[Congressional Record Volume 150, Number 51 (Tuesday, April 20, 2004)]
[Senate]
[Pages S4111-S4114]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                  DEBATING ASBESTOS LITIGATIONS REFORM

  Mr. DASCHLE. Mr. President, I will address a couple of issues. I am 
disappointed we have come to debate the asbestos issue under these 
circumstances. I agree with much of what

[[Page S4112]]

the majority leader has said about the need for the Senate and our 
country to constructively address this problem. I agree there has been 
a negative economic impact on many of our most prestigious businesses 
throughout the country. I agree in many ways the current system has 
been deficient. So there is much of what the majority leader said in 
his description of the situation with which I agree.
  He did not mention, but I think it ought to be noted, that as we 
speak the estimate is 1.3 million Americans are still exposed to 
asbestos in their places of work; that asbestos is still legal in this 
country; and that we import 29 million pounds of asbestos each year, a 
300 percent increase in the last decade.
  He did not mention, but I think it also is noteworthy, the peak death 
toll for asbestos is not likely to occur for approximately 15 years. 
The primary asbestos-related illnesses could cause at least 100,000 
deaths: mesothelioma, asbestosis. An average 10,000 victims per year 
die from asbestos exposure. More Americans die of asbestos-related 
illness than drownings and fires combined already. Estimates range that 
current and future victims could be--and this is a stunning number--1.2 
million to 2.6 million people.
  So we are called upon to write legislation that will become law that 
projects our best guess on how to address those numbers, not this year 
but for the next 20 to 30 years. If we are going to do this, I would 
hope in the deepest sense of what it means to be a Senator we do it 
right. I must say we are far from that point as we begin this debate 
this morning. We are not doing this right.
  I want to talk a little bit about why I do not believe we are, but it 
is not just the view expressed by some of us on this side--I will go 
into procedures and lost opportunities over the next couple of 
minutes--but there was an article in the paper this morning quoting a 
prestigious and engaged Member of the Senate, Senator Specter, who says 
the current plan is counterproductive and argues about why this 
legislation is not ready for the consideration the majority leader 
insists we give it today. I ask unanimous consent this article be 
printed in the Record at this time.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                     [From The Hill, Apr. 20, 2004]

       Specter Says Frist's Asbestos Plan Is `Counterproductive'

                            (By Klaus Marre)

