[Senate Hearing 109-348]
[From the U.S. Government Publishing Office]



                                                        S. Hrg. 109-348
 
                  ASBESTOS: MIXED DUST AND FELA ISSUES

=======================================================================

                                HEARING

                               before the

                       COMMITTEE ON THE JUDICIARY
                          UNITED STATES SENATE

                       ONE HUNDRED NINTH CONGRESS

                             FIRST SESSION

                               __________

                            FEBRUARY 2, 2005

                               __________

                          Serial No. J-109-2B

                               __________

         Printed for the use of the Committee on the Judiciary




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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

                              ----------                              

                      WEDNESDAY, FEBRUARY 2, 2005

                    STATEMENTS OF COMMITTEE MEMBERS

                                                                   Page

Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont.     2
    prepared statement...........................................    90
Specter, Hon. Arlen, a U.S. Senator from the State of 
  Pennsylvania...................................................     1

                               WITNESSES

Brickman, Lester, Professor of Law, Benjamin N. Cardozo Law 
  School of Yeshiva University, New York, New York...............    11
Epstein, Paul E., M.D., Clinical Professor of Medicine, Chief, 
  Pulmonary and Critical Care Medicine, Penn Medicine at Radnor, 
  Radnor, Pennsylvania...........................................    14
Griffin, Donald F., Director of Strategic Coordination and 
  Research, BMWED-Teamsters, Washington, D.C.....................    34
Hoferer, Paul, Vice President and General Counsel, BNSF Railway, 
  Forth Worth, Texas, on Behalf of the Association of American 
  Railroads......................................................    32
Martin, Michael B., Maloney, Martin and Mitchell, LLP, Houston, 
  Texas..........................................................     7
Rodman, Theodore, M.D., Retired Professor of Medicine, Ardmore, 
  Pennsylvania...................................................    12
Weill, David, M.D., Associate Professor, Division of Pulmonary 
  and Critical Care Medicine, University of Colorado Health 
  Sciences Center, Denver, Colorado..............................     9
Welch, Laura, M.D., Medical Director, Center to Protect Worker 
  Rights, Silver Spring, Maryland................................     5

                          QUESTION AND ANSWER

Response of Dr. Laura Welch to a question submitted by Senator 
  Coburn.........................................................    40

                       SUBMISSIONS FOR THE RECORD

Brickman, Lester, Professor of Law, Benjamin N. Cardozo Law 
  School of Yeshiva University, New York, New York, prepared 
  statement......................................................    44
Epstein, Paul E., M.D., Clinical Professor of Medicine, Chief, 
  Pulmonary and Critical Care Medicine, Penn Medicine at Radnor, 
  Radnor, Pennsylvania, prepared statement.......................    71
Griffin, Donald F., Director of Strategic Coordination and 
  Research, BMWED-Teamsters, Washington, D.C., prepared statement    73
Hoferer, Paul, Vice President and General Counsel, BNSF Railway, 
  Forth Worth, Texas, on Behalf of the Association of American 
  Railroads, prepared statement..................................    78
Martin, Michael B., Maloney, Martin and Mitchell, LLP, Houston, 
  Texas, prepared statement......................................    92
Rodman, Theodore, M.D., Retired Professor of Medicine, Ardmore, 
  Pennsylvania, prepared statement...............................   105
Weill, David, M.D., Associate Professor, Division of Pulmonary 
  and Critical Care Medicine, University of Colorado Health 
  Sciences Center, Denver, Colorado, prepared statement..........   107
Welch, Laura, M.D., Medical Director, Center to Protect Worker 
  Rights, Silver Spring, Maryland, prepared statement............   114


                  ASBESTOS: MIXED DUST AND FELA ISSUES

                              ----------                              


                      WEDNESDAY, FEBRUARY 2, 2005

                              United States Senate,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 9:30 a.m., in 
room SD-226, Dirksen Senate Office Building, Hon. Arlen 
Specter, Chairman of the Committee, presiding.
    Present: Senators Specter, Hatch, Grassley, Cornyn, Coburn, 
Leahy, Feinstein, Durbin, and Carper (ex officio).

 OPENING STATEMENT OF HON. ARLEN SPECTER, A U.S. SENATOR FROM 
                   THE STATE OF PENNSYLVANIA

    Chairman Specter. Good morning, ladies and gentlemen. The 
Judiciary Committee will now proceed.
    This hearing will deal with the proposed legislation on 
asbestos. We will take up two subjects, although I hope the 
issue on the Federal Employers Liability Act will be largely 
resolved.
    Our principal concern this morning is on the issue of 
disease caused by asbestos contrasted with disease caused by 
silicosis or other airborne particles. We are moving along on 
what I still hope and project will be a very early timetable.
    As you all know, a draft bill has been circulated. There 
have been agreements on many of the contested issues as a 
result of very extensive meetings held among the stakeholders 
presided over by Judge Becker, former Chief Judge of the Court 
of Appeals for the Third Circuit, who is with us today. On 
issues where understandably we cannot find consensus and 
agreement, decisions have been made on what is viewed as an 
equitable and appropriate handling of the issue.
    The matter of asbestos versus silicon is a challenging one, 
and our preliminary findings are that it is possible to 
distinguish in almost all cases what is caused by asbestos and 
what is caused by silicon. And we want to refine that even 
further to see how we can define that in legislative terms so 
that individuals who are suffering from both silicosis as well 
as asbestosis are not precluded from having claims for their 
silicosis ailments, but that we do not have people who have 
been compensated for asbestosis go back and have a second 
recovery which is unjustified. This is a very knotty problem, 
and it could be enormously problemsome for any proposed 
legislation. But that is what we are working on.
    The draft bill was submitted some time ago. A few remaining 
blanks will be inserted as promptly as we can work them 
through, with the proposed bill to be filed of record.
    With respect to the issue on the Federal Employers 
Liability Act, there has been a concern that those in workmen's 
compensation not be treated better and people in FELA not be 
treated worse, that there be an equality. And there have been 
many, many, many discussions, which is characteristic of what 
we have done generally. And the parties are again reportedly 
very close to an agreement, and I am informed that if there is 
ultimately no agreement, there is an agreement that the bill 
should provide for language that within a certain time frame 
the issue would be submitted to compulsory arbitration, which 
would be a good resolution with the parties agreeing to that 
kind of conclusion. So we are moving ahead.
    We have very good attendance today, and with that statement 
of three and a half minutes, I am going to yield to my 
distinguished Ranking Member, Senator Leahy.

  STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR FROM THE 
                        STATE OF VERMONT

    Senator Leahy. Thank you, Mr. Chairman. And I also commend 
you for starting on time, which is a nice way to do things 
here. And I commend you for holding the hearings. We have tried 
very hard in the last 2 years to get a bipartisan consensus on 
this issue. I was talking to Judge Becker on the way in, and I 
commended him, as both Senator Specter and I have. His work on 
this has been herculean, and I think it is one of the reasons 
why we are this far along. He also said the various 
stakeholders have worked diligently with him, and I think that 
is why we are so close to an agreement on many of the aspects 
of the national trust fund to fairly compensate victims of 
asbestos exposure.
    I am worried that it appears that some special interests 
are trying to limit their liability in cases not related to 
asbestos through a last-minute and I believe overly broad 
provision that could jeopardize years of work by both 
Republicans and Democrats trying to develop an asbestos trust 
fund.
    Despite its title, I am afraid that the latest draft would 
dramatically alter the proof requirements and recovery rights 
within the tort system for ``any personal injury claim 
attributable to exposure to airborne dust, fibre, or 
minerals.'' I put a chart up which shows this.
    The chart shows the relevant language from the latest 
asbestos draft. This sort of 11th hour provision was not in the 
bill reported by this Committee last Congress or in the 
substitute bill considered by the full Senate last year. It is 
not limited to so-called mixed dust. It appears to cover 
hundreds and perhaps thousands of injuries caused by airborne 
substances other than asbestos, including silicosis, black lung 
disease, even lead poisoning. That is over-reaching.
    The Leahy-Hatch medical criteria adopted unanimously by 
this Committee in the last Congress and agreed to by all the 
stakeholders addressed only asbestos-related injuries. The 
purpose of this legislation has always been to address 
compensation for asbestos victims, not to provide compensation 
for injuries caused by other material. As a matter of fact, I 
am glad to see Dr. Laura Welch here for an encore performance 
before this Committee. She provided insightful testimony and 
critical assistance with the development of the Leahy-Hatch 
medical standards for compensating asbestos-related disease 
that we crafted in the last Congress.
    It is clear to me that requiring victims to prove that 
asbestos was not a cause of their injuries in court would 
preempt State law. It would shift the burden of proving 
defenses to plaintiffs and greatly expand the scope of 
liability protection for corporations without adding a 
balancing or corresponding method of compensation for 
additional victims.
    Now, remember, we are taking away people's rights to jury 
trials in this legislation. In doing that, we should always 
balance--if you are taking away rights, you have got to balance 
that with having other rights given to them.
    Both my grandfathers, my Irish grandfather and my Italian 
grandfather, worked as stone cutters in the granite quarries of 
Vermont. Both suffered from silicosis because of the workplace 
exposures to stone dust. One of my grandfathers I never knew 
because he died at the age of 35 from that.
    Now, they did not have asbestos-related disease, so they 
would not have qualified for compensation under the proposed 
trust fund. And under this language, they would have faced 
unprecedented legal hurdles to recover any compensation in a 
court of law. It is not fair, and I do not find it acceptable.
    Now, the biggest danger to enacting bipartisan asbestos 
legislation is over-reaching by some interests for immunity 
from lawsuits brought by victims with legitimate injuries 
caused by silica or other substances. So I hope those who are 
pushing this overly broad sort of last-minute--I hate to call 
it a Christmas tree, maybe Christmas present might be better--
legislation will step back and realize that we are trying--
let's not kill the greater good by some last-minute, special 
interest legislation.
    The second issue we are addressing today should be easier 
to resolve in a fair manner. FELA, the Federal Employers 
Liability Act, is a unique statute. It has provided workers' 
compensation benefits for railroad workers and provided 
compensation tort law for injuries to railroad workers such as 
asbestosis. The latest asbestos draft bill overrides FELA for 
victims of asbestos exposure. But by preempting FELA, the 
proposal also eliminates the railroad workers' compensation 
program, even though all other workers' compensation programs 
remain intact in the bill. I think we can change that because 
it would not be fair.
    I commend the representatives of the railroad workers for 
coming to the table to bargain in good faith for special awards 
under the proposed trust fund. I hope the representatives of 
the railroads will do the same.
    I look forward to working with the Chairman, and I want to 
commend him again for the enormous amount of time and effort he 
has put into this, and Senator Feinstein and other members of 
the Committee and the stakeholders. We can resolve these 
efforts. We can bring about a solution.
    Mr. Chairman, I will put the rest of my statement in the 
record. This was somewhat long, but I wanted people to 
understand that we are getting so many calls in my office from 
all the stakeholders, and I wanted them to know just where I 
was. And, of course, Senator Hatch and I worked so hard on this 
last year to get the medical criteria in there.
    Thank you.
    [The prepared statement of Senator Leahy appears as a 
submission for the record.]
    Chairman Specter. Thank you very much, Senator Leahy. When 
you talk about hard work on this bill, it applies far and wide, 
with what Senator Hatch and you did last year in originating 
the idea of the trust fund, which after a lot of analysis, is, 
in my judgment, the only way we are going to move toward a 
solution here. And we have had very lengthy hearings, and 
Senator Feinstein has been in the forefront last year and again 
this year. She and I sat--she is considering a bill of her own 
or perhaps we will work a bill out. The legislative process 
here I think is all going to--I am optimistic it will all come 
together in the end. How we will parse it through and how we 
will work it through remains yet to be seen, and that is 
precisely what we are doing.
    Again, I think the number of meetings where Judge Becker 
has presided are now 38 in number, in addition to many, many 
individual meetings and calls on a continuing and constant 
basis. During the league championship game in Philadelphia a 
week ago Sunday, Judge Becker was working on Sunday calling 
some of the witnesses who are on this panel. And I was not 
totally cooperative while the game was in play, but a little 
during half-time and a little during a break. And I will tell 
you that Judge Becker handed me the cell phone after talking to 
some of these people while McNabb was running, and I declined--
and not respectfully. I just declined.
    Well, we have asked the stakeholders to produce witnesses 
today. We have offered two slots for AFL-CIO. They felt that 
our lead witness would be their spokesperson on this issue, and 
she is Dr. Laura Welch, Medical Director for the Center to 
Protect Worker Rights, a research and development institute 
affiliated with the building and construction trades of AFL-
CIO. She has held faculty positions at Yale, George Washington 
University, is the author of over 50 peer-reviewed publications 
and technical reports in the field of occupational and 
environmental medicine. She has many years of experience in 
medical surveillance programs for asbestos. Dr. Welch received 
her medical degree from the State University of New York at 
Stony Brook in 1978 and a bachelor's from Swarthmore College in 
1974.
    We have, as is our custom, established a 5-minute rule 
which we would ask you to observe, and there will be time to 
amplify your views during the question-and-answer period. And I 
think it best to start with 5-minute rounds among the members 
so that people get at least a chance to ask without waiting 
throughout the entire morning. But we will have multiple 
rounds, and we will be here as long as any member has questions 
and as long as any panelists have something that they want to 
add.
    So you are the lead-off, Dr. Welch. Thank you for joining 
us and the floor is yours.

