus Christi, where these duplicative claims have been made? Mr. Martin. I have one case there. I have never filed a duplicative case in my career. And that one case involves a man with massive conglomeration in the upper lobes with cavitation. Senator Cornyn. So you are aware at least of the occurrence of people making silica-related claims who have previously made claims for asbestos. Mr. Martin. And that is the concern. And I think the point that you hit on-- Senator Cornyn. My time is short, so let me just get to what I am trying to ask, and we will give you a chance to answer as long as the Chairman does not cut you off. But will you agree with me, Mr. Martin, that if someone, the disclosure might potentially be a problem, number one, for the lawyer whose client does not tell them the truth, the whole truth and nothing but the truth or perhaps the lawyer, an unscrupulous lawyer, and unfortunately there are bad apples among the legal profession as we all know who does not disclose it, but right now is it not a standard part of basic pretrial discovery in very silica claim, in every asbestos claim, to ask have you filed a lawsuit, have you made claims previously for any personal injury and that sort of thing? So how would an additional disclosure requirement get us to where we need to be in order to separate and distinguish between these two types of claims? Mr. Martin. The answer to your question is, yes. In terms of the discovery process, it must be disclosed and is typically disclosed. Senator Cornyn. But, apparently, that discovery process did not reveal, in this instance, and in the story reported in the New York Times related to this whole what appears to be a scandal, where people have made asbestos claims or silica claims and not disclosed--they have either failed to, they have not been asked, they have been asked or they have not told the truth or something has gone wrong. So how do we get over that hurdle? Mr. Martin. Well, I suspect if that is happening that there is a Federal district judge down in Corpus Christi who is going to start knocking some heads off because those are serious problems in court, when you are not being truthful and up-front in answering interrogatories. But I do think disclosure is the key to--what I am worried about is the fact that I have never filed one of these subsequent lawsuits. I have got a group of guys who are truly sick from independent illnesses, which these men have seen on occasion in their own offices, and I do not want them to be completely precluded because there is a group of people who filed second lawsuits. And this language precludes them from seeking that remedy, and that is the issue of concern. Chairman Specter. Thank you, Senator Cornyn. In Corpus Christi, they do not knock heads together, they knock them off? [Laughter.] Mr. Martin. Yes. We are close to the ocean, and we can just knock them right off into the Gulf. Senator Cornyn. And then they really get tough, Mr. Chairman. Chairman Specter. Well, Senator Cornyn, of course, is an expert at being a Texas Senator, and having been on the Supreme Court and the attorney general, but there appears to be somewhat different standards of conduct, as we are having it described, with two sets of X-rays simultaneously, different markings. I think it would be very useful for the Committee to hear Judge Becker, some views from Judge Becker. I have asked him if he would care to make a few comments at this point. Let us turn to Judge Becker. Judge Becker. Thank you, Senator. I think I share Senator Feinstein's comments that this has been an extraordinarily useful hearing. I think we have learned a lot from the experts. My sense is that this problem is soluble by drafting. I think there are certainly flaws in Section 403 of the discussion bill. I do not think it made it clear enough that the intention for discussion purposes was that the preemption would only be for those who qualified for the Asbestos Fund. There not a Catch 22 to put anybody in limbo or in no man's land. And I think the testimony also makes clear that you cannot rule out any possible contributing factor because of the widespread exposure in the Nation's population to asbestos. I think, however, that some other adjectives like ``significant'' or ``substantial,'' that it be some significant factor or even a minor factor. In other words, it would have to be more than a minor factor in order to rule out-- Senator Feinstein. Mr. Chairman, would you just allow me one thing? Could it be primary--primarily? Judge Becker. It could be primarily. I mean, that would be one possible solution, Senator Feinstein. I know that was in an earlier draft of yours. But the question that everybody is fighting about is who has got the burden of proof. Everybody talks about not proving a negative. The problem there, I mean, what we are talking about here is preempting--and this is the overarching issue here--we are talking about preempting cases that are going to be brought in State court. There is no doubt, I mean, what we are saying because these cases, if anybody is going to bring, has a legitimate silica claim, they are going to bring it in State court. So we are talking about the Congress of the United States preempting--some are going to say this is a kind of tort reform. Does the