[Congressional Record Volume 152, Number 16 (Friday, February 10, 2006)]
[Senate]
[Pages S1054-S1055]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                                ASBESTOS

  Mr. KENNEDY. Mr. President, the asbestos legislation which is before 
the Senate is both unfair and unworkable. It is unfair because many 
seriously ill victims of asbestos are completely excluded from 
compensation under the trust fund, and it is unworkable because the 
bill does not have adequate funding to ensure that all the victims who 
are eligible for compensation under the trust fund will actually 
receive what the legislation promises them.
  These are fundamental flaws that cannot be corrected by a few last-
minute amendments. They go to the heart of the bill. This bill will end 
up hurting the seriously ill victims of asbestos disease whom we are 
trying to help.
  S. 852 fails the test of fairness for many of those most in need of 
assistance. Now is the time to take a serious look at how the proposed 
trust fund would operate--now, before it is too late.
  Who would be excluded from receiving compensation even though they 
are seriously ill from asbestos exposure? Who would be left in legal 
limbo, ineligible for the trust fund and unable to pursue their claims 
in court?
  I have said many times that the real crisis which confronts us is not 
an asbestos litigation crisis, it is an asbestos-induced disease 
crisis. We cannot allow the tragedy of these workers and their 
families' enduring to become lost in a complex debate about the 
economic impact of asbestos litigation. The litigation did not create 
these costs. Exposure to asbestos created them. They are the cost of 
medical care, the cost of lost wages, incapacitated workers, the cost 
of providing for the families of workers who died years before their 
time. Those costs are real.

  No legislative proposal can make them disappear. All legislation can 
do is shift those costs from one party to another. Unfortunately, S. 
852 would shift more of the financial burden onto the backs of injured 
workers. That is unacceptable.
  Let's look at what this legislation would really do to victims. It 
would close the courthouse doors to asbestos victims on the day it 
passes, long before the trust fund will be able to pay their claims. 
Their cases will be stayed immediately. Seriously ill workers will be 
forced into legal limbo for up to 2 years. Their need for compensation 
to cover medical expenses, basic family necessities, will remain, but 
they have nowhere to turn for relief.
  Under this legislation, even the exigent health claims currently 
pending in the courts, will be automatically stayed for 9 months as of 
the date of enactment. These cases all involve people who have less 
than a year to live due to mesothelioma or some other disease caused by 
asbestos exposure. Nine months is an eternity for someone with less 
than a year to live. Many of them will die without receiving either 
their day in court or compensation from the trust fund.
  The stay language is written too broadly. It would stop all forward 
movement of a case in the court system. A trial about to begin would be 
halted. An appellate ruling about to be issued would be barred. Even 
the deposition of dying witnesses cannot be taken to preserve their 
testimony. The stay would deprive victims of their last chance at 
justice. I cannot believe the authors of the bill intended such a harsh 
result, but that is what the legislation does.
  I strongly believe, at a minimum, all exigent cases should be 
exempted from the automatic stay in the legislation. Victims with less 
than a year to live certainly should be allowed to continue their cases 
in court uninterrupted until the trust fund becomes operational. Their 
ability to recover compensation in the court should not be halted until 
the trust fund is open for business and they are able to receive 
compensation from the fund. It is grossly unfair to leave these dying 
victims in legal limbo. For them, the old adage is especially true: 
Justice delayed is justice denied.
  We should not deprive them of their last chance, their only chance to 
receive some measure of justice before asbestos-induced diseases 
silence them. They should be allowed to receive compensation in their 
final months to ease their suffering. They should be allowed to die 
knowing that their families are financially provided for. S. 852 in its 
current state takes that last chance away from them. I intend to offer 
an amendment that allows these severely ill victims to have their day 
in court.
  I am particularly upset by the way lung cancer victims are treated in 
this bill. Under the medical criteria adopted by the Judiciary 
Committee overwhelmingly 2 years ago, all lung cancer victims who had 
at least 15 years of weighted exposure to asbestos were eligible to 
receive compensation from the fund. However, that was changed in S. 
852. Under this bill, lung cancer victims who have had very substantial 
exposure to asbestos over long periods of time are denied any 
compensation unless they can show asbestos scarring on their lungs. The 
committee heard expert medical testimony that prolonged asbestos 
exposure dramatically increases the probability that a person will get 
lung cancer even if they do not have scarring on their lungs. Deleting 
this category will deny compensation to more than 40,000 victims 
suffering with asbestos-related lung cancers. These victims, many of 
whom will have their lives cut short because of asbestos-induced 
disease, will not receive one penny from the fund. They are losing 
their right to go to court. They are being denied any right to 
compensation under the fund. They are, in essence, being told to suffer 
in a legally imposed silence with no recourse whatsoever.
  One of the arguments we hear most frequently in favor of creating an 
asbestos trust fund is that in the current system too much money goes 
to people who are not really sick and too little goes to those who are 
seriously ill. Lung cancer victims who have had years of exposure to 
asbestos are the ones who are seriously ill. They are the ones this 
legislation is supposed to be helping. Yet they are, under this 
legislation--not the previous legislation but under this legislation--
completely excluded. Any person who was exposed to asbestos for 15 or 
more years and now has lung cancer should be eligible for compensation 
from the trust fund. Their cases would be reviewed individually by a 
panel of physicians to determine whether asbestos was a substantial 
contributing factor to their lung cancer. These 40,000 victims of 
asbestos should not be arbitrarily excluded from receiving 
compensation.
  They were included in the original legislation. It was agreed to by 
medical experts for both business and labor. That provision should be 
restored to the bill. I will be proposing an amendment to rectify this 
serious injustice.
  Another major shortcoming of this legislation is its failure to 
compensate the residents of areas that have experienced large-scale 
asbestos contamination. S. 852 simply pretends this problem does not 
exist. It fails to compensate the victims of all asbestos-induced 
diseases, other than mesothelioma, whose exposure was not directly tied 
to their work. There is very substantial scientific evidence showing 
that the men, women, and children who lived in the vicinity of 
asbestos-contaminated sites, such as mining operations and processing 
plants, can and do contract asbestos-induced diseases.
  The reason this legislation needs a special provision to compensate 
the residents of Libby, MT, is because it does not compensate victims 
of community contamination generally. The residents of Libby are 
certainly entitled to compensation, but so are the residents who live 
near the many processing plants from my State of Massachusetts, in 
western Massachusetts, to California, that received the lethal ore from 
the Libby mine. The deadly dust from Libby, MT, was spread across 
America. W.R. Grace shipped almost 10,000 pounds of ore to processing 
facilities in the 1960s through the 1990s, including Easthampton, MA, 
in western Massachusetts, where the operations of an expanding 
plant spread the asbestos to the surrounding environment, into the air 
and onto the soil. I intend to discuss this problem in great detail as 
the debate moves forward.

