[Congressional Record Volume 150, Number 67 (Thursday, May 13, 2004)]
[Senate]
[Pages S5453-S5454]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
THE FAIRNESS IN ASBESTOS INJURY RESOLUTION ACT
Mr. SPECTER. I have also sought recognition to comment about the
status of pending asbestos legislation under S. 2290, the Fairness in
Asbestos Injury Resolution Act. The Judiciary Committee passed out of
committee a bill in July of last year, largely along party lines, which
I supported because I thought it important to move the legislation
forward even though I had grave reservations about the quality of the
bill.
There was no doubt that there was an urgent need for Federal
legislation on this subject because some 70 corporations have gone
bankrupt, thousands of individuals who have been exposed to asbestos
have deadly diseases, mesothelioma and other ailments, and were not
being compensated because their employers, potential defendants, were
bankrupt. I enlisted the aid--he is still a very young man, although a
senior judge--of the former chief judge for the Court of Appeals for
the Third Circuit, Edward Becker, who is now a senior judge, having
taken that status in May of last year, and I asked him to assist in
trying to resolve many of the problems in the asbestos issue. For 2
days in August of last year he and I met in his chambers with
representatives of the manufacturers, the insurers, the reinsurers, the
AFL-CIO, and the trial lawyers, trying to work through many of the
problems. On many intervening days since last August, he and I have met
with those parties in my conference room, trying to work out many of
the complex issues.
These efforts were recognized by the majority leader, Senator Frist,
and the leader of the Democrats, Senator Daschle, who asked Judge
Becker to take on formal status as a mediator. He has spent many hours,
many days working under the auspices of the leaders.
Right now, the efforts to find a legislative solution have been held
in abeyance because of the differences between the manufacturers,
insurers, and reinsurers on one side, and the stakeholders,
representing the injured parties, the AFL-CIO, and the trial lawyers,
on the other, as to what the amount of the trust fund ought to be.
The concept of a trust fund is an outstanding idea. Senator Hatch,
the chairman of the Judiciary Committee, deserves great credit for
moving the legislation in the direction of a trust fund with a schedule
of payments analogous to workmen's compensation so the cases would not
have to go through the litigation process. But a fund would be
established to pay them once their damages were determined; credit also
to Senator Leahy, the ranking member, and credit also to members of the
Judiciary Committee and the leadership, Senator Frist and Senator
Daschle, and many others.
I asked Judge Becker to submit a memorandum summarizing where the
issue stood, which at an appropriate time I will ask to have printed in
the Record. Judge Becker's memorandum notes:
. . . the achievements on an administrative structure for
processing claims, and on provisions for judicial review.
And, further:
. . . other significant matters such as the definition of
exigent claims, timing of payments, and . . . some consensus
on certain concepts such as the anatomy of the ``start up''.
. . .
There was:
. . . a much clearer understanding [as a result of these
mediation efforts] on the troublesome issue of projecting
disease incidence . . . and claim filings over the next
[many] years.
Judge Becker noted that:
. . . there are still some loose ends to be tied down,
especially on the issue of distribution of non-cancer
asbestos claimants with increasing degrees of lung impairment
claims . . .
And noted further:
. . . a significant breakthrough on the related issue of
partial ``sunset''. . . .
And then itemized some of the issues which have yet to be resolved:
Treatment of pending claims and bankruptcies; subrogation
of workers compensation payments; and the venue of any
revision to the tort system as a vehicle for ``sunset''. . .
.
As noted, these mediation efforts have achieved a great deal. Much of
the controversy has been resolved and many of the other issues,
although not resolved, have seen very substantial progress.
There is a considerable difference, as noted, as to what the fund
ought to be with the insurers, reinsurers, and manufacturers on one
side and the injured workers represented by the AFL-CIO and the trial
lawyers on the other side. Judge Becker notes in his memorandum he is
duty-bound not to make a disclosure as where the parties stand, but
also noted there have already been disclosures by the parties. So it is
not really a secret matter. But I will respect the confidentiality the
leaders asked for, and not talk about that.
I think maybe a certain hiatus in the negotiations would be
appropriate. Judge Becker concluded his intensive 6 days of mediation
last week. I have been talking to the parties on both sides and it is
my hope to reconvene the mediation process.
[[Page S5454]]
If the matter goes back to committee, it will not have the input from
all of the stakeholders which is so important and so vital in
understanding all the issues and trying to come to agreement. The
parties may be motivated by reconstituting negotiations because of
their desire to find a way to have agreement as opposed to having the
Senate impose decisions that are not agreed to by the parties.
