RGW, PC Clients, Former Clients, Family, Friends and Advocates
Roger G. Worthington
April 29, 2005
Asbestos Trust Fund Bill (SB 852) Bogged Down
Momentum is everything, and right now the asbestos trust fund bill has
hit the skids. Sen. Spector wanted the bill to exit the Senate Judiciary
Committee so it could eventually go to the senate floor for debate and
a vote. But after senators offered up 82 amendments, the judiciary bogged
down after only a few hours. They will take up argument on May 12th.
Several key developments have given opponents of the bill reason to smile.
Sen. Diane Feinstein (D-CA), a co-sponsor of the bill, has offered three amendments which would effectively
undermine the business friendly bill. First, Feinstein wants to ensure
that mesothelioma patients get compensated within 3 months. Feinstein
has now acknowledged that at least in California the tort system is not
broken. In California, claimants with mesothelioma (and other life-shortening
diseases) can obtain a trial setting with 120 days, as long as they produce
a doctor's letter in support. We provided the senator with court orders
granting expedited trials on three of my mesothelioma clients, along with
medical affidavits from Dr. Cameron (UCLA) and Dr. Vallieres (Seattle).
Now the Senator understands that by supporting SB 852 she would be doing
a great disservice to her own constituents, who would have a much greater
likelihood of obtaining much greater compensation much sooner than under
the monolithic and mythic asbestos trust fund. Feinstein said her amendment
to ensure fast track compensation was a "deal breaker."
In addition, Sen. Feinstein now wants to mandate that manufacturers and
insurance companies must publicly disclose how much they owe and their
timetable for payment before the government can abolish lawsuits currently
pending in the tort system.
Finally, sending a message that she understood the 306 page bill is fraught
with constitutional defects, Sen. Feinstein proposed a fast track schedule
for sending the bill straight to the U.S. Supreme Court to review the
legality of having the U.S. Government essentially "take" the
money now set aside by several asbestos settlement trusts (e.g., Manville,
Eagle Picher, Celotex, National Gypsum) for use by the new federal trust.
[Manville has projected the combined future value of pending Chapter 11
asbestos bankruptcy trusts to exceed $65 billion; most of which would
be confiscated by the federal trust; see Slide 17). This amendment was granted.
Sen. Dick Durbin
(D-IL) offered an amendment which gives the widows and widowers of mesothelioma
patients who pass away the right to continue to pursue the claim started
by their husbands or wives. Sadly but tellingly, the bill proponents strongly
opposed this measure aimed at helping care for widows and orphans. Durbin
was upset that asbestos-injured patients had not been invited to the hearings.
"This is about more than money, it's about fairness. It's
about innocent people" who were unknowingly exposed to asbestos.
Sen. Durbin recognized mesothelioma survivor Paul Zygielbaum, who traveled
to DC to lobby against the bill (and he did a super job, way to go Paul!).
Sen. Feingold (D-WI) and
Kennedy (D-MA) continue to oppose the bill. Feingold said he didn't vote for the
bill two years ago and because SB 852 was worse in many respects, he would
not support a bill that failed to adequately and fairly compensate victims.
Sen. Kennedy condemned the bill for shifting the financial burden of asbestos-induced
diseases on the backs of injured workers by unfairly and arbitrarily limiting
the liability of responsible companies. "Powerful corporate interests
responsible for the asbestos epidemic have fought throughout this process
to escape full accountability for the harm they inflicted.''
Sen. Cornyn (R-TX) agreed that the bill was woefully silent on who contributes to the fund
and how much. Without that critical information, he agreed nobody could
safely assume the trust fund would stay solvent more than a few years.
As of now, Cornyn is opposed to SB 852, along with
Jon Kyl (R-AZ),
Tom Coburn (R-OK),
Sam Brownback (R-KS), and
Jeff Sessions (R-AL), the so called "Gang of Five." Sen. Kyl said he had concerns
about the way the trust fund is
"using the heavy hand of government" to interfere with people's rights.
Sen.Kyl also raised the specter that the fund would actually force many
small companies into bankruptcy. Small business owners are complaining
that the bill is a bailout for the large companies with big asbestos tort
liability who have weak insurance coverage, at the expense of smaller
companies who have comparatively weaker tort liability but who had the
foresight to buy strong insurance coverage. A rob the small but smart
to pay the big but stupid ruse.
Sen. Kohl (D-WI) nor
Sen. Charles Schummer (D-NY) attended the "mark up" hearing. Sen. Kohl has advised the press
that he is undecided on the bill. He is presenting several amendments,
including an amendment that would create a national mesothelioma research
and treatment program, which would be funded jointly by the NIH and the
trust fund. The program would fund 10 research and treatment centers per
year at $2.5 million per center per year, create a nationwide clinical
registry and tissue/blood bank, and establish a center for mesothelioma
education, which would help mesothelioma patients obtain information on
treatment options and target research priorities. The program would be
funded for 10 years at approximately $30 million per year, for a total
projected allocation of $300 million.
