[Congressional Record Volume 152, Number 12 (Monday, February 6, 2006)]
[Senate]
[Pages S706-S718]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
FAIRNESS IN ASBESTOS INJURY RESOLUTION ACT OF 2005--MOTION TO PROCEED--
Continued
The PRESIDING OFFICER. Under the previous order, the motion to
proceed to S. 852 is now pending.
The Senator from Pennsylvania is recognized.
Mr. SPECTER. Mr. President, I take strong offense to the statements
made by the Senator from Nevada. His accusation that lobbyists are
buying their way into the Senate is an outrageous violation of rule
XIX, which provides that no Senator in debate shall directly or
indirectly, by any form of words, impute to another Senator or to other
Senators any conduct or motive unworthy or unbecoming a Senator.
To say that this bill, which Senator Leahy and I have led for the
better part of the last 3 years, is the result of lobbyists ``buying
their way into the Senate'' is slanderous. That is a violation of rule
XIX. It may be that the Senator from Nevada is used to slander, is used
to libel, because that is what he did recently to 33 Senators.
Regrettably, nobody has challenged him under rule XIX.
Rule XIX relates to what is done on the floor of the Senate, but in
this day and age of debates outside the Senate, of debates on
television and radio and in the newspaper, 33 Senators were victimized
by the Senator from Nevada, who then scribbled out a form apology
letter which was meaningless in the context of what was done. And to
talk about lobbyists buying their way onto the Senate floor is an
outrageous distortion of what has happened on this bill.
The fact is, over the course of the last 2\1/2\ years, there have
been 36 meetings held in my office, attended by people who have an
interest in this legislation or their representatives. The AFL-CIO was
there. Trial lawyers were there. Representatives of the manufacturers
and representatives of the insurers and anybody else who wanted to come
in were welcome. I didn't see the Senator from Nevada there once.
He has talked about the bill in a rambling, disconnected way, which
proves
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only one thing, and that is that he doesn't know anything, really,
about the bill. He talks about how the Congressional Budget Office has
issued a report saying that it would cost between $120 and $135
billion. Under certain contingencies, it might go to $150 billion--
unlikely. The figure really established was $132 billion.
He talked about the Bates White report which includes people without
any exposure. He wasn't in attendance at the hearing we had during
which the CBO came in and filed a supplemental report on the adequacy
of the $140 billion. That figure is not a concoction of Arlen Specter;
that figure was negotiated by Senator Daschle and by Senator Frist
because they concluded that figure was the accurate figure to take care
of these claims.
When the Senator from Nevada talks about all of the other subjects
which could be taken up, he suddenly became interested in LIHEAP,
importuning Senators from cold States that LIHEAP should be taken up
instead of the asbestos bill. And when he talks about wind power and
the debt and every subject virtually under the sun--no real interest in
LIHEAP until it is a diversion from the asbestos bill. I have been
around here a while, a little longer than the Senator from Nevada, and
I never saw so many red herrings at one time. It could fill an entire
aquarium.
What he is seeking to do is to obstruct. He has had a lot of practice
at that. If he is successful in obstructing this bill from going
forward, it will be a great travesty for the American people, for
asbestos victims who are now not able to collect because their
companies are bankrupt.
Not a word on what the Senator from Nevada had to say about 77
companies which have gone into bankruptcy. He talks about people with
mesothelioma, fakes showing some concern while they and their
dependents are going penniless because there is nobody to pay their
claims. He says one size fits all. The great problem is, the Senator
from Nevada doesn't know anything about the bill.
There has been a very carefully structured schedule of payments. When
he says the veterans are against it, he is wrong. When he says labor is
against it, we have a long list of labor unions. Senator Leahy and I
sat down with the leaders of the AFL-CIO and are working out the few
remaining objections they have to the bill. When he talks about the
managers' package, that is acceptance of amendments. We went through
exhaustive and extensive hearings.
In regards to the 36 meetings which have been held in my office, we
brought in a distinguished senior Federal judge, Edward R. Becker, who
had been the chief judge of the Third Circuit, who accepted my request
to mediate. Our meetings started in his chambers in August of 2003,
right after the bill was reported out of the Judiciary Committee during
the 108th Congress. And we have had, as I said, 36 meetings. I don't
think Judge Becker can tell you how many meetings he has held
individually because he can't count that high. I certainly can't tell
you how many meetings I have had. But I have talked to individual
Senators repeatedly, probably some 60 or 70 in this body, and when they
hear what the bill is about, they are interested.
The one Senator whom I talked to who had absolutely no interest in
the bill was the Senator from Nevada. All he wants to do is to block
the bill. When he says this bill is not ready, this bill has been
subjected to more analysis and more investigation and more
consideration than any legislation I have seen in my 25 years here, and
I think it is fair to say more analysis and more consideration than any
piece of legislation that has been considered in the history of the
U.S. Senate. Let me put it a different way: I challenge the Senator
from Nevada or anybody else to cite a piece of legislation which has
had more analysis and more consideration.
This bill is more than ready to come to the floor. The difficulty was
that when we reported it out last May 26, the business of the Senate
was stacked sky high.
And try as he might, the distinguished majority leader, Senator
Frist, could not find time to bring it up. He put it on the agenda as
the first legislative consideration of the 109th Congress in the second
session. That is why we are here.
The arguments--the rambling statements made by the Senator from
Nevada--I should not call them arguments. They don't rise to the level
of being arguments. He talks about transparency. We know the individual
companies in these various groups. We had to subpoena them to get them,
but we have subpoenaed them. We do have the records.
When he talks about the lobbyists writing the bill, what an
outrageous statement to make in the context of what Judge Becker and I
and Senator Leahy and others have done on this bill. To accuse us of
being the pawns of the lobbyists is beyond slander, beyond insult. It
is beyond outrage that those words should come from the mouth of the
leader of the Democrats in this body.
When he talks about silicosis, the rights to sue for silicosis are
maintained. It is a very rare situation where someone has both
silicosis and an asbestos-related problem. But when you go to court and
you make a claim under our tort system, you have to prove, in any case,
whether you claim it is silica, or whatever the cause is, that there is
not some other cause that is the causative factor of the ailment in
question. We had a hearing on silicosis. I am sorry to hear about the
family of the Senator from Nevada who suffered from silicosis. We had a
very involved hearing on the matter. Do you know who wasn't there? The
Senator from Nevada--just as he was AWOL every other time when serious
issues were under consideration.
Mr. President, I would like to stay here longer this afternoon. I
will put the full text of a statement in the Record, which is an
extensive analysis of this bill. Our phenomenal staff has been at work
on this matter for months, led by two very fine lawyers, Seema Singh
and Harold Kim, and by many on the Judiciary Committee. This statement
I recommend to my colleagues to read if they want to understand the
bill.
I would not spend too much time reading the Congressional Record on
what the Senator from Nevada has had to say because there is no
substance to anything he has had to say. When the charges are made here
about the lobbyists buying their way into the Senate, Senator Leahy is
on the floor and he is the cosponsor of the bill. Senator Kohl and
Senator Feinstein voted the bill out of committee. I had heard this
ridiculous talk about this being a product of K Street. Well, this
Senator is not a product of K Street; neither is Senator Leahy, neither
is Senator Feinstein. As far as Senator Kohl is concerned, he could buy
and sell K Street himself without any sweat. So to talk about us being
in the pocket of the lobbyists, I have not been treated like that since
I came to the Senate. In fact, I have never been treated like that. I
resent it. I call it a violation of rule XIX.
I hope the Senator from Nevada will abandon these tactics. There is
enough objection and controversy and dissent in this body that we don't
need personal attacks. I have to excuse myself, Mr. President,
because----
Mr. REID. Mr. President----
Mr. SPECTER. Mr. President, I have the floor.
Mr. REID. I thought you were finished.
Mr. SPECTER. Again you thought wrong. You are in the habit of
thinking wrong. I am in mid-sentence, but I am not surprised to be
interrupted.
We have other business we are taking care of. I have to soon excuse
myself to go to the Judiciary Committee hearing, where we are taking up
the question of electronic surveillance, where we have been in session
listening to the Attorney General since 9:30 this morning.
When the Judiciary Committee had taken up this bill, we took it up
under very difficult circumstances. We started last year with the
immediate job of confirming the Attorney General. The Senate went into
session on the 109th Congress on a Tuesday, and we had the Attorney
General in on Thursday and confirmed him in short order. Then we moved
through the bankruptcy bill and the class action bill. Then we tackled
the very tough problem of the filibusters, which had delayed the
confirmation of circuit judges. We worked through that problem.
[[Page S708]]
Then in the midst of all that, we had a series of hearings on a wide
variety of issues: Miller, the New York Times reporter who was kept,
and the business about identity theft. We worked through hearings on
the tough immigration problem. Then we took up the issue of the
confirmation of Chief Justice Roberts, where the staff of the committee
worked through the month of August; then we took up the question of the
confirmation of Justice Alito. We worked through the months of December
and January. While people were globe trotting around the world, we were
at work on those matters. And through it all, we have produced a bill
that is solid. It is a bill which is designed to compensate thousands
of victims of asbestos.
One thing the Senator from Nevada was right about: Mesothelioma is a
killer. But the thing he is wrong about is that his position will allow
these people to be killed without compensation, because their companies
have gone bankrupt, some 77 of them. We have moved to this trust fund
after decades and decades of work. I first saw this issue when Senator
Gary Hart brought Johns Manville into my office in the early 1980s,
1982 or 1983, and this asbestos problem has defied solution, just
defied solution--until Senator Hatch came up with the concept of this
trust fund. Then the trust fund was increased in size from about $90
billion to $140 billion.
I didn't hear the Senator from Nevada object when the former
Democratic leader, Senator Daschle, agreed with Senator Frist that $140
billion was the accurate figure. I didn't hear him object at all. The
only time I hear him object is when there is some chance--and it is an
uphill fight; I am prepared to concede that, but I am used to them. I
am used to uphill fights. I might even say I enjoy them. But this is
the first time this issue has come to the floor of the Senate. It has
been languishing for decades, and I talked to no one who denies the
basic fact that there is a problem that ought to be addressed. I think
even the Senator from Nevada, with his vitriol and slander, implicitly
concedes it is a major problem that ought to be addressed.
Now, a motion to proceed takes up the issue as to whether you ought
to consider the bill. If the Senator from Nevada has valid amendments,
I would like to see them. If he has a better bill, I would like to see
that. I would vote for anybody's bill that is better than this one
because we have to address the issue. When he talks about the Budget
Committee, there are some technical problems here because the money
goes through the Department of Labor, so it is a Federal expenditure,
but it is not Government money; it is money contributed by the insurers
and the manufacturers. There is no impact on the budget.
