[Congressional Record Volume 150, Number 49 (Thursday, April 8, 2004)]
[Senate]
[Pages S3965-S3967]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




         THE FAIRNESS IN ASBESTOS INJURY RESOLUTION ACT OF 2004

  Mr. LEAHY. Madam President, we have had months of bipartisan 
negotiations on legislation to enact a national trust fund for victims 
of asbestos-related diseases. I am concerned that our distinguished 
majority leader and Senator Hatch have now introduced a partisan 
asbestos bill. We all agreed over the past couple of years of hard work 
on this issue that only a bipartisan bill will pass.
  I held the first hearing on the problem of asbestos litigation a 
couple years ago. We worked closely with Republicans and Democrats, and 
I had hoped the bipartisan dialog over the past year would yield a fair 
and efficient compensation system that we could, in good conscience, 
offer to those suffering today from asbestos-related diseases and also 
to victims yet to come. But I am afraid the Senate majority has decided 
to walk away from those negotiations and to report to unilateralism by 
introducing a partisan bill.
  I have offered, as has Senator Daschle, to work very hard on this 
issue. When I heard one was going to be introduced yesterday, I 
actually tried very hard to see if I could get a copy of it. Hours 
after it was introduced, we were finally given one.
  We have all learned a great deal about the harms wreaked by asbestos 
exposure since that first Judiciary Committee hearing I talked about 
that I convened in September of 2002.
  Asbestos is the most lethal substance ever widely used in the 
workplace. Between 1940 and 1980, more than 27.5 million workers in 
this country were exposed to asbestos on the job. Nearly 19 million of 
them had high levels of exposure over long periods of time. Even with 
all that, unbelievably, asbestos is still used today.

  What we face is an asbestos-induced disease crisis--hundreds of 
thousands of workers and their families have suffered debilitating 
disease and death due to asbestos exposure. These are the real victims 
of the asbestos nightmare, and they must be the first and foremost 
focus of our concern and effort in this body. These are people who, by 
simply showing up for work, now must endure lives of extreme pain and 
suffering and often early death.
  Not only do the victims of asbestos exposure continue to suffer, and 
their numbers to grow, but the businesses involved in the litigation, 
along with their employees and retirees, are suffering from the 
economic uncertainty created by this legislation.
  More than 60 companies have filed for bankruptcy, and their 
bankruptcies have a devastating human and economic effect. Those 
victims who deserve fair compensation, of course, cannot get it from a 
bankrupt company.

[[Page S3966]]