  STATEMENT OF LAURA WELCH, M.D., MEDICAL DIRECTOR, CENTER TO 
         PROTECT WORKER RIGHTS, SILVER SPRING, MARYLAND

    Dr. Welch. Thank you very much for the opportunity to 
appear here, and as everyone has heard already, I had the honor 
of assisting the Senate in developing the medical criteria 
going into this legislation. So I will have some comments on 
how I think this Section 403 integrates with that. But I 
understand that the main concern is that cases of asbestosis 
would also be filed as injury due to other dust, such as 
silica. I really do not think that is a problem. Asbestosis and 
silicosis really are different diseases, and they are separable 
from each other based on the history of exposure, the chest X-
ray, and pulmonary function testing.
    I was able to read Dr. Epstein's testimony before coming 
here this morning, and he is going to discuss it in more 
detail. So I am just going to defer to him to describe how 
silicosis and asbestosis are different. But really, the history 
is different, the X-ray is different, the pulmonary function 
tests are different. They are really fairly easy to separate.
    Senator Leahy has already pointed out but I want to re-
emphasize that the medical criteria for this fund were designed 
to identify and compensate workers or individuals with 
asbestos-related diseases. And I think a lot of work went into 
the development of criteria that do not compensate for diseases 
that are not related to asbestos. The X-ray and pulmonary 
function test criteria that are in the bill identify asbestosis 
and the pleural disease caused by asbestos. And, in addition, 
the medical criteria require a physician statement that 
asbestos was a substantial contributing cause to the disease 
that is being put forth for compensation and excluding other, 
more likely causes of that pulmonary condition. So essentially 
the medical report will say this is asbestosis and that the 
physician has considered other cases such as silicosis and is 
not a more likely cause.
    So it is really set up so an applicant has to have 
significant lung disease with impairment caused by asbestos to 
be compensated under the fund. So we are not going to be seeing 
other diseases like silicosis being compensated under this 
fund.
    So in some ways, this term that has been used of ``mixed 
dust disease,'' and I wanted to just state that the textbook 
definition of mixed dust pneumoconiosis has nothing to do with 
asbestos. Mixed dust pneumoconiosis is caused by simultaneous 
exposure to crystalline and silica and other dusts, like iron 
oxides, coal, and graphite. So asbestosis and silicosis 
together are not mixed dust disease. And I know that the other 
doctors on the panel are going to talk about how likely that is 
to occur. There may be some that have both diseases, but that 
is really very rare.
    Now, let me make a couple comments on the specific language 
of the bill. The language was up there a little while ago, but 
it states that, ``To proceed with a civil suit for a disease 
attributable to an airborne, dust, fibre, or mineral, the 
claimant must prove that their functional impairment was not 
caused by exposure to asbestos.'' And as a physician, I think 
that is an impossible statement to respond to. I cannot swear 
exposure to asbestos made no contribution to a person's lung 
disease. Almost everyone who has lung disease in this country 
from silica or from anything else will have had some exposure 
to asbestos, and the bill would require me to say there was no 
contribution from that.
    I can make an affirmative statement that this is 
asbestosis, that asbestos is a substantial contributing cause, 
that it is the primary cause, that the disease is another 
disease. But to say there was absolutely no physiologic 
contribution at all from asbestos is really not medically 
possible. So I have a lot of concern with that particular 
language.
    In addition, the scope of the diseases and exposures 
covered by the term ``personal injury claim attributable to 
exposure to airborne dust, fibre, or minerals,'' I started to 
make a list, and that term ``mineral'' alone encompasses over 
500 different substances. It includes all metals and metal 
compounds. So there is a range of lung diseases that would be 
impacted by that language. In addition to asbestosis and 
silicosis, it would include chronic beryllium disease, asthma 
that is caused by wood dust or other dusts, cotton dust 
disease, coal workers' pneumoconiosis. There is a list as an 
appendix to my written testimony that goes through that in more 
detail.
    And then, in addition, minerals cause diseases that are not 
lung disease: lead poisoning, mercury causes kidney disease, 
arsenic causes neurologic injury, chromates cause contact 
dermatitis. It is a very long list. So any person with a 
personal injury claim, for example, lead poisoning, would have 
to submit the evidence required in 403, even though the disease 
of lead poisoning has nothing to do with asbestos exposure and 
might not even need a chest X-ray for diagnosis. And when I was 
making my list of other conditions and exposures, I would say 
that the language could cover personal injury claims for 
medical malpractice as well because there are metals that are 
used as therapeutic drugs. Lithium, for example, is used to 
treat bipolar disorder. Platinum is a cancer chemotherapeutic 
that is used for a lot of different agents. And I do not think 
the intent of this legislation was to reach out into other 
areas that are not even product liability. But the way I read 
it, it would.
    Chairman Specter. Dr. Welch, your time is up. Could you 
summarize, please?
    Dr. Welch. Okay. The only other point I wanted to make was 
everybody has had exposure to asbestos who was alive in the 
1970's. There is asbestos in everyone's lungs. So the 
requirement that if you had asbestos exposure you come under 
this bill would include an untold number of people. So I would 
agree with Senator Leahy's initial comments. My impression is 
that the range of diseases, conditions, exposures that are 
included under this language is way too broad, and trying to 
solve a problem of this combined asbestosis and silicosis that 
as a physician specializing in the field I do not see presents 
a problem.
    So thank you very much, and I could answer questions.
    [The prepared statement of Dr. Welch appears as a 
submission for the record.]
    Chairman Specter. Thank you, Dr. Welch. We will be coming 
back to you for questions, which will give you an opportunity 
to amplify your testimony.
    Our second witness is Mr. Michael Martin from the law firm 
of Maloney, Martin and Mitchell in Houston. For 15 years, he 
has been a specialist in environmental toxic torts after his 
father was diagnosed with asbestosis. He represented families 
suffering from occupational diseases--silicosis, asbestosis, 
and many others. He has been a member of the Texas State 
Legislature, was twice named Texas Monthly's 10 Best 
Legislators, law degree from South Texas College in 1985, and a 
bachelor's from the University of Texas in 1982.
    Thank you for joining us, Mr. Martin, and we look forward 
to your testimony.

 STATEMENT OF MICHAEL B. MARTIN, MALONEY, MARTIN AND MITCHELL, 
                     L.L.P., HOUSTON, TEXAS

    Mr. Martin. Thank you, Mr. Chairman, and it is an honor and 
a privilege to be before you here today. I find it ironic, 
actually, that I am standing here or sitting here before you 
talking about silicosis when this august body declared war on 
silicosis in 1932 when the disaster surrounding silicosis first 
hit this country. And here we are in 2005 still talking about 
the issue.
    I have spent a large part of my legal career specializing 
primarily in silicosis cases. I really do not do much other 
types of occupational lung disease cases. And some of my 
clients that are currently active and on file and have cases 
are individuals who are truly sick at young ages. My client 
Rafael Martinez is a victim of a bilateral lung transplant at 
the age of 32. My client Rick Mahar in Washington is a victim 
of a bilateral lung transplant at the age of 42. These 
gentlemen have had their lungs taken out of their body, and 
hyalinized silicotic nodules and conglomeration of silicotic 
nodules were found as a product as a result of their employment 
as sandblasters, which involves very intense exposure to silica 
dusts.
    But it cannot be said in looking at the pathology of those 
gentlemen, which we have and can confirm, that there is not 
some asbestos in their lungs because as Dr. Churg, who I think 
everyone on the panel is familiar with, as noted in his book, 
``The Pathology of Occupational Lung Disease,'' over the past 
50 years some 50 million workers were exposed to asbestos, and 
if you add to that the general environmental exposure to 
asbestos, everyone in this room can qualify as a person who was 
exposed to asbestos.
    No doubt Mr. Mahar and Mr. Martinez, two people who suffer 
from acute silicosis and are victims of a rapidly progressive 
disease that caused their lung transplantations, certainly had 
asbestos in their lungs, but they did not have asbestosis.
    And as I look at Section 402 or 403(a), as provided and 
demonstrated before the Committee, the primary problem I see 
from a pleading practice as a lawyer is that it requires me as 
a lawyer representing a silicosis victim on claims that are 
substantially smaller in number across the country than 
asbestos cases, it requires me to plead a negative. It requires 
me to plead that something does not exist. If I file a pleading 
for acute silicosis or accelerated silicosis or chronic 
silicosis, that should be dispositive. If I file a pleading for 
berylliosis or if I file a pleading for hard metal lung 
disease, all of which are diseases caused by other minerals or 
heavy metals, that should be dispositive.
    But what this language does is shifts the burden of proof 
to me to prove that something does not exist, and then requires 
me to say that my client was never exposed to asbestos, which I 
probably can never do if you take Dr. Churg's opinion on its 
word that most workers in the workplaces across the country and 
in the industrial environment have been exposed to asbestos.
    So this double-negative scenario that the language presents 
under 403(a) is very problematic, and it creates this risk: It 
creates the risk of throwing a person like Rick Mahar, a victim 
of a bilateral lung transplant, into the Asbestos Trust, where 
he does not belong, where he would not get compensation, and 
for his family, his future is in great question. And to throw 
him into a trust would potentially delay the resolution of his 
claim and ultimately result in the extinguishment of his claim 
because that trust is not designed to provide him a remedy. 
Moreover, those companies that are potentially responsible for 
creating the trust are not responsible for causing his disease. 
So there is a fundamental unfairness on both sides if you 
include silica, silica-related claims, mineral dust claim in 
the same breath with asbestos, which has been a ubiquitous 
substance involving high numbers and large numbers of 
litigation.
    In summary, Mr. Chair, I think it is important that we look 
at this language very carefully and identify the fact that it 
shifts the burden inappropriately, and it creates the risk that 
clients who are truly ill from silicosis or other serious lung 
diseases not associated with asbestos will have their remedies 
extinguished and not have any recourse at all to secure and 
provide some security for the future of their families and 
themselves.
    With respect, we would hope that 403(a) be relooked at in 
terms of narrowing its scope and application.
    [The prepared statement of Mr. Martin appears as a 
submission for the record.]
    Chairman Specter. Thank you, Mr. Martin.
    For the record, it should be noted that Senator Grassley 
and Senator Hatch have departed for a Finance Committee 
hearing. Senator Grassley is Chairman and Senator Hatch is the 
senior member. And thank you for your testimony, Mr. Martin. We 
will be coming back to you to utilize your experience to see if 
you have some ideas as to how we can insert the legislative 
language. You have had experience in the field and as a 
legislator as to how we do it, how we separate them out to be 
sure that people who have disease from silica can collect but 
not collect it twice.
    Our third witness is Dr. David Weill from the University of 
Colorado Health Sciences Center in Denver, Associate Professor 
of Medicine, Associate Director of the Lung Transplant Program, 
diagnosed and treated numerous patients with asbestosis or 
silicosis, and is a certified so-called B reader. He has 
recently been involved in reviewing such matters and lawsuits, 
a medical degree from Tulane, and a bachelor's also from 
Tulane.
    Thank you for joining us, Dr. Weill, and the floor is 
yours.

 STATEMENT OF DAVID WEILL, M.D., ASSOCIATE PROFESSOR, DIVISION 
OF PULMONARY AND CRITICAL CARE MEDICINE, UNIVERSITY OF COLORADO 
            HEALTH SCIENCES CENTER, DENVER, COLORADO