This bill is ironclad to eliminate any possibility of Federal
funding. But if you want to use obstructionist tactics and filibuster--
the Senator from Nevada is good at that--if you want to use 60 votes to
try to kill it on a motion to proceed, so be it. I know what the rules
are here. But there is no reason not to proceed, and there is every
reason to proceed. If you want to use the 60-vote technicality to
sustain a budget point of order, you can do that, too. But there is no
adverse impact on the Federal budget.
I regret I cannot stay and engage in this colloquy. I do have to get
back to the Judiciary Committee.
I ask unanimous consent that the text of my full statement be printed
in the Record.
Mr. President, again, this is S. 852, the Fairness in Asbestos Injury
Resolution Act of 2005, FAIR Act, the successor to S. 1125 and S. 2290,
the FAIR Acts of 2003 and 2004. My colleagues, Senator Frist, Senator
Hatch and Senator Leahy, deserve enormous credit for the drafting of
these acts and for the development of this legislation. There is a will
in the Senate to enact legislation to end the ongoing rash of
bankruptcies; to prevent the diversion of resources from those who are
truly sick; to preserve jobs and pensions; and to solve the worst
litigation crisis in the history of the American judicial system. The
Senate plainly wants a more rational asbestos claims system, and I
believe that this legislation offers a realistic prospect of
accomplishing that result.
This legislation provides substantial assurances of acceptable
compensation to asbestos victims and substantial assurances to
manufacturers and insurers to resolve, with finality, asbestos claims.
Over the past three decades, a solution to the asbestos crisis has
eluded Congress and the courts. Some 77 companies have gone bankrupt,
thousands of individuals who have been exposed to asbestos have deadly
diseases--mesothelioma and other such ailments--and are not being
compensated or because of the unfairness of the current system, see
little of the awards they do win. A May 10, 2005, report released by
the RAND Institute for Civil Justice estimates that nonmalignants make
up about 90 percent of the litigation and most are unimpaired.
According to RAND, the number of claims continues to rise, with over
730,000 claims filed already and some 200,000 pending. The number of
asbestos defendants also has risen sharply, from about 300 in the
1980s, to more than 8,400 today and most are users of the product, not
its manufacturers. These companies represent 85 percent of the U.S.
economy and nearly every U.S. industry; including automakers, ship
builders, textile mills, retailers, insurers, electric utilities and
virtually any company involved in manufacturing or construction in the
last 30 years.
Asbestos leaves many victims in its wake. First and foremost, the
sick and their families have suffered and do not receive fair
compensation in the tort system. Asbestos victims filing claims receive
an average of 42 cents for every $1 spent on asbestos litigation.
Today, 31 cents of every $1 have gone to defense costs, and 27 cents
have gone to plaintiffs' attorneys and other related costs.
The flawed asbestos litigation system not only hurts the sick and
their chances of receiving fair compensation but also claims other
victims. These include employees, retirees and shareholders of affected
companies whose jobs, savings and retirement plans are jeopardized by
the tide of asbestos cases. With asbestos litigation affecting so many
companies, this also impacts the overall economy, including jobs,
pensions, stock prices, tax revenues and insurance costs. According to
a 2002 study by Nobel laureate Joseph Stiglitz, asbestos bankruptcies
have cost nearly 60,000 workers their jobs and $200 million in lost
wages. Employees' retirement funds have shrunken by 25 percent.
In July 2003, the Judiciary Committee voted out S. 1125, a bill with
numerous problems, largely along party lines, 10 yeas, 8 nays, 1 pass,
in an effort to move the legislation. S. 1125 created the basic
structure of the legislation, and made huge strides in working out the
medical criteria. However, the bill foundered on other issues. In
August, at my request, Judge Edward R. Becker, a Federal judge for 34
years, convened in his chambers in Philadelphia the so-called
stakeholders; namely, manufacturers, labor, AFL-CIO, insurers and trial
lawyers--to determine if some common ground could be found. Until the
preceding May, Judge Becker had been the Chief Judge of the Third
Circuit Court of Appeals and wrote the opinion in the asbestos class
action suit that was affirmed by the U.S. Supreme Court.
From September 2003 through January 2005, there were some 36
stakeholder meetings held in my conference room, with Judge Becker as a
pro-bono mediator, usually attended by 25 to 40 representatives with
sometimes over 75 people present. I have also met 61 times since
January 2005 with various officials from the administration, members of
the Senate Judiciary Committee and their staffs, the Senate leadership
and other Senators all in an effort to move this bill forward. Judge
Becker and I have sought an equitable bill which took into account, to
the maximum extent possible, the concerns of the stakeholders and to
get their input on drafting of the bill. After analysis and
deliberation, we found we could accommodate many of the competing
interests.
This process commenced with the blessing of then-Chairman Hatch and
Ranking Member Leahy of the Judiciary Committee. This extended process
allowed the stakeholders an extraordinary ``hearing'' process and
really amounted to the longest ``mark-up'' in Senate history although
not in the customary framework. We have had the
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cooperation of many Senators. Senators Hatch and Leahy have had
representatives at all the meetings. The majority leader, Senator
Hatch, and Senator Leahy have addressed this ``working group'' at our
meetings. Senator Hatch's and Senator Leahy's representatives have been
active participants at every meeting, as well as the members of the
staffs of Senators Baucus, Biden, Brownback, Burns, Carper, Chafee,
Chambliss, Coburn, Cornyn, Craig, DeWine, Dodd, Durbin, Feingold,
Feinstein, Graham, Grassley, Hagel, Kennedy, Kohl, Kyl, Landrieu,
Levin, Lincoln, Murray, Ben Nelson, Pryor, Schumer, Sessions, Snowe,
Stabenow, and Voinovich.
In 1997, the Supreme Court commented for the first time on the
growing asbestos problem by stating, in the context of holding that
asbestos litigation was not susceptible to class action treatment:
The most objectionable aspects of this asbestos litigation
can be briefly summarized: dockets in both federal and state
courts continue to grow; long delays are routine; trials are
too long; the same issues are litigated over and over;
transaction costs exceed the victims' recovery by nearly two
to one; exhaustion of assets threatens and distorts the
process; and future claimants may lose altogether. . . .
In the ensuing years with asbestos litigation increasingly choking
the courts, the Supreme Court has repeatedly called upon Congress to
act through national legislation:
In one case, the Court observed ``the elephantine mass of asbestos
cases . . . defies customary judicial administration and calls for
national legislation.''
A concurrence in the same decision found that the asbestos crisis
``cries out for a legislative solution.''
As recently as 2003, the Supreme Court reminded us that it had
``recognized the danger that no compensation will be available for
those with severe injuries caused by asbestos . . . It is only a matter
of time before inability to pay for real illness comes to pass.''
Even though he dissented from the majority holding in that 2003 case,
Justice Breyer observed: ``Members of this Court have indicated
that Congress should enact legislation to help resolve the asbestos
problem. Congress has not responded.''
The FAIR Act of 2005 is a response to the Supreme Court's many calls
for national legislation to fix a broken asbestos litigation system. It
is the product of these extensive negotiations among the key
stakeholders. Throughout this process, the stakeholders reached
important compromises that are now embodied in S. 852. The Judiciary
Committee also spent a month marking up the bill last May during which
time the committee accepted 75 amendments from both Republican and
Democratic members. After extensive deliberation, the committee
reported the bill favorably on May 26, 2005 on a strong bipartisan vote
of 13-5.
The concept of a trust fund is an outstanding idea. Senator Hatch
deserves great credit for moving the legislation in the direction of a
trust fund with a schedule of payments analogous to workers'
compensation so the cases would not have to go through the litigation
process. Under this proposal, the Federal Government would establish a
national trust fund privately financed by asbestos defendant companies
and insurers. No taxpayer money would be involved. Asbestos victims
would simply submit their claims to the fund. Claimants would be fairly
compensated if they meet medical criteria for asbestos induced
illnesses and show past asbestos exposure. The trust fund would
guarantee compensation for impaired victims.
Through a series of meetings with Judge Becker, we have wrestled with
and have been able to solve a number of very complex issues. The size
of the trust fund was always a principal issue of dispute, starting at
$108 billion. The manufacturers/insurers raised their offer to $140
billion. In October 2004, Majority Leader Frist and then-Democratic
Leader Daschle agreed to $140 billion. When Senator Frist and Senator
Daschle, in an adversarial context, agreed to the adequacy of the $140
billion figure, it is difficult to exceed it even though the AFL-CIO
did not contemporaneously agree.
It is not possible to say definitely what figure would be adequate
because it depends on the uncertainty of how many claims will be filed.
There is support for the adequacy of the $140 billion figure from
reputable projections, including the Congressional Budget Office cost
estimate.
Since this bill was discharged from this committee in May, new
reports analyzing the bill have been published--such as the CBO report
and the Bates White report. In late August 2005, the non-partisan
Congressional Budget Office issued its analysis of the bill. In its
report, the CBO predicted that asbestos claims and award values could
fall anywhere between $120 to $150 billion, and as a middle of the road
assessment, concluded that the fund would likely payout $132 billion
over the life of the fund. It was reassuring to see CBO project $132
billion as adequate to pay the claims in a contest where there are so
many variables that do not lend themselves to precise projections or
predictions. Even in the range of that uncertainty, the CBO has
estimated that claims could be as low as $120 billion and no higher
than $150 billion so that our legislation with $140 billion is
reasonable and realistically calculated to cover the claims, especially
in the context with the provisions for review of medical criteria and
award values to reduce expenditures or increase contributions in the
trust fund.
In September 2005, the analysis by the Bates White firm concluded the
proposed fund would face claims of between $301 billion and $561
billion, projecting that claimants with lung and other cancers, would
inundate the fund. A hearing on this issue was held by the Judiciary
Committee on November 17, 2005. During the hearing we heard testimony
on both sides of the issue. The Bates White study proved to be fatally
flawed for reasons detailed at that hearing. Thus, in December 2005,
CBO confirmed its original cost estimate, reaffirming that $140 billion
would be sufficient to cover claims filed for compensation under the
trust fund.
The real safety valve, if the fund is unable to pay claims, is for
the injured to have the ability to go back to court if the system is
not operational and able to pay exigent health claims within 9 months
after enactment, and all other valid claims within 24 months of
enactment. Upon reversion to the tort system, the bill provides that
claimants may file suits either in Federal Court or State Court in the
State in which the plaintiff resides or State courts where the asbestos
exposure took place. Forum shopping has been eliminated.