  I raise it now as a dramatic example of the unfairness caused by the 
arbitrary exclusion of a large number of asbestos victims from 
compensation under the trust fund. These red spots on this map are in 
States all across the

[[Page S1055]]

country with similar problems. Yet every one of them is excluded.
  Community asbestos contamination can result from many different 
sources. Medical experts, for example, say it may result from exposure 
to asbestos after the collapse of the World Trade Center. Because of 
the long latency period, we often do not learn about community asbestos 
contamination until long after it occurs. Certainly these victims of 
asbestos are entitled to fair treatment, as well. They should not be 
arbitrarily excluded from compensation, as if somehow their suffering 
is somehow less worthy of recognition than the suffering of asbestos 
victims. Yet that is what S. 852 does.
  There are many of those victims. I have talked with the 
extraordinarily brave and courageous workers who came to the sites of 
the Trade Towers on September 11, working on those areas for days and 
weeks for an intense period of time, and their exposure to asbestos 
fibers during that work will pose an enormous health threat to them in 
the years to come. We all know there can be a significant period of 
latency. Are we going to exclude those extraordinary men and women who 
were out there trying to do an incredible job for the people, not just 
of New York but for our country? This legislation excludes them.
  The asbestos trust fund is being presented as an alternative source 
of compensation for victims suffering from asbestos-induced disease. If 
that alternative runs out of money and can no longer compensate those 
victims in a full and timely manner, their right to seek compensation 
through the judicial system should be immediately restored with no 
strings attached. There is no principle more basic. Yet this bill 
violates that principle.
  Our friend and colleague from Delaware intends to offer an amendment 
that if we run out of money, the provisions will be there for them to 
go back into the tort system. Just accept the Biden amendment. It makes 
it extremely clear and eliminates the roadblocks for going back into 
the tort system, as the current legislation does. As I understand it, 
there is not a willingness to accept the Biden amendment.
  Another major flaw in this legislation is it lacks adequate funding. 
Putting it bluntly, S. 852 does not provide sufficient money to 
compensate the victims of asbestos diseases that it promises to cover. 
That is the essence of the budget debate we are having about the bill. 
The sponsors claim the budget point of order against the bill is 
technical, but the financial inadequacy of the trust fund to meet its 
obligation is very real. Should the trust fund fail, both asbestos 
victims and the taxpayers will pay a heavy price.
  A broad range of experts have analyzed S. 852 and concluded that the 
asbestos trust fund created by this legislation is seriously 
underfunded. Senator Conrad has addressed this in great detail. I 
certainly hope our colleagues will read his remarks carefully.
  If S. 852 is enacted, the United States will be paying a commitment 
that hundreds of thousands of seriously ill asbestos victims will be 
compensated, but it will not have to ensure that adequate dollars are 
available to honor its commitment. That will precipitate a genuine 
asbestos crisis and this Congress will bear the responsibility for it.
  Since the trust fund will be borrowing from the U.S. Treasury in the 
first few years of operation, if it becomes insolvent it will have a 
direct impact on American taxpayers. Let me point out, we do not do 
very well in setting up these trust funds to compensate individuals. We 
certainly have not done it with regard to the downwinders in other 
trust funds. There is little reason to believe we are going to do it or 
would do it in this circumstance, either.
  The argument that there are serious inadequacies in the way asbestos 
cases are abjudicated today does not mean that any legislation is 
better than the current system. Our first obligation is to do no harm. 
We should not be supporting legislation that excludes many seriously 
ill victims from receiving compensation that fails to provide a 
guarantee of adequate funding to make sure these injured workers 
covered by the trust fund will actually receive what the bill promises 
them. This bill will do harm to these asbestos victims. I intend to 
vote no.
  There is no reason, if we reject this legislation, we cannot come 
back with legislation that builds on a trust fund that is adequate and 
will do the job. That is what many Members believe is the way we ought 
to go. This is not such a bill.

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