[Congressional Record (Bound Edition), Volume 150 (2004), Part 5]
[Senate]
[Pages 6935-6940]
[From the U.S. Government Publishing Office, www.gpo.gov]




            THE FAIRNESS IN ASBESTOS RESOLUTION ACT OF 2004

  Mr. HATCH. Mr. President, I rise in support of S. 2290, the 
bipartisan Fairness in Asbestos Injury Resolution Act, appropriately 
called the FAIR Act. Let me talk about the problems for a minute. I 
think I am stating the obvious, but it bears repeating.
  Our country is faced with an asbestos litigation crisis of 
unparalleled magnitude. Something is terribly wrong when asbestos 
victims who suffer from debilitating injuries recover mere pennies on 
the dollar while people who are not sick and never have been sick a day 
in their lives from asbestos recover millions. Something is terribly 
wrong when scores of companies, many which never produced a shred of 
asbestos fiber, are forced into bankruptcy triggering lost jobs and 
depleting pensions for those who lost their jobs. Something is terribly 
wrong when the only real winners in the current system are the handful 
of personal injury lawyers who walk to the bank with billions of 
dollars in fees.
  Members may have heard the statistics before, but I will say them 
again so that everyone knows the scope of the problem facing this 
country. According to the Rand Institute for Civil Justice, more than 
730,000 people have filed claims, with a sharp increase in filing in 
the last 10 years. More than one million claims are expected to be 
filed in the near future. The Rand study states the reason for this 
dramatic rise in claims is that through the 1980s, claims were filed 
only by the manifestly ill. Beginning in the 1990s, about two-thirds of 
the existing claims were and still are filed by people who are 
unimpaired, who are not sick. Listeners, you heard correctly. 
Astonishingly, the great majority of asbestos lawsuits are brought by 
those who are not even sick.
  This has led to an unacceptable division of resources to the wrong 
people. Nonmalignant claimants take over 60 percent of the 
compensation, leaving mesothelioma victims with only 20 percent. Worse 
yet, many mesothelioma victims are not able to recover any money at all 
because the companies they would have sued are insolvent.
  The fact is, unscrupulous personal injury lawyers are abusing the 
system and getting a windfall in fees. They know the companies, even 
ones with the most remote connections to asbestos, are fearful of 
runaway verdicts. They exploit the uncertainty these tangential 
companies face in the current system by overwhelming them with huge 
numbers of unimpaired claims in order to force massive settlements. I 
might add that many of these companies have never had anything to do 
with asbestos, but they are stuck defending themselves at a tremendous, 
humongous cost because of what is going on. The result is the personal 
injury lawyers--and it is a small percentage of the American Trial 
Lawyers Association, a very small percentage of these personal injury 
lawyers--are reaping huge portions for themselves: over $20 billion so 
far in attorney's fees alone in asbestos litigation thus far.
  One actuarial firm estimates that personal injury lawyers are 
expected to

[[Page 6936]]