The claimants object to any hiatus between access to the courts and
an operating system; but the reality is that court delays are
customarily longer than the delay structured in this system. The
defendants and insurers object saying it is too short a time frame, but
they have the power to expedite the process by promptly paying their
assessments. Leaders of the Manville Trust and the RAND Institute study
provide a solid factual basis that the volume of claims can be
efficiently administered by the fund administrator using a technique
developed by the Manville Trust and other similar claims facilities
that have processed asbestos claims for many years. The Manville Trust
has processed as many as 150,000 claims per year. The number of exigent
claims anticipated in the first 9 months of the fund is vastly smaller
and even the total number of claims anticipated in the first 24 months
is significantly less that which the Manville Trust has handled in a
comparable period. Additionally, the bill provides the administrator
with the option to contract out the exigent claims to a claims facility
for expedited processing under the standards of the fund on a voluntary
basis. The short time frame will prod the system to become operative at
an early date. The bill sends the claims back to the fund as soon as it
is certified operational with a credit for any payment of the scheduled
amount.
Similarly, the defendants seek a commitment that the legislation will
bar return to the courts for at least 7\1/2\ years. It is hard to see
how the substantial fund would be expended in a lesser period. Here
again, the legislation gives the defendant substantial assurances that
the system will last at least 7\1/2\ years. If it collapses, the
claimants should not bear the burden, but should reclaim their
constitutional right to a jury trial. However, sunset
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cannot take place before there is an extensive and rigorous ``program
review.'' This would give the administrator an opportunity to refashion
the program to compensate for any major shortcomings.
The claimants sought $60 billion in startup contributions within 5
years and the defendants countered with a maximum of $40 billion. The
fund's borrowing power should enable it to borrow at least the balance
of $20 billion because of the defendants continuing substantial
financial commitments. Here again, the bill meets the standard of
substantial assurances that $60 billion will be in hand within the
first 5 years.
A key issue for the claimant has been that of workers' compensation
subrogation. This issue is important because the value of an award to
the claimant depends on whether the claimant may have to pay a
substantial amount of it to others. While the precise picture is
different from State to State, in general, workers' compensation laws
give employers, and their insurance carriers, subrogation rights
against third-party tortfeasors and a lien on the injured employee's
recovery from a third-part tortfeasor. This is a big issue because
workers' compensation covers the employees' medical costs.
We closely examined and considered including a proposal that would
have called for a so-called workers' compensation ``holiday.'' Such a
proposal would have provided for a ``holiday'' from worker's
compensation payments during the period of receipt of payments from
trust fund except to the extent that the compensation would exceed
them, with a waiver of past and future subrogation. However, as each
State has different workers' compensation laws, we concluded that such
a proposal could go beyond the practice in a number of States, leaving
some claimants with a significantly reduced award.
Furthermore, claimants assert, with a substantial basis that the
award values in the bill were designed with the understanding that
there would be no liens or rights of subrogation against the claimants
based on workers' compensation awards and health insurance payments.
Therefore, after substantial analysis, we have determined that to be
fair to victims, claimants should be allowed to retain both their fund
awards and workers' compensation payments. It is important that the
bill must extinguish any liens or rights of subrogation that other
parties might assert against the claimants based on workers'
compensation awards and health insurance payments.
Another key issue for the claimants has been the legislation's
treatment of asbestos disease claims under the Federal Employers'
Liability Act, FELA, the workers' compensation system for rail workers.
Earlier versions of the bill would have preempted FELA claims for
asbestos-related diseases, limiting victim's recovery to compensation
under a national asbestos trust fund. Rail labor asserts that such an
approach is unfair to rail workers, since for all other workers, the
bill maintains workers' compensation rights. Alternative approaches to
dealing with the FELA issue have been proposed, including providing for
a supplemental payment, in addition to awards under the bill, to
provide compensation to rail workers for work-related asbestos
diseases. The AFL-CIO's affiliates which represent workers in the rail
industry have been engaged in discussions with industry on this issue,
and a fair resolution has been reached. The bill provides for a
principled compromise that would allow for a special adjustment for
railroad workers so that the compensation award would be structured in
a manner that would allow for corollary benefits--similar benefits for
workers under FELA and workers compensation. It also clarifies that
this legislation intends to deal solely with asbestos claims and does
not in any manner impact FELA.
In these marathon discussions, plus four committee hearings on the
issue in 2005, we understand the deep concerns expressed by the
stakeholder representatives on more concessions for their clients. On
the state of the 20-year record, this choice is not between this bill
and one which would give their clients more concessions. The choice is
between this bill and the continuation of the present chaotic system
which leaves uncompensated thousands of victims suffering from deadly
diseases and litigation driving more companies into bankruptcy.
We considered at length the manufacturers/insurers objections to
medical screening, but concluded such a provision was necessary as an
offset to the reduced role of claimant's attorney. With the previous
potential of a substantial contingent fee, claimants' attorneys
identified those damaged by exposure to asbestos. Absent that
motivation, with the attorneys' fees capped at 5 percent, it is
reasonable to have routine examinations for people who would not be
expected to go for such checkups on their own; so as a matter of basic
fairness, such screening is provided. By establishing a program with
rigorous standards, as we have done in this bill, unmeritorious claims
can be avoided with the fair determination of those entitled to
compensation under the statutory standard.
The legislation has closely examined the issues of so-called
``leakage'' in the fund and has provided that all asbestos claims
pending on the date of enactment, except for non-consolidated cases
actually on trial, and except cases subject to a verdict or final order
or final judgment, will be brought into the asbestos trust fund.
Furthermore, only written settlement agreements, executed prior to date
of enactment, between a defendant and a specifically identifiable
plaintiff will be preserved outside of the fund; the settlement
agreement must contain an express obligation by the settling defendant
to make a future monetary payment to the individual plaintiff, but
gives the plaintiff 30 days to fulfill all conditions of the settlement
agreement.
We have also included in the legislation language designed to ensure
prompt judicial review of a variety of regulatory actions and to ensure
that any constitutional uncertainties with regard to the legislation
are resolved as quickly as possible. Specifically, it provides that any
action challenging the constitutionality of any provision of the act
must be brought in the United States District Court for the District of
Columbia. The bill also authorizes direct appeal to the Supreme Court
on an expedited basis. An action under this section is to be filed
within 60 days after the date of enactment or 60 days after the final
action of the administrator or the commission giving rise to the
action, whichever is later. The District Court and Supreme Court are
required to expedite to the greatest possible extent the disposition of
the action and appeal.
Claimants also expressed the need for assurances on the manufacturers
payment into the fund. Therefore, S. 852 requires enhanced
``transparency'' of the payments by the defendants and insurers into
the fund. The proposal provides that 20 days after the end of such 60-
day period, the administrator shall publish in the Federal Register a
list of such submissions, including the name of such persons or
ultimate parents and the likely tier to which such persons or
affiliated groups may be assigned. After publication of such list, any
person may submit to the administrator information on the identity of
any other person that may have obligations under the fund. In addition,
there are enhanced notice and disclosure requirements included in the
legislation. It also provides that within 60 days after the date of
enactment, any person who, acting in good faith, has knowledge that
such person or such person's affiliated group would result in placement
in the top tiers, shall submit to the administrator either the name of
such person or such person's ultimate parent; and the likely tier to
which such person or affiliated group may be assigned under this act.
As I have mentioned previously, this legislation deals with a number
of very complex issues, one of them being that of ``mixed-dust.'' We
held a hearing in the Judiciary Committee on this issue on February 2,
2005. The manufacturers fear that many asbestos claims will be
``repackaged'' as silica claims in the tort system. Evidence adduced at
the hearing reflects that this has been happening in a number of
jurisdictions. If a claim is due to asbestos exposure at all, the
program should be the exclusive means of compensation. The stakeholders
agree that this is an asbestos bill, designed to dispose of all
asbestos claims but that workers with
[[Page S711]]
genuine silica exposure disease ought to be able to pursue their claims
in the tort system. The problem is that with those claims where the
point of demarcation is unclear. Silica/asbestos defendants are worried
that they will find themselves in court with the burden of proving that
the plaintiffs injury is due to asbestos rather than silica. S. 852
makes clear that pure silica claims are not preempted, but claims
involving asbestos disease are preempted. A claimant must provide
rigorous medical evidence establishing by a preponderance of evidence
that their functional impairment was caused by exposure to silica, and
asbestos exposure was not a significant contributing factor. Although
this does impose the burden on the claimant, this is no different than
the burden the plaintiff or any party advancing a position has in
producing medical evidence in any case that the physician will state
that a disease was caused by some condition or exposure or that it was
not caused by some condition or exposure. In addition, the testimony
given at the February hearing on the issue established that asbestos
and silica are easily distinguishable on x ray and that asbestos and
silica rarely are found in the same patient.
Another very complicated issue I have addressed in my legislation, at
the request of the claimants, is that of providing for award
adjustments for exceptional mesothelioma cases based on age and the
number of dependents of the claimant. For example, a mesothelioma
victim who is 40 years old with two children will be able to get an
upwards adjustment in his award amount as compared to a 80 years
mesothelioma victim with no dependents. The impact of such adjustments
to the fund will remain revenue-neutral.
There has been a strong concern that this bill should not become a
``smokers'' bill rather than an asbestos bill--that thousands of
smokers will claim to be in the level VII compensation tier in order to
get money even if asbestos had nothing to do with their disease. After
long discussions with the various sides, it has been decided to remove
level VII cases from the fund, cases which had the potential to bring
down the entire fund.
There has also been a concern with the legitimacy of the level VI
compensation tier. We requested that the Institute of Medicine, IOM,
commence a study to assess the medical evidence so as to determine
whether colorectal, laryngeal, esophageal, pharyngeal or stomach cancer
can be caused by asbestos exposure. The IOM will conclude its study of
level VI causation by April 2006. With a 270-day stay on exigent cases
and 2-year stay of all other cases, this has the practical impact of
the IOM study results being conclusive on inclusion or exclusion of
level VI prior to any claim being filed.
Therefore, the bill retains the level VI tier pending the IOM study
conclusions but continues to provide extensive safeguards to the fund
against those individuals with these diseases making claims against the
Asbestos Trust Fund. Any level VI claim must be based on findings by a
board-certified pathologist accompanied by evidence of a bilateral
asbestos-related nonmalignant disease; evidence of 15 or more weighted
years of substantial occupations exposure to asbestos; and supporting
medical documentation establishing asbestos exposure as a contributing
factor in causing the cancer in question. The claim must also be
referred to a physicians panel for a determination that it is more
probable than not that asbestos exposure was a substantial contributing
factor in causing the other cancer in question. Further, the bill
mandates that the physicians panel review the claimants smoking history
as opposed to ``claimant may request.''