Congress have the power to do this? Plainly, the Congress has the power to do this. This is the grand daddy of all tort reform bills in terms of abolishing asbestos litigation in State court. But what it would be doing, and plainly the power of the Congress, it is in the Commerce Clause to do so, is regulating practice in State court. I think not only can you do it, but it needs to be done. Among the things that need to be talked about are disclosure, the question of burden of proof. But from the point of view of the defense community, the thing that they are upset about, and this is what Professor Brickman was stressing, is defense costs. Because as Dr. Welch says, well, okay, nobody is going to pay these cases, the problem that the defense community has brought to us is, well, if a lawyer has got a thousand of these cases, and they have to defend them, even if it costs $500 or $1,000 to defend each one, that is a big hunk of change. So, therefore, there has to be some threshold limitation. One of the threshold limitations, as I think might be considered and has not been mentioned here this morning, although the medical basis has been mentioned for it, and we have talked a lot about the unimpaired, is to preempt any claim in State court that is not impaired. In terms of this bill, that would be at least Level III in the medical criteria. Level I, where you get medical monitoring, where you do not get paid anything, those claims arguably could be preempted, and the question is whether or not the medical criteria fit, even though the medical criteria in the bill are different. There is asbestos and silica disease. In terms of the criteria for Level III, with respect to the degree of restriction, and I have them here, and I will not burden the Committee by reading them, but it is 80 percent of lung capacity in certain tests and so forth. To the extent that this has been described to us this morning, both silica and asbestos are interstitial lung diseases which have the same kind of sequelae, the shoe would fit, and, therefore, you could limit. And another thing that could be considered, in addition to the disclosure, in addition to the idea of a medical panel, and some kind of screening panel. You could, also, and I think we could fiddle with the burden of proof I think language, and I would welcome the opportunity to have my thirty-ninth meeting, thirty-nine steps--I do not know. It was a movie someplace or another, or a book--I would be willing to have my thirty-ninth meeting, and sooner rather than later, like this afternoon or over lunch. You have got everybody here. Let us get everybody in a room, and we do not leave them out--I have the Metroliner schedule, the Night Owl I think is 2 a.m. We will get them tickets on the Night Owl, and we will lock them in a room until we get something worked out. I think we can work something out. Chairman Specter. Judge Becker, that is-- Judge Becker. I think this combination would work. Chairman Specter. That is an excellent idea. So why don't we move on to Panel two now, and let us have a designation of those who are going to move from this proceeding to a drafting proceeding. Panel two is Mr. Paul Hoferer and Mr. Donald Griffin. Before panel one leaves, let me thank all of you very much for coming. You have already received a number of accolades for your very helpful testimony, and we do appreciate your coming long distances and leaving your professional activities to be in Washington today to provide this testimony. So thank you all very much, and some of you have drafting assignments to be completed after you leave here today. Mr. Paul Hoferer is Vice President and General Counsel of the Burlington Northern and Santa Fe Railroad. He began working there as a switchman in Kansas City during the summer while in high school, and then spent 3 years in the U.S. Army, including Vietnam and began his career with the Santa Fe law department in Topeka, Kansas, as a trial attorney. In the year 2000, he received the Paul C. Garrett Award for Meritorious Service to the Association of Railroad General Claims Conference. He has a business degree from Central Missouri State University and a law degree from Washburn University School of Law. In a sense, I worked for the Santa Fe years ago delivering bills of lading in Wichita at the age of 11. Thank you for joining us, Mr. Hoferer, and we look forward to your testimony. STATEMENT OF PAUL HOFERER, VICE PRESIDENT AND GENERAL COUNSEL, BNSF RAILWAY COMPANY, FORT WORTH, TEXAS, ON BEHALF OF THE ASSOCIATION OF AMERICAN RAILROADS Mr. Hoferer. Thank you very much, Mr. Chairman, members of the Senate Committee. Good morning. As Senator Specter said, my name is Paul Hoferer. I am the Vice President and General Counsel of the BNSF Railway Company, headquartered in Forth Worth, Texas. My background has given me a rather unique view of both sides of this issue because I worked 7 years as a railroad switchman while I was attending college and law school. As a switchman, I was a member of a national railroad union. I also spent 20 years after law school working as a trial attorney litigating FELA cases, and I am currently responsible for managing the litigation at BNSF Railway Company. First of all, I want to thank the Committee for the opportunity to present the views of