siphon more than $60 billion out of asbestos litigation before it is 
over. It is no wonder that the personal injury lawyers are fighting 
tooth and nail to keep the golden goose alive. These fees detract from 
the moneys that should go to those who are truly sick, especially the 
mesothelioma victims. Their tactics are not just about buying private 
planes and sport teams and huge mansions while the personal injury 
lawyers are busy making themselves into millionaires, 
multimillionaires, in some cases billionaires; they are depriving the 
truly sick of available resources.
  Let me tell Members about a pipefitter from Illinois. I learned his 
story from his daughter who lives in the State of Washington. A World 
War II Navy veteran, he joined the pipefitters union in Chicago and 
worked at several locations in the Midwest, including sites in 
Illinois, Indiana, Michigan, and Wisconsin. It was during this period 
that he was repeatedly exposed to asbestos. Eighteen years ago, at the 
age of 61, he learned he had mesothelioma. Understanding the medical 
quagmire he faced and the consequences for his family, he quickly filed 
suit against those he believed were responsible for his exposure. 
Sadly, just months later, as with all mesothelioma victims of this 
virulent form of cancer, he died.
  His case was lumped together with others, many of whom were not as 
sick as he, and some of whom were not sick at all. For years, nothing 
happened. It simply gathered dust on the docket. Eventually, it was 
transferred from Illinois to Pennsylvania. It has now been 17 years 
since his case was filed. Think about that. He never got to have his 
day in court. His widow is still waiting, 17 years later.
  What would happen in his case if S. 2290 is enacted? First, because 
he had mesothelioma, his estate would be paid $1 million. It would be 
paid on an expedited basis. Second, his claim would have been evaluated 
and processed in a matter of months, not decades. Third, he would not 
be forced to give up half of the awards--moneys desperately needed for 
medical bills, treatment, and all of the economic and personal losses 
that afflicted his family--to his lawyers.
  What is wrong with the asbestos litigation system? This Navy veteran 
with mesothelioma got zero out of this tort system. Out of the FAIR 
Act, he would get $1 million. He would not even need an attorney to get 
it. He would not have to pay 50 percent to attorneys. That is the way 
it should work.
  Let me mention the case of Rick Napier who suffers from asbestosis. 
He has trouble breathing. He cannot even walk without great difficulty 
because of the disease. He no longer has the lung capacity he needs for 
physical labor, let alone normal, everyday activities. Rick Napier 
worked for W.R. Grace for 3\1/2\ years until he was laid off. He was a 
skip operator. He ran small cars that carried ore up and down the hills 
of Libby, MT. He has lived in Libby for 55 years and knows, as do his 
neighbors, that asbestos is everywhere in the area. It is in the 
gardens and yards of places at work, homes, playgrounds. It is 
everywhere.
  Four years ago, Rick was diagnosed with asbestosis. He filed a 
lawsuit but was told, despite his illness, there was really nothing 
that could be done. W.R. Grace has gone bankrupt. There is no one left 
to sue, no one left to compensate him for his illness. The current tort 
system has failed Rick Napier. Unless we pass this legislation for a 
national, privately funded trust for compensation based on illness and 
not on the solvency of the defendant company, we continue to fail Rick 
Napier and many others like him. Without it, we leave Rick Napier and 
the rest of the victims in Libby, MT, with no resource, no relief, and 
no hope.
  What is wrong with asbestos litigation? Compensation for victims like 
Rick Napier under the current tort system is not always available if 
the company he could sue to receive some compensation is bankrupt. 
Under the FAIR Act, he would get compensation even though he is no 
longer with us. It is high time we put victims first.
  I would be remiss not to mention the staggering toll the asbestos 
litigation problem has also inflicted on our economy. As the number of 
claims continues to rise, at least 70 companies to date have already 
been forced into bankruptcy. Meanwhile, the number of companies pulled 
into the web of this abusive litigation is on the rise, many of which 
have little, if any, culpability. These business bankruptcies translate 
directly into lost jobs, lost pensions, and weaker financial markets. 
It is a detriment to our country.
  According to a letter from the nonpartisan Academy of Actuaries:

     . . . bankruptcies of corporate asbestos defendants have 
     affected 47 states, resulting in the loss of 52,000-60,000 
     jobs, with each displaced worker losing $25,000-$50,000 in 
     wages and 25% of their 401(k).

  I ask unanimous consent this letter from the American Academy of 
Actuaries be printed in the Record.

                                American Academy of Actuaries,

                                   Washington, DC, March 24, 2004.
     Re asbestos.