The FAIR Act is a complicated bill, but one that is both integrated
and comprehensive and reflective of a remarkable will to enact
legislation. If this bill is rejected, I do not see the agenda of this
Senate Judiciary Committee revisiting the issue. I cannot conceive of a
more strenuous effort being directed to this subject that has been done
over the past 2\1/2\ years. This is the last best chance.
I remain confident that during debate on the Senate floor, we can
forge and enact a bill that is fair to the claimants and to business
and that will put an end once and for all to this nightmare chapter in
American legal, economic and social history. If we can summon the
legislative will in a bipartisan spirit, it can be done. Anything less
would preserve the injustices of a system that even the highest Court
of this country has called upon the Congress to fix.
The PRESIDING OFFICER. The Democratic leader is recognized.
Mr. REID. Mr. President, I want to make sure the record reflects that
I have the highest regard for Pat Leahy and Arlen Specter. If I in any
way embarrassed them or hurt their feelings, I am sorry I did that.
Certainly, it was nothing I said that indicated they did anything that
was unbecoming regarding this legislation. That is how I feel. But that
doesn't take away from the fact that I think it is outrageous that
these 13 companies spent $144.5 million lobbying this legislation. I
will not get away from that.
We need lobby reform in this country. We need to start on that right
now. I want to make sure the record reflects this also. The week before
last, my communications center put out a piece of mail I didn't see. It
went out--and that is not much of an excuse, but it is true. The minute
I learned about it, I wrote a letter. It was as close as anything I
could do from my heart. What I did in not reading that letter before it
went out from my office is wrong. I take full blame for that. But
anything in that letter--I mean, to show you, Mr. President, there was
a derogatory statement about my friend from Nevada, Senator Ensign. As
everyone knows here, I would never say anything negative about him. We
may disagree on legislation, but I would never say anything in a
negative way about him. He was one of the 33 mentioned in that letter.
So I apologized to him and to all 32 others. I meant that. It was wrong
what I did, but I have said that.
I am sorry my friend from Pennsylvania raised that. I did the best I
could in resolving that as an issue, putting that to each of those
Senators, saying I am sorry. I received phone calls from a number of
Senators and I have had personal meetings with them. They accepted my
apology.
Also, we should not do things on a personal basis here, and I didn't
do that. I complained bitterly about this legislation. I cannot stand
this legislation, and contrary to what my friend from Pennsylvania
says, I pretty well understand it. Maybe I don't understand it as well
as he does, but I understand it. Everything I said about this
legislation in my remarks is meant by me. I meant every word I said.
For the Senator to disparage me because I didn't attend the Judiciary
Committee hearing, I am not a member of the committee. If I spent my
time, or the Presiding Officer did, going to committees we don't belong
on, it would make for a very difficult scene around here.
I disagree with my friend, the Senator from Vermont, Senator Leahy,
on this legislation. I think it is misguided legislation. But he did it
and I have talked to him personally about how I think it is bad. He
told me where he thinks it is good. We disagree. I asked the assistant
Democratic leader, Senator Durbin, to be the floor manager on this
because he and I and the vast majority of the Democrats oppose this
legislation.
I am sorry the Senator from Pennsylvania thought my remarks were
rambling and disconnected. I guess it is up to the people who watch
this--not my friend from Pennsylvania--to determine whether it is
rambling and disconnected. If the Senator thinks I was in some way
disparaging him, I certainly didn't mean it. I am disparaging this
legislation. I think it is bad legislation, and I think the people it
hurts more than anybody else are the victims.
The distinguished Senator from Pennsylvania said I have no interest
in this legislation. Why would I be here if I have no interest in the
legislation? I have an interest. It is different than his. He says I
fake concern about this. I am sorry he feels that way. I am concerned
about this legislation.
For the reasons I have enumerated in my opening statement, I think
this is a bad piece of legislation that is not good for the American
people.
The bankrupt companies--of course, I am concerned these companies
went bankrupt. For example, U.S. Gypsum is
[[Page S712]]
out of bankruptcy. It has made a settlement. It has settled with all
the claimants for under $1 billion. But it is interesting. They have
said, coming out of bankruptcy and their settlement, if this
legislation passes, they will have to contribute $3 billion to this
fund. I would rather U.S. Gypsum contributed money to any trust fund
than all these many companies I talked about, three of whom have been
in business for many years and have said they are going to go into
bankruptcy.
I believe, as far as saying some unions favor this legislation, there
are a few--very few, such as the United Auto Workers. I have a letter,
which I ask unanimous consent be printed in the Record, from the AFL-
CIO. They oppose this legislation.
There being no objection, the material was ordered to be printed in
the Record, as follows:
American Federation of Labor and Congress of Industrial
Organizations,
Washington, DC, February 2, 2006.
Dear Senator: I am writing to outline the AFL-CIO's
concerns about the Fairness in Asbestos Injury Resolution Act
of 2005 (S. 852), legislation that will have a direct impact
on millions of workers exposed to asbestos.
On May 24, 2005 we wrote to Senators to express our view
that S. 852 contained important deficiencies that would deny
fair and timely compensation to tens of thousands of asbestos
victims. With the bill headed to the floor, perhaps as early
as next week, I am writing to restate these objections with
the hope that they will be addressed before the Senate
completes action on the bill. Though several AFL-CIO
affiliates have recently expressed support for the bill, a
majority continue to feel that unless these issues are
satisfactorily resolved, the asbestos trust fund will fall
short of its promise to fairly compensate the victims of this
devastating disease.
First, we remain deeply dismayed about the bill's start-up
provisions, where the interests of defendants who are
responsible for the disease crisis have become paramount and
the needs of victims have become a secondary consideration.
Addressing the so-called ``leakage'' to the tort system has
become more important than ensuring just compensation for
those who are sick.
As currently amended, S. 852 places the burdens and risks
of the fund's start-up squarely on the shoulders of those who
are sick. If S. 852 becomes law, by any realistic estimate it
will take more than a year--and very possibly several years--
to put in place the procedures, and retain and train the
personnel necessary to properly administer not only the new
claims procedure, but also the complex mechanism established
under the bill for assessing and collecting contributions
from defendants and insurers. As recent experience has amply
demonstrated, the infrastructure necessary to properly
operate a major new program of this magnitude simply cannot
be created overnight. Under S. 852, however, the ability of
asbestos victims to obtain compensation through the current
system is cut off immediately upon enactment. Not only are
provisions eliminating access to the courts for asbestos
victims effective as soon as the bill becomes law, the bill
also provides for immediate shutdown of the so-called
``524(g)'' bankruptcy trusts established by companies like
Halliburton and Johns Manville to pay asbestos claims--trusts
that are currently providing compensation to tens of
thousands of asbestos victims per year, using funds
specifically set aside in bankruptcy proceedings expressly
for the purpose of paying asbestos claims.
The bill attempts to provide a mechanism through which
terminally ill claimants will be able to obtain payments
during the period before the new fund is fully operational,
but all other claimants, no matter how serious their illness
or disability, can be left without a remedy for an indefinite
period of time. If the fund is still not operational after 24
months, the bill ostensibly gives those claimants the right
to pursue their claims in court. But that right is in fact
illusory, since if and when the fund does become operational
the right to proceed in court will again be extinguished,
making it impractical for claimants to pursue that option.
And because the bankruptcy trusts are eliminated as of
enactment, that remedy will remain unavailable. Thus, the
practical effect of the bill will be to leave non-exigent
claimants with nowhere to go to obtain compensation for their
illness until such time as the fund is able to process their
claims, no matter how long that takes. Using CBO estimates,
by 2008 the number of sick claimants in this situation could
number more than 110,000.
In our view, it is unfair to leave victims with serious
illnesses without any remedy in this manner. The uncertainty
associated with the start-up of the fund should be borne by
those responsible for the asbestos disease crisis--the
defendant companies--not asbestos disease victims. At a
minimum, the bill should permit the asbestos bankruptcy
trusts to remain in place to pay all impaired claimants who
qualify under those trusts, until the national trust fund is
fully operational.
Second, S. 852 unfairly restricts the legal rights of
victims with silica disease. It establishes medical criteria
for lawsuits by individuals who have both asbestos-related
disease and silica-related disease, which will bar many of
them from seeking compensation for their silica-related
injury. The only recourse for victims of both diseases will
be to seek compensation for their asbestos disease from the
asbestos fund--which in most cases will be limited to $25,000
for Level II ``mixed disease.'' This legislation should not
be a tort reform bill for silica disease. All victims with
silica-related disease, including those who also have
asbestos disease, should have the right to seek redress in
the courts for their silica injury, with any damages limited
to the injury attributable to their silica exposure.
Third, the sunset provisions of the bill are also
problematic and unclear. While the bill provides for a return
to the tort system in the event the trust fund has
insufficient funds, as drafted the bill does not provide for
an orderly process for anticipating and working to correct
identified problems before reaching the point where the fund
would be forced to shut down. In addition, in the event of
reversion, some claimants would be barred from returning to
court due to problems with provisions on post-sunset statute
of limitations and language limiting the legal venue where
claims may be brought. A provision added at mark-up that
relieves insurers of their guaranteed funding obligation
creates another major problem. This provision undermines the
funding formula, borrowing authority, and sunset
determination and may leave the fund with a shortfall it
cannot make up.
Fourth, the bill completely cancels legal and otherwise
binding settlements unless (a) they are signed by the
individual plaintiff and the ``settling defendant'' before
the enactment date and
(b) within 30 days after enactment, all parties complete
all required performance, except making payments. Because
nothing requires the ``settling defendant'' to sign the
agreement or to complete performance, this permits defendants
to void their commitments. These settlements are legal
commitments by defendants to provide compensation, in
exchange for which plaintiffs have given up their legal
rights. There is no justification for enabling defendants to
abrogate those agreements, cancel payments to victims, many
of whom have been waiting for years, and require the
claimants to go back to square one and start a whole new
process in the fund.
Fifth, we remain deeply concerned about the bill's overly
broad definition of an asbestos claim. S. 852 is intended to
provide an alternative remedy for personal injury claims
related to asbestos, and preempts these claims from being
pursued in the tort system. But rather than limit the bill's
application to such claims, the bill defines asbestos claim
very broadly, to include virtually any civil action that is
directly or indirectly related to the health effects of
exposure to asbestos, and then includes a list of the
specific types of claims that are excluded. This overly broad
definition of asbestos claim will have the unintended effect
of preempting many civil actions related to asbestos that
have nothing to do with personal injury claims. The
definition of asbestos claim should be clear and limited to
personal injury claims, which is the only type of claim for
which the Fund will be providing compensation.