the members of the Association of American Railroads concerning this asbestos act. The AAR members primarily have two concerns. The first one is the treatment of the asbestos claims under the Federal Employers Liability Act, which we call the FELA, and the second is the potential for claimants to subvert the Act's intent by converting asbestos claims into ones that allege injury for other airborne substances. Railroads neither manufactured nor distributed asbestos, and had stopped significant use of it by the steam era in the 1950's, roughly 50-some years ago. Despite this, we have been named as defendants in numerous lawsuits brought under the FELA. The FELA covers only rail employees and was enacted in 1908, prior to the State worker's compensation laws to cover employees injured in other industries. That is what the State worker's compensation bills were passed for. The proposed legislation would cover all asbestos-related injuries, including those which might otherwise have been brought under the FELA. That is as it should be. There is no justification for treating asbestos claims brought by railroad workers any differently than claims brought by other workers in the industries. Railroad labor has concerns and protested, claiming its members would be treated unfairly. That is not the case. All asbestos claimants, not just railroad claimants, would lose their ability to file any civil litigation and instead would be compensated by the fund. Rail labor also claims that its members would likely receive less total compensation than other workers because its members would have recourse only to the fund, while employees in other industries would also have a remedy under the worker's compensation laws. That concern is addressed in the most recent draft of your legislation. It grants railroad employees an additional payment which would be equal to any reduction in benefits that they would have been entitled to if they were covered by State worker's compensation laws. I believe that amendment is one that Judge Becker proposed. Rail labor says that this isn't enough. Instead, they want to receive additional payments equal to the historic FELA payments for asbestos claims, in addition to the fund. Although the fund is designed to substitute for all tort claims, under rail labor's plan rail employees would be entitled to two payments that are a substitute for tort recoveries or litigation and would include payments to uninjured workers-- something the Act seeks to eliminate. The AAR believes this is unwarranted. Under the tort system, including the FELA, plaintiffs are entitled to only one full recovery for their injury. Indeed, if an asbestos claimant who also sues other defendants, he or she is not entitled to collect multiple, full recoveries. Any settlement with one defendant is offset currently by the FELA settlement. Having said that, the railroads are negotiating, as was mentioned earlier by the Senator, with rail labor over this issue in an attempt to reach a compromise so that labor can support this legislation. We, too, hope to reach a compromise in this matter. However, our willingness to negotiate is predicated on one condition, that no additional compensation or contribution be made from the railroads to the fund for a special FELA adjustment. There are several other important elements we think have to be incorporated in any effort to add an FELA special adjustment to this Act. The adjustment must reflect only net FELA payout. I think there was a comment earlier that roughly half of the money does not go to the claimant; it goes to the attorneys and the cost of litigation. Any FELA adjustment will be treated the same way the bill treats worker's compensation. It should be based on objective medical criteria, and no FELA lawsuit should be allowed while the law is passed. Finally, one brief comment about mixed dust. We too are concerned about the Act's elimination of asbestos lawsuits, and it could be illusory because of the concerns previously expressed. The concern is that the plaintiff will seek recovery from the fund, while at the same time file lawsuits alleging respiratory injury caused by exposure to substances other than asbestos. I think Professor Brickman and Dr. Weill both mentioned this and covered it more than adequately. I do want to say, though, that we believe that the proposed legislation will represent a fair means of addressing the asbestos lawsuit crisis only if it effectively prevents claimants from controverting asbestos claims into other types of claims. I stand ready for any questions. [The prepared statement of Mr. Hoferer appears as a submission for the record.] Chairman Specter. Thank you very much, Mr. Hoferer. We turn now to Mr. Donald Griffin, who has been a very regular attendee at our stakeholders meetings. He is the Director of Strategic Coordination and Research for the Brotherhood of Maintenance of Way Employees Division of the International Brotherhood of Teamsters, which represents railroad employees primarily engaged in the construction and maintenance of railroad tracks, bridges and other structures. Prior to his arrival at BMWED in 1996, he was with the law firm of Hyshaw, Mahoney and Clark, here in Washington. He has a law degree from Rutgers, in 1987, and bachelor's degree from the University