[Congressional Record Volume 150, Number 51 (Tuesday, April 20, 2004)]
[Senate]
[Pages S4122-S4123]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                          ASBESTOS LEGISLATION

  Mr. SPECTER. Mr. President, I have sought recognition to comment on 
the issue of asbestos, the legislation which is about to be called to 
the Senate floor, offered by the distinguished chairman of the 
Judiciary Committee, the senior Senator from Utah. The Judiciary 
Committee reported out a prior bill in July of last year, and it was 
supported largely along party-line votes. One Democrat joined in the 
vote to send it out of committee, and I supported the vote to send the 
bill to the floor, having stated a number of concerns I had on specific 
provisions.
  In August, during the August recess, I enlisted the aid of the former 
Chief Judge of the Court of Appeals for the Third Circuit, Judge Edward 
R. Becker, who had taken senior status preceding May 5. For 2 days, in 
Judge Becker's chambers, he and I met with representatives of the 
manufacturers, the insurers, the reinsurers, the AFL/CIO, and the trial 
lawyers, starting to go through a wide range of issues. Since that 
time, we have met on 18 occasions in my office here in the Hart 
Building, virtually every week, with those representatives, and they 
had meetings in between.
  During the course of our extensive discussions, we have come to 
significant agreements on streamlining the administrative process, 
early startup, defining the exigent health claims, moving through the 
language on judicial review, and dealing with the issue of medical 
monitoring. A good number of those provisions were inserted in a new 
bill introduced by Senator Hatch and Senator Frist on April 7. The 
majority leader has listed the asbestos bill on a number of occasions, 
and each time has deferred it pending the negotiations which have been 
in process and I think are making good progress.
  I have attended all of these meetings. They have lasted, most of 
them, for several hours supplementing the 2 days in Judge Becker's 
chambers, which were both all-day events. All the parties have been 
very, very cooperative. The manufacturers have talked to the AFL/CIO. 
In between, meetings have been had with the AFL/CIO. The trial lawyers 
have been cooperative. There is no doubt that some among the trial 
lawyers may feel they have some contrary interests. I think there has 
been an overall view--clearly by the trial lawyers and the AFL-CIO--
that there are many injured people who have suffered from mesothelioma, 
which is a deadly ailment, who are not being compensated because their 
companies were bankrupt. In excess of 70 companies have gone bankrupt. 
There are hundreds of thousands of claims and there are numerous 
parties who have been named as defendants. The specific statistics are 
that the number of claims is now over 600,000. There are 8,500 
companies which have been named as defendants. As I say, more than 70 
companies have been bankrupt.

  The courts have held that someone is entitled to compensation for 
exposure to asbestos even though the injuries are not yet demonstrable; 
that even though the injuries are speculative, a jury may return a 
verdict based on what injuries may be sustained. That decision was made 
by the Supreme Court of the United States. That stands at the same time 
the people who have mesothelioma, which is a deadly disease, are not 
compensated.
  So it is a very serious matter on all ends: On the end of the 
claimants who are not being compensated because the companies are 
bankrupt; on the end of companies which have gone bankrupt spending a 
lot of money on litigation.
  When a request is made, when legislation is structured to give up the 
right to jury trial, that is a very serious matter with our common law 
tradition for right to trial by jury, a right which is specified in the 
seventh amendment to the U.S. Constitution, the right to jury trial in 
a civil case. We are dealing with very weighty matters. We

[[Page S4123]]

have established a scale of compensation, a schedule which is patterned 
along the lines of workers' compensation, but there are very weighty 
matters to be considered.
  It is my thinking that a cloture vote this week would be 
counterproductive. I understand the thinking to the contrary, that a 
cloture vote may put some pressure on the parties to move forward. 
There are many on both sides of the aisle who want a bill. I see the 
distinguished junior Senator from Delaware having risen. He probably 
wants to make some comments but is waiting patiently, or impatiently, 
but at least waiting. Senator Daschle has been a participant. His 
people have been in these discussions. Senator Leahy, of course, the 
ranking Democrat, has been an active participant, and Senator Dodd has 
been. Senator Carper keeps calling over the weekend, concerned about 
these matters. Senator Hatch has been a leader, having constructed the 
idea of the trust fund and having gotten $104 billion in it initially. 
That figure may be up to $114 billion. Senator Hatch commented about 
the legislation reported out, if I am incorrect--Senator Hatch is in 
the Chamber and can correct me--at $139 billion. So there are a lot of 
people who want a bill.
  Some of the thinking is if there is a cloture vote it will put people 
on record, people whose constituencies would like to see a bill, who 
may not want to vote against cloture, so there may be that pressure.
  My own view is progress has been made. I can represent emphatically 
that these are very complex issues. Judge Becker was the judge who 
wrote the opinion on the class action case brought on asbestos several 
years ago. His opinion was upheld by the Supreme Court. He is very 
knowledgeable in the field. He happens to be the winner of the 
outstanding jurist award among Federal judges, about 1,000 judges. He 
really knows the field.
  I have had substantial experience in litigation and legislation and 
have examined these complex issues and say emphatically that there has 
been no dawdling. Progress has been made on the complex issues, as much 
as could be made, at the meetings presided over by Judge Becker and 
myself and meetings in between time.
  So my view is a cloture vote is premature. Earlier today the majority 
leader in the Senate talked to Senator Daschle and raised the 
possibility about a delay but not committed to a delay. His 
inclination, fairly stated, is to go ahead with a cloture vote unless 
there can be some good reason there will be a way to expedite 
negotiations.
  Judge Becker has some commitments this week which he cannot break, 
but he is available part of the week and is available all of next week. 
I have a commitment next Tuesday that I have to work toward. It is 
called a primary election. I am only in town today, breaking my 
campaign schedule, which is very important. I have a tough fight on my 
hands--it is well within my pay grade--a tough fight. But I met earlier 
today with the parties to the asbestos matter, attended a leadership 
meeting, and spoke with Senator Hatch earlier today.
  I yield the floor.

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