Sixth, while we support limits on attorneys fees, we
believe that the hard 5 percent cap for all claims may not be
sufficient for claimants with complex cases to obtain
adequate legal representation, and that a different type of
cap/fee limitation is needed for the Level I claims that do
not have a monetary award. The AFL-CIO believes that the fee
limitation should be applied to claims involving monetary
awards and that the Administrator should be given the
discretion to increase the attorneys' fee limit if experience
shows that it is impeding the ability of claimants to secure
compensation under the Act.
In addition to these long-standing issues, in the past
several months new important information about potential
claims and costs has become available from the Manville Trust
and others that suggests that future mesothelioma cases, as
well as the number of pending claims, maybe significantly
higher than previously estimated. The Congressional Budget
Office should conduct a full review of this new information
so the Senate can have the most up-to-date cost analysis as
it considers this legislation.
Throughout the legislative process, our goal has been to
arrive at a bill that provides fair and timely compensation
to victims through an efficient and workable process. We
acknowledge that important improvements to S. 852 have been
made, but more needs to be done before the bill can fulfill
its promise to provide fair and timely compensation to the
victims of asbestos disease.
Sincerely,
John J. Sweeney,
President.
Mr. REID. Mr. President, the final point I would like to say, through
the Chair to the senior Senator from Pennsylvania, is I didn't mention
LIHEAP in my statement. I didn't mention it at all, although it is
something we need to take up, but for reasons I was discussing with
Senator Frist, I decided not to do that.
The other issues I meant to bring up but I didn't mention LIHEAP.
That
[[Page S713]]
didn't come from my mouth. LIHEAP is something we are obligated to do
and do it as soon as we can. There has been a commitment made by the
majority leader and me to a Senator from the majority that we would do
something about that. But I didn't mention LIHEAP.
I know the Senator spent a lot of time on this. One of his friends, a
classmate--I don't know what the relationship is, but it goes back many
decades--Judge Becker, they spent a lot of time on this. I know this
legislation means a lot to the Senator from Pennsylvania.
But just because this legislation means a lot to him doesn't mean I
have to support it.
As much as I think of the Senator from Pennsylvania, which is a lot--
I have had admiration for him and told him on many occasions. I am one
of the few people who read his book, and I enjoyed reading his book. If
I hurt the Senator's feelings--maybe that is the wrong word--I
apologize.
Certainly, the Senator from Vermont and I know each other very well.
I would never, ever intentionally do anything to embarrass or hurt his
feelings. I say, through the Chair to my friend from Vermont, I don't
like this legislation. It is bad, and I am going to do everything I can
to stop this bill from going through. If I can't do it, then I am a big
guy, and I understand a lot of times you don't win around here. But
that doesn't take away my obligation of doing the very best I can to
talk about this legislation. I am going to continue doing that. I don't
like this legislation for the reasons set forth.
A final thing I would like to say is that I have given these
estimates as to what is wrong with the bill from a dollar perspective.
There are parts that I have read. I think I am right, and I think time
will prove, without question, that $140 billion is wrong, no matter if
Senator Frist or Senator Daschle, or whoever, agreed to this amount.
Where the number came from, I don't know, but it certainly is not
enough. Looking back a couple years ago when Senator Daschle was
involved in this issue, maybe he at that time thought it was the right
amount. I have disagreed, and I disagree now.
Again, so the record is clear, I don't mean to violate rule XIX, but
I am going to continue pushing for reform. When legislation such as
this requires 13 companies to spend $144.5 million on lobbying
activities, that is too much.
The PRESIDING OFFICER. The Senator from Pennsylvania.
Mr. SPECTER. Mr. President, very briefly, my feelings are not hurt.
My feelings are an irrelevancy. If they were relevant, they still have
not been hurt. My concern is for the feelings of the people who have
been victimized by asbestos and have no one from which to collect.
I don't make any point about having done a lot of work on this bill.
I don't do piecework around here. I do work on a lot of bills. I do not
personalize it at all. My thrust is strictly on the merits, on a way to
fairly compensate victims, on a way to stop more companies from going
into bankruptcy, on a way to stop the hemorrhaging of job losses, and a
way to stimulate the economy. I make the submission of this bill
strictly on the merits.
I compliment Senator Leahy on what he has done on this bill, as well
as his staff, in coming together and structuring the bill, again, in
meeting after meeting and in discussion after discussion. What we asked
our colleagues to do is to take a look at the merits. Don't be
concerned about the work that we put into it, don't be concerned about
our feelings; be concerned about the problem and about our suggested
solution and about our openness to make changes. If anybody has
amendments, we will consider them. If somebody has a better bill, we
will consider that.
I yield the floor.
The PRESIDING OFFICER. The Senator in Vermont.
Mr. LEAHY. Mr. President, both the distinguished senior Senator from
Pennsylvania and I have been tied up much of today in a matter
involving wiretapping of Americans and other issues. We will be going
back to that. I know the Senator from Pennsylvania is returning to the
committee.
I am going to ask unanimous consent that the Senator from Illinois be
able to have the floor for up to 30 minutes following me.
Before I make that request, if I may have the attention of the
Senator from Pennsylvania or the Senator from Tennessee, I am going to
make the request that the Senator from Illinois, Mr. Durbin--we are all
at the same hearing--that the Senator from Illinois, Mr. Durbin, who
has a position different to that of mine and the Senator from
Pennsylvania, that he be recognized for up to 30 minutes once I
complete my comments, unless, of course, either of the leaders object.
The PRESIDING OFFICER (Mr. Burr). Is there objection?
Mr. FRIST. Reserving the right to object.
The PRESIDING OFFICER. The majority leader.
Mr. FRIST. Mr. President, I have a statement to make following the
remarks of Senator Leahy.
Mr. LEAHY. Mr. President, I ask unanimous consent then that after the
distinguished Republican leader, the distinguished Senator from
Illinois be recognized.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. LEAHY. Mr. President, there has been some question about--and I
think I am fortunate--comments suggesting motivation of veterans who
support this legislation. A lot of veterans support this legislation. A
lot of veterans have been badly damaged by exposure to asbestos, and
they have no way of seeking compensation except in this legislation.
A lot of labor unions feel the same way. These are not the so-called
K Street lobbyists, these are not special interests; these are people
who care about those they represent, the veterans they represent, the
workers they represent.
I ask unanimous consent that these letters of recommendations be
printed in the Record, and I will name them:
A letter from the Military Order of the Purple Heart, another signed
by the Air Force Sergeant Association, American Ex-Prisoners of War,
Blinded American Veterans Foundation, Blinded Veterans Association,
Fleet Reserve Association, Jewish War Veterans of the USA, Marine Corps
League--my son is a former marine--Military Officers Association of
America, National Association of Black Veterans, Noncommissioned
Officers Association, National Association of Uniformed Services,
National Association of State Directors of Veterans Affairs, Paralyzed
Veterans of America, Pearl Harbor Survivors Association, Retired
Enlisted Association, Veterans of the Vietnam War, Inc., Veterans of
Foreign Wars of the United States, Women in Military Service for
America, Memorial Foundation, Inc., the U.S. Submarine Veterans, Inc.,
Lockwood Internet Base, U.S. Submarine Veterans of World War II, U.S.
Submarine Veterans Base Rhode Island, U.S. Submarine Veterans World War
II Thames River Chapter, U.S. Submarine Veterans World War II Central
Connecticut Chapter, the UAW, the Heat & Frost Insulators & Asbestos
Workers International, the International Union of Painters and Allied
Trades, the Governors of Alaska, Arkansas, Michigan, Mississippi,
Missouri, Montana, Ohio, Utah, and Vermont, and the National Federation
of Independent Business, NFIB. Those are among some of those.
There being no objection, the material was ordered to be printed in
the Record, as follows:
International Union of
Painters and Allied Trades,
Washington, DC, August 17, 2005.
Re: S. 852, the ``Fairness in Asbestos Injury Resolution Act
of 2005 (FAIR Act)''
Hon. Arlen Specter,
U.S. Senate,
Washington, DC
Hon. Patrick Leahy,
U.S. Senate,
Washington, DC
Dear Senators Specter and Leahy: I write you today in
regard to S. 852, the ``Fairness in Asbestos Injury
Resolution Act of 2005 (FAlR Act)''. On behalf of 140,000
families represented by the International Union of Painters
and Allied Trades, IUPAT, I would like to express our strong
support for S. 852 in its current form and your continued
efforts toward a bipartisan bill that will ensure true, just
and fair compensation to current and future victims of
asbestos exposure.
We appreciate all efforts to incorporate a number of key
provisions and safeguards that have been advocated on behalf
of workers who have been harmed by exposure to asbestos and
who have been adversely affecred by a current asbestos
compensation system that is slow, costly, unfair and
arbitrary. However, the IUPAT remains concerned
[[Page S714]]
about potentially hostile amendments that may be offered on
the Senate or House floor that would effectively undermine
key provisions of the bill dealing with funding, medical
criteria, awards, and other issues. We will continue to urge
you, along with other Senate and House members, to reject any
such amendments. Should any amendments be adopted that would
undercut the progress made on this complex issue the IUPAT
will have no other choice but to withdraw our support for the
bill.
We feel the trust fund model is the best solution for
addressing the asbestos comopensation crisis workers and
business currently face. After years of numerous stakeholder
meetings, we are confident that our members' and all affected
workers' interests are best protected by key provisions in
your legislation as presently drafted. Of particular interest
to us are provisions contained within your legislation that
ensures fair compensation to asbestos victims with
mesothelioma, lung cancer, or those victims who have
impairment from asbesotosis or asbestos exposure that
includes objective medical evidence or markers of asbestos
exposure that includes CT scan review; no delay for victims'
access to the tort system in state or federal court if the
trust fund becomes insolvent; protection for victims from
insurance subrogation; a ban of asbestos in the United
States; a medical screening program for high risk workers;
and enforcement provisions to prevent needless exposure to
asbestos by uninformed and unsuspecting workers.
It is our hope that the International Union of Painters and
Allied Trades' support for S. 852, along with other labor
organizations, businesses, employer associations, and
victims' groups, will allow this bipartisan bill to receive
strong backing in the Senate on final passage and will
therefore assure that the Senate passed bill with the
aforementioned key provisions is accepted and passed by the
House of Representatives.
Thank you for your continued efforts in dealing with this
important issue.
Sincerely and fraternally,
James A. Williams,
General President.
____
October 7, 2005.
Hon. Bill Frist,
Majority Leader, U.S. Senate, Washington, DC.
Hon. Harry Reid,
Minority Leader, U.S. Senate, Washington, DC.
Dear Majority Leader Frist and Minority Leader Reid: On
July 18, the National Governors' Association approved a
revised policy on Asbestos Litigation Reform. This policy
calls for legislative action to address this continuing
problem affecting states in a variety of ways.
