[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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