I think it would be unfortunate if the Senate imposed the judgment as
to where we stand on these complex issues because I think they require
a lot more detail and a lot more study than the Judiciary Committee can
give them. It is a much better forum to have the parties continue to
work. As to the amount of money, it is my hope there will be
flexibility on all sides.
We ought not to consider this as a matter for extracting the last
dollar one way or another because there are so many thousands of
injured workers who have mesothelioma, which is deadly, who are not
being compensated because their companies are bankrupt. There are some
70 companies in bankruptcy. It would be an enormous help to the economy
if there could be a resolution of this very troublesome problem.
I ask unanimous consent the full text of Judge Becker's memorandum to
me, dated May 11, be printed in the Record following my comments.
There being no objection, the material was ordered to be printed in
the Record, as follows:
memorandum
Date: May 11, 2004.
To: Senator Arlen Specter.
From: Judge Edward R. Becker.
Re: Pending Asbestos Legislation S. 2290 (Fairness in
Asbestos Injury Resolution Act; Status Report on
Mediation).
You have asked that I update my previous evaluation of the
status of the efforts to achieve a consensus among the
manufacturers and other defendant companies, the insurers,
the reinsurers, organized labor, and the trial lawyers, i.e.,
the stakeholders concerned with S. 2290, so as to facilitate
consideration of the legislation by the Senate and make
possible its ultimate passage in a form satisfactory to the
stakeholders and the Senate. I am pleased to do so.
You and I began the mediation process in the summer of
2003, and intensified it in the early months of 2004, leading
to significant agreement among the stakeholders on a number
of major issues, most notably on an administrative structure
for processing claims, and on provisions for judicial review.
We also achieved agreement on a number of other significant
matters such as the definition of exigent claims, the timing
of payments, and we reached some consensus on certain
concepts such as the anatomy of the ``start up'', though
details remained to be worked out.
As you know, I have just concluded six days of intensive
mediation under the auspices of Majority Leader Frist, and
Minority Leader Daschle, focused on the critical issues of
claims values, projections, and the overall funding necessary
to sustain a viable National Trust. These sessions were
attended by the top representatives of all the stakeholders,
including a large cadre of CEO's and corporate general
counsels. This process served a number of highly useful
purposes. At the threshold, as the result of a session
attended by four leading experts, we came to a much clearer
understanding of the troublesome issue of projecting disease
incidence and, more importantly, claim filings over the next
forty to fifty years. There are still some loose ends to be
tied down, especially on the issue of distribution of non-
cancer asbestosis claimants with increasing degrees of lung
impairment claims (S. 2290 levels III, IV and V), but in
other respects we have a good handle on the issues. While the
confidentiality attendant to the mediation process cautions
me against memorializing the details of the parties'
positions on claim values, projections, and the size of the
fund, I can fairly state that major progress was made in all
these areas. There was also a significant breakthrough on the
related issue of partial ``sunset'' of claims by lung cancer
victims with significant asbestos exposure, but without x-ray
evidence of pleural thickening or asbestosis, if and when
these claims exceed an agreed upon number. . . . In short,
the parties are significantly closer than they had been
before. Additionally, on the vital issue of the size of the
up-front funding (during the first 5 years of the fund),
major strides have also been made.
While there is still a good deal of distance between the
positions of the stakeholders on these matters, I am
optimistic that, with further discussions with the right
intermediary, the gap might be closed. Such a ``gap closure''
would not, I must add, seal a consensus in the absence of
agreement on a number of other issues of great importance to
the parties, most of which are inextricably intertwined with
the financial issues just described. The most important items
on this list are: (1) treatment of pending claims and
bankruptcies; (2) subrogation of workers' compensation
payments; and (3) the venue of any revision to the tort
system as a vehicle for ``sunset'' in the event that the fund
becomes insufficient to make the required payments to
victims. But if the claims values, projections and funding
issues can be resolved, I believe that these latter issues
would fall into place.
I am encouraged by the joint statement made today by
Senator Frist and Senator Daschle that they ``are committed
to working together to determine whether a compromise can be
reached that would provide sufficient payments to asbestos
victims and certainty to companies.''
Mr. SPECTER. In the absence of any Senator on the floor seeking
recognition, I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Mr. ALEXANDER. Madam President, I ask unanimous consent that the
order for the quorum call be dispensed with.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. ALEXANDER. Madam President, I ask unanimous consent to speak for
up to 15 minutes as in morning business.
The PRESIDING OFFICER. Without objection, it is so ordered.
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