     Senator Bill Frist,
     Marjority Leader, U.S. Senate,
     Washington, DC.
       Dear Senator Frist: The Mass Torts Subcommittee of the 
     American Academy of Actuaries published a monograph, 
     ``Overview of Asbestos Issues and Trends'' in December 2001. 
     The Academy monograph is currently being updated. Meanwhile, 
     as S. 1125 nears debate on the Senate floor, I am pleased to 
     provide this letter, which provides a brief summary of some 
     of the key points regarding asbestos litigation.
       The asbestos problem, initially recognized decades ago, is 
     not going away.
       Exposure to asbestos has been linked to malignant diseases 
     including mesothelioma, lung and other cancers, as well as 
     nonmalignant conditions such as asbestosis and pleural 
     injuries.
       Asbestos use was widespread in the United States for 
     decades, and although exposure levels have declined 
     significantly since OSHA requirements were implemented, 
     asbestos use is still legal in the United States today.
       The number of claimants filing lawsuits annually has 
     increased dramatically in recent years and shows no signs of 
     a return to prior levels experienced during the 1990s. Most 
     of the increase in claim filings relate to individuals who 
     are not functionally impaired.
       Approximately 730,000 claims were filed through 2002 and 
     estimates of the ultimate number of claimants range from 1 
     million to 3 million.
       Many believe that some current claimants are not being 
     compensated fairly or promptly. Additionally, there are 
     widespread concerns that funds will not be available to 
     compensate future claimants.
       The size of recent awards made to settle claims has also 
     increased. In turn, contributions paid by individual 
     corporate defendants and their insurers/reinsurers have 
     increased. Additionally, demands against solvent defendants 
     have reflected upward pressure to cover amounts that are no 
     longer funded by defendants that have sought protection from 
     asbestos litigation through Chapter 11 bankruptcy petitions.
       At least 70 companies have sought bankruptcy protection due 
     to asbestos litigation to date. Further, recent bankruptcy 
     filings (i.e., pre-packaged petitions) have exacerbated 
     inequities in the asbestos litigation system.
       The number of corporations named as defendants in the 
     litigation has grown dramatically. Asbestos claimants 
     typically name 60 to 70 defendants in each lawsuit. While 
     approximately 300 companies were sued in the 1980s, RAND 
     estimates that approximately 8,400 companies had been sued as 
     of 2002. The potential culpability of this expanded list of 
     defendants is significantly different from the initial group 
     of companies that mined or manufactured asbestos products, 
     knew of it dangers, and failed to protect and/or warn their 
     workers.
       Direct costs are significant--estimates of ultimate costs 
     relating to U.S. exposure to asbestos range from $200 billion 
     to $265 billion. More than half of the costs relate to 
     plaintiff and defense attorney fees.
       Indirect costs are also large: Bankruptcies of corporate 
     asbestos defendants have affected 47 states, resulting in the 
     loss of 52,000-60,000 jobs, with each displaced worker losing 
     $25,000-$50,000 in wages and 25% of the value of their 
     401(k); For every 10 jobs lost in an asbestos-related 
     bankruptcy, an additional 8 jobs are lost in the surrounding 
     community; and Failure to enact legislative reform could 
     reduce economic growth by $2.4 billion per year and cost 
     30,770 jobs annually.
       The U.S. Supreme Court has twice overturned efforts to 
     resolve the litigation through class action settlements 
     (Georgine and Fibreboard) and has called upon Congress to 
     address the situation.
       Various reform measures have been enacted or are being 
     considered at the state level, such as: Imposing medical 
     criteria to bring a claim; Creating inactive docket systems 
     to preserve the rights of individuals who are not currently 
     impaired; and Addressing consolidation, joint and several 
     liability, and venue issues.

[[Page 6937]]

       However, it is difficult to implement meaningful changes on 
     a state-by-state basis, and as long as some states are 
     perceived as plaintiff friendly jurisdictions and claims 
     remain portable, forum shopping will be a problem.
       Several asbestos-related bills were introduced in the 108th 
     Congress, and the issue of federal reform to the asbestos 
     litigation crisis deserves careful attention. Thank you very 
     much for your consideration of the information presented 
     herein. Please do not hesitate to contact Greg Vass, the 
     Academy's Senior Casualty Policy Analyst, at (202) 223-8196 
     if you have any questions or would like additional details.
           Sincerely,
                                    Jennifer L. Biggs, FCAS, MAAA,
                             Chairperson, Mass Torts Subcommittee.

