[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.
____________________