  I worked with Senators Daschle, Dodd, Frist, Hatch, and Specter. We 
asked representatives from organized labor, from the trial bar, from 
industry to help us reach a consensus on our national trust fund to 
fairly compensate asbestos victims and to provide financial certainty 
for asbestos defendants and their insurers.
  A successful trust fund--one that will give fair and adequate 
compensation, would bring reasonable financial certainty to defendant 
companies and insurers--includes four essential components: appropriate 
medical criteria, fair award values, adequate funding, and an efficient 
expedited system for processing claims.
  During the markup session of the first FAIR Act, we unanimously 
adopted the Leahy-Hatch amendment on medical criteria. During the 
mediation process established by Senator Specter and Judge Edward 
Becker, the interested stakeholders focused on crafting a streamlined 
administrative process and both Judge Becker and Senator Specter 
deserve credit for the enormous amount of work they put in on this. But 
we have not reached consensus on two other essential components: fair 
award values and adequate funding.
  Although the changes made to a few award values by Senator Frist 
moved in the right direction, the bill introduced last night does not 
move far enough. In fact, seriously ill victims will receive less 
compensation, on average, under the current version of the FAIR Act 
than they would in the tort system.
  Actually, the FAIR Act, as I say on this chart, is not fair. Victims 
with asbestos-related lung cancer with at least 15 weighted years of 
asbestos exposure could receive only $25,000 in compensation, basically 
a crude joke of the victims, especially given most lung cancer victims 
are going to die within 2 years. It is a cruel joke also on their 
families.
  Not only that, we find they may have their awards reduced or even 
eliminated to repay insurance companies. That is so contrary to most 
existing compensation programs. For example, the Radiation Exposure 
Compensation Act, the Energy Employees Occupational Illness 
Compensation Program Act, and the Ricky Ray Hemophiliac Relief Fund Act 
all contain strong antisubrogation language to protect awards to 
victims under these compensation programs.
  Our bipartisan medical criteria have already eliminated what 
businesses contended were the most troublesome claims. We all say we 
need to compensate the truly sick, but fair compensation is not free 
compensation.
  Our bipartisan agreement on medical criteria is going to be 
meaningless if the majority, in effect, rewrites the categories by 
failing fairly to compensate those who fall within them. We need a 
balanced solution. We need one that can be supported by all Members in 
this body.
  Even with consensus on medical criteria, if the award values are 
unfair, the bill will be unfair and unworthy of our support, which 
sadly is the case with this partisan bill.
  Since the first hearing on this issue, I have emphasized one bedrock 
principle: The solution we reach must be a balanced solution. I cannot 
support a bill that gives inadequate compensation to victims. I will 
not adjust fair award values into some discounted amount to make the 
final tally come within a predetermined, artificial limit. That is not 
fair.
  We have been told, however, the majority will support a bill that 
contains funding with a goal of raising $109 billion over 24 years. But 
it is clear from projections of future claims this funding is 
inadequate to pay fair award values to present and future asbestos 
victims. Indeed, it is a cut of more than $40 billion from the total 
funding approved in the Judiciary Committee under contingency funding 
amendments by Senators Feinstein and Kohl. It is not fair. All 
reflections show it is not enough.
  The partisan emphasis in this bill on the interests of the industrial 
and insurance companies involved, to the detriment of the victims, has 
predictably produced an imbalanced bill. This bill is a reflection of 
the priorities that went into it. For us to succeed in reaching the 
consensus solution we have sought for so long, a workable bill should 
fairly reflect, and not discount, the significant benefits a fair 
solution indisputably would confer on the companies involved. A trust 
fund solution would offer these firms reasonable financial security. 
Even a casual glance at the way the stock values of these firms have 
closely tracked the Senate's work on this issue is enough to make this 
fact crystal clear.
  Given all of these serious problems, I believe forcing this new 
asbestos bill through the Senate in its present form would prove 
counterproductive, even fatal, to the legislative effort. The near 
party-line vote within the committee on the earlier bill is more of a 
setback than a step forward even after all of our work. Proceeding 
further without consensus would be another mistake.
  Instead, we should go back to work, build on those areas where we 
have bipartisan consensus, and then produce a bill that will help the 
asbestos victims in this country, will bring certainty to the companies 
that are laboring under possible liability, and will let the country go 
on with its business.
  The PRESIDING OFFICER. The Democratic leader.
  Mr. DASCHLE. Madam President, I will use my leader time under the 
order of the day, and I would make a note I will designate Senator 
Kennedy to control the time once we move to the pension conference 
report.
  The PRESIDING OFFICER. The leader has that right.
  Mr. DASCHLE. Madam President, I compliment the distinguished Senator 
from Vermont for his statement on asbestos. I do not know of anybody in 
our caucus, perhaps in the Senate itself, who has done more and has 
been more engaged on this issue for a longer period of time than has 
Senator Leahy. We would do well to listen to his sage advice and his 
critique of the asbestos legislation that is now working its way on to 
the Senate calendar.
  As our Nation continues to grapple with the terrible consequences 
wrought by the use and distribution of asbestos, Senators from both 
sides of the aisle have been working diligently to negotiate a 
compromise. With each passing day, more victims face serious illness 
and even death, and more workers and companies face the threat of 
bankruptcy.
  Approximately 1.3 million Americans are still exposed to asbestos at 
work. Ten thousand Americans die from asbestos-related illnesses each 
year. That is more than from drownings and fires combined.
  In my home State of South Dakota, asbestos liability has been a major 
issue for businesses and individuals. In the cities of Aberdeen and 
Brookings, I have talked with the leadership team at 3M to discuss the 
impact this issue is having on their business.
  3M employs 1,300 workers whose livelihoods are tied to the company's 
financial stability and strength. The corporation's management has told 
me how asbestos lawsuits have begun to overwhelm 3M, as over 300,000 
suits have already been filed against their company, even though they 
were not in the business of producing or manufacturing asbestos.
  At the same time, there are many South Dakotans who have become sick 
or died because of their exposure to asbestos. For instance, Jack 
Archer from Sioux Falls was a career electrician for 47 years working 
on dams along the Missouri River, and in aluminum plants and paper 
mills. After a long day of work, he would often come home covered in 
asbestos, and would shake off the dust and change clothes away from his 
house so his children and wife, Maurine, would not be exposed. In 
January 2000 he was diagnosed with mesothelioma.
  Jack had seen many of his co-workers and friends die from the 
disease, and knew the illness that awaited him. Once diagnosed, Jack's 
body deteriorated rapidly, and each day brought more pain than the 
last. He died in July 2002. His wife now tries to remember his vitality 
and zest for life, rather than the years when cancer got the better of 
him.
  Asbestos has created havoc all across the country, in homes and 
neighborhoods, mines and manufacturing plants, financial markets and 
board rooms. One study states that 300 companies were sued in the 
1980s, while approximately 8,400 companies have been sued as of 
2002. In addition, at least 70 companies have sought bankruptcy 
protection due to asbestos litigation.