  Mr. HATCH. The Rand Institute estimates this litigation eventually 
will result in 430,000 lost jobs. These are pretty good jobs. In fact, 
very good jobs. It is because of the very serious problems that I stand 
here today to express my steadfast support for the legislation we are 
on the verge of considering, if our friends on the other side will 
allow us to consider.
  We will make a motion to proceed, and hopefully they will not block a 
motion to proceed because we ought to debate, we ought to look at 
amendments, we ought to do what has to be done. We ought to perfect 
this bill if we can. It is about as perfect as I think we can get it 
under the process so far. It is a darn good bill and would certainly do 
a lot of good for people.
  I turn for a moment to the comparison of the current tort system and 
the FAIR Act. This is why we should pass the FAIR Act. Under the 
current tort system, even the Supreme Court Justices have described it 
as jackpot justice; under the FAIR Act we have certainty.
  Under the tort system, we have a litigation lottery really, in real 
terms. Under the FAIR Act, it is a no-fault system. You do not even 
need attorneys to recover. Under the tort system, you have ``magic'' 
jurisdictions; in other words, jurisdictions where you can go where the 
judges are corrupt and the juries do not care how much they award the 
people who don't deserve it. In other words, there are special 
jurisdictions in this country where that happens.
  Under the FAIR Act, you have a system of fairness. Under the tort 
system, we are pushing companies into bankruptcy. Mr. President, 8,400 
companies have been sued, with over 300,000 claims, as I have 
mentioned. Many of those companies are going to have to go into 
bankruptcy if we do not solve this problem, which even the Supreme 
Court has asked us to do. Under the FAIR Act, these companies would 
remain solvent.
  Under the current tort system, we have decades of delays, as I have 
mentioned. Under the FAIR Act, we would have expedited payments in a 
number of months.
  It is hard to imagine that anyone cannot see the benefits of the FAIR 
Act over the current system. I understand why the personal injury 
lawyers who are handling these asbestos cases do not want this to 
happen. Of course, they are going to make upwards of $60 billion, right 
out of the pockets of the people who deserve those moneys, where we 
give them to the people who are injured.
  Let me talk about the particulars of what the bill does. S. 2290 
would provide fair and timely compensation to asbestos victims and 
certainty to American workers, retirees, shareholders, and, of course, 
our whole U.S. economy. Hardly anything would do more for our economy 
than the FAIR Act right now. It would establish a privately funded, no-
fault, national asbestos victims compensation fund to replace the 
broken tort system and ensure that individuals who are truly sick 
receive compensation quickly, fairly, and efficiently.
  The legislation retains the bipartisan agreement on medical criteria 
that was approved by a unanimous vote in the Judiciary Committee. These 
criteria form the basis of a no-fault victims compensation fund that 
will stop the flow of resources to the unimpaired and ensure that the 
truly ill will be paid quickly and fairly. S. 2290 also contains 
improvements made to its predecessor, S. 1125, that have been developed 
over the last several months during extensive negotiations by the 
stakeholders.
  S. 2290 includes a number of new provisions that ensure the fund will 
be set up, processing and paying claims quickly. First, it places the 
office within the Department of Labor in order to utilize its existing 
infrastructure and experienced personnel to facilitate a faster 
startup. In order to allow the office to begin accepting and processing 
claims in short order, the legislation requires the enactment of 
interim regulations and procedures within 90 days after the date of 
enactment, including the expedited processing of exigent claims.
  To avoid potential delays associated with the appointment process, 
the legislation grants interim authority to an existing Assistant 
Secretary of the Department of Labor until the new Administrator is 
appointed. To ensure that adequate initial funding will be available to 
meet demand, the bill provides for up-front funding from fund 
participants, as well as increased borrowing authority. These new 
provisions address concerns that claimants must have speedy access to 
the fund while halting the admittedly broken tort system that continues 
to divert scarce resources away from the sick to the unimpaired.
  S. 2290 also includes revised funding provisions. It establishes a 
fund that can pay $114 billion in claims, with an additional $10 
billion in contingent funding available from defendant companies--these 
8,400 companies. Money required to go to the fund from defendants and 
insurers is assured over a period of 27 years.
  Defendant participants, for example, guarantee their funding 
obligations through a grant of authority to the Administrator to impose 
a surcharge in any year where moneys received fall short of the annual 
requirements. In addition, S. 2290 provides up to $300 million annually 
in hardship and inequity adjustments that may be granted by the 
Administrator among defendant participants. Money from insurers is 
front-loaded for the early years of the fund where the most stress on 
the system is anticipated.
  Enforcement provisions have been strengthened to help the 
Administrator go after recalcitrant participants. Additional safeguards 
to insure the funding have also been added, such as establishing a 
priority for payment obligations to the fund in State insurance 
receivership proceedings.
  Based on the funding now available under S. 2290, increased 
compensation will go to claimants. Claims values have been increased in 
several disease categories over the levels approved by the Judiciary 
Committee in an overwhelmingly bipartisan vote. We have even gone 
beyond those claims values. Furthermore, S. 2290 now provides 
reimbursement for out-of-pocket costs of physical examinations by 
claimants' physicians, as well as costs for x rays and pulmonary 
function testing for level I claimants.
  Let me talk about the bill.
  Unfortunately, some Members on the other side of the aisle want to 
block us from proceeding to the bill--even proceeding to the bill. Even 
on a motion to proceed, we have heard there may be a filibuster. Well, 
I am not surprised by these obstructive tactics. We have been getting 
used to them over the last 3\1/2\ years. I find it truly regrettable, 
given the tremendous importance of this legislation to our country.
  I find this type of obstruction particularly troubling because 
without the FAIR Act more and more Americans are certain to lose their 
jobs. Anyone who is serious about preserving jobs should be actively 
helping us move forward to the consideration of this bill. I have heard 
a lot of mouthing off by Presidential contenders in this matter, that 
jobs are the most important issue. Where are they when it comes to 
voting for jobs that this bill would provide and for the preservation 
of jobs that this bill would provide?
  Anyone who is serious about preserving jobs should be actively 
helping us on this bill. They should not be standing in its way. But 
the personal injury lawyers are a powerful force, and some on the other 
side of the aisle are willing to hear the voice of the personal injury 
bar over hard-working