America faces a crisis from asbestos litigation that
continues to take its toll on the sick, their families, and
our economy. Today there are hundreds of thousands of
asbestos claims in the courts with tens of thousands of new
claims filed each year. This is a unique legal situation that
requires congressional action to alleviate this logjam of
cases.
In addition to those who have become sick from asbestos
exposure, the impact of the claims also hurts employees,
retirees, shareholders, and customers of defendant companies,
whose jobs and savings are jeopardized or lost. Our national
economy also is hurt in the areas of jobs, pensions, stock
prices, tax revenues, and insurance costs. We believe that
this is truly a national crisis. Without a solution, more
companies will be forced into bankruptcy, delaying and
reducing resources available to pay those who are now sick or
may become sick in the future.
We believe that it is time for Congress to respond to the
Supreme Court's repeated calls for a legislation solution to
this crisis. Congressional enactment of legislation is
imperative to ensure that those ill from exposure to
asbestos-containing products and their facilities are fairly
compensated and that defendant companies are financially
secure so that they can pay present and future claims.
We understand S. 852, the ``Fairness in Asbestos Injury
Resolution Act of 2005,'' was voted out of the Judiciary
Committee with a bipartisan 13-5 majority and is ready for
action on the Senate floor. We urge you to schedule debate on
this critical legislation as soon as possible.
Sincerely,
Governor Frank H. Murkowski, Alaska; Governor Mike
Huckabee, Arkansas; Governor Jennifer M. Granholm,
Michigan; Governor Haley Barbour, Mississippi; Governor
Matt Blunt, Missouri; Governor Brian Schweitzer,
Montana; Governor Bob Taft, Ohio; Governor Jon Huntsman
Jr., Utah; Governor Jim Douglas, Vermont.
____
National Federation
of Independent Business,
Washington, DC, February 6, 2006
Hon. Arlen Specter,
U.S. Senate, Hart Senate Office Building, Washington, DC.
Dear Senator Specter: On behalf of the 600,000 members of
the National Federation of Independent Business, I am writing
to express our support for S. 852, ``The Fairness in Asbestos
Injury Resolution (FAIR) Act of 2005.'' The FAIR Act will
help protect innocent small-business owners from the asbestos
litigation crisis that now threatens their business.
Asbestos lawsuits against small businesses are on the rise.
After years of suing large corporations for multi-million
dollar damage awards, ``traditional'' asbestos manufacturers
and defendants are mostly bankrupt. As a result, asbestos
litigation now targets companies far removed from any
potential wrongdoing, including small businesses. This
relatively untapped pool of defendants is an attractive
target for trial lawyers since small-business owners and
their insurers can be forced to pay millions of dollars in
damages. Horrifying for a small-business owner is the
prospect that they can be hauled into court without having
any relationship to asbestos or the plaintiff. Many small
businesses are forced to settle because they don't have the
money or time to be away from their businesses. Not only do
they face the stigma of having to settle, and the loss of
time and money, but they will likely also experience higher
insurance rates.
By creating an alternative compensation system to resolve
asbestos claims, S. 852 will fix a badly broken system that
is not working and, in the process, compensate victims
faster. In addition to lawsuit relief, the legislation
relieves small businesses with either low or no asbestos
liability from having to pay into the compensation fund. No
business that meets the Small Business Administration
description of a small business can be required to pay a
penny into the fund. Nor will any small business that has
carried less than $1 million in asbestos expenditures before
December 31, 2002 have to pay into the fund.
This legislation will help prevent small businesses from
having to spend the time and money to defend themselves in
asbestos lawsuits. It takes a significant step towards fixing
part of our litigation crisis that hurts business, big and
small, and ultimately keeps the victim from receiving
compensation.
Thank you for your support of small business.
Sincerely,
Dan Danner,
Executive Vice President,
Public Policy and Political.
____
Military Order of the
Purple Heart,
Springfield, VA, December 13, 2005.
Hon. Patrick Leahy,
U.S. Senate,
Washington, DC.
Dear Senator Leahy: On behalf of The Military Order of the
Purple Heart (MOPH), I ask you to join our organization and
roughly a dozen other national veteran service organizations
and support passage of S. 852, the Fairness in Asbestos
Injury Resolution (FAIR) Act.
Years after serving in the military, many veterans are now
discovering they suffer from terrible diseases related to the
asbestos they were exposed to during their time in the U.S.
military. The government used asbestos materials in a number
of facilities and crafts, affecting the health of the men and
women serving before and after the Second World War.
The FAIR Act offers sick veterans a way to receive the
compensation they deserve. Right now, it is difficult for
veterans to turn to the courts for help with their asbestos-
related medical costs. Veterans are barred by law from suing
their employer (the federal government) for compensation. But
by taking asbestos claims out of the court system, the FAIR
Act will ensure veterans will have a speedy and just avenue
for receiving compensation.
Senator Bill Frist, with bipartisan support; recently
asserted that he will make the FAIR Act a top priority for
the Senate in January. He clearly understands that the FAIR
Act is the only viable solution for sick veterans. Passage of
this bill would provide immediate and ample aid to veterans
as well as other victims of asbestos exposure.
Please vote yes on the FAIR Act and help relieve the
suffering and financial burden of our veterans.
Respectfully,
James D. Randles,
National Commander.
____
January 31, 2006.
Hon. Harry Reid,
Democratic Leader, U.S. Senate,
Washington, DC.
Dear Senator Reid: Veterans across the country who are
afflicted with asbestos-related diseases would at last get
compensation and relief under the Fairness in Asbestos Injury
Resolution (FAIR) Act. But according to a number recent media
reports, you have labelled the FAIR Act as a bill that caters
to special interests and have informed Majority Leader Frist
in writing that you will oppose this critical legislation. In
all frankness, your words and actions are extremely
disappointing to veterans across this nation--surely you do
not consider sick veterans to be a ``special interest''?
The FAIR Act will provide proper compensation to sick men
and women who volunteered to fight for our country--
compensation they simply can't get under the current system.
The military used asbestos throughout its facilities, bases,
and ships during and after World War II, and countless
veterans were exposed to this deadly material. But because
the U.S. government has asserted sovereign immunity, these
sick veterans are unble to seek compensation from the
government through the courts.
The FAIR Act's victims' trust fund would open a door for
veterans that has been closed for years.
[[Page S715]]
We are disappointed that you are trying to keep that door
closed and stop veterans from receiving the compensation they
deserve. Sick veterans--and indeed, all victims--deserve
better than political gamesmanship on this critical issue. We
urge you not to stand in the way of full Senate consideration
of this vital legislation.
The FAIR Act is more than overdue. The Senate has been
debating these reforms for years. Sick victims, including
sick veterans, shouldn't be forced to wait for help any
longer.
Sincerely,
Air Force Sergeant Association.
American Ex-Prisoners of War
Blinded American Veterans Foundation.
Blinded Veterans Association.
Fleet Reserve Association.
Jewish War Veterans of the USA.
Marine Corps League.
Military Officers Association of America.
Military Order of the Purple Heart.
National Association of Black Veterans.
Non Commissioned Officers Association.
National Association of Uniformed Services.
National Association of State Directors of Veterans Affairs
Paralyzed Veterans of America.
Pearl Harbor Survivors Association.
Tbe Retired Enlisted Association.
Veterans of the Vietnam War, Inc.
Veterans of Foreign Wars of the US.
Women in Military Service for America.
Memorial Foundation, Inc.
U.S. Submarine Veterans, Inc.
U.S. Submarine Veteran, Inc Lockwood Internet Base.
U.S. Submarine Veterans of World War II.
U.S. Submarine Veterans Base Rhode Island.
U.S. Submarine Veterans World War II Thames River Chapter.
U.S. Submarine Veterans World War II Central Connecticut
Chapter.
____
International Union, United Automobile, Aerospace &
Agricultural Implement Workers of America--UAW,
Washington, DC, February 3, 2006.
Dear Senator: Next week the Senate is scheduled to take up
the Fairness in Asbestos Injury Resolution (FAIR) Act of 2005
(S. 852), sponsored by Senators Specter and Leahy. The UAW
strongly supports this legislation. We urge you to support
this critically important legislation, and to support cloture
both on the motion to proceed and on the bill itself.
The UAW supports S. 852 because we are firmly convinced it
would be far superior to the current tort system in
compensating the victims of asbestos-related diseases. Under
the existing tort system, many victims receive little or no
compensation because those responsible for the asbestos
exposure are bankrupt, immune from liability or can't be
identified. Even when victims do receive some award, the
litigation takes far too long, and the amounts are highly
unpredictable. Far too much money is wasted on attorney fees
and other litigation costs, or dispersed to individuals who
are not impaired.
The Specter-Leahy bill would solve these problems by
establishing a $140 billion federal trust fund to compensate
the victims of asbestos-related diseases through a stream-
lined, no-fault administrative system. This system will
provide much speedier compensation to victims according to a
predictable schedule of payments for specified disease levels
that focuses compensation on those who have the most serious
impairments. It will also guarantee that victims can receive
adequate compensation, regardless of whether those
responsible for the asbestos exposure are bankrupt or
otherwise immune from liability.
The UAW strongly supports the provision in the Specter-
Leahy bill that does not permit any subrogation against
worker compensation or health care payments received by
asbestos victims. We believe this provision is essential to
ensure that victims receive adequate compensation, and do not
have their awards largely offset by other payments. We
strongly urge you to oppose any amendment that would
undermine victims' compensation by allowing subrogation.
The UAW also urges you to reject any other amendments that
would reduce or restrict eligibility for compensation for the
victims of asbestos-related diseases. This includes any
amendments that would strike medical monitoring or eliminate
Level VI awards.
The UAW supports the provisions in S. 852 that require
broad sections of the business and insurance industries to
make contributions to finance the $140 billion federal trust
fund. We believe this broad-based, predictable financing
mechanism is vastly preferable to the current tort system,
which has already driven many companies into bankruptcy, and
is threatening the economic health of other companies that
used products containing asbestos, including the major auto
manufacturers. Continuation of the existing tort system will
inevitably lead to more bankruptcies, resulting in more lost
jobs and wage and benefit cut backs for workers and retirees.
However, to ensure that the financing mechanism in S. 852
remains equitable and workable, the UAW believes it is
essential that the Senate reject any amendments that would
severely narrow or cap the financing base and jeopardize the
guarantee that $140 billion will be made available to
compensate asbestos victims.
The UAW recognizes that a number of specific concerns have
been raised by other labor organizations about various
provisions in S. 852. We are continuing to work for
improvements in the legislation, and are hopeful that
Senators Specter and Leahy will largely address these
concerns in a manager's amendment.
