[Congressional Record Volume 152, Number 12 (Monday, February 6, 2006)]
[Senate]
[Pages S718-S720]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]





                             CLOTURE MOTION

  Mr. FRIST. Mr. President, I now send a cloture motion to the desk.
  The PRESIDING OFFICER. The cloture motion having been presented under 
rule XXII, the Chair directs the clerk to read the motion.
  The assistant legislative clerk read as follows:

                             Cloture Motion

       We the undersigned Senators, in accordance with the 
     provisions of rule XXII of the Standing Rules of the Senate, 
     do hereby move to bring to a close debate on the motion to 
     proceed to Calendar No. 131, S. 852: A bill to create a fair 
     and efficient system to resolve claims of victims for bodily 
     injury caused by asbestos exposure, and for other purposes.
         Bill Frist, Arlen Specter, Jeff Sessions, Pat Roberts, 
           Lamar Alexander, Lisa Murkowski, Johnny Isakson, 
           Richard M. Burr, Wayne Allard, Mitch McConnell, Mike 
           DeWine, George V. Voinovich, Jim Talent, David Vitter, 
           Bob Bennett, Mel Martinez, Ted Stevens.

  Mr. FRIST. Mr. President, under the order entered on Thursday, this 
vote will occur at 6 p.m. on Tuesday. We will continue with debate on 
the motion to proceed today and through tomorrow. I hope cloture will 
be invoked and we will then be able to begin debate on this important 
underlying legislation.
  Mr. President, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. DURBIN. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. DURBIN. Mr. President, pending before the Senate is a bill, S. 
852, the Fairness in Asbestos Injury Resolution Act of 2005. This bill 
has been a long time in coming. I was first elected to the U.S. House 
of Representatives over 20 years ago. In the first year that I served, 
I was approached, in 1983, 23 years ago, by a representative of Johns 
Manville, one of the largest asbestos manufacturers in America. This 
person said he wanted to talk to me about the asbestos issue 23 years 
ago. He knew then that his company was in trouble, maybe headed for 
bankruptcy, and he wanted to know if there was another way to approach 
it.
  He could not have imagined the reach of asbestos poisoning and 
contamination in America. I don't know the number of potential victims 
of asbestos poisoning and contamination. I am sure it reaches into the 
hundreds of thousands, maybe into the millions. But there is one thing 
I do know for sure: not a single victim of asbestos that I have ever 
heard of or met voluntary exposed themselves to this dangerous and 
toxic mineral.
  We know some people who were almost innocent in their lifestyle, with 
very little, if any, exposure to asbestos, turned out to be some of its 
most painful victims. People with mesothelioma contracted because a 
wife did her husband's work clothes with the laundry each week, shaking 
out his dirty work clothes, and asbestos fiber flew into the air, 
invisible to her eyes. She breathed it in, and a timebomb started 
ticking. That kind of situation was repeated over and over again--for 
the millions of men and women who were workers in the shipbuilding 
industry during World War II and since; for others who worked in 
occupations that you never thought would lead to asbestos exposure; 
people who bought plants and plant fertilizers, not realizing that the 
vermiculite included in the plants bought at the grocery store was 
tainted with asbestos and endangered them; people who worked on putting 
brake linings into cars; putting insulation in homes; putting shingles 
on houses; people putting flooring tiles on the floor, never realizing 
that as they were cutting these products and working with them, they 
were exposing themselves to something very deadly.
  It turns out the people who made these products knew a long time ago 
that asbestos was dangerous. Maybe as far back as 85 years ago, they 
had the first evidence that people working around asbestos were getting 
sick and dying. What did they do? They covered it up because it was bad 
news. It hurt the bottom line. That coverup went on for decades.
  Now we know a lot more about asbestos. Some of the companies that 
made the most money with asbestos products have gone out of business 
because they have been sued by their customers and their workers. The 
argument has been made that the ordinary court system of America can't 
handle this; there will be too many claimants. So the proposal in this 
bill is to set up a trust fund, a $140 billion trust fund. Where did 
that figure come from? Senator Specter of Pennsylvania said earlier 
that it was a figure that was brought up by former Senator Daschle of 
South Dakota several years ago, and Senator Frist. I don't know where 
it came from. I don't know the circumstances under which it was 
suggested. But today it has become absolutely a doctrine of faith that 
$140