[[Page 6938]]

Americans who want to keep their jobs and pensions.
  I might mention that a lot of trial lawyers are very unnerved by 
this. They see the injustices going on here and they themselves decry 
it. It is a small percentage of the American Trial Lawyers Association 
who are doing this. Many other top-notch trial lawyers are very 
concerned.
  Now, to legitimize the obstructive tactics of these lawyers and the 
other opponents, opponents of this bill argue the legislation is 
completely different from the one we reported from the committee last 
year. This argument particularly lacks merit because the bill retains 
the core features of the legislation that was introduced as S. 1125 and 
subsequently marked up in the Judiciary Committee.
  Again, we have taken steps to ensure the solvency of the fund. As I 
mentioned, we replaced some contingent funding by calling for more up-
front funding, extended borrowing authority and guarantees for funding, 
among other added funding safeguards--all of which are additional 
strengths to the bill that we passed out of the committee.
  The fact is, this bill we are about to bring up continues to create a 
fair and efficient alternative compensation system to resolve the 
claims for injury caused by asbestos exposure. The fund is still 
capitalized through private contributions from defendants and insurers, 
and compensates victims under the very same medical criteria that we 
reached on a bipartisan basis last year. The bill still brings 
uniformity and rationality to a broken system so that resources are 
more effectively directed towards those who are truly sick.
  Indeed, this bill still preserves no less than 53 compromise measures 
demanded by Democrats last year when this bill moved through 
committee--53 changes we made in the bill that we thought was pretty 
good to begin with, all to accommodate our friends on the other side. 
In fact, it adds many more provisions requested by Democrats and labor 
unions. And while this bill contains certain modifications from earlier 
versions, the modifications represent dramatic improvements to 
controversial measures that all interested parties had ample 
opportunity to discuss and work out after S. 1125 was reported from the 
Judiciary Committee.
  While the Judiciary Committee reported S. 1125 favorably from the 
committee on a near party-line vote, the markup produced some measures 
that required retooling. These measures jeopardized any meaningful 
chances of getting the bill passed into law. If not for the tireless 
efforts of our distinguished majority leader and Senator Specter, this 
bill would have achieved what its opponents have yearned for all 
along--a dead bill.
  But through the stewardship of Senator Specter and Chief Judge 
Emeritus of the Third Circuit, Edward R. Becker, we were able to 
provide a forum through which the major stakeholders provided 
invaluable expertise and solutions with respect to the remaining 
controversial issues left on the legislation, such as fund reversion, 
startup, and administrative process.
  This group, which included representatives from labor unions and 
industry, among others, met dozens of times in the last 8 months. Our 
staff was there throughout working with them. This process proved to be 
not only insightful but also very helpful in resolving many of the key 
differences in this legislation. Through the leadership of Senator 
Frist, we were able to get the insurers and the defendants to agree on 
an even more equitable funding allocation and, among other things, 
provide for more flexible borrowing authority and front-loaded funding 
to address the anticipated flood of claims that would come through the 
fund during its early years, something we would have liked to have done 
before but which we have done now.
  Opponents of this bill have also justified their obstructive tactics 
by passing misinformation about this bill. First, some Members on the 
other side of the aisle have stated repeatedly that bill does not 
provide enough money. I find these statements to be misleading and a 
stark contrast to several studies of future asbestos-related costs 