    Dr. Weill. Senator Specter, Senator Leahy, and members of 
the Judiciary Committee, thank you for the opportunity to 
testify before you about silicosis and asbestosis. I am board 
certified in internal medicine and pulmonary medicine and have 
diagnosed and treated silicosis and asbestosis patients. Last 
spring, I was invited to serve as a visiting professor in 
Beijing, China, where I saw hundreds of cases of asbestosis and 
silicosis, and many of these cases were very advanced. The 
Chinese experience, of course, was sobering and far different 
from what I have seen in the United States, where genuine cases 
of these diseases are, fortunately, quite rare.
    It is critical to understand that asbestosis and silicosis 
are very distinct diseases. They are not easily confused in 
practice, and it is very rare for one person to have both 
diseases.
    There are several different types of silicosis, but in the 
United States today, chronic simple silicosis is the most 
common form. It is characterized by rounded nodules, like tiny 
marbles, found principally in the upper lobes of the lungs. In 
its lower grade forms, simple silicosis usually does not result 
in respiratory impairment, although it may progress over time. 
When progression does occur, it tends to be slow and depends on 
several factors, most importantly whether or not exposure 
continues.
    If there is respiratory impairment, it typically is 
restrictive or involves both restriction and obstruction. 
Unlike silicosis, which is characterized by the presence of 
small nodules in the lungs, asbestosis involves fibrosis in the 
area of the lungs where oxygen exchange takes place. Asbestosis 
can result in both a restrictive pattern of disease--
effectively a reduction in the lung volume--and interference 
with the gas exchange process. From a pathologic, radiographic, 
and clinical perspective, asbestosis and silicosis are very 
distinct diseases.
    It is theoretically possible for one person to have both 
diseases, but in my clinical experience in the United States, I 
have never seen a case like this. Even in China, where I saw 
workers with jobs involving high exposure to asbestos and 
silica, I did not see anyone or review the chest X-rays of 
anyone who had both silicosis and asbestosis.
    I would now like to talk about the recent increase in 
silica litigation. In the last few years, I have reviewed 
numerous diagnoses in the ongoing Texas MDL concerning 
silicosis liability. Almost invariably these cases have 
involved alleged simple chronic silicosis in low perfusion 
categories where there is no significant respiratory impairment 
due to silica exposure.
    From a medical standpoint, it is puzzling to see so many 
ostensible silicosis cases in such a short period of time. 
Although the statistical evidence is imperfect, few would 
question the proposition that industrial dust control 
mechanisms have made silicosis much less common today than it 
was a generation ago. This conclusion is supported by reviews 
of death certificates undertaken by NIOSH, which reports that 
``Over the past several decades, silicosis mortality has 
declined from well over 1,000 deaths annually in the late 
1960's to fewer than 200 pre year in the late 1990's.'' This 
decline should be associated with fewer and fewer silica 
lawsuits. Instead, my experience is that silica lawsuits are 
sharply increasing.
    I have several observations about this:
    First, nearly all of the litigation diagnoses come not from 
treating physicians, but from screening companies that provide 
their diagnostic services to plaintiffs' law firms.
    Second, among the 3- to 400 silicosis claims I have 
reviewed, only two involve actual silicosis.
    Third, many of the silicosis plaintiffs whose films I have 
reviewed have also been diagnosed by plaintiff experts, at one 
time or another, with asbestosis. In most of these cases, the 
plaintiff was X-rayed twice. The first X-ray was taken 
typically as part of an asbestosis screening conducted several 
years ago and resulted in the conclusion that the plaintiff had 
abnormalities consistent with asbestosis. Subsequently, the 
plaintiff returned for a second X-ray and a new silicosis 
diagnosis was based on the second film which, in all instances, 
was very similar to the first film. Silicosis was not mentioned 
in the first report and asbestosis wasn't mentioned in the 
second report.
    In other cases, the claimant was X-rayed only once, yet 
received two different diagnoses based on the same film. This 
must be litigation driven because there is no medical 
explanation for it.
    There are real cases of silicosis, but the majority of 
silicosis diagnoses I have seen in litigation are simply not 
valid. As a physician, I find this very concerning. The current 
rise in silicosis lawsuits cannot be explained medically. Most 
of these claims have involved workers who originally filed 
asbestosis claims, but it is exceedingly rare for a patient to 
have both diseases.
    As based on characteristic chest X-ray findings and other 
clinical factors, it should not be difficult for a doctor to 
distinguish between these two conditions. Genuine confusion in 
a medical setting would be rare.
    Thank you, Mr. Chairman.
    [The prepared statement of Dr. Weill appears as a 
submission for the record.]
    Chairman Specter. Thank you very much, Dr. Weill.
    Our next witness is Professor Lester Brickman, from the 
Benjamin Cardozo School of Law, Yeshiva University of New York. 
His expertise includes administrative alternatives to mass tort 
litigation, a member of the New York State Bar Association 
Committee on Professional Ethics, the Committee of Professional 
Responsibility of the New York Bar. He has been consulted for 
the United States Office of Education, the National Science 
Foundation, Council on Legal Education for Professional 
Responsibility, master of law degree from Yale, a law degree 
from Florida and bachelor's from Carnegie Mellon.
    Thank you for being with us today, Professor Brickman, and 
we look forward to your testimony.

  STATEMENT OF LESTER BRICKMAN, PROFESSOR OF LAW, BENJAMIN N. 
  CARDOZO LAW SCHOOL OF YESHIVA UNIVERSITY, NEW YORK, NEW YORK

    Mr. Brickman. Thank you, Mr. Chairman, Senator Leahy, in 
his absence, and Members of the Committee.
    I welcome the Committee's interest in addressing a critical 
issue in the proposed FAIR Act. As proposed, the FAIR Act would 
preclude claimants with asbestos-related conditions from 
bypassing the National Asbestos Compensation Program and filing 
ostensible silica claims in State and Federal courts, seeking 
recovery for what is, in reality, the asbestos-related 
condition or, even worse, filing a claim with the program and 
then seeking additional money for the same medical condition by 
pursuing silica claims in court.
    Without this provision, the same entrepreneurial lawyers 
and their allies who brought us the elephantine mass of 
asbestos claims will simply continue the litigation under 
another name. Indeed, this is already happening. A Federal MDL 
proceeding in Texas on silicosis is overseeing over 10,000 
silicosis claims. As the chart being shown illustrates, over 60 
percent of these silica claimants have previously filed 
asbestos claims with the Manville Trust. One would expect a 
similar result for silica lawsuits pending in other 
jurisdictions. Let me explain what is going on.
    First, the very consideration of asbestos litigation by the 
Congress is motivating lawyers to switch to silicosis. Today, 
you have already heard doctors testify that there is no medical 
explanation for the recent and rapid increase in silicosis 
claims. Indeed, there is a broad consensus and the statistics 
indicate that the incidence of silicosis is decreasing. Yet, 
when the Congress started to focus seriously on asbestos 
litigation reform, entrepreneurial lawyers and their allied 
mass screening enterprises began to shift to the manufacturer 
of silica lawsuits. Now, here are some astounding figures.
    For 26 years, until 2001, a major silica defendant faced as 
few as zero and as many as a few hundred claims a year. In the 
next few years, in the most recent few years, as legislation 
began to be seriously considered by the Congress, claims shot 
up into the thousands, reaching as many as 20,000, as the chart 
shows. That your serious consideration of asbestos litigation 
stimulated this sharp rise in silica claims is not merely 
conjecture on my part. Heath Mason, the co-owner of the mass 
screening entity, N&M, has testified that the Hatch bill was 
bad for his asbestos business, but good for his silicosis 
because ``it gets lawyers to have to change gears on what they 
think is going to work.''
    As one asbestos silica attorney ventured, ``Why reinvent 
the wheel?''
    These mass screenings are manufacturing silica claims at a 
rate never seen before.
    Second, the silicosis claims are being brought in the same 
relatively few ``magic'' jurisdictions where asbestosis claims 
have been brought. As the current chart shows, Texas and 
Mississippi account for the vast majority of silicosis claims. 
For one defendant, they account for 90 percent of the claims 
filed against it.
    Third, advertisements routinely list screenings for both 
asbestos and silica. Note, the advertisement for a May 2002 
screening, with states in capital letters. Well, first, you 
have the billboard that reads, ``Have you been tested? 
Asbestos/Silica Disease Screening.'' And now you have the 
advertisement reading, ``Asbestosis, mesothelioma, cancer, lung 
cancer or silicosis.''
    Fourth, in using the same advertisements, the same 
screening companies, the same carefully selected B readers in 
the silica cases that they have used in nonmalignant asbestos 
cases, the lawyers are retreading their prior asbestos 
diagnoses into silica diagnoses for the same alleged injuries.
    So it is not surprising, as I mentioned before, that 
approximately 60 percent of silica plaintiffs in the silica MDL 
have received two diagnostic reports--one for asbestosis and 
one for silicosis. Dual diagnosing, as we have heard, occurs in 
various ways. Dr. William Oaks, for example, issued one report 
where he interpreted the X-ray as consistent with silicosis and 
without pleural plaques and in the other report, written on the 
same day, with regard to the same X-ray, interpreted as 
consistent with asbestosis.
    With dual diagnoses, lawyers can get two claims for the 
price of one or perhaps for a modest add-on. Heath Mason 
testified that his screening company pays one of his doctors 
$50 extra to write a second diagnostic report for silicosis 
based upon the same tests the doctors relied upon to diagnose 
asbestosis
    Chairman Specter. Professor Brickman, your time is up. 
Could you summarize it.
    Mr. Brickman. Yes, I will. Thank you.
    The FAIR Act, Mr. Chairman, should close this loophole. I 
understand that this is not a silica bill, and I do not expect 
that it will deal with pure silica claims, but it should not be 
possible to evade the National Asbestos Compensation Program by 
means of the entrepreneurial, if not fraudulent, conduct that I 
have described.
    Thank you, Mr. Chairman.
    [The prepared statement of Mr. Brickman appears as a 
submission for the record.]
    Chairman Specter. Thank you, Professor Brickman.
    We will turn now to Dr. Theodore Rodman, retired pulmonary 
physician who developed an expertise in occupationally related 
drug diseases early in his career. He began his career at the 
University of Pennsylvania Medical School and recently retired 
as a professor of medicine at Temple. He has examined and 
participated in the care of hundreds of patients with asbestos-
related lung diseases and reviewed X-rays on thousands of such 
patients. He is a member of numerous professional 
organizations, such as the American Thoracic Society, the 
American college of Chest Physicians, and the American 
Federation for Clinical Research, an M.D. from Penn and a 
bachelor's from Dickinson Law School.
    Thank you for coming to Washington today, Dr. Rodman, to 
give us the benefit of your expertise.

   STATEMENT OF THEODORE RODMAN, M.D., RETIRED PROFESSOR OF 
                MEDICINE, ARDMORE, PENNSYLVANIA

    Dr. Rodman. Thank you very much, Mr. Specter, for giving me 
the opportunity to address the Judiciary Committee. Somehow or 
other I got the wrong understanding that the statement could be 
as long as 10 minutes. So I am certain that I will be cut off 
by you. Much of what I have to say is repetitive of what Dr. 
Weill had said. And although I have never met nor spoken to Dr. 
Weill, I endorse his statement in its entirety and would adopt 
it as my own.
    I am a 77-year-old pulmonary physician who retired about 4 
years ago. After about 50 years of practice, teaching and 
research, I ended my career as a professor of medicine at 
Temple University Medical School. I began my medical career at 
the University of Pennsylvania Medical School and was on its 
faculty for a number of years.
    Early in my career, I developed an interest in occupational 
lung diseases. In the following half-century, I examined and 
participated in the care of hundreds of such patients. I have 
reviewed X-ray studies on thousands of such patients. By virtue 
of its industrial base, the Delaware Valley, with its 
shipyards, power plants, oil refineries and manufacturing 
facilities, has had no shortage of patients with occupationally 
related lung disease. The commonest exposure by far was to 
asbestos in shipyard and construction industry workers. We also 
saw many who had been exposed to silica, primarily those who 
worked in mines, quarries, tunnels, and foundries. Of the 
hundreds whom I examined, I can remember only one or two who 
gave a clear-cut history of significant occupational exposure 
to both asbestos and silica--not surprising, considering the 
disparity in occupations in which asbestos and silica exposure 
occur.
    Among the thousands of chest X-rays, which I reviewed in 
asbestos- and silica-exposed individuals, I cannot remember a 
single chest X-ray which showed clear-cut findings of both 
asbestos exposure and silica exposure.
    During the decades of the 1970's, 1980's and 1990's, in 
connection with the asbestos litigation, I evaluated a large 
number of litigants. Not one of them had medical records 
suggesting a history of significant silica exposure. I found 
evidence of asbestos-related changes in many. I found no 
evidence of silica-related changes in any. I found no evidence 
in the reports of any physician, whether retained by the 
plaintiff or the defendants, that concluded that the patient 
had silica-related changes.
    On the basis of this personal experience, I have concluded 
that both asbestos- and silica-related changes and disease are 
common, but rarely occur in the same patient. The medical 
literature and textbooks with which I am familiar are 
consistent with my conclusion.
    In contrast, when we took care of the anthracite coal 
miners, combined occupational lung disease was seen commonly in 
the same patient. These miners were exposed to both coal dust, 
producing coal workers' pneumoconiosis, black lung, and silica, 
from drilling into stone, producing silicosis.
    The changes of both occupational lung diseases were readily 
apparent. This combination was, and still is, known as mixed-
dust pneumoconiosis. It is seen rarely in patients with 
asbestos-related disease because they are rarely exposed to 
silica.
    At this point, I was going to show a number of color 
illustrations, but I think that would be time-consuming, and I 
will postpone that hopefully for later.
    In conclusion, my experience in the asbestos litigation in 
the Philadelphia area has created in me the impression that the 
plaintiffs' attorneys had assembled a small collection of 
medical experts who were willing to perceive on chest X-rays 
and testify that asbestos changes were present when, in fact, 
none was. This impression was recently supported by a carefully 
controlled research study done at Johns Hopkins Medical School, 
in which review of these X-rays by a panel of impartial expert 
pulmonary radiologists confirmed the absence of asbestos-
related changes in the vast majority of these X-rays.
    I have been told that there has been a dramatic increase in 
the United States in the number of silica injury lawsuits, many 
initiated on behalf of plaintiffs who had previously received 
monetary awards for asbestos-related injuries. Based upon my 
experience that asbestos-related disease and silicosis very 
uncommonly occur in the same individual, and based upon my 
observations in the asbestos litigation in the Philadelphia 
area, I strongly recommend that medical evaluation for 
litigation purposes of such litigants should be done by an 
impartial group of physicians, free of any vested monetary 
interest in finding silicosis present or absent. This medical 
evaluation should include a careful review of all available 
prior medical records and X-rays.
    I have finished what I have to say.
    [The prepared statement of Dr. Rodman appears as a 
submission for the record.]
    Chairman Specter. Thank you, Dr. Rodman. We gave you a 
little extra time because of the confusion in information which 
you received.
    We turn now to our final witness on this panel, Dr. Paul 
Epstein, clinical professor of medicine at the University of 
Pennsylvania, board certified with a specialty in internal 
medicine and a subspecialty in pulmonary diseases.
    He spent a large portion of his career studying 
occupational lung disease and is certified at the National 
Institute of Occupational Health Safety, NIOSH, by its highest 
qualification rating as a so-called B reader of chest X-rays, 
people who have been occupationally been exposed to potentially 
toxic dust, such as asbestos, silica and coal dust. Over the 
past 30 years, he has personally examined 17,000 individuals 
who have been exposed to these substances. His medical degree 
is from Tufts and his bachelor's from Princeton.
    Thank you for joining us, Dr. Epstein, and we look forward 
to your testimony.