[[Page S719]]

billion is all we are going to need to pay off all the victims of 
asbestos.
  When we asked during the course of the committee consideration, let's 
figure out how many people are sick, how much we are going to pay them, 
and what it is really going to cost, we got the runaround. We couldn't 
get the information that led to this calculation of $140 billion for 
the trust fund. So the starting point of this legislation is fatally 
flawed.
  Then comes the second point. Who is going to pay the money into the 
trust fund? Nominally it will be existing trust funds from asbestos-
type companies, other companies across America with some exposure 
because they have been involved in the use of asbestos, and their 
insurance companies. So the idea was they would pay into the trust fund 
and then escape all liability in court.
  But we have asked, who are these companies? What are their names? How 
much will they pay in? Once again, there has been a refusal to provide 
this most basic information. A $140 billion trust fund, a figure no one 
can basically explain, coming from thousands of businesses across 
America which no one can name, does that give you peace of mind? If you 
are someone who thinks maybe in the distant future someone in your 
family may need to turn to this trust fund to be paid, is that a good 
starting point? I don't think it is.
  Then comes the question about victims. I will concede there have been 
numerous hearings on this bill. We have brought in people from all 
walks of life but very few victims. That is what troubles me. I have 
met with some of them. I have met with men and women who are literally 
dying from exposure to asbestos. It is a sad and painful death. Some 
say it is one of the most painful ways to die, mesothelioma, 
asbestosis.
  I know in my family, my father died of lung cancer. I stood next to 
his bedside. I was a high school student at the time. I watched this 
poor man suffocate because of his addiction to tobacco. I can only 
imagine that asbestos deaths are similar, a painful experience for the 
victim and a tragic experience for the families.
  Look at the amount of money that is being provided. Some of it sounds 
absolutely grandiose. One million for a mesothelioma victim. 
Mesothelioma victims, no one even questions, are victims of asbestos 
exposure. And their diagnosis is almost always--maybe always--a fatal 
one. So they were people who would recover in court once this diagnosis 
is made.
  The amount of $1 million for a mesothelioma victim may sound like a 
large amount of money until you take a look at the medical bills and 
take a look at the lost wages and consider that some of these 
mesothelioma victims are fathers of children, two and three children, 
and their entire life's worth from this asbestos tragedy is translated 
into $1 million.
  And over the course of debating this bill, medical treatment of 
mesothelioma has changed. There was a time when it was flatout a death 
sentence. There was no place to turn. Then people started trying 
radical surgeries and treatments to buy a few more months of life. 
Well, they do; they live a little longer. But, sadly, it costs a ton of 
money and a million dollars is gone.
  What do you think about a victim, a mesothelioma victim--let's not 
quibble about whether it is asbestos or a serious victim--what do you 
think about a mesothelioma victim who has been working 2 years, first 
realizing they had exposure, wondering if they were sick and 
discovering they had mesothelioma, now they are pushing forward in 
court, and they have spent time, and they are ready, the trial is about 
to begin, and this law passes?
  Except in the most extreme cases where we carve out an exception, for 
most of them it means they start over. For asbestosis, in particular, 
they start over. It means that all the work that was put in by the 
family, the doctors, the lawyers, to get them ready for their day in 
court to make their appeal for just compensation is wasted.
  I know that lawyers are not a favored class when it comes to this 
legislation. In fact, if you can imagine, this trust fund says to the 
victims: if you want legal representation, go right ahead, but you 
cannot pay more than 5 percent of whatever you recover to the lawyer.
  I made a living as a lawyer, and I can tell you there were many times 
I cut my fee because I felt sorry for my clients, and I think a lot of 
lawyers do the same thing. But 5 percent is a virtual guarantee that 
few victims under the trust fund will ever have an attorney at their 
side or somebody who will tell them what their real rights would be. 
That is unfortunate. Workers' compensation, which has been on the books 
for decades across America, provides a reduced standard, a predictable 
percentage for a lawyers fee. It doesn't go for the moon, and it should 
not. These are hurt workers, injured workers. They could have done the 
same thing here, but they did not.