under the current system. For example, one study shows the highest 
reasonable estimate of prospective costs, the Milliman study, would 
result in approximately $92 billion for victims after attorney's fees 
and expenses.
  In yet another study, commissioned by Tillinghast-Towers & Perrin, 
future amounts to compensate victims are estimated at $61 billion after 
attorney's fees and expenses.
  As you can see from this chart, Asbestos Victims Compensation, this 
is in billions. Under the current tort system, the dark blue, $41 
billion--let's take the Tillinghast figure, the top circle on that 
side--will go to trial lawyers for fees. Twenty-eight billion will go 
to defendant lawyers for defending these cases. Better than half the 
money is going to go to lawyers. Those are the Tillinghast estimates, 
which I believe are quite accurate. Only $61 billion will go to 
potential future plaintiff compensation or to those who are really sick 
and some who aren't sick.
  Let's take the bottom, the Milliman study, $61 billion will go to the 
attorneys, the personal injury lawyers; $42 billion would go to the 
defense lawyers, defending these companies and insurance companies, 
although there are very few insurance companies involved; $92 billion 
would go to the victims.
  Under the FAIR Act, only $2.5 billion would go to the trial lawyers, 
and the full $111.5 billion would go to the victims. I don't see how 
anybody could argue against that. I might add, on top of that would be 
another $10 billion in contingencies, if the $111.5 billion or the 
total of the $114 billion does not solve the problem.
  These other two say it would solve the problem, that lesser amounts--
and these are estimates by top-flight actuarial firms--that it would 
solve the problem with lesser amounts than what we are willing to put 
in the trust fund. Under the FAIR Act it is estimated claimants will 
receive 95 percent or more of the total funds under the no-fault 
nonadversarial system this bill amounts to. This means the FAIR Act 
fund, which would be able to pay more than $120 billion in awards, will 
allow claimants to take home well over $100 billion. This is more total 
money than they are projected to receive under the current tort system.
  But it is not just more money in the pockets of victims. It is faster 
and more compensation as well. The difference is, the personal injury 
lawyers won't get as much money out of it, but there is still $2.5 
billion there for them for cases that are like rolling off a log. We 
anticipate the claimants will not have to endure years of discovery 
battles between the defense and plaintiffs' lawyers and endless 
litigation before they get paid. As I have shown in one case, 17 years 
old; others are up to 20 years old and still no compensation for the 
victims who have died long since and the families have suffered all 
those years.
  Currently, whether some victims get paid depends on the solvency of 
the business. But under the FAIR Act, these victims will no longer have 
to go without payment. These are the ones where their companies were 
insolvent.
  It is time to end the current system of jackpot justice where only 
some win and many lose. The some who win in many cases don't deserve to 
win because these personal injury lawyers go into renegade areas where 
they know the judges are either corrupt or totally in their pocket and 
they know there are runaway juries. That is how everybody loses except 
for those who are not sick or getting these huge multimillion dollar 
awards out of these unfair jurisdictions.
  Opponents of this bill have also argued there are inadequate 
safeguards to insure the solvency of the fund. My response to this is 
very simple: Baloney. This fund, which is funded at the highest 
reasonable claim rate scenario, is equipped with many mechanisms to 
ensure the pay-in and payout requirements are met. Once again, this 
includes more flexible borrowing authority against future 
contributions, front-loaded contributions from insurers, and 
contingency funding of $10 billion additional to the $114 billion. To 
be absolutely certain, this bill also includes guaranteed surcharge and 
orphan-share reserve accounts which set aside

