[Congressional Record Volume 150, Number 53 (Thursday, April 22, 2004)]
[Senate]
[Pages S4238-S4240]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
ASBESTOS
Mr. ALLARD. Mr. President, the Senate will decide shortly what path
to take on the pending asbestos liability legislation, otherwise known
as the Fairness In Asbestos Injury Resolution Act, more frequently
referred to simply as the FAIR Act. This bill has inspired very strong
sentiments from many Americans. Like my colleagues on both sides of the
aisle, I am deeply sympathetic to those who have suffered severe
medical consequences from exposure to asbestos.
I am somewhat less sympathetic to those who may seek compensation
without demonstrating a medical impact on their lives. While the number
of mesothelioma claims has remained relatively steady at about 2,000
claims
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a year for the last 10 years, over 100,000 cases were filed in 2003.
According to the RAND Institute for Civil Justice, mesothelioma
victims receive only 17 percent of compensation awards, compared to 65
percent for nonmalignant claimants.
On top of that, trial lawyers may charge fees as high as 40 percent
plus litigation expenses. The result of less justifiable lawsuits is
many real victims are denied compensation for actual injuries.
To date, 67 companies have been bankrupted and more than 60,000
Americans have lost their jobs as a direct result of asbestos
liability. Clearly, we have a problem in this country.
I followed the numerous Senate hearings held on this issue and I have
met with numerous Coloradans with a variety of perspectives. I met with
those who lost loved ones to mesothelioma, those who have lost jobs due
to asbestos litigation, and those who are curtailing their
manufacturing operations in Colorado in anticipation of continued
claims.
The complexities of this issue are tremendous. I compliment my
colleagues, the chairman of the Judiciary Committee and the majority
leader, for their work to date on this issue.
Beyond the FAIR Act, general litigation and litigation reform have
been major topics of concern this session in the Senate. Last October,
the Senate focused on the Class Action Fairness Act. When a plaintiff's
injury is not worth enough to justify a legal suit to recover damages,
individuals similarly affected can combine damages for one lawsuit
against a common defendant. In recent years, driven largely by a few
unscrupulous attorneys, there has been an explosion in class action
litigation. Our economy bears an enormous burden due to this explosion
of litigation. Unfortunately, much of that burden is carried by
consumers. Specific to these suits, these abuses of the system, the
consumer is often left out in the rain once there is a settlement.
Attorneys can make millions, while the plaintiffs are often left with
nothing more than a coupon for a service they were denied in the first
place.
Like so many things designed to protect consumers and ensure fair and
just restitution, the tool of class action has been manipulated. Far
too often, that manipulation has yielded tremendous wealth for
attorneys driving these actions and little or nothing for the consumers
initially harmed.
The Center for Legal Policy recently reported from 1997 to 2000
United States firms saw a 300-percent increase in Federal class actions
and a 1,000-percent spike in State class actions. The end result, as we
will see, is an increase in litigation, thus an increase in the cost of
doing business and higher costs passed along to the consumer. There
are, in fact, a plethora of abuses that have contributed to the
generation of this legislation in the Senate.
Nothing in the class action bill denied a consumer a right to make
valid claims. This point cannot be stressed enough. Our legal system
has functioned under this guiding principle for generations. We will do
nothing in this Chamber to challenge that principle.
There are those in this body who see this bill differently. There are
those in this body who can look at the class action brought against
Blockbuster Video where attorneys will collect a little less than $10
million and class members will get coupons toward future video rentals
and say this is justice. This case, and cases like it, are
representative of the systematic denial of valid claims by class
members and it is incumbent upon us to rectify this situation.
One such tool at our disposal is increased oversight of such
settlements. The Founding Fathers, in their infinite wisdom, envisioned
problems like this. The Constitution was drafted explicitly to provide
for Federal jurisdiction over all lawsuits between the citizens of
different States. These cases involving parties of diverse citizenship
have evolved into what we see today as national types of litigation or
big-dollar suits against large companies engaged in interstate
commerce. Over time, Congress has more narrowly defined constitutional
diversity and created a requirement that all plaintiffs be diverse from
all defendants. The result today is venue shopping, attorneys seeking
favorable State courts through which to pursue an action that is
national in scope. The Founders knew such nebulous venue requirements
could lead to local biases in cases of broad significance and we have,
unfortunately, arrived at that point. The Constitution provides for
Federal jurisdiction over citizens of different States so local bias
will never become an issue. National, multimillion-dollar suits should
not be barred from Federal courts. The egregious practice of venue
shopping flies in the face of the Founders' intent.
Class actions are a valuable part of the legal system. Recent abuses
and a shift in the benefits of an action from class members and toward
attorneys should not signal the end of access to appropriate legal
recourse. The system as it exists today is untenable.
Medical liability has become another increasingly important matter on
a national scale. In February, the Senate debated the Patient Crisis/
Access to Care Act. Skyrocketing medical liability premiums have
translated directly to physicians limiting services, retiring early, or
moving out of the State--one State to another--to escape escalating
costs of liability insurance.
This cost is deeply felt and extends well beyond the physician-
patient relationship. Emergency departments are losing staff and
scaling back critical services, even trauma units. OB/GYNs and family
doctors have stopped delivering babies, and all too often high-risk
procedures--for example, neurosurgery--are postponed because surgeons
cannot find or afford insurance.