  So you look at this from the perspective of workers, you find there 
are two or three unions supporting this bill. If I am not mistaken, it 
is the Sheet Metal Union, the Asbestos Union, and the United Auto 
Workers Union that are the three main unions supporting the bill. You 
might understand the asbestos and the sheet metal workers. Why the 
United Auto Workers? It has a lot to do with the fact that many work 
for automobile companies that are struggling to survive. I bet you a 
nickel--though they have never told me as much--that when they sit down 
with the GMs and the Fords of the world, these corporate executives 
say: take your pick, we can either pay these victims of asbestos or we 
can pay your pensions.
  I hope it has not come to that. I hope that what it comes to is an 
understanding that we can do the right thing; we can provide an avenue 
for compensation for victims of asbestos exposure and do it in a 
sensible way. The States of Texas and Illinois have already moved in 
this direction. In Illinois, we have what is called the plural 
registry. It means that if you have been exposed to asbestos, you can 
sign up--you don't have to file a lawsuit, unless you are sick, but you 
can sign up and protect your right to bring a lawsuit some day if you 
become sick. Maybe, God willing, that will never happen. But if, God 
forbid, it does, you have protected your right to file a lawsuit. I 
think that is sensible. In Texas, they have established medical 
criteria for what brings you to court. Once in court, how can you 
recover? They worked it out within the State of Texas between the trial 
bar, the attorneys who represent victims, and the legislators and the 
businesses and insurance companies. They reached an agreement that 
doesn't create a trust fund, that doesn't say to a person we are 
slamming the courthouse door but an agreement that gives them their day 
in court under circumstances and laws that have been agreed to by 
business and labor and the lawyers and the victims.
  Why isn't this bill modeled after that? That seems more sensible. 
Rather than putting our future in a trust fund with an amount we cannot 
even rationalize, that assesses companies that we cannot even name, 
closing off the possibility of going through a court suit to protect 
your right in court, I think there is a much more sensible way to 
approach this. I hope that when it is all said and done, all of my 
colleagues in the Senate will have the same experience I have had--sit 
down with these families, the families of victims, and understand that 
is what this is all about. We spent so little time talking about the 
victims during the course of preparing this bill. I hope, during the 
course of this debate we will think about it long and hard.
  Earlier this afternoon, my colleague, Senator Reid of Nevada, spoke 
on the floor about one of our mutual friends, Bruce Vento of Minnesota. 
He was a Congressman from St. Paul. He worked in the shipbuilding 
industry when he was a young man. He went on to have a good public 
life, being elected to Congress and rising to a position of leadership. 
I used to see him down at the House gym. He was very conscious of his 
health. He worked out regularly. He was in good health and was proud of 
it. Then lightning struck. Those fibers that he ingested in his lungs 
decades ago created the mesothelioma which spread quickly through his 
body and took his life. I met with his wife. We talked about Bruce and 
what his last days were like.
  That is a reminder to me that what we are talking about in this bill 
is not just about formulas and companies, and contributions, and trust 
funds, we are talking about real people and real

[[Page S720]]

lives. I sincerely hope that at the end of the day, after my colleagues 
have taken a close look, they will say this bill should not pass, that 
it is not fair, it is unfair to so many people. It is more important 
for us to step back now and decide what is reasonable. Follow many 
State examples, such as Texas and Illinois, that have found ways to 
deal with this issue in a humane, sensible way, to bring it under 
control. I think we can do that.
  I don't take anything away from Senator Specter or Senator Leahy, the 
ranking member, who support it. They put in many hours in preparation. 
But I have to tell them at the end of the day, despite all their best 
efforts, there are fatal flaws in this bill which I hope will lead to 
its defeat.
  I will vote against the motion to proceed. I hope my colleagues will 
look at it long and hard because this is not just a matter of passing 
another bill. This is a bill that would touch the lives of many 
innocent people, many innocent families, and many victims who will be 
denied their day in court, their chance for just compensation.
  I yield the floor and suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. ALLEN. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.

                          ____________________