       A centrist Republican is speaking out against a Senate 
     leadership plan to force a vote this week on a controversial 
     asbestos reform bill.
       In his first interview on asbestos litigation legislation, 
     Specter said that it would be ``counterproductive to force a 
     cloture vote'' on a bill recently introduced by Senate 
     Majority Leader Bill Frist (R-Tenn.) and Senate Judiciary 
     Committee Chairman Orrin Hatch (R-Utah). The measure, which 
     would set up a trust fund to pay victims of asbestos 
     exposure, is expected to be debated on the Senate floor this 
     week.
       Frist spokeswoman Amy Call said Republicans would seek a 
     cloture vote if Democrats object to a unanimous consent 
     agreement on the legislation. ``Senator Frist feels that 
     providing compensation for asbestos victims is an urgent and 
     important piece of legislation that the Senate needs to act 
     on, which is why he is bringing it to the floor this week,'' 
     Call said.
       Asbestos reform has failed to move in the Senate for a 
     number of reasons, but the major dispute centers on the 
     amount of the planned trust fund. The new bill would be able 
     to pay $114 billion in claims and has a $10 billion 
     contingency fund, which organized labor says kicks in too 
     late.
       The previous legislation had a total value of $153 billion, 
     including a larger contingency fund that the unions had 
     approved.
       Specter credited Frist for pressing for action on asbestos 
     reform but said a vote on the new bill would be premature. He 
     added that continuing the long-running negotiations between 
     industry groups, unions and other affected parties is more 
     likely to succeed than a cloture vote.
       The Pennsylvania senator, who faces an April 27 primary 
     against Rep. Patrick Toomey (R-Pa.), stressed that he was not 
     criticizing Frist. But he said that his weekly meetings with 
     stakeholders on asbestos reform have yielded ``a tremendous 
     amount of progress,'' adding that he is ``afraid that cloture 
     will hurt efforts to continue the negotiation process.''
       Sen. Tom Carper (D-Del.) agrees. Before the April 
     congressional recess, Carper said Frist was moving too 
     quickly on asbestos and urged him to continue negotiating and 
     bring a compromise to a vote later in May.
       Various stakeholders have come out against the Frist-Hatch 
     bill. In an April 15 letter to Frist, several insurance 
     companies, such as The Chubb Group and the American 
     International Group said the legislation contains some 
     improvements, but is ``inequitable, unaffordable, and 
     provides no finality or certainty to victims, defendants, 
     insurers and reinsurers.''
       The groups add the proposed trust fund approach is 
     ``fatally flawed and can't be made to work.''
       Three insurance- and reinsurance-industry groups--the 
     National Association of Mutual Insurance Companies, the 
     Property Casualty Insurers Association of America and the 
     Reinsurance Association of America--said in a joint statement 
     that the bill ``is absolutely essential to insurers that the 
     Senate resist attempts to bid up the insurance share'' as the 
     legislation makes its way through the Senate.
       The AFL-CIO strongly objected to the bill, saying it would 
     shrink the trust fund and the ``result is a bailout for big 
     business that fails to provide fair and certain compensation 
     for asbestos disease victims.''
       The Asbestos Alliance, a coalition of influential business 
     groups that include the National Association of 
     Manufacturers, has endorsed the legislation and is lobbying 
     for its passage.
       Hatch said last week that he believes his new bill, which 
     he introduced prior to the recess, will likely not attract 
     enough Democratic support to pass. An earlier asbestos reform 
     bill he introduced passed the Judiciary Committee by a 10-8 
     vote.
       In an April 8 speech to the U.S. Chamber of Commerce, Frist 