of California, in 1972. Thank you for your steadfast attendance at 38 meetings and we look forward to your testimony here today. STATEMENT OF DONALD F. GRIFFIN, DIRECTOR OF STRATEGIC COORDINATION AND RESEARCH, BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYEES DIVISION, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, WASHINGTON, D.C. Mr. Griffin. Thank you, Mr. Chairman. On behalf of rail labor, I would like to thank you and Judge Becker and Senator Leahy for all of the hard work you have done here to try to get the parties to reach some sort of understanding on the FELA issue. Mr. Chairman, I am here today on behalf of all of the rail labor unions within the AFL-CIO, and I speak to you on a matter of great importance to the men and women who are members of those unions. To know someone suffering from deadly asbestos disease, as I do, and most people who work on the railroad do, is to know that, first and foremost, any legislation in this area must treat the sick and injured fairly. The proposed bill does not treat railroad workers fairly because it takes away a railroad worker's Federal statutory right. Under this bill, a railroad worker may not bring a claim under the Federal Employers Liability Act, otherwise called FELA, for an asbestos-related injury or illness on the job. All other workers retain full rights to bring claims for asbestos- related injuries or illnesses under State or Federal laws with regard to their specific employers. I must emphasize that rail labor believes there is no compelling reason to take away rail workers' rights under FELA. Asbestos claims under FELA have not clogged the courts, do not unfairly delay compensation due injury rail workers, and, importantly, do not threaten economic health of the Nation's railroads. Nevertheless, at the urging of the Chairman and Senator Leahy, rail labor has made a proposal for an adjustment that would fairly compensate railroad workers for their unique loss of worker's compensation benefits provided under FELA. Our proposal is Appendix A to my written testimony submitted to this Committee. Rail labor's proposal is simple. It follows a pattern used by Congress since 1926 to legislate matters affecting rail labor and rail management: have labor and management negotiate a mutually satisfactory result. Our proposal provides that labor and management will negotiate quickly to create a fair adjustment to trust fund values for injured rail workers. If the parties cannot reach agreement, the dispute will be sent to a neutral party to provide a final and binding resolution of the entire dispute. Our goal is to provide a special adjustment to injured rail workers that both labor and management agree is fair--nothing more. The FELA adjustment contained in the draft bill which is supported by rail management is unfair because most injured rail workers would not receive it. To receive rail management's proposal, the claimant must also apply for an occupational disability payment from the Railroad Retirement Board. What this means, in practice, is that a claimant cannot apply for rail management's proposed adjustment unless he or she has 20 years of service on the railroad. According to the Railroad Retirement Board, over half of the workers in its system do not have 20 years of service. So those employees cannot receive this adjustment. In addition to the 20-year service requirement, a railroad worker must have a current connection to the industry when or she applies, meaning the employee must be working in the industry. That means a railroad worker with 20 years' service, but who has moved to another non-railroad employer cannot receive the adjustment. Additionally, all retired railroad workers are ineligible for the adjustment because they lack a current connection. This last point is especially significant because of the long latency periods between asbestos exposure and the manifestation of asbestos-related injury. What this means is that over half of active employees cannot receive the adjustment and all retired railroad workers are ineligible, as well. Under FELA, all of these employees would be eligible to file a claim for an injury against the railroad. Rail labor submits that an adjustment that is not available to the overwhelming majority of potential beneficiaries because they either lack the required railroad service or have worked so long they are retired is unfair. Finally, I have listened carefully to Mr. Hoferer's testimony today and read his prepared remarks, and wish to make the following brief comment. Rail labor is delighted that rail management has taken up our more than year-old invitation to sit down and work this dispute out through negotiation. Rail labor views the railroads' comments today as affirmation of the soundness of our proposal for a negotiated special adjustment. In conclusion, rail labor's preferred position would be the preservation of injured railroad workers' rights under FELA. However, if that is not possible, rail labor respectfully requests this Committee to adopt rail labor's proposal for an FELA adjustment. Thank you very much. [The prepared statement of Mr. Griffin appears as a submission for the record.] Chairman Specter. Thank you very much, Mr. Griffin. Mr. Hoferer, there is a statement at pages 8 and 11 of your