[Senate Hearing 109-348]
[From the U.S. Government Publishing Office]
S. Hrg. 109-348
ASBESTOS: MIXED DUST AND FELA ISSUES
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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
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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
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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
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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.
[Whereupon, at 11:45 a.m., the Committee was adjourned.]
[Questions and answers and submissions for the record
follow.]
[Additional material is being retained in the Committee
files.]
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