However, the UAW does not agree with those who have taken
exception to the 5 percent cap on attorney fees for monetary
claimants. This cap ensures that asbestos victims will be
adequately compensated, and not see their awards severely
reduced by exorbitant attorney fees. This cap will not impede
the ability of claimants to get adequate legal
representation. Because S. 852 establishes a non-adversarial,
no-fault administrative system, the difficulties and costs
involved in bringing asbestos claims will be greatly reduced.
Indeed, much of the work can be done by paralegals. We also
believe that labor unions and other groups can help provide
free or lower cost representation for asbestos victims by
hiring staff attorneys and other professionals to process the
claims under the no-fault administrative system. Through such
mechanisms, asbestos victims can receive competent
representation with little or no attorney fees being deducted
from their awards.
Finally, the UAW recognizes that questions have been raised
about the projections for asbestos claims and the solvency of
the trust fund. We would note that most stakeholders agreed
to $140 billion in financing early last year. Although all of
the projections are subject to some element of uncertainty,
the UAW believes that the $140 billion in financing is
sufficient to enable the trust fund to compensate asbestos
victims for a lengthy period of time. It is also important to
remember that S. 852 provides for reversion of asbestos
claims to the tort system in the event the federal trust fund
should ever have insufficient funds to pay all claims. While
we hope these reversion provisions will never be triggered,
they do provide assurance that victims will always have some
recourse for seeking compensation.
It is easy for critics to point out shortcomings in S. 852.
The UAW submits, however, that it is abundantly clear the
asbestos compensation system established by the Specter-Leahy
bill would be far preferable to the existing tort system. It
would do a much better job of providing prompt, equitable
compensation to asbestos victims. And it would finance this
compensation through a rationale system that does not lead to
bankruptcies that threaten the jobs, wages and benefits of
thousands of workers.
For all of these reasons, the UAW strongly supports the
FAIR Act, S. 852. We urge you to vote for this legislation,
and to support efforts to invoke cloture on the motion to
proceed and on the bill itself.
Thank you for considering our views on this vital issue.
Sincerely,
Alan Reuther,
Legislative Director.
____
International Association of Heat & Frost Insulators &
Asbestos Workers,
Lanham, MD, February 6, 2006.
Dear Senator, We strongly support the courageous and bi-
partisan work of Senator Arlen Specter (R.) and Senator
Patrick Leahy (D.), co-sponsors of the Fairness in Asbestos
Injury Resolution (FAIR) Act of 2005 (S. 852) which comes to
the Senate Floor this week.
We support the Bill as presently drafted. We ask that you
support the Bill as well.
Our U.S. Supreme Court has held that federal legislation is
necessary to solve the asbestos compensation crisis--and we
agree. Currently, only 42 cents of every dollar spent in this
broken system goes to victims, their widows and kids.
I recently wrote our membership across the country to
advise them of our support for this Bi1l, and to urge them to
contact you in support of S. 852. I advised our membership
that this Bill is not perfect. But nothing ever is when
problems of this magnitude are addressed.
We believe S. 852 offers the best hope of providing fair
and equitable compensation on a national basis for those who
have suffered, or will suffer from the devastating effects of
asbestos exposure in decades to come.
We urge you to reject amendments of special interest groups
on either side of the issue that would change the core
provisions of the Bill.
Such amendments can only be hostile to the interests of
fundamental fairness and equity. We have promised our
membership that we would fight vigorously to oppose any
change that would make this Bill unfair or inequitable.
Very truly yours,
James A. Grogan,
General President.
____
International Association of Heat & Frost Insulators &
Asbestos Workers,
Lanham, MD, January 31, 2006.
Dear Brothers and Sisters: The Fairness in Asbestos Injury
Resolution Act of 2005 (Asbestos Bill S. 852) is scheduled to
be brought to the floor of the United States Senate in early
February of this year.
Bi-Partisan Co-Sponsors of S. 852: Senator Arlen Specter
(R.) and Senator Patrick Leahy (D.): Nobody has worked harder
than Senate Judiciary Chairman Arlen Specter (R.) of
Pennsylvania and Ranking Minority
[[Page S716]]
Member Senator Patrick Leahy (D.) of Vermont in trying to get
a fair and equitable and bi-partisan Bill that helps those
who have suffered the devastating effects of exposure to
asbestos. These two courageous Senators have worked
tirelessly during the last three years--to craft changes to
the Bill after listening to reasonable suggestions from
Labor, Business and Insurance negotiators.
Special interest groups on both sides of the issue have
tried to derail their good work. But Senators Specter and
Leahy have stood tall in search of an equitable legislative
solution.
This office has actively participated in the negotiating
process of this Bill over the last three years: Your
International has been actively involved in extended and
complicated negotiations to bring about this legislative
solution. Our U.S. Supreme Court has held that legislation is
necessary to solve the asbestos compensation crisis--and we
agree.
Let us begin by stating that this Bill is not perfect.
Nothing ever is. For the last 10-20 years the current
asbestos compensation system has produced inequitable and
unfair results. Tens of billions of dollars have gone to
people who are not sick. This is wrong. The current system is
broken, notwithstanding what special interest groups may
claim. We believe this Bill offers the best hope of providing
equitable compensation while expediting the compensation and
review process on a national basis, regardless of where you
live, or who your attorney might be.
Over 300,000 pending or current asbestos claims cry out for
a fair legislative solution from Congress: Currently it is
estimated that there are more than 300,000 pending asbestos-
related claims. In a recent study by RAND, it was determined
that only $0.42 (42 cents) of every dollar spent on
litigation is awarded to the actual victims, their widows and
kids. A majority of the funds is paid to transaction costs,
including lawyers' fees for corporations and claimants.
$140,000,000,000 ($140 Billion) trust fund for victims of
asbestos induced mesothelioma, lung cancer aud asbestosis
under a no-fault system with set awards based on severity of
disease: This Bill would establish a $140 billion Trust Fund
to compensate victims who are truly sick from asbestos
exposure under a no-fault compensation system administered by
the Department of Labor. Objective medical criteria that will
rule in asbestos induced disease, and will rule out disease
not caused by asbestos exposure has been negotiated and
approved by us and medical experts we have retained. This
legislation will offer the following expedited settlements:
Mesothehoma: $1,100,000 per case: Lung Cancer with
Asbestosis, $600,000-975,000 per case, Lung Cancer with
Asbestos Pleural Markers, $300,000-725,000 per case,
Disabling Asbestosis (not cancerous), $850,000 per case,
Asbestosis with Some Impairment, $100,000-400,000 per case.
Attorneys' fees have been limited to 5 percent under the
legislation. It is to be expected that lawyers who have
received tens of millions of dollars in asbestos fees might
voice some objection to the Bill. Insurance companies who
will have to pay hundreds of millions of dollars into the
Trust are likewise objecting to this courageous attempt by
Senators Specter and Leahy to solve the asbestos compensation
crisis.
The Pipefitters, Painters and United Auto Workers have
joined with us: The leadership of the Plumbers and
Pipefitters (the UA), the Painters (IUPAT) and the United
Auto Workers (UAW), have joined with us in supporting this
Asbestos Bill, S. 852. We believe the leadership of other
trade unions will come to join us in the weeks ahead in
support of this Bill.
Funding: We are aware of those who, in good faith, question
whether $140,000,000,000 ($140 Billion) will be sufficient to
fund the Trust to compensate all American victims of asbestos
induced cancer and asbestosis.We share their good faith
concern.
But there have been too many bankruptcies as a result of
the current asbestos litigation crisis. If funding mandated
under the Bill proves insufficient, the Bill provides that
individuals may return to the court system and pursue a
lawsuit in their State or Federal Court before a jury of
their peers. This was a hard fought and fair compromise.
Let me close by saying that this International Union
remains deeply committed to supporting a meaningful,
comprehensive solution to our national asbestos litigation
crisis. Be assured if we become aware of changes or
amendments to this Bill that will be to the detriment of
workers and their families, we will fight them, and will not
hesitate to change our position if needed.
We urge you to contact your Senators to gain their full
support for this legislation. Attached is a complete listing
of Senators and their contact information for your
convenience.
Fraternally yours,
James A. Grogan,
General President.
Terry Lynch,
Political Director.
James P. McCourt,
General Secretary-Treasurer.
Mr. LEAHY. Mr. President, I am pleased to join Senator Specter, who
is chairman of the Judiciary Committee, Senator Feinstein, and others
in urging my colleagues to move to this bipartisan bill.
Speaking of asbestos-related diseases, it is time for us to solve
this dire situation. Victims have been waiting long enough for a
comprehensive national solution. We have looked at this. The Senator
from Nevada spoke of those who have suffered from silicosis. If we are
going to talk about families, my grandfather, Patrick J. Leahy, a
stonecutter in Barre, VT, died of silicosis of the lungs long before I
was born. I never got to know my grandfather. My other grandfather,
Pietro Zambon, immigrated to this country from Italy. He died of the
same disease. We are not neglectful in that. We are well aware of it.
We have designed this bill in such a way that those victims are not
shut out.
This legislation is a product of years of difficult, conscientious
negotiation. Built on what was done last Congress under former Chairman
Orrin Hatch, we have crafted a fair and efficient plan that is going to
ensure adequate compensation of thousands of victims of exposure, but
it also gives due consideration to the businesses that should and will
provide that compensation.
Asbestos has wreaked havoc on the lives of many, but it has also
overwhelmed our Nation's court systems as it tries to compensate them.
We can talk about who gives and who doesn't. The fact of the matter
is, the victims are the ones we should be most concerned about, and
many of the victims--thousands of the victims in this country will get
nothing unless this bill passes.
Senator Specter rightly calls this one of the most complex issues we
have ever tackled. Look around the Chamber of the Senate. Of those who
are here, I have been here the longest. Actually, only six Members of
the current Senate have been here longer than I. I have not seen in
that 31 years anything more complex.
Does that mean this is the bill I would have written? No. And it is
not the bill Senator Specter would have written. It is a bill, though,
that had to bring enough people together to pass. It should not
surprise anyone to hear the interested groups, including labor, some of
the businesses contributing to the trust fund, and their insurers, and
the trial bar are each less than pleased with one part or the other.
But that is the essence of legislative compromise, something I have
learned in three decades.
We have kept the ultimate goal of fair compensation to the victims as
the lodestar of our efforts. We have all had to make compromises on a
variety of subsidiary issues to get this far, but we have achieved a
significant and needed step toward a more efficient and more equitable
method to compensate these victims. Right now, the fact is that only 42
cents out of every dollar spent on the burgeoning dockets of litigation
in this area actually goes to the victims. That is a national disgrace.
We can and must do better for all involved in this crisis. America can
do better.