prepared testimony that, quote, ``There should be no continuation of FELA suits after enactment of [asbestos fairness] legislation.'' I take it that your real meaning there is that there are to be no more asbestos-related lawsuits. Mr. Hoferer. That is correct, yes. Chairman Specter. What we are dealing with here is to try to be sure that the rail workers are treated the same as workers generally under State workmen's laws, so that where there is extra compensation or however that treatment is made that the rail workers would be treated the same way. Is that essentially correct, Mr. Griffin? Mr. Griffin. That is essentially correct, given that FELA operates substantially different than worker's comp in that it is a tort-based system. But that is the goal. Chairman Specter. Well, we have striven mightily to do that. It seemed to Judge Becker and me at the outset that it was not all that complicated, but it certainly has been. So I am delighted, and I compliment you both on your negotiations and your efforts in good faith to solve the problem. I compliment you even more on agreeing to binding arbitration, if you can't come to an agreement, because I believe that will provide a legislative solution. I believe that that will effectively take this issue off the table, and I see the group of stakeholders, four in number, who have been at 38 meetings nodding in the affirmative, and I do not think it necessary to encumber the record any further. With 2 minutes and 55 seconds left, I yield to you, Senator Cornyn. Senator Cornyn. Does that means I can have the extra two minutes. Chairman Specter. You may. Senator Cornyn. If I can have that and my 5 minutes, I don't expect to ask a lot of questions, but I do want to say that I think our goal is, both when we talk about silica- related disease and other diseases and how we treat the trust fund, to accomplish two goals. One is to make sure that the fund is actually successful and compensates asbestos-related disease and people who are actually suffering from that disease. There is also, I think, a related goal of making sure that we sweep in all asbestos claims into the fund, both to maintain the viability of the fund and the size of the fund, but also to make sure that we don't have dual tracks, one under the fund and then one in the tort system, because, frankly, I am reminded from Judge Becker's comments that he said this is tort reform. I have heard it referred to as scandal reform, and I think that really is what we are engaged in. Frankly, there is a consensus that the current system does not operate fairly. The other principle, I think, that is important is that someone be compensated once for a single, indivisible injury, a basic sort of legal principle. Now, in the workers' comp, and I trust also the FELA area, I would like your comment first, Mr. Griffin. If you are successful in an FELA lawsuit and you subsequently sue an asbestos manufacturer for the asbestos exposure, then does the FELA claimant--does the plaintiff there have any obligation to offset or to repay to allow that FELA claim to be subrogated to the third-party lawsuit? Mr. Griffin. Senator, unfortunately I am not one who has normally handled FELA cases. It is my understanding that there may well be an offset. Very often, a plaintiff will bring an action against the railroad only. Some bring actions against both the railroads and manufacturers. I know railroads have the right, after an FELA judgment against them, to go after third parties on joint and several tort liability theories. Senator Cornyn. Well, you are not suggesting, Mr. Griffin, that we ought to carve out FELA cases and allow those to proceed and then also permit individuals who are claiming asbestos-related impairment to sue under the trust fund or make a claim under the trust fund for the same indivisible injury, are you? Mr. Griffin. No. This is actually an asbestos injury. Since the bill as proposed takes away the railroad worker's rights under FELA to bring a claim under FELA for the asbestos-related injury, any recovery for that injury will come from the trust fund and any special adjustment that would accrue to railroad workers. That is the sole source of recovery for the asbestos injury under this bill. Senator Cornyn. Well, I would say that we ought to have two goals here. One is to make sure that we get as many asbestos- related claims into the fund as we possible can, because there are all sorts of groups and individuals who are trying to get the best deal they can for their group or interest. But, unfortunately, it has the concomitant effect of diluting the likelihood of success of the trust fund itself, and I think we all are interested in making sure that the trust fund actually works. Mr. Hoferer, can you comment on those two issues, both including everybody into the fund in order to maintain the viability of the fund, and then also the idea of dual compensation or what we used to call double-dipping? Mr. Hoferer. Sure, I will be happy to. Let me say first of all, a couple of years ago there was a United States Supreme Court decision, Ayers v. Norfolk Southern, and what it basically did was it allowed some FELA asbestos claimants who were suing the railroad to recover for all of the asbestos exposure caused by prior employers or other parties. The