     said the new bill has significant improvements over the one 
     that passed out of committee. He said it has additional 
     compensation for victims and has more protections for the 
     proposed trust fund.
       Frist stressed that Congress needs to act on this issue, 
     pointing out that the lack of a solution has caused victims 
     to go uncompensated and led 70 companies to go bankrupt and 
     to the loss of 60,000 jobs.
       Specter said he is committed to reaching a compromise this 
     year. He believes that if the amount of the asbestos trust 
     fund is agreed upon, the other pieces will fall into place 
     because ``there would be a sense that it will really happen.'
       He added that passing a bill this year is crucial because 
     it would provide ``a boost to the economy to take companies 
     out of reorganizations and bankruptcy.'' Specter praised the 
     work of Hatch and Senate Judiciary Committee ranking member 
     Patrick Leahy (D-Vt.) for their work on the bill.

  Mr. DASCHLE. It is counterproductive. We are concerned that in many 
respects the legislation before the Senate actually is a step backward 
from what was passed out of committee, and that was viewed by people in 
our country and in the Senate on both sides of the aisle as 
insufficient. One thing we do know is attempts to address this problem 
in other cases affecting other diseases has been an absolute fiasco. 
Ask the black lung victims today whether we did any good when we passed 
the black lung victims fund. If they are still alive, they will shake 
their heads in disbelief. Ask those victims of uranium whether we 
solved the problem, and again they will shake their heads and say how 
deeply disturbed they are with the outcome.
  I can recall how many Senators acclaimed these responses as finally 
having addressed the issue. Well, now people get sick, they die, and 
they have no recourse. While we know perhaps 2.6 million people could 
be affected by this over the next several decades, the bill before us 
actually reduces the compensation fund from $153 billion--and I might 
add parenthetically that the potential range of how much this could 
cost reaches $300 billion, so we are locking in a bill already that may 
be deficient--but we go from $153 billion down to $109 billion in the 
bill currently pending, which maybe one-third of what will be required 
to adequately deal with the compensation we already know will be 
needed.
  Then there is the issue of claims. For somebody working brake linings 
in an auto mechanics shop, filled with asbestos, 15 years of asbestos 
exposure, what this bill says is if they have lung cancer after having 
been exposed to asbestos for 15 years we are going to give them as 
little as $25,000, and that is it. Who conscientiously could look that 
victim in the eye and say, I am sorry, $25,000 is the best we could do? 
I cannot say that.
  We also have the problem of pending cases in this bill. I actually 
know victims who have attempted to do their best under the current 
system, have gone through approximately 10 years of extraordinarily 
complicated legal process to get to a verdict, they finally reach a 
verdict, there is finally some light at the end of the tunnel, they are 
going to get their award, and this bill says forget it, they have to 
start over. We are going to use a new system. All those years of 
waiting, all that pain

[[Page S4113]]

and that agony, all of that potential for loss of life, it is over. We 
are going to make them reapply. Sorry about that.
  At least the committee bill acknowledged we do not know how much this 
is going to cost. This could be $300 billion. I know we only have $153 
billion in the bill and now $109 billion if we look at this bill. 
Because of the work of Senator Biden we said, all right, if we run out 
of money, at least people ought to be able to go back to the courts. 
This bill says, you can go back to the courts, but only if you meet the 
strict new limits that we've added, and only Federal court. Your 
recourse is limited. Oh, yes, we put a $10 billion contingency in 
there, but it's not available until year 24. How cynical is that.