Insiders speculate that both Senators Kohl and Schummer will oppose the
bill, and we hope that is true. We are certainly grateful, however, for
Sen. Kohl's leadership in advocating for a national mesothelioma research
and treatment program. We hope that after SB 852 sinks, Sen. Kohl will
continue to push his colleagues to appropriate federal funds through the
DOD and/or NIH for the program. MARF (www.marf.org) has not taken a public
position on SB 852, but MARF does believe that the need to help mesothelioma
patients find a cure should be a priority that is not contingent on the
passage of federal asbestos litigation abolishment law.
Meanwhile, in the House, a draft of a "medical criteria" bill
is circulating in the House of Representatives, sponsored by Rep. Chris
Cannon (R-UT). Rep Dick Armey (R-TX) contends that Leahy has moved as
far to the right as he can, and Specter has moved as far to the left as
he can, but neither has the votes to launch the trust fund bill out of
committee. Armey supports the criteria bill, which we are told will have
far stricter medical eligibility criteria than SB 852. I have not seen
the bill and cannot comment on how it treats mesothelioma claimants. My
assumption would be that it would allow mesothelioma patients to pursue
their tort remedies in the civil court system, but install numerous procedural
roadblocks to make the process as slow, arduous and unpleasant as possible.
"On second thought..." The International Union of Operating Engineers retracted their earlier
endorsement of SB 852. "It was a mistake made in haste, without reading
it thoroughly. We do not endorse the bill as it is currently drafted,"
said a union spokesman. The AFL-CIO continues to oppose the bill. The
UAW has not retracted its snap endorsement, but we hold out hope that
their light bulb will switch on.
The fortune tellers on Wall Street have reacted to the news from Specter's
delayed mark-up with gloom. As one business news service put it: "With
prospects for final passage in doubt, shares of perennial plaintiffs in
asbestos suits sank by close of business Thursday. Armstrong Holdings
(ACKHQ) fell 92 cents, or 27.2 percent, to $2.50. W.R. Grace (GRA) fell
$1.81, or 16.6 percent, to $9.10. Owens Corning (OWEN) fell 88 cents,
or 17.9 percent, to $4.02." USG was also down almost 10% on the news.
Please continue to write letters to the above senators on the Senate Judiciary
Committee. In particular, let Sen. Feinstein know that you appreciate
her amendments, that you have faith in the California court system, and
that you and your family wish to continue to pursue your civil rights.
If you live in Wisconsin, please let Sen. Kohl know that you strongly
oppose SB 852 and he should, too. We appreciate his concern for the medical
plight of mesothelioma patients and the need to fund a cure, but he should
vote against the bill and later work towards a separate line item appropriation
for a mesothelioma research program.
For more information on how to contact your senators, news on SB 852, sample
protest letters and a list of defects in the bill, see Asbestos Advocacy Alert!
In Solidarity There Is Strength!
From news story on the web: "
ADAO Legislative Director Paul Zygielbaum said the award levels in the bill are too low for people who are ill from
asbestos exposure. The top award under the bill, at $1.1 million, would
barely cover the cost of the medical bills, he said. Zygielbaum, who has
mesothelioma, said his most recent surgery cost in excess of $300,000.
He said he would likely undergo the same treatment, at the same cost,
several times "before I die in two years." Note that we presented
medical records to senators for mesothelioma patients ranging from $600,000
to $2 million.
Much of the above was summarized from news reports on the internet.
For a videotape of a TV commercial opposing SB 852 that we have run in
several states, including Montana, Nebraska and Arkansas, see http://www.senateproject.com/
(The Senate Accountability Project).
Here is a letter from Col. James Zumwalt, who father, Admiral Elmo Zumwalt,
passed away from malignant mesothelioma in 2000.
Thursday, April 28, 2005
As a veteran who has witnessed the horrors of an asbestos-related disease,
I am concerned that the April 19 editorial "Asbestos Milestone"
failed to accurately represent the asbestos reform issue being negotiated
in the Senate. While I agree with the majority of stakeholders that a
federal initiative is necessary to resolve the asbestos crisis, I do not
agree with the suggestion that the asbestos trust fund bill sponsored
by Sen. Arlen Specter (R-PA) represents what may be the "last, best
chance" for Congress to resolve the asbestos litigation crisis. In
addition, this editorial failed to recognize the most important stakeholders
in the negotiations -- asbestos victims.
In reality, Mr. Specter's bill represents the best chance for Congress
to pass a bill that will help corporations and insurers while shortchanging
asbestos victims, particularly those suffering from mesothelioma. It is
clear that the editorial viewed the bill from a corporate perspective,
de-emphasizing asbestos victims' rights to compensation and their
constitutional right to pursue claims in court.
The bill would not provide victims with "prompt and predictable payments"
but rather would cause them major financial setbacks. They would receive
far less than what is needed to cover their medical expenses, loss of
wages, and pain and suffering.
This bill may be "significantly better than past bills" for corporations
and insurers but not for asbestos victims. They deserve far more than
what Mr. Specter is offering them.