railroad had to pay one hundred percent of that because the Supreme Court said that under the FELA law contribution was not divisible and they had to pay all of the damages, which was a very expensive case. Under the current proposed legislation, what you have is the ability for everyone to be treated equally. We want the rail employees to be treated the same as anyone else in any industry. I think the way to do that is to have this measured by the worker's compensation standard. I say that because I believe there is some confusion in talking about this whole subject. The FELA is a lawsuit tort-related matter that is conducted in a courtroom. It has elements of damages that are not covered in worker's compensation. It is a whole different thing. That is why if the suggestion is that you get to collect under the fund and under the FELA, you are really collecting twice. Even if it is the average, you are collecting twice what the lawsuit damages would be. Now, on the other hand, you have a situation where the rail workers have a lot of other benefits that are not tied up with the FELA. Mr. Griffin mentioned one of them, the occupational disability annuity. We know that about 98 percent of the people that apply for it have it granted to them. Now, that is for active employees. We have total disability. That also is available to them. It is the Social Security equivalent. The occupational disability annuity is unique. No other workers in the United States have anything like that. It doesn't exist under Social Security. Then we have sickness benefits. We have the continuing medical benefits if the employee is an active employee. And, of course, they get Medicare if they are retired. So these are all benefits that are in addition to the FELA. The other thing I would say that is important here is the vast majority of the rail employees who have filed for asbestos claims are retirees, and the reason is quite simple. The true, significant asbestos exposure ended in the 1950s with the steam-era locomotives. You can do the math. You are talking about people that are going to be in their 70s. I hope that addresses some of your concerns. Senator Cornyn. Thank you. Chairman Specter. Thank you very much, Senator Cornyn. We are joined here by Senator Carper, who is a prospective cosponsor of the draft legislation, and in that light we invite him to make a comment. Senator Carper. Mr. Chairman, thanks very, very much to you. I want to say something about Seema Singh, the young woman sitting right behind you, and say how much we have enjoyed working with her and other members of the staff of this Committee and the people that are represented in this room and that are watching today. You are well served by her as a member of your staff. I enjoyed riding down on the train this morning, as I do many mornings. I come from Delaware on the train, and had the good fortune this morning of sitting across the table from a fellow whose picture was in the New York Times business pages, with yours, and that is Judge Becker. Chairman Specter. Odd, he didn't mention it when he spoke. Senator Carper. He mentioned he has known you for 53 years, Mr. Chairman--53 years. He told some great stories to everybody on the train about you--no, not really. Chairman Specter. Well, in that event, you can go ahead. [Laughter.] Senator Carper. I want to say to Judge Becker, God bless you. Thank you for the time and energy and intellect that you have put into this. If we end with a bill, in no small measure the credit will be yours. Mr. Chairman, I am encouraged by hearing rail management and rail labor sit at the same table and say this is one they think they can work out, and that they are determined to do that, and if they can't hammer it out, to turn to binding arbitration. I want to commend you. That is the kind of spirit that we need to be able to resolve some other difficult issues on this bill. People have asked me do I think in the end this is going to be a partisan bill or not. I certainly hope not. I certainly hope we have a bipartisan bill, maybe a consensus bill. That could be the triumph of man's hope over experience, but I don't know that it needs to be. I know the Chairman has done a huge amount of work on this and has a strong and abiding interest in this issue and coming to a fair resolution, as does Senator Leahy, as does Senator Feinstein, who has put enormous effort into this. I hope, in the end, that the bill that emerges from this Committee will be something very much like a consensus and we will end up with 75 or 80 people voting for it on the floor, and maybe convincing our friends in the House that the better part of valor here is to maybe side with the Senate on this one. I commend you for your efforts. I look forward to continuing to work with you and hope to be a cosponsor in the near future. Thanks, Mr. Chairman. Chairman Specter. Well, thank you very much, Senator Carper, for those kind comments. Thank you, Mr. Griffin and Mr. Hoferer. Mr. Griffin. Thank you. Mr. Hoferer. Thank you, Senator. Chairman Specter. I think this has been a very useful hearing and we are going to plod ahead to try to get this all done. Mr. Hoferer. Good luck to you, sir. Chairman Specter. That concludes the hearing. 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