  Democrats want a bill. I want very much to resolve this matter, as 
Senator Frist has noted. I wanted to do it so badly that I asked my 
staff to meet with Senator Frist last fall, right after the August 
recess. They did meet five times at the staff level. Then Senators Dodd 
and Leahy and I met with a number of Republicans in November.
  My staff has participated in virtually all, if not all, of the 
meetings hosted by Senator Specter since the new year--and I must say 
what admiration I have for Senator Specter and the work he has done on 
this bill. He has been diligent, he has been studious, he has been 
thoughtful, and he has been inclusive. It is too bad it took a Senator 
from Pennsylvania to create that kind of environment for real work and 
progress, but he deserves a lot of credit, and I hope I am not getting 
him in more trouble for praising him this morning on the floor. But he 
deserves credit.
  Senator Dodd and Senator Leahy and I met with the manufacturers and 
insurers on several occasions through September, October, November, 
December, January, February, and March. We have met with advocates of 
the victims. I went to Senator Frist last year and I said: Could we 
meet? Could we resolve these issues, you and I? Let's see if we can put 
a draft together.
  That was impossible in December. I was told we just couldn't do it in 
January or in February or in March. I was hoping, at least at the staff 
level, that might afford us an opportunity to begin work together, but 
even at the staff level our efforts were repelled until mid-February.
  Finally, I was told I had a meeting on the 31st of March. I was very 
pleased, at long last, having waited 4 or 5 months to get one, we had 
one. I got there, to Senator Frist's office, and was told I had 10 
minutes--10 minutes--to discuss this issue that we know will last 
decades.
  We stand ready to work out this legislation in a bipartisan way. 
There are many on both sides of the aisle who truly and deeply want a 
resolution. I am puzzled, mystified that without any warning, without 
any consultation this bill was laid down, put on the calendar, and is 
now called before us. It makes a mockery of the system and of any real 
serious and sincere effort to resolve this matter in a truly bipartisan 
way.
  I think those of us who are truly interested in a resolution ought to 
continue to meet with Senator Specter as should those who believe a 
solution can be negotiated. But this is not the way to do it. This is 
nothing more than a--well, it is nothing more than a lost opportunity. 
I could say more but I don't think incendiary language helps this 
process and I will forgo that.
  But I must say I am troubled that yet again, on an issue of this 
importance, there are those who will put politics and political 
posturing ahead of finding a real solution.
  Mr. SARBANES. Will the distinguished leader yield?
  Mr. DASCHLE. I am happy to yield to the Senator from Maryland.
  Mr. SARBANES. Do I understand after repeated efforts to hold, I take 
it, a thorough and comprehensive meeting with Senator Frist, which was 
to discuss this matter, when the time for the meeting had arrived--
which had been delayed, I gather, repeatedly--it was scheduled then for 
only 10 minutes?
  Mr. DASCHLE. It was actually scheduled for a longer period of time, 
but once the meeting began, I was told the majority leader had about 10 
minutes, correct.
  Mr. SARBANES. Hardly enough time to say hello and goodbye, I might 
observe.
  Mr. DASCHLE. That is just about all that happened at that particular 
meeting. The Senator is correct.
  Mr. SARBANES. The other question I wanted to put, do I understand the 
proposal that has now been brought--sprung to the floor, so to speak, 
because I don't know that it represents the culmination of any 
consultative process--for people who have been working their way 
through the existing system toward getting some recovery for the 
illness and the harm they suffered, they would be required to go back 
and start all over again under this? Is that correct? I find that very 
difficult to accept. I just wanted to be clear on that particular 
point.
  Mr. DASCHLE. The Senator is correct. Under this new proposal, those 
who have already been given a judgment, have done everything within 
their power to resolve this matter using the current system, will be 
told that effort is now nullified and they will have to restart under 
this new system for whatever compensation they might be awarded.
  I would say again--I don't know if the Senator was in the Chamber 
when I illustrated or described one particular case, a case involving 
someone who had been exposed to asbestos for 15 years--under this bill, 
that person, who has lung cancer, who smoked, who was exposed to 
asbestos for 15 years, is entitled to as little as $25,000.
  Mr. SARBANES. It is pretty brutal treatment, it seems to me, to 
people who have suffered real harm. But for people to have worked their 
way through the system with all of the stress and strain involved in 
doing that, and to have either come up to the point of judgment or, as 
I understand it, perhaps even achieved judgment, then to be required to 
go back and begin all over it seems to me is just a completely 
unacceptable procedure. I am very concerned to hear that.
  I thank the leader.
  Mr. DASCHLE. I thank the Senator from Maryland.
  The PRESIDING OFFICER. The majority leader.
  Mr. FRIST. Mr. President, I am delighted to have this discussion now 
because I think what the distinguished Democratic leader and Senator 
Sarbanes pointed out is that we have a problem. Whether the problem is 
one outlined--it may be in the bill. I don't know the specifics of that 
particular case and didn't hear the particular case. But the problem, 
and it goes on both sides of the aisle, is that we have an inequitable 
system today. It is not working. It is broken. We are falling down on 
process.
  The accusations of 10 minutes in my office, which I resent--I called 
the Democratic leader this morning. I knew he was at a meeting and I 
didn't get a call back from him. If the Democratic leader is going to 
make accusations that I haven't discussed this enough, let's discuss 
this today. I set aside this whole week and I set it aside starting 
in--the bill came out in July. I said shortly after that, specifically 
in November, we were going to do this in March.
  People, mainly from the other side of the aisle, came forward and 
said we needed more time. I said, OK, we will have more time. Then we 
went to the end of March and we said, OK, another month, or April. Here 
it is April.
  We can go back and look. I pointed out in my statement that I knew 
the Democratic leader and others were either present or present in part 
of it. We had over 20 meetings with staff on both sides of the aisle 
since the bill came out, going through this bill again and again and 
again.
  We can argue process throughout. My only objective is to make sure 
the patients with mesothelioma--and I have had the privilege to treat 
patients with mesothelioma. I have treated a lot of patients with 
mesothelioma, both as a surgeon in England and in this country, and it 
is a devastating disease, secondary in large part to asbestos. I 
treated thousands--if not thousands, over a thousand--of people with 
lung cancer, so I know lung cancer. I know it is devastating. I know 
what it does to the families. I know the tragedy. I know the causal 
factors. There are correlations. Some are causal factors. It is 
difficult in terms of what causes cancer, what doesn't. There are 
limitations to the science itself. That is something we need to debate 
and discuss and to build upon. That is one of