   STATEMENT OF PAUL E. EPSTEIN, M.D., CLINICAL PROFESSOR OF 
  MEDICINE, CHIEF, PULMONARY AND CRITICAL CARE MEDICINE, PENN 
            MEDICINE AT RADNOR, RADNOR, PENNSYLVANIA

    Dr. Epstein. Thank you, Chairman Specter, and thank you, 
Senator Leahy and other Members of the Committee. I appreciate 
your asking me to testify today.
    I would like to describe a little about the diagnosis of 
dust-related diseases of the lung. When an individual inhales 
certain types of potentially toxic dust, the lung may react by 
developing some scar tissue. This combination of the presence 
of dust in the lung, the development of scar tissue, is known 
by the medical name pneumoconiosis. There are several different 
kinds of pneumoconiosis, and the most common are asbestosis and 
silicosis.
    Both asbestosis and silicosis are caused by long-term 
inhalation and retention of particular kinds of dust in the 
lung. Although each of these diseases requires a substantial 
amount of dust retention, a longer and more consistent daily 
exposure to silica dust is required in order to produce 
silicosis than the amount of asbestos needed to produce 
asbestosis.
    Lung diseases like asbestosis and silicosis are both 
characterized by scar tissue formation and take a long time to 
develop after the initial exposure. The time lapse between 
exposure and the onset of lung disease related to that exposure 
is called the latency period. And for both asbestos and silica 
exposure the latency period is at least 20 years.
    There is an individual susceptibility to the scar-producing 
effects of both asbestos and silica, so that if two individuals 
work side-by-side, one may develop the disease while the other 
may not. While both diseases share common factors, such as dust 
inhalation, scar tissue formation and a long latency period, 
each of them has a very different clinical appearance and can 
be recognized easily by their relatively distinct patterns of 
abnormality on the chest X-ray.
    For instance, asbestosis produces linear, streaky or 
feathery patterns on the chest X-ray, predominantly in the 
lower portions of the lung. This pattern of asbestos-related 
scar formation is almost always accompanied by patches of 
thickening of the membrane that covers the outer surface of the 
lung. These thickened patches are known as pleural plaques or 
pleural thickening. Frequently, the pleural plaques caused by 
asbestos exposure contain calcium that can be seen on the chest 
X-ray.
    Silicosis has quite a different appearance on the chest X-
ray. In this disease, the deposits of scar tissue occur in a 
distinct, rounded, nodular pattern, similar to the appearance 
of buckshot, and they are predominantly at the top of the lung 
rather than at the bottom of the lung. The rounded nodules of 
silicosis are not accompanied by pleural plaques or by pleural 
thickening. In other words, the X-ray appearance of these two 
dust-related diseases are vastly different.
    Abnormalities on breathing tests are also somewhat 
different in people who have asbestosis as compared with those 
who have silicosis. In asbestos, the characteristic changes 
cause a restriction of the amount of air that can fit inside 
the lungs, and there is a decrease in the efficiency of the 
lung tissue in taking up oxygen. These changes occur relatively 
early in the evolution of asbestosis, even when chest X-ray 
abnormalities are mild.
    On the other hand, people with silicosis often have no 
abnormalities on their breathing tests until the rounded 
nodules proliferate in great numbers and become larger in size. 
At that point, the volume of air in the lungs may decrease, and 
there may be a decrease in the person's ability to exhale air 
rapidly from the lungs.
    When people have both diseases, that is, both asbestosis 
and silicosis, the characteristic clinical and X-ray 
manifestations are each discernible as separate features and 
the diagnosis of dual disease processes can be made with 
relative ease.
    Over the course of the last 30 years, I have personally 
examined approximately 17,000 individuals who have been 
occupationally exposed to asbestos. These workers have held 
many different jobs, including those of shipyard workers, oil 
refinery employees, construction workers, steel mill employees, 
chemical workers, insulators, electricians, painters and 
riggers, to name a few.
    Additionally, I have evaluated many workers who are 
occupationally exposed primarily to silica, including coal 
miners, sandblasters, stone quarry workers, glass makers and 
refractory brick manufacturers. A large number of these workers 
were exposed to both silica and asbestos.
    While it is theoretically possible to have combined disease 
consisting of asbestosis and silicosis, it has been my clinical 
experience that the overwhelming majority of patients I have 
seen with asbestos-related disease have no evidence of 
silicosis. In fact, I can recall no more than about a dozen or 
so individuals who have had combined asbestosis and silicosis. 
And these were people who had substantial occupational exposure 
to silica, often in jobs that were separate from their 
subsequent jobs that involved exposure to asbestos.
    Chairman Specter. Dr. Epstein, your time is over. Could you 
summarize, please.
    Dr. Epstein. Yes. For this reason, it is my professional 
opinion that the dual occurrence of asbestosis and silicosis is 
a clinical rarity.
    Thank you.
    [The prepared statement of Dr. Epstein appears as a 
submission for the record.]
    Chairman Specter. Thank you very much, Dr. Epstein.
    Mr. Martin, you have been in the field. You have been a 
legislator. You think we can improve the formulation of a 
statute. What suggestion would you give us?
    Mr. Martin. I do think you can improve it, and this is what 
I would suggest. I think, in looking at 403, what you have to 
do is move away from the idea that a plaintiff has to require 
to prove a negative. I would suggest, as a solution to that, 
the issue of disclosure; that what a plaintiff should do under 
the circumstances the distinguished members of the panel have 
related to today, where there are retreads or double filings, 
is that a plaintiff should disclosure that up front. If he has 
already filed an asbestos claim, that should be disclosed, and 
that should be the point from which you legally then move.
    If a client walks into my office and he says, ``Well, I 
have already filed a claim for asbestos,'' my radar is going to 
go up because I agree with the panel that it is rare. I have 
had two cases involving asbestos and silicosis together in my 
entire career. And so I think one of the other questions that 
you have to look at in that disclosure is did these men who are 
attempting to file an additional claim for silicosis, what was 
their actual exposure at the workplace and did they really have 
exposure to silica? In those two instances, the two gentlemen 
sandblasted, which involved intense exposure to silica, 
resulting in their contraction of silicosis, and then later 
they were assigned to another job where the had to cut 
couplings for asbestos insulation on pipe, and they did both 
for several years.
    Chairman Specter. Dr. Epstein, you say that the medical 
determination is clear-cut on the X-rays?
    Dr. Epstein. Yes, it is.
    Chairman Specter. So why should there be a problem of 
someone who has collected from asbestos exposure, asbestosis, 
mesothelioma, being able to collect from silicosis if he or she 
has not actually been exposed to silica, if the evidence is 
conclusive as to what is the cause?
    Dr. Epstein. First of all, these are very rare, overlapping 
diseases. I think that part of the answer to that question is 
that the individual with asbestosis is probably more commonly 
impaired severely by that type of abnormality than is the 
person who has silicosis. The number of people who have 
silicosis at the present--
    Chairman Specter. If someone has collected from the 
Asbestos Fund, and he makes a claim for silicon exposure, and 
you take a look at the X-rays, and except in these very, very 
rare cases, it is demonstrated that he suffered from asbestos, 
then isn't he precluded from collecting from this silicon 
claim?
    Dr. Epstein. Yes.
    Chairman Specter. Professor Brickman, what is so 
complicated about defeating, you used the term 
``entrepreneurial'' in a pretty heavily pejorative, derisive 
comment, some entrepreneurial activity is still regarded as 
legitimate in our society, but where you have an array of 
experts here--Dr. Welch, from AFL-CIO, and Dr. Epstein, Dr. 
Rodman, Dr. Weill--and you could look at the X-rays and tell. 
They come in and make a claim for exposure to silica, and the 
X-rays give you the facts. So what is the problem?
    Mr. Brickman. In part, Mr. Chairman, 403 I think is being 
misrepresented. It does not say that you have to show you 
have--
    Chairman Specter. Never mind 403. Answer my question. What 
is the problem? You come in and make a claim for silica, and 
the X-rays show it is asbestos. Are you not ruled out 
automatically?
    Mr. Brickman. I am not speaking to the content of 403. So I 
do not claim any expertise in terms of the language. I do not 
see a problem in the way in which the implementation would 
occur. You do not require negation of exposure. You require 
negation of the cause of impairment, and that is a critical 
difference that I think would explain why the testimony against 
the provision really does not meet the test.
    If you claim impairment, then you must show that the 
impairment was not caused by asbestos. The medical testimony 
this morning is quite clear that the diagnosis of asbestosis is 
a reliable medical diagnosis when done by reliable medical 
experts.
    Chairman Specter. My red light went on during the middle of 
your answer, and I adhere meticulously to the time limits, so 
that I can ask my colleagues to do the same.
    Senator Leahy?
    Senator Leahy. Thank you, Mr. Chairman. I assume that there 
will be the ability to file follow-up questions with some of 
them.
    Chairman Specter. By all means, sure.
    Senator Leahy. Dr. Welch, after I started this process, 
about 2\1/2\ years ago now, held the first Committee hearing on 
asbestos litigation, all of the medical testimony we have had, 
including yours, has involved asbestos exposure only. The 
Leahy-Hatch medical criteria in the bill, is designed to apply 
to asbestos disease only, they do not apply to silica diseases. 
Now, I understand from your testimony today that there is no 
basis in medicine for the concern of some of the business 
community that asbestos claims could be transformed into claims 
for diseases caused by other dusts, asbestosis, silicosis, 
other dust diseases, different ones that can be differentiated 
upon pulmonary exams, X-rays and so on. Now, if that is 
correct, diseases causes by exposure to non-asbestos-related 
dust, fiber and minerals, would not meet the asbestos medical 
criteria you helped the Committee draft a couple years ago. Am 
I correct in that?
    Dr. Welch. That is correct.
    Senator Leahy. The latest draft Asbestos Bill requires 
victims of silica exposure, other airborne dust, fibres or 
minerals, to submit medical evidence that proves asbestos 
exposure did not cause their injury, basically proving a 
negative. If a non-asbestos victim could not meet this high 
evidentiary standing in court, then my understanding, they 
would be barred from suit, and they would be precluded from 
receiving any recovery in the trust fund.
    Dr. Welch. That is correct, because their disease would not 
meet the criteria under the trust fund, so they would not get 
compensation in the trust fund. But this languages seems to me 
to say they could not get compensation anywhere else either 
unless they could prove all these negatives, which in my 
opinion you really could not do. So they cannot be compensated 
under the trust fund because they do not have asbestosis, but 
they cannot go anywhere else either.
    Senator Leahy. Some of the testimony today has been that 
people of a certain generation are going to have, including 
myself, are going to have some level of asbestos in their lungs 
from an unknown source, is that correct?
    Dr. Welch. Correct.
    Senator Leahy. I love the expression ``those of a certain 
age,'' and now that I am 64, I understand it better.
    So would a doctor be able to determine that asbestos 
exposure absolutely did not cause a patient's impairment?
    Dr. Welch. I do not think he could say that.
    Senator Leahy. Mr. Martin, you have been a legislator too, 
as the Chairman has pointed out. I do not have all my questions 
with a celestial tone with it. But I am concerned that 
preemption of silica claims in this bill could leave silica 
victims, like my own grandfathers, without any remedy in court 
or the Asbestos Trust Fund. After all, we are taking away a 
right to jury here. Now, you have represented people exposed to 
silica for more than two decades I think you said in your 
testimony. During that time, have you ever been asked to prove 
that another airborne substance did not cause your client's 
injury during those 20 years?
    Mr. Martin. No, never. It has never become an issue. And I 
plead what I plead, and I have to prove what I plead. Either I 
meet my burden of proof or I do not. It is as simple as that, 
and that is the way the legal system has worked since the 
Founding Fathers wrote the Constitution.
    Senator Leahy. In fact that sort of suggests my next 
question. I mean are you aware of any other area of law where 
victims are required to plead and prove the substance other 
than the one alleged in the complaint was not a causal factor 
in their injuries?
    Mr. Martin. No, I am not, and it is nonsensical to have to 
prove something that should not even be relevant at trial 
because it is not part of what is being argued or pled as the 
injury in question.
    Senator Leahy. I understand from some of the business 
community that they are concerned that victims would be allowed 
to double dip, receive double recovery unless we include this 
expansive language in the draft. This so-called mixed-dust 
language in the latest bill does not preclude double recovery 
because nothing in the language hinges on whether a victim has 
recovered from the Asbestos Trust Fund. It seems simply to 
create an unprecedented shift in the burden of proving defense 
for claims outside the scope of asbestos. I have not tried any 
cases for a long time, but am I correct in that?
    Mr. Martin. Yes, I think you are, and I think the problem 
is, is that I do not think the language does solve the problem 
of double dipping or double recovery. I think it just attempts 
to preclude a greater number of victims who are not in the 
asbestos world and exposed to other dusts and other minerals, 
many of which I provided pictures of in my testimony. So I 
think the problem is, is that by including everybody in this 
group, you are stripping rights of a certain group of people, 
whereas there might be a narrow way you could craft this thing 
to deal with the double-dipping issue.
    Senator Leahy. Thank you, Mr. Chairman.
    Chairman Specter. Thank you very much, Senator Leahy.
    Senator Cornyn?
    Senator Cornyn. Thank you, Mr. Chairman.
    I think we can all agree that the Asbestos Trust Fund is 
designed to compensate people who are sick as a result of 
asbestos-related disease, and is not designed to compensate 
people for exposure to other carcinogens or create other 
medical problems. That is one of the reasons why I have 
concerns, for example, about a provision that is currently in 
the bill to compensate for colorectal cancer.
    Dr. Epstein, are you aware of any medical justification for 
tying the inhalation of asbestos fibres to colorectal cancer?
    Dr. Epstein. There have been a number of articles in the 
medical literature that have suggested that colorectal cancer 
is associated with asbestos exposure. I personally have gone 
over the literature in detail. That is not my opinion. But 
there is opinion within the medical literature that says that 
that is correct.
    Senator Cornyn. I admit that my understanding of the human 
anatomy is pretty elementary, but the idea that you can inhale 
an asbestos fibre and end up with cancer in your rectum or in 
your colon seems pretty far-fetched.
    Dr. Epstein. It does if you think of it as being inhaled. 
But frequently what happens is that the asbestos is inhaled in 
the lung, it is coughed up and is then swallowed. But in my 
opinion, that is not a valid cause of colorectal cancer.
    Senator Cornyn. Thank you for explaining that. That had not 
occurred to me.
    Professor Brickman, I know that you have talked to us a 
little bit about the abuses of mass screening of people who 
claim to have asbestos-related or silica-related disease. This 
bill, as currently written, provides up to $600 million for 
screening of potential claimants to the asbestos fund. Does 
that cause you any concerns, or how can we make this bill as 
strong as possible to prevent the kind of abuses that we see 
here demonstrated on your chart, where we hear from the medical 
experts that it is clear when somebody has silica-related 
disease as opposed to asbestos-related disease, but you have 
people here apparently claiming both?
    Mr. Brickman. Senator Cornyn, as you know, I have written 
extensively on the subject of asbestos litigation and have 
focused on asbestos screenings, writing a fairly substantial 
law review article on it, in which I describe the 
entrepreneurial model, which I would depict as reality rather 
than characterize it in any other way. That article sets forth 
what I see is occurring in asbestos litigation. And what I see 
now occurring in silicosis litigation: the same B-readers, the 
ones that the Manville Trust professional staff referred to 
generically as ``Dr. Bogus,'' are being hired by the same 
plaintiff lawyers, in some cases some new plaintiff lawyers, by 
the same screening entities, the same kind of false witness 
memories being implanted to generate witness testimony. These 
are the facts that I empirically support in my written 
statement.
    I believe you have the same thing going on now with 
silicosis litigation as occurs in the asbestos litigation. You 
have the phenomenon of the retreading of claims, which I have 
described in far more detail in my prepared statement, and what 
you also have now which is in anticipation of the possible 
passage of the FAIR Act is the bypass procedure, and this is 
not a medical cardiological process. The bypass procedure is 