[[Page 6939]]

money to grow and pay for unexpected shortfalls and empowers the 
Attorney General to enforce contribution obligations. On top of all 
these safeguards, if the fund still becomes insolvent, claims would 
revert back to the tort system, a provision Democrats insisted be part 
of the bill as the ultimate protection. It is not going to be needed, 
but it is in the bill, trying to accommodate, once more, demands on the 
other side.
  Given that this bill is a clear net monetary gain for legitimate 
victims and provides payments faster and with more certainty, I am at a 
loss to explain why anybody would object to this bill. The unions that 
continue to oppose the bill risk throwing away the last best chance to 
compensate fairly those who are truly sick and provide some protection 
to those whose jobs and pensions are at risk because of the asbestos 
litigation crisis, because their pensions are going to be lost as more 
companies go into bankruptcy, forced into it by the phony system we 
currently are undergoing.
  Quite frankly, the only entity that stands to lose under this bill is 
the handful--and it is a handful--of personal injury lawyers who have 
guzzled more than $20 billion of the costs incurred on this issue as of 
the last year--$20 billion. No wonder they want this gravy train to 
keep going. If the improved FAIR Act is passed, they will not be able 
to leverage unimpaired claims anymore to squeeze a projected $41 
billion more for themselves from remotely connected companies by 
refusing a broken system. I am talking about the personal injuries 
lawyers. Defense lawyers who have to defend these cases are going to 
pull a huge amount of money out, too, as these cases go on for 20 years 
or more. I am all in support of compensating attorneys for the value of 
their work--no question about that--but when the lawyers get rich while 
diverting the valuable resources away from sick victims, something is 
wrong with the system.
  You don't need me to tell you this. The Supreme Court thinks that is 
the case. Think tanks and other nonpartisan commentators have been 
saying that for years.
  We have a serious problem on our hands that demands this body's full 
attention. I applaud our distinguished majority leader for his work in 
helping us this far and in bringing this bill to the floor because the 
time to act is now.
  We have studied the asbestos problem at length for decades. We have 
held numerous hearings, considered various legislative proposals, and 
we even underwent several marathon markups in the Judiciary Committee 
last June. Over the past year, we met with our Democratic counterparts 
to assuage their concerns about the bill.
  We have provided a meaningful 8-month mediation forum through which 
the major stakeholders could bridge different recommendations on issues 
critical to the bill. We provided one of the finest Federal judges in 
the country to preside over the negotiation. Judge Becker has done an 
excellent job. To the extent we were able to reach consensus on issues, 
the appropriate language is embodied in the bill before us. To the 
extent there are issues that remain unresolved, we ought to openly 
debate them on the floor of the Senate.
  The time has come to stop talking about doing something and to take 
decisive action. Every day that passes is a day we withhold meaningful 
recovery to truly sick victims. Every day that passes is a day in which 
hard-working Americans at companies that had little or nothing to do 
with asbestos face decreased pensions and an uncertain employment 
future, with a real potential for loss of jobs. Every day that passes 
is a day we deny consideration of a comprehensive solution to one of 
the most plaguing civil justice issues of our time.
  Mr. President, I have heard that some on the other side have said the 
one reason they really don't want to go ahead with the bill is not 
because they doubt its efficacy, or that it is right, or that they 
doubt the words I have been saying today; the real reason behind it, 
some have said, is that the personal injury lawyers are expected to put 
up at least $50 million or more for their Presidential candidate. It is 
not hard to figure out where they are going to get the money. It is 
going to be right out of the hides of these asbestos victims, many of 
whom have died. I hope that is not the case. I hope that is just a set 
of rumors, but it is coming up all too frequently.
  Is that why we cannot even proceed to the bill? I have been here a 
long time and very few motions to proceed have been filibustered, 
except for a delay of a day or 2, and even then we have had very few. 
We have always been able to proceed to the bill.
  I suspect the reason they are going to filibuster the motion to 