[[Page S4114]]

the things that makes it hard, because you are projecting out and the 
science is not just perfect itself.

  But I will make almost a plea to the other side of the aisle: We have 
a week. The stakeholders, the people who are affected, the various 
constituents--they know because I said months ago that we were going to 
do this--are around this week. If it is an argument over whether I 
personally haven't spent enough time with either the Democratic leader 
or others, we will spend the time. The stakeholders are here. Senator 
Specter spent so much time and he has done a tremendous job. Senator 
Hatch has. And Democrats and Republicans.
  Why don't we take this week, which I set aside weeks ago and said we 
were going to have a week--let's put everybody in a room. There are 
rooms here in the Capitol right now--right now. Take some Democrats, 
take some Republicans, take mediators, take Judge Becker, take our 
staff--us. There are rooms right now.
  Again, I said starting yesterday we have 5 days to resolve the 
problem. In truth, each one of these issues--this particular bill 
people worked on 360 days. It was marked up in the committee before. It 
has been improved again with Democratic and Republican input. It can be 
improved more.
  I have told everyone from day one the modifications Senator Hatch, I, 
and others have made with input of labor and others are still not 
perfect, but until we bring it to the floor of the Senate or until 
right now, today, over the next 8 hours today, 12 hours tomorrow, 12 
the next day, and 12 the next day, I am convinced we can resolve the 
differences. All this talk about being excluded from meetings or not, 
we have rooms in the Capitol; the ``person'' power is here. People are 
prepared to debate. As I said in my opening statement, nobody is stuck 
on particular clauses or amounts.
  I suggest--and that is a reason I called this morning, about 10 
minutes before we started; I knew he was in the leadership meeting--
over the course of today we figure out a process by which we can come 
to resolution of the problem we all know exists, that we have 
bipartisan support on fixing, have some process outlined. I would say 
we start today because I said 2 weeks ago it would be this week, that 
we would take a week, so this is no surprise. I went through my 
statement. I was on the floor of the Senate November 22, March, April, 
the day before we left. I told everybody it would be this week. People 
are here--if they are not here, they can get here by tomorrow--to sit 
down and go through the issues.
  I respond to the Democratic leader's comments that we have a shot. We 
have a responsibility of addressing this issue. We only have 79 
legislative days left. To put this off further is not going to be the 
way to do it. We need to start to put our heads together and put 
together a process to do that and fix the system we know has run amok.
  The PRESIDING OFFICER. The Democratic leader.
  Mr. DASCHLE. I am pleased the majority leader came back to the floor 
to reiterate his desire to find a solution. It will take more than just 
reasserting over and over that we want to find that answer, that 
compromise, that legislative approach that will generate the kind of 
support in the Senate that is possible.
  It takes what he just said. It will take a willingness to meet, a 
willingness to work through these issues. That is my frustration. I 
truly believe the majority leader is sincere when he says he wants to 
find a way to solve the problem.
  What I don't feel has been done, except in the offices of the good 
Senator from Pennsylvania, is that concerted effort to try to address 
these issues in an inclusive way. That has been done, but it has been 
done in large measure by Senator Specter, not by the leadership.
  We are prepared today, tomorrow, tonight. We will be happy to meet, 
as I have offered to do on many occasions. The sooner we do it, the 
sooner that opportunity for resolution can be achieved.
  I yield the floor.
  Mr. FRIST. If the Democratic leader will yield for a question, if we 
start right now and we work through today, Wednesday, Thursday, and 
Friday on issues we debated and talked about--a lot of people are a lot 
more expert than me--why can't we do that? Why can't we resolve this 
huge problem? If we send it off to never-never land for an unlimited 
period of time, this will not come back. I know that. This is the 
fourth date I have set as a final date that we will come in just for 
consideration, so we can get on the bill. Even if we were on the bill, 
talking about the merits of the bill, debating it, we can be having 
discussions with Democrats and Republicans. I ask that Senator Leahy 
and Senator Hatch also be in the room as well.
  Now is the time. Now is the time for action. Would that be possible?
  Mr. DASCHLE. If the Senator is asking me a question, I respond by 
saying, absolutely. But let me give him one illustration of my 
skepticism about his question.
  There must have been now, as he said, 20--maybe more--staff meetings 
over the course of the last 6 or 8 months. As he and I discussed this 
matter and as our staffs discussed this matter, attention has turned to 
the compensation trust fund. We were absolutely startled, surprised, 
deeply troubled by this remarkable movement away from the trust fund 
number the committee had included: $153 billion. The pending bill has 
$109 billion.
  My staff and I have both asked staff of the majority leader on 
several occasions, Is there a way to find a reasonable number? We have 
been stonewalled every single time when that issue has been discussed. 
It has not been discussed. It is not even discussable on the other 
side.
  It does not do any good to sit and look across each other at the 
table if we cannot have a meaningful discussion about some of the 
differences we have. If all we do over the course of the next week is 
to say this is our number, with some expectation that maybe by saying 
it 100 times we will concede that then has to be the number, this will 
be one of the most fruitless experiences he and I will have had in our 
time in the Senate.
  So yes, there has to be a willingness to meet; but if those meetings 
have meaning, there also has to be willingness to negotiate. Frankly, 
we have not seen much of that except in the Specter meetings. Again, I 
am hopeful we can finally move off these hard positions and find some 
common ground. If that can be achieved, then, yes, I think this week 
could be a productive week.
  The PRESIDING OFFICER. The majority leader.
  Mr. FRIST. Mr. President, I think we need to get on to our morning 
business as we go forward. Hopefully, our colleagues have seen this 
play out. Both the Democratic leader and I are committed to this. We 
will have to have a process to get through it. I am absolutely 
convinced we can do it this week if we get the appropriate process. He 
and I will talk, the leadership will talk, and talk to the relative 
parties over the course of the day. I hope by the end of the day we 
will figure out what the process will be that would be fair and 
appropriate negotiation, to come to a resolution for the American 
people.

                          ____________________