where somebody who would otherwise claim 1/0 asbestosis who is 
unimpaired and who, under the FAIR Act will not get 
compensation, instead will claim 1/0 silicosis, because the 
same B reader, at the same time he reads the X-ray fills out 
two forms, 1/0 asbestosis, 1/0 silicosis. Or in the second 
model, the same X-ray is read as 1/0 asbestosis, and then two, 
three, 4 years later by that same B reader or a different B 
reader is read as 1/0 silicosis, because it saves money not to 
have to take a second X-ray.
    This is the reality that the Committee needs to deal with 
in terms of drafting language. If the bypass works, then the 
defendant community that is paying the $140 billion will have 
to pay tens of billions more again for what would have been 
asbestosis claims, but are now being dressed up as silicosis 
claims.
    Senator Cornyn. I see my time has expired. I will wait till 
my next round. Thank you, Mr. Chairman.
    Chairman Specter. Thank you, Senator Cornyn.
    Senator Feinstein?
    Senator Feinstein. Mr. Chairman, actually, this is one of 
the most informative panels I have heard on the issue, so I 
want to just thank everybody. Obviously, you all know what you 
are talking about, so it is very much appreciated.
    Let me just ask a couple of questions just to cement this. 
I guess everybody agrees that asbestosis and silicosis are 
easily distinguishable. Does anybody not agree to that?
    [No response.]
    Senator Feinstein. Are there any other asbestos-related 
diseases that could be confused with silica-related diseases?
    Dr. Epstein?
    Dr. Epstein. If I may answer that, the answer to that 
question is no. They are really quite separate diseases.
    Senator Feinstein. Anybody differ with that? Dr. Welch?
    Dr. Welch. Well, asbestosis definitely causes lung cancer, 
and there is some information that silica is a cause of lung 
cancer, but I do not think it is really relevant to this issue 
because then you would be having to say that, that you are 
manufacturing claims of lung cancer in a different 
jurisdiction. But just to be precise, they both can cause that. 
Not mesothelioma, however. That is uniquely due to asbestos.
    Senator Feinstein. As one who has worked on this issue, and 
I know the Chairman knows this, and I know Judge Becker knows 
it too, this is a huge issue. It is really a potential deal-
breaker. It is very hard to solve. I would like to ask that 
each one of you kind of look at the language and come up with 
some recommendations for us. I particularly think that we do 
have to prevent dual claiming. I do not know how you would work 
sanctions for fraud, but I certainly think dual claiming. I 
think disclosure that was mentioned today, that a claimant 
would disclose dual claims. I think the occupational history is 
important to be in the bill so that when you evaluate it, that 
is in the bill.
    My own view is, as we have discussed, Mr. Chairman, that 
Dr. Rodman was one that did at the end of his written testimony 
present a possible solution and it is really a medical 
screening panel. How you set that panel up to really avoid a 
huge bureaucracy I think is a problem, but I think some of 
these criteria are important to include in that.
    I am very concerned by the growth in silica cases in court 
now. I do not know how you prevent someone from going to court. 
Assuming we can make the clear distinction of what the Asbestos 
Trust would apply to, I do not know how you say to others, 
``You do not have any remedy.'' Does anyone have a suggestion 
there?
    Mr. Brickman. Senator Feinstein, if I may, what we have 
involved here is the economics of mass litigation. The purpose 
is not to prevent somebody from going to court. Because of the 
economics of mass litigation, the cost to a defendant to prove 
that somebody claiming silicosis actually has something that 
would come under the compensation program and therefore would 
not be eligible, would be several thousand dollars. It could be 
three, four, five, six, seven thousand dollars. You multiply 
that by 10,000, 20,000, 30,000 claimants and you being to see 
the dimensions of the problem. What you need therefore is to 
have a procedural device so that the court can dismiss the 
claim very early on before there are large expenses incurred. 
That way the plaintiff gets his day in court, but the defendant 
does not have to spend $10,000 to prove that he really comes 
under the compensation program and should not get a silicosis 
award.
    Senator Feinstein. What would that process be?
    Mr. Brickman. I can provide language I think that would--it 
is similar to what is being suggested now, but I could 
certainly provide language procedurally that would accomplish 
that.
    Senator Feinstein. See, I have a problem with this language 
because I agree that the plaintiff should not have to prove a 
negative and it seems to me that this is meant to be for people 
who are sick, therefore medical criteria are important, 
therefore a medical screening panel as a deciding point with 
some references I think is important. I mean what really 
complicates this is the dramatic growth of silica cases now in 
court. If you have any further comments, I would very much like 
to hear them.
    Mr. Martin. Senator, if I may, I mean when I first started 
handling silicosis cases it was kind of like boutique 
litigation. I mean there were not but 150 cases on file in 
Texas I think back in the 1980's all together amongst five or 
six firms.
    I think the key, as opposed to a medical panel, which might 
be a little too bureaucratic and costly, I think the key is 
disclosure. If someone has filed a previous asbestos claim and 
is coming back into the litigation system, they ought to be 
able to have to show a good reason for doing that. This 
language does the opposite. It creates a situation where a 
victim who has not been in the litigation system, but who has a 
very debilitating disease such as silicosis or hard metal lung 
disease, has got to prove that he is not guilty before he even 
gets to prove his own case.
    So I think to look at it from the other perspective, from 
that perspective, and say these guys up here, maybe they ought 
to be disclosing that they had a previous lawsuit on file as 
the trigger point for something else happening to perhaps 
address Professor Brickman's concern about the cost and the 
burden that is placed on the litigation system.
    Mr. Brickman. May I briefly respond? Disclosure is a 
necessary but not a sufficient response because that does not--
I fully agree that disclosure should be part of the bill, but 
it is not sufficient because it does not deal with the economic 
costs imposed on a defendant to prove that this is a national 
program case that is, that it falls under the FAIR Act, and not 
one that should be eligible in the tort system.
    Senator Feinstein. So what would you do?
    Mr. Brickman. I would provide the Committee with language, 
which I will go back to my office and draft, that I think will 
deal with that procedural problem of creating an early 
dismissal process before all of the costs need to be incurred.
    Senator Feinstein. Thank you. Thank you, Mr. Chairman.
    Chairman Specter. Thank you, Senator Feinstein.
    Senator Coburn?
    Senator Coburn. Thank you, Mr. Chairman.
    And thank each of you for your testimony. I had a good time 
late last night reading it because we did not have a 48-rule 
with which I had the time to do it.
    I have just a couple of comments. No. 1, as a practicing 
physician the difference between the restrictive and 
obstructive patterns seen in these two diseases is not uncommon 
at all. We see it all the time. There are mixed disease 
patterns.
    My question to each of you is how many times have you seen 
true clinical silicosis and true clinical asbestosis in non-
smokers? Anybody ever seen that?
    Dr. Weill. Senator, are you talking about those two 
diseases in one patient?
    Senator Coburn. In the same patient at the same time.
    Dr. Weill. I have never seen it.
    Senator Coburn. Anybody here ever seen, in a non-smoker, 
true clinical asbestosis and true clinical silicosis?
    Dr. Welch. But I think the testimony was even in the 
smoker, people do not see them combined, so smoking is not that 
relevant.
    Senator Coburn. I understand, but I am asking specifically 
about non-smokers?
    Dr. Rodman. I have no recollection, Senator, of having seen 
it, but theoretically it is possible, and therefore it almost 
certainly has occurred on occasion.
    Senator Coburn. Okay. Now take away the smoking 
restriction, how often has this panel seen active clinical 
disease manifested both by chest X-ray and pulmonary function 
tests and diffusion capacity of the lung, how many times have 
you seen that in your entire careers in this panel?
    Dr. Epstein. Very rarely. I've seen maybe a couple of such 
cases.
    Dr. Rodman. The same response, I have never. I have no 
recollection, but I am 77 years old.
    [Laughter.]
    Senator Coburn. I use that excuse all the time, doctor. I 
am 40-years-old and I have never seen it.
    Mr. Martin. I have had two clients.
    Senator Coburn. With clinically proven, medically 
documented pleural plaques and pulmonary nodules--
    Mr. Martin. Yes. And the distinguishing factor is that 
along with that, they had specific job histories that involved 
intense exposure to silica and asbestos both.
    Senator Coburn. Dr. Welch?
    Dr. Welch. Yes. I would agree, I have not seen a combined 
case of the two. I would also want to point out, an 
occupational history is really important.
    Senator Coburn. I agree.
    Dr. Welch. And that is a major criteria in differentiating 
the two, as well as the X-ray.
    Senator Coburn. Dr. Welch, would you do me a favor? I read 
your resume a moment ago. Would you, after this, give to the 
Committee, if we may, your references on small-cell, large-
cell, adenocarcinoma of the lung related to asbestosis for me 
so I can review that?
    Dr. Welch. Sure. Actually there was a paper just published 
this month that is very helpful in asbestos lung cancer.
    Senator Coburn. Thank you very much. I would love to have 
that.
    So I just want to make the point, you know, the old adage I 
was taught when I was in business is ``greed conquers all 
technologic difficulty,'' and what we are seeing in the 
personal injury case is that, as the Congress moved to consider 
asbestosis, the technologic difficulty was to get somebody to 
read an X-ray a different way for money so that a different 
claim could be made. We need to not shy away from that. That is 
what this is all about.
    This is about making sure people who have true injury get 
true compensation and that that compensation goes to the people 
who are injured more than it goes to the trial bar. And we need 
to not shy away from trying to be very rigorous in placing 
demands that false claims cannot be made out of this asbestos 
trust and then turned around and turned into something else, 
because what I see coming is us sitting down to have a 
silicosis trust, and I do not think we are that very far away. 
So I believe it is important that people who are injured are 
compensated, and I want them compensated. But I want us to be 
real clear about the game that is going on in this country 
today in the courts that does not have anything to do with my 
patient's true injury, but has everything to do with how you 
manipulate the system.
    Dr. Welch?
    Dr. Welch. If I could comment on that. I mean I think that 
there is a difference between the burden of disease in this 
country from asbestos and from silica. If there are claims that 
are not silicosis, do not have an impairment, do not have the 
occupational history, that is a problem. But the asbestos 
claims that have come forward in this country, the vast 
majority of them are people who are really sick, mesothelioma, 
lung cancer. I just want to remind people, the reason there is 
an asbestos problem, asbestos disease and this bill, is because 
so many people were exposed and so many people were sick, not 
because plaintiff lawyers made up bad cases. We would not be 
creating a billion dollar trust fund if there was not illness 
out there.
    So I am just afraid that the discussion begins to seem 
like, oh, the whole problem--that you would have to have a 
silicosis bill because there are bad claims. I mean we have an 
asbestos bill because people are sick.
    Senator Coburn. I do not deny that we have an asbestos bill 
because people are sick, but I also would not deny the fact 
that a lot of people have claimed asbestosis when clinically 
they do not have it, and are seeking compensation for an injury 
based on exposure, when there is no true injury there. And I 
think the data will show that true in lots of the claimants.
    Mr. Brickman. If I may add, Senator, the vast majority of 
asbestos claims, claims of disease from exposure to asbestos 
that have been brought in this country, there have been 850,000 
claimants. Each one sues 60, 70, 80 different companies. So you 
can do the math. The vast majority of those claimants have no 
medical illness caused by asbestos as recognized by medical 
science. At least 500,000, maybe 600,000 of those claimants do 
not have an illness. They have sued in the system. They 
generate $50,000, $60,000 $70,000 it used to be $100,000 worth 
of payments made, of which they get about half and the lawyer 
takes about half for fees and expenses. So I would take issue 
with Dr. Welch's characterization. I call it Senator, 
diagnosing for dollars.
    Senator Coburn. It also is a reflection on my profession as 
well for not standing up for what is true and diagnosing for 
dollars.
    Chairman Specter. Thank you, Senator Coburn.
    Dr. Welch, how would you solve the problem? How would you 
structure the system to compensate the asbestos victims who are 
truly sick, and be sure that the so-called double dipping does 
not occur?
    Dr. Welch. Well, I am neither a lawyer nor a legislator, so 
my opinion is--
    Chairman Specter. Puts you in a pretty good position.
    [Laughter.]
    Dr. Welch.--somewhat maybe uninformed. But what I hear is 
the problem is people are filing claims for silicosis who do 
not have silicosis, that lawyers may be manufacturing claims 
just based on an X-ray. And if you were to examine that case at 
all, if anyone were to examine that case from a distance even, 
they are probably unlikely to have an exposure to silica that 
is sufficient to cause disease, and the X-ray may not be 
characteristic.
    So from my point of view, if people are paying those 
claims, that is the problem, and if people are not paying those 
claims, they will go away. So I do not quite see why you have 
to craft this legislation. I do not like to think that cases go 
into court that you could just file any case and you get paid 
on it, and that is the kind of implication that the testimony 
is giving, that these claims that clearly are not silicosis are 
getting paid. So I do not know how you would solve that in the 
language.
    I think Mr. Martin had a good suggestion, that you identify 
the people who have an asbestos claim, because once you have 
asbestosis--and this bill does not compensate all the people 
who applied to Manville Trust. I mean it is more narrow. It is 
people with impairment. It is not junk cases. I mean this bill 
does not compensate junk cases. So if people have been 
compensated under this bill, given the criteria that are there, 
for most of them it is likely they do not have silicosis, and 
so they would have to affirmatively prove they have something 
else to go forward. The burden on those people would probably 
need to be higher, because as we are saying, we do not expect a 
lot of combined disease.
    Chairman Specter. Mr. Martin, you talked about 
identification of having made an asbestos claim preliminarily. 
How would you follow up on that in subsequent litigation for 
somebody who tries to collect on silicosis where there really 
is no bona fide basis?
    Mr. Martin. You craft it this way. A plaintiff who has 
filed a previous asbestos suit would have to disclose that in 
his pleadings up front. Then in order to overcome a presumption 
of preemption under the bill, he would have to rebut that 
presumption by establishing that silica is truly a significant 
contributing cause of the disease.
    Chairman Specter. Are you starting to deal with a negative 
there, proof of a negative?
    Mr. Martin. Yes, but it is predicated on disclosure, you 
see.
    Chairman Specter. Your proof of a negative is different 
from the other proof of--
    Mr. Martin. Well, I do not want to be inconsistent, 
Senator, I truly do not in terms of my criticism of proving a 
negative. But the issue here is disclosure. If an individual 
has previously filed an asbestos lawsuit, he should disclose 
that. That should be the first step. And then some way, whether 
you create a presumption or not is maybe not the best way to 
craft it because I am just kind of thinking out loud and 
brainstorming. Some way, if he truly does have an asbestos 
disease--and I think everybody on the panel agrees that that 
would be a very rare instance--that there be some mechanism 
where he would be able to prove that this is a significant 
cause, but otherwise, he has to deal with the issue that he has 
already filed this old suit here.
    I think that is where you start from, as opposed to 
starting from somebody who never filed a lawsuit before for 
asbestos.
    Chairman Specter. So there would be a provision in our 
Federal bill which would impose a disclosure requirement on a 
plaintiff who sues in some other forum at some other time, and 
the Federal legislation would deal with a presumption to impact 
on litigation in some other court, in some other forum, which 
relates to silica?
    Mr. Martin. Something along those lines. I am thinking in 
generalities as opposed to specific language, but it is 
triggered off disclosure that someone knows that a previous 
lawsuit for asbestos was filed. Then, you can craft some 
language that would attempt to deal with Professor Brickman's 
concern about letting this thing generate too much cost too 
quickly and being able to address it earlier. I do not know 
whether that would be through a presumption or some other 
language. I would have to sit down and craft it.
    Chairman Specter. It is not going to be dealt with in a 
summary fashion. It is not going to be dealt with until there 
is an examination of the proofs, the X-ray. My red light just 
went on, but it does not apply to answers--only to questions.