These victims need our help, and they need it now. This is, after
all, one of the most lethal substances ever to be widely used in the
workplace. Between 1940, when I was born, and 1980, more than 27.5
million workers were exposed to asbestos, and nearly 19 million of them
had high levels of exposure over long periods of time. We know of some
people who suffer from this illness because they washed the clothes of
their loved ones who worked in these areas. They have been ravaged.
The economic harm caused by this, and the resulting bankruptcies, are
a different kind of tragedy for everybody--for the workers and
retirees, for shareholders, but also for the families who built these
companies. In my home State of Vermont, the Rutland Fire and Clay
Company is among the more than 70 companies that have declared
bankruptcy due to asbestos liabilities. Do you think those victims are
going to recover anything without this legislation?
The late Chief Justice Rehnquist declared the elephantine mass of
cases cries out for a legislative solution. In additional opinions
written by Justice Ginsburg, the Supreme Court has repeatedly called on
Congress to act because ``a nationwide administrative claims processing
regime would provide the most secure, fair, and efficient means of
compensating victims.''
I agree. Our committee chairman agrees. The Judiciary Committee
members on both sides of the aisle agree, and we hope others in the
Senate will agree.
[[Page S717]]
I am worried when I hear veterans being criticized for supporting
this. They are brave. They are concerned that they have been badly
injured, and they know this legislation will help them. Why shouldn't
they support it? These brave veterans know they are not going to get
any help otherwise.
Does business support it? The 600,000 members of the National
Federation of Independent Businesses do, as well as hundreds of larger
companies which are going to have to contribute.
Senator Specter has spoken of this, but think what we do in our bill.
It is a distinct improvement over previous bills. We provide higher
compensation awards for victims, with $1.1 million awards for victims
of mesothelioma, $300,000 to $1.1 million to lung cancer victims,
$200,000 for victims of other cancers caused by asbestos, $100,000 to
$85,000 for asbestosis, and $25,000 for what we call mixed-disease
cases, as well as medical monitoring and all the things he spoke of.
I am going to speak further on this as we go on. I suspect there will
be more talk on it. But I hope Senators will allow this bill to go
forward, will allow us to have a vote on it. As the Senator from
Pennsylvania noted, we have other major things going on. I have been
involved in that all day. I must admit, though, to the distinguished
majority leader, if the Chair will permit me to note, I may have other
things going on. We have other things going on in our family at this
moment. I hope we are about to enlarge our family at this moment.
With that, I hope neither of our leaders will mind, but the senior
Senator from Vermont is going to go home and hopefully sometime in the
next few hours be together with the latest member of the Jackson and
Leahy family.
I yield the floor.
The PRESIDING OFFICER. The majority leader.
Mr. FRIST. Mr. President, to my distinguished colleague, I know
things will go well as a new member of the family is about to enter. It
is a very special time in all of our lives when that happens.
I did want to come to the floor to give some perspective to what we
have really seen play out over the last hour and a half with regard to
addressing an issue that is important to the American people in ways
they probably do not fully realize. It is the importance of taking up
and addressing with full debate and amendment on the floor of this body
the issue of reforming an asbestos system which is out of control. We
have victims of cancer, victims of mesothelioma, victims of asbestosis,
who are not being fairly compensated, who are struggling for that last
breath before justice and fairness is carried out. That is because of a
system which is broken, a system which has called out for fixing, not
just in this Congress or the last Congress or the Congress before that
but really over the last 15 years.
There has been some question on the floor today of why leadership has
elected to bring this bill to the floor as the first major piece of
legislation that really was not unfinished business before our last
recess, and the reason is for these victims.
Yes, this bill is a jobs issue. It was stated earlier that over
150,000 people have lost their jobs because of this broken system; that
over 77 companies have gone bankrupt, which means, yes, loss of those
jobs but also loss of pensions for all the other employees of those
companies. But I have to say that in part because I have had that
opportunity to take care of mesothelioma patients as a physician and to
operate on mesothelioma patients. It is a tough operation because you
know you cannot cure mesothelioma, you can only treat it and make
someone's life better. The sad thing is, although those victims deserve
to be compensated and compensated in a timely way--nobody argues that--
justice is not being realized today.
It is worth stepping back. We had a wonderful exchange, I believe,
through the Democratic leader--who is opposed to allowing that bill to
come to the floor to be fully debated and amended to address this
significant, critical problem facing people today and one which will
face them in the future--and the chairman of the Judiciary Committee,
joined by the ranking member, the Democratic ranking member, who
believe strongly there is time to address this bill and address it now.
If we do not address it now--and it is important for our colleagues to
understand--it will not be addressed in this Congress. This is a fairly
short period running up to the elections, and we have a lot of work to
do. It is either now or never.
I say there is a long history to this. It was 15 years ago that Chief
Justice Rehnquist at the time first called attention to the asbestos
litigation crisis. It is a crisis, as I will spell out in a few
moments. Today, 15 years later, we are on the cusp. After working a
bill through committee, passing it out of committee in a bipartisan
way--strongly supported by the Republican chairman of that committee
and the Democratic ranking member--it is now time to consider it on the
floor of the U.S. Senate. We are on the cusp of a fair and a just and a
bipartisan solution.
Because of partisan election year politics, it may be, from what we
heard from the Democratic leader, that an effort under the Democratic
leadership is underway--we are hearing that this bill may be blocked.
Remember, what we are debating now is just bringing that bill to the
floor, this motion to proceed. What that does is put off relief. It
puts off to sometime in the future, if we do not even allow that bill
to come to the floor, it puts off relief for thousands and thousands of
those victims who deserve just treatment and fair treatment and
treatment for their cancer and treatment for their mesothelioma and
treatment for their asbestosis. And we are not going to do it.
We are going to bring it to the floor, we are going to debate it,
open it to amendment, and fix what people do not like in the bill. But
to think we have Democrats today who want to object to even bringing it
to the floor--to me, that is wrong. It is something we cannot let
happen.
The asbestos crisis is real. Nearly $74 billion has been lost on the
inefficient and disastrous asbestos litigation system, with the trial
lawyers, of that $74 billion, pocketing almost $30 billion. That is $74
billion that should be going to the victims in a timely way, but about
42 cents out of every dollar doesn't get to the victim, it gets to the
trial lawyers. It gets to the system itself. And that is what is fixed
in this bill.
The costs have already bankrupted 77 companies, destroyed 150,000
American jobs, and caused workers to lose over $200 million in wages.
Victims with real injuries are left with no recourse, spending years
awaiting a trial without getting the justice they deserve.
As I said, it was 15 years ago that Chief Justice Rehnquist first
drew attention to the problem. In 1991, he warned that courts are
``ill-equipped'' to effectively address the asbestos situation which
has reached--and again I quote, using his words--``critical dimensions
and is getting worse.''
The Chief Justice at the time--again, this is 1991--went on to say,
and I use his words:
We have . . . a crisis for many Americans. However, the
worst is yet to come. . . . it [is] inevitable that, unless
Congress acts to formulate a national solution, with the
present rate of dissipation of the funds of defendant
producers . . . all resources for payment of these claims
will be exhausted in a few years. That will leave many
thousands of severely damaged Americans with no recourse at
all.
Those are the former Chief Justice's words.
After that initial report, in three separate opinions the Supreme
Court called on Congress to address the asbestos litigation crisis.
Justice Ginsburg specifically called on Congress to create a national
trust fund. Her words:
The argument is sensibly made that a nationwide
administrative claims processing regime would provide the
most secure, fair, and efficient means of compensating
victims of asbestos exposure.
In 1998, Congressman Hyde was the first Member in Congress to
introduce a bill with that recommendation.
Many trust fund bills were subsequently introduced in both Chambers,
but it was not until Senator Orrin Hatch decided to work on the issue
that the Senate really began to debate in earnest the merits of a trust
fund bill. In 2003, then-Chairman Hatch held six hearings on the
proposal in the Judiciary Committee, and in July of that year, 2003,
Chairman Hatch passed his trust fund bill out of Judiciary.
[[Page S718]]
The next year, in 2004, I brought that bill to the floor, fought for
a vote. Unfortunately, because of partisan and I guess it was election
year politics at the time, the bill was filibustered by the Democrats.
It was blocked by the Democrats.
After that failed cloture vote, 11 sitting Democrats wrote me and
expressed their desire to keep working on the bill, to keep working on
an asbestos trust fund to provide necessary relief to victims and
businesses. As has been mentioned earlier, I worked closely with
Senator Daschle's office to try to construct a compromise at the
leadership level. But, again because of partisan, election year
politics, negotiations stalled.
Over the course of the following year, Chairman Specter took it upon
himself to keep that momentum going. We heard a lot of that outlined a
few moments ago on the floor of the Senate. He held 36 separate
meetings with stakeholders on the topic--the business community, the
unions, the trial lawyers, the insurance companies; meeting after
meeting. He held a total of six hearings on the matter.
In May of 2005, the Judiciary Committee voted out, in a bipartisan
way--the vote was 13 to 5--the bipartisan FAIR Act, the bill we are
considering today.
They were finally able to hammer out--it was bipartisan, drawing upon
both sides of the aisle--a fair solution to the crisis.
In that July letter of 2004 which was written to me by the 11
Democrats, they summed it up best:
With each passing day, more and more victims face serious
illness and even death, and more and more workers and
companies face the threat of bankruptcy.
While creating a national asbestos trust fund is
unquestionably an extraordinarily complex undertaking, too
much progress has been made to let this issue go unaddressed
in this Congress.
That was July of 2004. They were right then, and they are right now.
That is why several months ago I told both sides of the aisle that the
leadership was going to bring this bill to the floor at this point in
time. It is time for us to act. If we don't seize this opportunity, it
is simply not going to happen. The asbestos litigation crisis is
crippling our economy and it is endangering our fellow citizens who
suffer from asbestosis, mesothelioma, and cancer.
It comes back to the victims themselves, with real injuries today,
who are offered almost no recourse, spending years awaiting a trial
without getting the justice they deserve. It has been 15 years since
Chief Justice Rehnquist sounded the alarms. Congress has invested 7
years working through the trust fund solution. Resolution of the
asbestos crisis is simply overdue. A vote against cloture to proceed to
address asbestos reform is a vote against solving this problem.
As mentioned earlier today, there will be the opportunity to vote at
6 o'clock tomorrow night on this issue. The timing of that is
determined by schedules of people. We should have everyone back for
that vote. That vote is not going to be on passage of the bill; it is
not going to be on amendments to the bill; it is simply going to be a
clear-cut vote among our colleagues as to whether we consider it
important to look at fairness and justice for the victims who today are
suffering. It is a motion to proceed.
Months ago, we said we were going to address it. The time has come,
and if we don't act now, this issue will have to be put on the back
burner. Thousands of victims will continue to be left without the
medical treatment they need and the justice they deserve.
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