proceed is because it is a little more difficult to figure out by the 
general public that you are not on the bill yet, so a motion to proceed 
is just a procedural gimmick or gibberish. No, it is serious stuff. If 
we cannot proceed to the bill, we cannot get to the bill. Why would 
folks on the other side not want to get to the bill and try to improve 
it if they have improvements they would like to put up for a vote? We 
can vote on them. I am sure they will win on some of their 
improvements--if they are improvements--or even some things they want 
that are not improvements but might be deleterious to this bill.
  Let's go to the bill and not continue this feckless filibustering of 
everything in the Senate, making a supermajority vote the absolute 
premise for everything they are doing. This is an important bill. We 
have worked as hard as we can with everybody concerned with it, from 
the trial lawyers, the personal injury lawyers, to the unions, 
businesses, insurance companies, to the victims. We have worked our 
tails off. There are some unions that support this bill. They realize 
their people will lose jobs and they will never get as much money. They 
realize the attorneys are taking too much out of this process. They 
realize it takes years and years to get just compensation--if that--to 
the women and children who are left behind from the mesothelioma 
victims. Most of those victims are already dead. Most of them work for 
companies that have already gone bankrupt. Their pensions are gone, 
their jobs are gone. Think about it.
  In our medical criteria, we have provided hundreds of thousands of 
dollars for central categories of people who will never get 
mesothelioma, many of whom are not sick, many of whom have cancer but 
were ardent smokers most of their lives, where 99-to-1 their cancer 
came from smoking and not from exposure to asbestos. But in this bill, 
we give them the benefit of the doubt. Not only do those union members 
lose out on these moneys that will be very easy to obtain once they 
meet certain minimum medical criteria that everybody agreed to--
Democrats and Republicans--but they will do it without huge attorney 
fees, and they will do it without knowing that their injuries came from 
asbestos exposure, when they probably did come from the excessive 
smoking they did all their lives. But we have given them the benefit of 
the doubt. They will do it without losing their pensions, their jobs. 
Their families will be better off.
  To some of my colleagues on the other side, there is never going to 
be enough money, no matter what you do. But there are limits to what 
these companies can pay without going into bankruptcy. Like I said, 70 
have already gone into bankruptcy and there will be many more if they 
don't resolve these problems. This bill will resolve them. It does it 
in a reasonable, decent, honorable way, and still provides $2.5 billion 
for lawyer fees. That is a lot of money for a no-fault system, even 
though those who have been raking in the billions of dollars--the very 
few lawyers--are giving other trial lawyers a bad image and are ripping 
off the system.
  Having said that, there are trial lawyers in this country who deserve 
our respect, who are honest, who do not buy off judges, who do not 
abuse the system, who do not forum shop into these jurisdictions that 
you know are going to violate the basic strictures of society, giving 
huge verdicts to those who don't even deserve anything. These trial 
lawyers are people who basically help keep society straight.

[[Page 6940]]

Many of them were people who basically sued the companies that were 
most responsible for these problems.
  But now we are coming down to a lot of personal injury lawyers who 
really should be ashamed of themselves. You have seen the ads in the 
newspapers and so forth. They are as trumped up as anything I have ever 
seen, and they are even on television. Nobody should exploit the 
suffering of others, including ourselves. We are trying to do our very 
best to make sure everybody who truly suffered gets just compensation 
under the circumstances. That is what this bill will do. We have worked 
hard to get it here and it is time that we pass it.
  I hope my colleagues on the other side don't filibuster the motion to 
proceed. That should not be done on something this important.
  Mr. President, I yield the floor and suggest the absence of a quorum.
  The ACTING PRESIDENT pro tempore. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. WYDEN. Mr. President, I ask unanimous consent the order for the 
quorum call be rescinded.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
ordered.

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