    [Laughter.]
    Mr. Martin. I think you are exactly right. There has to be 
some medical threshold involved there in order to meet that--
once that disclosure is made, there has to be some medical 
threshold established that silica or hard-metal lung disease or 
cobalt exposure or something else is involved.
    Chairman Specter. Senator Feinstein?
    Senator Feinstein. Clearly, there is a problem. If you go 
from 2002, with 3,500 cases, to 2003, with 22,000 cases, you 
have a net gain of cases of 17,000 in a year which indicates to 
me that something is afoot. I would like to hear from both 
Professor Brickman and Dr. Epstein. They both seem to have some 
reaction to Dr. Welch not to be adversarial, but to hopefully 
come up with a solution here.
    Mr. Brickman. Well, one possible solution or, perhaps that 
is too strong a word, resolution for the silicosis epidemic 
would be to stop consideration of the FAIR Act. That would 
reduce the pressure on plaintiff lawyers to retread their 
cases.
    Senator Feinstein. Do you mean just drop an asbestos bill--
just forget it?
    Mr. Brickman. I predict you would have fewer silicosis 
claims if you dropped the FAIR Act because that is the reality. 
This is an entrepreneurial venture, and is a function of the 
profitability of the claiming process. How much does it cost to 
generate a claim? It generally costs somewhere about $1,000 to 
$1,500 for a plaintiff's lawyer to generate a claim. That is 
through a screening process. Then, it is a question of how much 
do you get in return for putting that claim in, and that is a 
function of how many Sec. 524 (g) trusts are being created and 
what they pay, what solvent defendants are paying and so on.
    So the reality is, I mean, as I have testified, and I think 
there is a considerable volume of evidence on this point, that 
the silicosis epidemic occurs in perhaps one, maybe two places 
only--the courts and maybe Dr. Welch's office. But in the Mayo 
Clinic, in hospitals around the country, in pulmonologists' 
offices, you do not see silicosis. You only see it in certain 
courts. There is a disconnect between medical science and what 
is happening in certain courts, and that disconnect is a mirror 
image of what has happened with asbestosis claiming, with 
nonmalignant asbestosis claiming. It is deja vu all over again.
    Senator Feinstein. Since you mentioned Dr. Welch's name, 
would you like to respond to that or do you just want to avoid 
it?
    Dr. Welch. Well, I am going to ignore the insult, but I do 
want to say we did spend a lot of time when this bill was 
starting talking about what claims were, what diseases were, 
their projections of diseases. And of the asbestos claims, 
there are a lot of claims that are made for people who are not 
impaired, and so when you talk about these numbers of claims--
but in terms of dollars paid out, it is primarily paid to 
people with impairment and people with cancer. We are still 
seeing 2,500 mesotheliomas, most of which are caused by 
asbestos, every year in this country, a lot of lung cancers.
    So the burden of disease--I just want to make it clear--
that there are people with asbestos-related disease who are 
impaired, sick and dying from it. If there are a lot of junk 
claims as well, my understanding is most of those claims wed 
not be compensated under this trust because they would not have 
any impairment. And once someone has an abnormal X-ray, an 
occupational history and impairment, they are beginning to meet 
the criteria that would fit under this bill, depending on what 
their occupational history is.
    So you can sort of have both. You can have a lot of junk, 
but people are not getting compensated for that.
    Senator Feinstein. Dr. Epstein and then Dr. Rodman.
    Dr. Epstein. I think that there is less of a disparity 
between Dr. Welch's opinion and mine, certainly about 
impairment. I would like to point out that probably all of the 
physicians in this room understand that in order to have 
silicosis, in order to develop that disease, you have to have a 
large amount of exposure to silica. This is not a whiff of 
silica. This is a lot of silica over a long period of time.
    Now, the Congress has experience in dealing with this type 
of problem before. In fact, the Federal Coal Mine, Health and 
Safety Act did deal with the problem of who comes through the 
door. And the way the Congress decided to act in the past was 
that there had to be a certain provable amount of exposure in 
order to get in the door and be compensated under that act. I 
think that that may be one of the ways of dealing with this 
problem, at least have some threshold beyond which an 
individual can claim silicosis.
    Senator Feinstein. Thank you.
    Dr. Rodman?
    Dr. Rodman. I have a very strong personal conviction that 
we are skirting around a very big and important issue, and that 
is the presence of a few bad apples or--
    Senator Feinstein. Turn on your microphone, please.
    Dr. Rodman. My personal conviction is that a major problem 
that we have not yet addressed directly is the presence of some 
bad apples in the legal profession and perhaps more bad apples 
in the medical profession. As long as there are doctors who, on 
paper, are well qualified, who are willing to read a chest X-
ray which they once said showed signs of asbestosis and re-read 
it or read a second X-ray on the same patient which does not 
differ significantly, as showing silicotic changes, I do not 
think the law will have sufficiently addressed this problem.
    Senator Feinstein. Thank you.
    Thank you, Mr. Chairman.
    Chairman Specter. Thank you, Senator Feinstein.
    Senator Cornyn?
    Senator Cornyn. Thank you, Mr. Chairman.
    As I understand the language that is on the board up here 
and the process, if someone has a claim of asbestos-related 
exposure or injury, we are in the process the proposal is to 
create a $140-billion fund, which is a no-fault, nonadversarial 
process by which they can be compensated for their asbestos 
disease. That is the goal. But if they do have asbestos-related 
disease and they file a lawsuit after that fund is created, 
then the court could, and should, say you are in the wrong 
place. You should not be in court. You should be filing your 
claim against the fund.
    So it just makes good sense to me to say that there ought 
to be some threshold to show that your disease is not related 
to asbestos if you file a subsequent civil lawsuit. And from 
what I hear of the medical experts here all arrayed is that 
ought to be relatively easy for a well-qualified physician to 
do, to read an X-ray and distinguish between silicosis-related 
disease and asbestos-related disease.
    Would you agree or disagree or have I missed something, Dr. 
Epstein?
    Dr. Epstein. I would agree with that.
    Senator Cornyn. Dr. Rodman?
    Dr. Rodman. I would agree, except that my experience has 
been that many X-rays that I read as showing no signs of 
asbestos-related changes were differently read by other 
physicians whose credentials on paper were good and who did see 
asbestos-related changes when I think none were present. And I 
think this was--
    Senator Cornyn. That is the scandal you alluded to in some 
parts of the medical profession and even legal profession as 
well. Unfortunately, we are always going to have unscrupulous 
people who occasionally will take advantage of the situation.
    Dr. Weill. Senator, may I make one comment?
    Senator Cornyn. Doctor? Yes, sir.
    Dr. Weill. I think one way to deal with the unscrupulous 
nature of some of the B readers out there--
    Senator Cornyn. Let me ask you, please, will you tell me 
whether you agree or disagree that it ought to be relatively 
easy on the X-ray to distinguish between asbestos- and 
silicosis-related disease so you could make this sort of 
showing relatively straightforward.
    Dr. Weill. Yes. In an ideal world, and certainly in the 
clinical setting, it is easy. However, in the world in which we 
live, I think because of some unscrupulous B readers, we are in 
situation where, if your entry into the system is simply to get 
a B read on an X-ray that is abnormal, that is too low of a 
threshold. And I think what we ought to do is what some 
countries in Europe that I visited do is set up panels. I know 
that may be bureaucratically difficult to do and cumbersome, 
but it really helps validate the system and validate the 
diagnosis.
    Senator Cornyn. Our time is a little short. I wanted to ask 
Mr. Martin, you and Professor Brickman had a discussion about 
disclosure and whether that would be adequate.
    First of all, let me ask you are you involved in this 
multi-district litigation in Corpus Christi, where these 
duplicative claims have been made?
    Mr. Martin. I have one case there. I have never filed a 
duplicative case in my career. And that one case involves a man 
with massive conglomeration in the upper lobes with cavitation.
    Senator Cornyn. So you are aware at least of the occurrence 
of people making silica-related claims who have previously made 
claims for asbestos.
    Mr. Martin. And that is the concern. And I think the point 
that you hit on--
    Senator Cornyn. My time is short, so let me just get to 
what I am trying to ask, and we will give you a chance to 
answer as long as the Chairman does not cut you off.
    But will you agree with me, Mr. Martin, that if someone, 
the disclosure might potentially be a problem, number one, for 
the lawyer whose client does not tell them the truth, the whole 
truth and nothing but the truth or perhaps the lawyer, an 
unscrupulous lawyer, and unfortunately there are bad apples 
among the legal profession as we all know who does not disclose 
it, but right now is it not a standard part of basic pretrial 
discovery in very silica claim, in every asbestos claim, to ask 
have you filed a lawsuit, have you made claims previously for 
any personal injury and that sort of thing?
    So how would an additional disclosure requirement get us to 
where we need to be in order to separate and distinguish 
between these two types of claims?
    Mr. Martin. The answer to your question is, yes. In terms 
of the discovery process, it must be disclosed and is typically 
disclosed.
    Senator Cornyn. But, apparently, that discovery process did 
not reveal, in this instance, and in the story reported in the 
New York Times related to this whole what appears to be a 
scandal, where people have made asbestos claims or silica 
claims and not disclosed--they have either failed to, they have 
not been asked, they have been asked or they have not told the 
truth or something has gone wrong. So how do we get over that 
hurdle?
    Mr. Martin. Well, I suspect if that is happening that there 
is a Federal district judge down in Corpus Christi who is going 
to start knocking some heads off because those are serious 
problems in court, when you are not being truthful and up-front 
in answering interrogatories.
    But I do think disclosure is the key to--what I am worried 
about is the fact that I have never filed one of these 
subsequent lawsuits. I have got a group of guys who are truly 
sick from independent illnesses, which these men have seen on 
occasion in their own offices, and I do not want them to be 
completely precluded because there is a group of people who 
filed second lawsuits. And this language precludes them from 
seeking that remedy, and that is the issue of concern.
    Chairman Specter. Thank you, Senator Cornyn.
    In Corpus Christi, they do not knock heads together, they 
knock them off?
    [Laughter.]
    Mr. Martin. Yes. We are close to the ocean, and we can just 
knock them right off into the Gulf.
    Senator Cornyn. And then they really get tough, Mr. 
Chairman.
    Chairman Specter. Well, Senator Cornyn, of course, is an 
expert at being a Texas Senator, and having been on the Supreme 
Court and the attorney general, but there appears to be 
somewhat different standards of conduct, as we are having it 
described, with two sets of X-rays simultaneously, different 
markings.
    I think it would be very useful for the Committee to hear 
Judge Becker, some views from Judge Becker. I have asked him if 
he would care to make a few comments at this point.
    Let us turn to Judge Becker.
    Judge Becker. Thank you, Senator.
    I think I share Senator Feinstein's comments that this has 
been an extraordinarily useful hearing. I think we have learned 
a lot from the experts. My sense is that this problem is 
soluble by drafting. I think there are certainly flaws in 
Section 403 of the discussion bill. I do not think it made it 
clear enough that the intention for discussion purposes was 
that the preemption would only be for those who qualified for 
the Asbestos Fund. There not a Catch 22 to put anybody in limbo 
or in no man's land.
    And I think the testimony also makes clear that you cannot 
rule out any possible contributing factor because of the 
widespread exposure in the Nation's population to asbestos. I 
think, however, that some other adjectives like ``significant'' 
or ``substantial,'' that it be some significant factor or even 
a minor factor. In other words, it would have to be more than a 
minor factor in order to rule out--
    Senator Feinstein. Mr. Chairman, would you just allow me 
one thing?
    Could it be primary--primarily?
    Judge Becker. It could be primarily. I mean, that would be 
one possible solution, Senator Feinstein. I know that was in an 
earlier draft of yours. But the question that everybody is 
fighting about is who has got the burden of proof. Everybody 
talks about not proving a negative.
    The problem there, I mean, what we are talking about here 
is preempting--and this is the overarching issue here--we are 
talking about preempting cases that are going to be brought in 
State court. There is no doubt, I mean, what we are saying 
because these cases, if anybody is going to bring, has a 
legitimate silica claim, they are going to bring it in State 
court.
    So we are talking about the Congress of the United States 
preempting--some are going to say this is a kind of tort 
reform. Does the Congress have the power to do this? Plainly, 
the Congress has the power to do this. This is the grand daddy 
of all tort reform bills in terms of abolishing asbestos 
litigation in State court. But what it would be doing, and 
plainly the power of the Congress, it is in the Commerce Clause 
to do so, is regulating practice in State court. I think not 
only can you do it, but it needs to be done. Among the things 
that need to be talked about are disclosure, the question of 
burden of proof.
    But from the point of view of the defense community, the 
thing that they are upset about, and this is what Professor 
Brickman was stressing, is defense costs. Because as Dr. Welch 
says, well, okay, nobody is going to pay these cases, the 
problem that the defense community has brought to us is, well, 
if a lawyer has got a thousand of these cases, and they have to 
defend them, even if it costs $500 or $1,000 to defend each 
one, that is a big hunk of change.
    So, therefore, there has to be some threshold limitation. 
One of the threshold limitations, as I think might be 
considered and has not been mentioned here this morning, 
although the medical basis has been mentioned for it, and we 
have talked a lot about the unimpaired, is to preempt any claim 
in State court that is not impaired. In terms of this bill, 
that would be at least Level III in the medical criteria. Level 
I, where you get medical monitoring, where you do not get paid 
anything, those claims arguably could be preempted, and the 
question is whether or not the medical criteria fit, even 
though the medical criteria in the bill are different. There is 
asbestos and silica disease. In terms of the criteria for Level 
III, with respect to the degree of restriction, and I have them 
here, and I will not burden the Committee by reading them, but 
it is 80 percent of lung capacity in certain tests and so 
forth.
    To the extent that this has been described to us this 
morning, both silica and asbestos are interstitial lung 
diseases which have the same kind of sequelae, the shoe would 
fit, and, therefore, you could limit. And another thing that 
could be considered, in addition to the disclosure, in addition 
to the idea of a medical panel, and some kind of screening 
panel. You could, also, and I think we could fiddle with the 
burden of proof I think language, and I would welcome the 
opportunity to have my thirty-ninth meeting, thirty-nine 
steps--I do not know. It was a movie someplace or another, or a 
book--I would be willing to have my thirty-ninth meeting, and 
sooner rather than later, like this afternoon or over lunch. 
You have got everybody here. Let us get everybody in a room, 
and we do not leave them out--I have the Metroliner schedule, 
the Night Owl I think is 2 a.m. We will get them tickets on the 
Night Owl, and we will lock them in a room until we get 
something worked out. I think we can work something out.
    Chairman Specter. Judge Becker, that is--
    Judge Becker. I think this combination would work.
    Chairman Specter. That is an excellent idea.
    So why don't we move on to Panel two now, and let us have a 
designation of those who are going to move from this proceeding 
to a drafting proceeding.
    Panel two is Mr. Paul Hoferer and Mr. Donald Griffin.
    Before panel one leaves, let me thank all of you very much 
for coming. You have already received a number of accolades for 
your very helpful testimony, and we do appreciate your coming 
long distances and leaving your professional activities to be 
in Washington today to provide this testimony. So thank you all 
very much, and some of you have drafting assignments to be 
completed after you leave here today.
    Mr. Paul Hoferer is Vice President and General Counsel of 
the Burlington Northern and Santa Fe Railroad. He began working 
there as a switchman in Kansas City during the summer while in 
high school, and then spent 3 years in the U.S. Army, including 
Vietnam and began his career with the Santa Fe law department 
in Topeka, Kansas, as a trial attorney.
    In the year 2000, he received the Paul C. Garrett Award for 
Meritorious Service to the Association of Railroad General 
Claims Conference. He has a business degree from Central 
Missouri State University and a law degree from Washburn 
University School of Law.
    In a sense, I worked for the Santa Fe years ago delivering 
bills of lading in Wichita at the age of 11.
    Thank you for joining us, Mr. Hoferer, and we look forward 
to your testimony.