The result is a serious threat to patient access to care. Twenty-six
percent of health care institutions have cut back services or
eliminated patient care units. Seventy-eight percent of Americans fear
that skyrocketing medical liability costs will limit access to care
even further.
If we look at the root of this problem, we see that median medical
liability awards have increased 43 percent in 1 year from $700,000 in
1999 to more than $1 million in the year 2000. In 2001, malpractice
insurers paid $1.53 in claims and costs for every $1 received in
revenue. This system is not sustainable and will not serve those
Americans in need of better health care.
We are suit happy. At some point Americans stopped bargaining and
negotiating in good faith. At some point we became less concerned with
justice and more focused on assigning blame. More than assigning blame,
we now assign dollar amounts to virtually every major, minor, and
perceived slight. We live in a country where family disputes are
settled in court.
Mr. President, at the risk of sounding too folksy, people where I
come from, where I was raised, simply do not see it this way. If this
body does nothing else today, we should commit to an overall effort to
recast our approach to the judicial system--a system that has grown
obese and focused on greed rather than justice.
These are just a few examples of the cost of continued and increased
litigation and the importance of reform.
The FAIR Act, which faces a cloture vote later today, marks another
attempt to deal with a pressing national issue. It is clear, however,
that the FAIR Act will not be permitted to come to an up-or-down vote
in the Senate.
A variety of important bills have been effectively defeated before
they have ever come to an up-or-down vote in this body. Parliamentary
tricks and filibuster by the Democrats have jammed numerous issues.
The following examples should clearly illustrate this obstruction.
The JOBS bill would both repeal a European tariff on nearly 100
American-made products and cut taxes for manufacturers in the United
States. Although the JOBS bill passed the Finance Committee 19 to 2 and
enjoys broad, bipartisan support, Democrats voted to block a vote on
the measure in March.
The medical liability legislation I discussed--patients across
America are denied critical health care, including emergency and
obstetric care, because doctors and hospitals are closing their doors
from skyrocketing liability costs. Opponents blocked a comprehensive,
bipartisan bill in July of 2003. In February of 2004, Senate Democrats
again blocked an effort to protect women's access to obstetric and
gynecological care. That was S. 2207.
The energy bill--a comprehensive energy bill would deliver nearly 1
million
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American jobs, increase renewable and alternative sources of energy,
and reduce America's dependence on foreign oil. This bill has been
blocked in the Senate for 3 years, including a provision to open ANWR
and dramatically reduce America's dependence on foreign oil and create
hundreds of thousands of more American jobs.
The Workforce Investment Act is projected to help more than 940,000
dislocated workers get the training they need to get good jobs. It was
passed by both the House and the Senate--I might add unanimously in the
Senate. Senate Democrats now refuse to appoint conferees so that the
bill can become law.
Judges--the unprecedented, unconstitutional challenge to the Senate's
advise-and-consent role continues. A minority of Democrats have
prevented six highly qualified Federal appeals court nominees from
receiving a fair, up-or-down confirmation vote and are threatening to
use partisan filibusters to prevent confirmation of additional judges.
If given an up-or-down vote, all these nominees would be serving on the
bench today.
The class action legislation I mentioned would create a consumer bill
of rights to ensure that victims are not denied fair compensation while
their trial lawyers escape with the lion's share of court awards. On
October 22, 2003, Senate Republicans and nine Democrats came one vote
short of overcoming the Democrat leadership's parliamentary
obstruction.
Faith-based/charities legislation passed the Senate on April 9, 2003,
with overwhelming bipartisan support, 95 to 5, and similar legislation
resoundingly passed the House on September 17, but the Democrat
leadership is blocking a conference committee to resolve House-Senate
differences and even allow a final vote. The CARE Act will spur more
charitable giving and assist faith-based organizations and community
charities.
Welfare reform--on April 1, 2004, Senate Democrats voted to block a
measure to reauthorize the landmark 1996 welfare reforms. H.R. 4 would
build on the successes of the 1996 reforms to strengthen work
requirements and promote healthy families, as well as provide an
additional $6 billion in childcare funding.
It is time to move forward with an agenda in the Senate. I think it
is time for us to put aside the partisan politics we are experiencing
in the Senate today and move forward with, I think, very important
legislation. I talked about some of that: liability reform, that
affects both class actions as well as medical care; trying to ensure
that we have voluntarism. Welfare reform has been extremely successful.
Yet we find that obstructed in the Senate.
I hope, even though this is a Presidential year, and many of us are
not surprised by some of the Presidential politics, that the Democrats
will seek to cooperate more with the Republican majority so we can move
forward with the agenda in the Senate.
There is a terrible cost being exacted for our delinquency on these
matters. Every day the outlook for health care, the burden of an un-
reformed tort system run amuck, and opportunities for America's small
businesses grows increasingly difficult. I pledge to work with my
colleagues on each of these issues, some of which I support and others
which I may not, but I will work with colleagues to see that each bill
receives a fair up and down vote. Our constituents deserve better than
to watch while the legislative process is held hostage for the
political or ideological desires of a few members of this body.
Mr. President, I thank the Chair and yield back my time.
The ACTING PRESIDENT pro tempore. Who yields time?
Mr. ALLARD. Mr. President, I suggest the absence of a quorum.
The ACTING PRESIDENT pro tempore. The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Mr. SANTORUM. Mr. President, I ask unanimous consent that the order
for the quorum call be rescinded.
The ACTING PRESIDENT pro tempore. Without objection, it is so
ordered.
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