- The Washington Times - Monday, February 28, 2005

Thousands of America’s workers have died without compensation from exposure to asbestos and 74 companies have gone into bankruptcy from asbestos litigation losing thousands of jobs and placing a great strain on the nation’s economy. After 20 years of legislative efforts, the Senate has reached a critical stage where decisions in the next few weeks will result in either compromise or removal of this issue from the Judiciary Committee agenda. A draft discussion bill has been published in the congressional record and its provisions are now being scrutinized by members and so-called stakeholders, really combatants, four of the toughest interest groups in Washington: manufacturers, labor-AFL/CIO, the insurance industry and trial lawyers.

The legislation would establish a $140 billion trust fund from contributions by manufacturers and insurers. Workers exposed to asbestos would be paid based on severity of injuries like workmen’s compensation without proving in court who would be liable under existing tort laws, eliminating high costs of litigation and contingent attorneys’ fees. Unlike current law where exposure may be compensated for potential future injuries, damages can be collected only on proof of existing harm.

Disagreement exists on whether the $140 billion is adequate to cover present and future claims. Labor wants significantly more. Business is adamant that is their top figure. While it is impossible to project with certainty the total costs, competent projections support the judgment that the fund is reasonably calculated to cover all claims.

If those projections prove wrong, the claimants have the right to return to court to reclaim their right to jury trial. Business wants a 7 1/2 year moratorium from going back to court. Since giving up the right to jury trial in the first place is so fundamental, it was decided victims should resume their rights in court immediately if the trust fund were to “sunset.” With such a substantial fund, plus borrowing power, business is reasonably calculated to be insulated for at least 7 1/2 years, but business rather than claimants should bear the intervening risk.

A pitched battle was waged over which courts claimants would return to in the event of a “sunset” of the fund. Business wanted only federal courts. Labor wanted free choice. The discussion draft bill provides for claimants to go back to federal court or the venue where the injury occurred or the claimant lives, eliminating forum shopping.

A major controversy exists over whether the fund would cover all pending claims, with victims insisting on exceptions for cases already filed in court. The bill puts all the cases in the fund unless they had gone to verdict or had signed settlements with individual defendants.

Business objects to periodic medical screening of those exposed to asbestos, arguing that would bring unmeritorious cases into the fund. Without an active trial bar reviewing potential claims for litigation, the bill opted to give these workers screening of their physical condition because they did not usually get annual exams on their own.

Late in the legislative process, an apparent insuperable problem arose that the purpose of the trust fund would be defeated by claimants re-packaging their asbestos claims as silica claims, which has been done in a number of jurisdictions. Scientific evidence has established that X-rays could distinguish silica from asbestos particles. The parties continue to examine the results with claimants insisting on their rights to go to court on unrelated claims and business wary of double-dipping.

Notwithstanding many disagreements, the legislation has come a long way since it was voted out of the Judiciary Committee in July 2003. At that point, a unique experiment was undertaken with Senior Federal Judge Edward R. Becker agreeing to serve as a mediator.

Judge Becker and I have met the stakeholders in 36 mediation sessions since August 2003, working through hundreds of issues. Those conferences produced many compromises and narrowed areas of disagreement on many issues. I think it accurate to say that no bill has received such extensive “defacto” hearings or mark-up. I cannot conceive of more strenuous effort being directed to any legislation. Twenty-seven Senate offices have participated.

Now is the break point. Members on the Judiciary Committee and throughout the Senate are now engaged. They are, understandably, listening to their constituents. If everyone insists on the last bit of advantage, there will be no bill. The majority leader, Sen. Bill Frist, has reserved a window of floor debate around Easter. As chairman, in projecting the work for the Judiciary Committee for the 109th Congress, I know we will not have time to return to asbestos with our crowded calendar and prospective Supreme Court nomination hearings.

I am not in concrete on the draft bill. Prompt compromises will have to be forthcoming if this critical legislation is to become law or relegated to the deep freeze.

Sen. Arlen Specter, Pennsylvania Republican, is chairman of the Senate Judiciary Committee.

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