STATEMENT OF PAUL HOFERER, VICE PRESIDENT AND GENERAL COUNSEL, 
   BNSF RAILWAY COMPANY, FORT WORTH, TEXAS, ON BEHALF OF THE 
               ASSOCIATION OF AMERICAN RAILROADS

    Mr. Hoferer. Thank you very much, Mr. Chairman, members of 
the Senate Committee. Good morning. As Senator Specter said, my 
name is Paul Hoferer. I am the Vice President and General 
Counsel of the BNSF Railway Company, headquartered in Forth 
Worth, Texas.
    My background has given me a rather unique view of both 
sides of this issue because I worked 7 years as a railroad 
switchman while I was attending college and law school. As a 
switchman, I was a member of a national railroad union. I also 
spent 20 years after law school working as a trial attorney 
litigating FELA cases, and I am currently responsible for 
managing the litigation at BNSF Railway Company.
    First of all, I want to thank the Committee for the 
opportunity to present the views of the members of the 
Association of American Railroads concerning this asbestos act.
    The AAR members primarily have two concerns. The first one 
is the treatment of the asbestos claims under the Federal 
Employers Liability Act, which we call the FELA, and the second 
is the potential for claimants to subvert the Act's intent by 
converting asbestos claims into ones that allege injury for 
other airborne substances.
    Railroads neither manufactured nor distributed asbestos, 
and had stopped significant use of it by the steam era in the 
1950's, roughly 50-some years ago. Despite this, we have been 
named as defendants in numerous lawsuits brought under the 
FELA. The FELA covers only rail employees and was enacted in 
1908, prior to the State worker's compensation laws to cover 
employees injured in other industries. That is what the State 
worker's compensation bills were passed for.
    The proposed legislation would cover all asbestos-related 
injuries, including those which might otherwise have been 
brought under the FELA. That is as it should be. There is no 
justification for treating asbestos claims brought by railroad 
workers any differently than claims brought by other workers in 
the industries.
    Railroad labor has concerns and protested, claiming its 
members would be treated unfairly. That is not the case. All 
asbestos claimants, not just railroad claimants, would lose 
their ability to file any civil litigation and instead would be 
compensated by the fund.
    Rail labor also claims that its members would likely 
receive less total compensation than other workers because its 
members would have recourse only to the fund, while employees 
in other industries would also have a remedy under the worker's 
compensation laws.
    That concern is addressed in the most recent draft of your 
legislation. It grants railroad employees an additional payment 
which would be equal to any reduction in benefits that they 
would have been entitled to if they were covered by State 
worker's compensation laws. I believe that amendment is one 
that Judge Becker proposed.
    Rail labor says that this isn't enough. Instead, they want 
to receive additional payments equal to the historic FELA 
payments for asbestos claims, in addition to the fund. Although 
the fund is designed to substitute for all tort claims, under 
rail labor's plan rail employees would be entitled to two 
payments that are a substitute for tort recoveries or 
litigation and would include payments to uninjured workers--
something the Act seeks to eliminate.
    The AAR believes this is unwarranted. Under the tort 
system, including the FELA, plaintiffs are entitled to only one 
full recovery for their injury. Indeed, if an asbestos claimant 
who also sues other defendants, he or she is not entitled to 
collect multiple, full recoveries. Any settlement with one 
defendant is offset currently by the FELA settlement.
    Having said that, the railroads are negotiating, as was 
mentioned earlier by the Senator, with rail labor over this 
issue in an attempt to reach a compromise so that labor can 
support this legislation. We, too, hope to reach a compromise 
in this matter. However, our willingness to negotiate is 
predicated on one condition, that no additional compensation or 
contribution be made from the railroads to the fund for a 
special FELA adjustment.
    There are several other important elements we think have to 
be incorporated in any effort to add an FELA special adjustment 
to this Act. The adjustment must reflect only net FELA payout. 
I think there was a comment earlier that roughly half of the 
money does not go to the claimant; it goes to the attorneys and 
the cost of litigation. Any FELA adjustment will be treated the 
same way the bill treats worker's compensation. It should be 
based on objective medical criteria, and no FELA lawsuit should 
be allowed while the law is passed.
    Finally, one brief comment about mixed dust. We too are 
concerned about the Act's elimination of asbestos lawsuits, and 
it could be illusory because of the concerns previously 
expressed. The concern is that the plaintiff will seek recovery 
from the fund, while at the same time file lawsuits alleging 
respiratory injury caused by exposure to substances other than 
asbestos.
    I think Professor Brickman and Dr. Weill both mentioned 
this and covered it more than adequately. I do want to say, 
though, that we believe that the proposed legislation will 
represent a fair means of addressing the asbestos lawsuit 
crisis only if it effectively prevents claimants from 
controverting asbestos claims into other types of claims.
    I stand ready for any questions.
    [The prepared statement of Mr. Hoferer appears as a 
submission for the record.]
    Chairman Specter. Thank you very much, Mr. Hoferer.
    We turn now to Mr. Donald Griffin, who has been a very 
regular attendee at our stakeholders meetings. He is the 
Director of Strategic Coordination and Research for the 
Brotherhood of Maintenance of Way Employees Division of the 
International Brotherhood of Teamsters, which represents 
railroad employees primarily engaged in the construction and 
maintenance of railroad tracks, bridges and other structures.
    Prior to his arrival at BMWED in 1996, he was with the law 
firm of Hyshaw, Mahoney and Clark, here in Washington. He has a 
law degree from Rutgers, in 1987, and bachelor's degree from 
the University of California, in 1972.
    Thank you for your steadfast attendance at 38 meetings and 
we look forward to your testimony here today.

     STATEMENT OF DONALD F. GRIFFIN, DIRECTOR OF STRATEGIC 
 COORDINATION AND RESEARCH, BROTHERHOOD OF MAINTENANCE OF WAY 
  EMPLOYEES DIVISION, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, 
                        WASHINGTON, D.C.