[[Page S3967]]

  Clearly, a solution is needed. For years, I have expressed my strong 
desire and commitment to find one. As I have said repeatedly, there is 
a way for us to craft legislation that could enjoy the overwhelming 
support of the Senate, if we put partisan differences aside and develop 
a true compromise that adequately compensates victims and provides 
financial certainty to companies and insurers.
  Creating a national asbestos trust fund is an extraordinarily complex 
undertaking. There are a number of issues that all sides agree must be 
addressed: The creation of a no-fault administrative system; the 
equitable allocation of contributions; the establishment of reasonable 
medical standards; the resolution of pending claims and settlements; 
the creation of fair compensation values; and ensuring transparency of 
the system for both victims and corporate stakeholders.
  Last July, the Judiciary Committee narrowly reported out a bill that 
was opposed by the American Insurance Association and the AFL-CIO. 
Since that time, there has been much work invested to try to develop a 
compromise and bridge the differences between the stakeholders. 
However, while much progress has been made, there are still several 
vital issues that have yet to be resolved.
  During the committee markup, a compromise was reached on one of the 
major issues, medical criteria. Then, in the past few weeks, a 
compromise was reached on creation of the administrative structure 
within the Department of Labor. Yesterday, a new asbestos bill was 
introduced. This legislation incorporated some of the agreed upon 
compromises, and included some improvements.
  However, it also takes a step backward in other areas. The new 
legislation dramatically altered or dropped altogether several of the 
key committee-adopted amendments. For example, the new bill restricts 
the amendment that would have restored current legal rights to victims 
if the fund runs out of money, adding new obstacles to access to the 
courts.
  In addition, the new legislation failed to improve provisions that 
could limit recovery to only $25,000 for lung cancer patients who were 
exposed to asbestos at work for at least 15 years. That is in the bill. 
The so-called FAIR bill actually has a provision that says victims with 
asbestos-related lung cancer and 15 weighted years of asbestos exposure 
would receive only $25,000 in compensation. I literally cannot imagine 
how anybody could support legislation that says that is all they are 
entitled to. Fifteen years of weighted asbestos exposure, you have 
cancer, there is a connection, and your award under this bill is 
$25,000?

  Finally, it puts the overall funding at $109 billion. Some 
Republicans argue investment income would boost that up to $114 
billion, but this is far from certain. Even $114 billion is grossly 
inadequate.
  Clearly, there are several fundamental areas that have not been 
resolved. These issues are not new. In fact, before, during, and after 
the committee markup, Democrats have raised some of these same 
concerns. For over 6 months we have been clear that $114 billion is 
insufficient. While we recognize that Republicans are reluctant to 
accept the committee-supported bill of $154 billion, we have expressed 
our willingness to work out a compromise.
  Time is short. The majority leader has stated his interest to bring 
the bill to the floor immediately following the April recess. We can 
and should develop a solution.
  But let me be clear: Securing a bipartisan compromise on asbestos is 
one of our top priorities. I stand ready and willing to work with my 
colleagues to address this important issue. But we will not support and 
we will do all we can to avoid passing legislation that is not fair, 
that does not address the problem, that will only compound the problems 
of those who are victims today.
  I continue to believe that if we work together, we can develop 
effective reform legislation to provide appropriate compensation to the 
victims of asbestos, while providing a measure of certainty and 
security to American industry.
  If, however, the Senate proceeds with legislation that does not 
reflect the middle ground, as I have said, we will have missed an 
opportunity to address this vital issue. I think we could all agree the 
stakes are too high to let it slip away.
  Madam President, how much of my leader time remains?
  The PRESIDING OFFICER. The Senator has used 9 minutes.
  Mr. DASCHLE. Madam President, I have another matter I would like to 
address in the time I have remaining of my leader time, if I could.

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