    Mr. Griffin. Thank you, Mr. Chairman. On behalf of rail 
labor, I would like to thank you and Judge Becker and Senator 
Leahy for all of the hard work you have done here to try to get 
the parties to reach some sort of understanding on the FELA 
issue.
    Mr. Chairman, I am here today on behalf of all of the rail 
labor unions within the AFL-CIO, and I speak to you on a matter 
of great importance to the men and women who are members of 
those unions.
    To know someone suffering from deadly asbestos disease, as 
I do, and most people who work on the railroad do, is to know 
that, first and foremost, any legislation in this area must 
treat the sick and injured fairly. The proposed bill does not 
treat railroad workers fairly because it takes away a railroad 
worker's Federal statutory right.
    Under this bill, a railroad worker may not bring a claim 
under the Federal Employers Liability Act, otherwise called 
FELA, for an asbestos-related injury or illness on the job. All 
other workers retain full rights to bring claims for asbestos-
related injuries or illnesses under State or Federal laws with 
regard to their specific employers.
    I must emphasize that rail labor believes there is no 
compelling reason to take away rail workers' rights under FELA. 
Asbestos claims under FELA have not clogged the courts, do not 
unfairly delay compensation due injury rail workers, and, 
importantly, do not threaten economic health of the Nation's 
railroads.
    Nevertheless, at the urging of the Chairman and Senator 
Leahy, rail labor has made a proposal for an adjustment that 
would fairly compensate railroad workers for their unique loss 
of worker's compensation benefits provided under FELA. Our 
proposal is Appendix A to my written testimony submitted to 
this Committee.
    Rail labor's proposal is simple. It follows a pattern used 
by Congress since 1926 to legislate matters affecting rail 
labor and rail management: have labor and management negotiate 
a mutually satisfactory result. Our proposal provides that 
labor and management will negotiate quickly to create a fair 
adjustment to trust fund values for injured rail workers.
    If the parties cannot reach agreement, the dispute will be 
sent to a neutral party to provide a final and binding 
resolution of the entire dispute. Our goal is to provide a 
special adjustment to injured rail workers that both labor and 
management agree is fair--nothing more.
    The FELA adjustment contained in the draft bill which is 
supported by rail management is unfair because most injured 
rail workers would not receive it. To receive rail management's 
proposal, the claimant must also apply for an occupational 
disability payment from the Railroad Retirement Board. What 
this means, in practice, is that a claimant cannot apply for 
rail management's proposed adjustment unless he or she has 20 
years of service on the railroad. According to the Railroad 
Retirement Board, over half of the workers in its system do not 
have 20 years of service. So those employees cannot receive 
this adjustment.
    In addition to the 20-year service requirement, a railroad 
worker must have a current connection to the industry when or 
she applies, meaning the employee must be working in the 
industry. That means a railroad worker with 20 years' service, 
but who has moved to another non-railroad employer cannot 
receive the adjustment.
    Additionally, all retired railroad workers are ineligible 
for the adjustment because they lack a current connection. This 
last point is especially significant because of the long 
latency periods between asbestos exposure and the manifestation 
of asbestos-related injury. What this means is that over half 
of active employees cannot receive the adjustment and all 
retired railroad workers are ineligible, as well. Under FELA, 
all of these employees would be eligible to file a claim for an 
injury against the railroad. Rail labor submits that an 
adjustment that is not available to the overwhelming majority 
of potential beneficiaries because they either lack the 
required railroad service or have worked so long they are 
retired is unfair.
    Finally, I have listened carefully to Mr. Hoferer's 
testimony today and read his prepared remarks, and wish to make 
the following brief comment. Rail labor is delighted that rail 
management has taken up our more than year-old invitation to 
sit down and work this dispute out through negotiation. Rail 
labor views the railroads' comments today as affirmation of the 
soundness of our proposal for a negotiated special adjustment.
    In conclusion, rail labor's preferred position would be the 
preservation of injured railroad workers' rights under FELA. 
However, if that is not possible, rail labor respectfully 
requests this Committee to adopt rail labor's proposal for an 
FELA adjustment.
    Thank you very much.
    [The prepared statement of Mr. Griffin appears as a 
submission for the record.]
    Chairman Specter. Thank you very much, Mr. Griffin.
    Mr. Hoferer, there is a statement at pages 8 and 11 of your 
prepared testimony that, quote, ``There should be no 
continuation of FELA suits after enactment of [asbestos 
fairness] legislation.''
    I take it that your real meaning there is that there are to 
be no more asbestos-related lawsuits.
    Mr. Hoferer. That is correct, yes.
    Chairman Specter. What we are dealing with here is to try 
to be sure that the rail workers are treated the same as 
workers generally under State workmen's laws, so that where 
there is extra compensation or however that treatment is made 
that the rail workers would be treated the same way.
    Is that essentially correct, Mr. Griffin?
    Mr. Griffin. That is essentially correct, given that FELA 
operates substantially different than worker's comp in that it 
is a tort-based system. But that is the goal.
    Chairman Specter. Well, we have striven mightily to do 
that. It seemed to Judge Becker and me at the outset that it 
was not all that complicated, but it certainly has been. So I 
am delighted, and I compliment you both on your negotiations 
and your efforts in good faith to solve the problem. I 
compliment you even more on agreeing to binding arbitration, if 
you can't come to an agreement, because I believe that will 
provide a legislative solution.
    I believe that that will effectively take this issue off 
the table, and I see the group of stakeholders, four in number, 
who have been at 38 meetings nodding in the affirmative, and I 
do not think it necessary to encumber the record any further.
    With 2 minutes and 55 seconds left, I yield to you, Senator 
Cornyn.
    Senator Cornyn. Does that means I can have the extra two 
minutes.
    Chairman Specter. You may.
    Senator Cornyn. If I can have that and my 5 minutes, I 
don't expect to ask a lot of questions, but I do want to say 
that I think our goal is, both when we talk about silica-
related disease and other diseases and how we treat the trust 
fund, to accomplish two goals.
    One is to make sure that the fund is actually successful 
and compensates asbestos-related disease and people who are 
actually suffering from that disease. There is also, I think, a 
related goal of making sure that we sweep in all asbestos 
claims into the fund, both to maintain the viability of the 
fund and the size of the fund, but also to make sure that we 
don't have dual tracks, one under the fund and then one in the 
tort system, because, frankly, I am reminded from Judge 
Becker's comments that he said this is tort reform. I have 
heard it referred to as scandal reform, and I think that really 
is what we are engaged in. Frankly, there is a consensus that 
the current system does not operate fairly.
    The other principle, I think, that is important is that 
someone be compensated once for a single, indivisible injury, a 
basic sort of legal principle. Now, in the workers' comp, and I 
trust also the FELA area, I would like your comment first, Mr. 
Griffin.
    If you are successful in an FELA lawsuit and you 
subsequently sue an asbestos manufacturer for the asbestos 
exposure, then does the FELA claimant--does the plaintiff there 
have any obligation to offset or to repay to allow that FELA 
claim to be subrogated to the third-party lawsuit?
    Mr. Griffin. Senator, unfortunately I am not one who has 
normally handled FELA cases. It is my understanding that there 
may well be an offset. Very often, a plaintiff will bring an 
action against the railroad only. Some bring actions against 
both the railroads and manufacturers.
    I know railroads have the right, after an FELA judgment 
against them, to go after third parties on joint and several 
tort liability theories.
    Senator Cornyn. Well, you are not suggesting, Mr. Griffin, 
that we ought to carve out FELA cases and allow those to 
proceed and then also permit individuals who are claiming 
asbestos-related impairment to sue under the trust fund or make 
a claim under the trust fund for the same indivisible injury, 
are you?
    Mr. Griffin. No. This is actually an asbestos injury. Since 
the bill as proposed takes away the railroad worker's rights 
under FELA to bring a claim under FELA for the asbestos-related 
injury, any recovery for that injury will come from the trust 
fund and any special adjustment that would accrue to railroad 
workers. That is the sole source of recovery for the asbestos 
injury under this bill.
    Senator Cornyn. Well, I would say that we ought to have two 
goals here. One is to make sure that we get as many asbestos-
related claims into the fund as we possible can, because there 
are all sorts of groups and individuals who are trying to get 
the best deal they can for their group or interest. But, 
unfortunately, it has the concomitant effect of diluting the 
likelihood of success of the trust fund itself, and I think we 
all are interested in making sure that the trust fund actually 
works.
    Mr. Hoferer, can you comment on those two issues, both 
including everybody into the fund in order to maintain the 
viability of the fund, and then also the idea of dual 
compensation or what we used to call double-dipping?
    Mr. Hoferer. Sure, I will be happy to. Let me say first of 
all, a couple of years ago there was a United States Supreme 
Court decision, Ayers v. Norfolk Southern, and what it 
basically did was it allowed some FELA asbestos claimants who 
were suing the railroad to recover for all of the asbestos 
exposure caused by prior employers or other parties. The 
railroad had to pay one hundred percent of that because the 
Supreme Court said that under the FELA law contribution was not 
divisible and they had to pay all of the damages, which was a 
very expensive case.
    Under the current proposed legislation, what you have is 
the ability for everyone to be treated equally. We want the 
rail employees to be treated the same as anyone else in any 
industry.
    I think the way to do that is to have this measured by the 
worker's compensation standard. I say that because I believe 
there is some confusion in talking about this whole subject. 
The FELA is a lawsuit tort-related matter that is conducted in 
a courtroom. It has elements of damages that are not covered in 
worker's compensation. It is a whole different thing.
    That is why if the suggestion is that you get to collect 
under the fund and under the FELA, you are really collecting 
twice. Even if it is the average, you are collecting twice what 
the lawsuit damages would be.
    Now, on the other hand, you have a situation where the rail 
workers have a lot of other benefits that are not tied up with 
the FELA. Mr. Griffin mentioned one of them, the occupational 
disability annuity. We know that about 98 percent of the people 
that apply for it have it granted to them. Now, that is for 
active employees.
    We have total disability. That also is available to them. 
It is the Social Security equivalent. The occupational 
disability annuity is unique. No other workers in the United 
States have anything like that. It doesn't exist under Social 
Security. Then we have sickness benefits. We have the 
continuing medical benefits if the employee is an active 
employee. And, of course, they get Medicare if they are 
retired. So these are all benefits that are in addition to the 
FELA.
    The other thing I would say that is important here is the 
vast majority of the rail employees who have filed for asbestos 
claims are retirees, and the reason is quite simple. The true, 
significant asbestos exposure ended in the 1950s with the 
steam-era locomotives. You can do the math. You are talking 
about people that are going to be in their 70s.
    I hope that addresses some of your concerns.
    Senator Cornyn. Thank you.
    Chairman Specter. Thank you very much, Senator Cornyn.
    We are joined here by Senator Carper, who is a prospective 
cosponsor of the draft legislation, and in that light we invite 
him to make a comment.
    Senator Carper. Mr. Chairman, thanks very, very much to 
you. I want to say something about Seema Singh, the young woman 
sitting right behind you, and say how much we have enjoyed 
working with her and other members of the staff of this 
Committee and the people that are represented in this room and 
that are watching today. You are well served by her as a member 
of your staff.
    I enjoyed riding down on the train this morning, as I do 
many mornings. I come from Delaware on the train, and had the 
good fortune this morning of sitting across the table from a 
fellow whose picture was in the New York Times business pages, 
with yours, and that is Judge Becker.
    Chairman Specter. Odd, he didn't mention it when he spoke.
    Senator Carper. He mentioned he has known you for 53 years, 
Mr. Chairman--53 years. He told some great stories to everybody 
on the train about you--no, not really.
    Chairman Specter. Well, in that event, you can go ahead.
    [Laughter.]
    Senator Carper. I want to say to Judge Becker, God bless 
you. Thank you for the time and energy and intellect that you 
have put into this. If we end with a bill, in no small measure 
the credit will be yours.
    Mr. Chairman, I am encouraged by hearing rail management 
and rail labor sit at the same table and say this is one they 
think they can work out, and that they are determined to do 
that, and if they can't hammer it out, to turn to binding 
arbitration. I want to commend you. That is the kind of spirit 
that we need to be able to resolve some other difficult issues 
on this bill.
    People have asked me do I think in the end this is going to 
be a partisan bill or not. I certainly hope not. I certainly 
hope we have a bipartisan bill, maybe a consensus bill. That 
could be the triumph of man's hope over experience, but I don't 
know that it needs to be.
    I know the Chairman has done a huge amount of work on this 
and has a strong and abiding interest in this issue and coming 
to a fair resolution, as does Senator Leahy, as does Senator 
Feinstein, who has put enormous effort into this. I hope, in 
the end, that the bill that emerges from this Committee will be 
something very much like a consensus and we will end up with 75 
or 80 people voting for it on the floor, and maybe convincing 
our friends in the House that the better part of valor here is 
to maybe side with the Senate on this one.
    I commend you for your efforts. I look forward to 
continuing to work with you and hope to be a cosponsor in the 
near future. Thanks, Mr. Chairman.
    Chairman Specter. Well, thank you very much, Senator 
Carper, for those kind comments.
    Thank you, Mr. Griffin and Mr. Hoferer.
    Mr. Griffin. Thank you.
    Mr. Hoferer. Thank you, Senator.
    Chairman Specter. I think this has been a very useful 
hearing and we are going to plod ahead to try to get this all 
done.
    Mr. Hoferer. Good luck to you, sir.
    Chairman Specter. That concludes the hearing.
    [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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