Fix it or Fail It. Asbestos Reform Misses the Mark

AMERICA'S NEWSPAPERS URGE CONGRESS TO FIX OR DEFEAT "FUNDAMENTALLY FLAWED" ASBESTOS TRUST FUND BILL THAT ELIMINATES RIGHTS OF ALL AMERICANS -- VICTIMS & DEFENDANTS Excerpts From Editorials Opposing "Fairness In Asbestos Injury Resolution Act" THE WALL STREET JOURNAL: "Asbestos Showdown," February 14, 2006: "Sometimes the only thing worse than a big economic problem is a Congressional attempt to fix it. That's the case with Arlen Specter's $140 billion asbestos trust fund, which faces a crucial test today in the Senate . . . [W]hat Congress would create here is a gigantic new federal entity, with all of the moral hazard that such things always involve . . . The companies that support the trust fund would receive an immediate benefit, while taxpayers would be assuming a lifetime of political risk.." Newark, NJ, STAR-LEDGER: "Ensuring a Fair Asbestos Bill," February 13, 2006: "The biggest problem is that FAIR is so narrow that thousands of asbestos victims could be left out, including those exposed during rescue and cleanup work at Ground Zero, or in the aftermath of Hurricane Katrina. So could those with long exposure to asbestos who don't yet have asbestos scarring of the lungs - even though experts say they eventually will. . . . Victims aren't the only ones who might get a raw deal. Small and medium sized businesses make a convincing case that the fund's convoluted contribution formula was set up so giant corporations, which have the greatest asbestos liability, end-up paying far less into the fund than they should, while smaller companies pay much more than their fair share. All of these flaws should be fixed." Spokane, Wash. SPOKESMAN-REVIEW: "Fair Compensation: Senate Asbestos Trust Fund Bill Needs Refinement," February 10, 2006: "[In recent months] Senator Arlen Specter, R-PA, urged supportive lobbyists to spend more on public relations to bolster flagging support. That time would have been better spent shoring up the bill's weaknesses . . . [T]here is no hard science behind the $140 billion figure. [It] isn't based on what victims will need; it's based on what industry and insurers are willing to pay. In addition, the American Medical Association says the medical criteria are too stringent and could lock out thousands of people with significant illnesses . . . Many [exposed vermiculite plant] workers would not be covered by the trust fund. Plus, victims that may emerge from 9/11 terrorist attacks and Hurricane Katrina would be shut out. The Senate bill doesn't need better salesmanship; it needs better craftsmanship." HOUSTON CHRONICLE: "Burn This Bill: Despite Flaws that Undermine Rights of Asbestos Victims, Legislation Moves Forward," February 8, 2006 "Strongly pushed by Senate Majority Leader Bill Frist, R-Tenn., Senate Bill S. 852 tramples on consumer rights by eliminating many patients' access to the courts; it makes ineligible for damages those who suffered exposure to asbestos outside the workplace; and it mandates an inadequate, privately funded $140 billion compensation mechanism. . . The Senate should drop this S. 852 into the Capitol incinerator." TIMES-TRIBUNE of Scranton, PA: "Reform Judges, Congress," February 6, 2006 "Recently, Sen. Arlen Specter called upon lobbyists for the asbestos industry and insurers to ramp up their lobbying and advertising in favor of a bill to limit asbestos-related litigation in favor of a settlement fund. As Congressional Quarterly noted, it was a case of the lobbied lobbying the lobbyists to lobby." WASHINGTON TIMES: "Fix The Asbestos Trust Fund," December 12, 2005: "The Senate's trust fund is all but certain to go bankrupt in a few years unless its multiple problems are fixed." WASHINGTON TIMES: "An Asbestos Bust," September 26, 2005: "Could the Senate's asbestos fund proposal eventually cost taxpayers tens or even hundreds of billions of dollars? That's the question that should be on lawmakers' minds . . . Evidence keeps mounting that the trust fund will go bust in a few years and leave taxpayers on the hook for huge sums of money." THE BUFFALO NEWS Editorial: "A bad piece of legislation: Asbestos bill threatens to take away rights of victims to fair compensation for illness," July 2, 2005: "A flawed piece of legislation is making its way through the U.S. Senate. Before matters go any further, the "Fairness in Asbestos Injury Resolution Act" (FAIR), which has made it out of committee, deserves to be defeated . . . [One] problem with the legislation is that there is no clear sunset provision to allow people to pursue claims in court if, or when, the fund runs out of money. And, consumers of asbestos products, and those who fall into the category of 'do-it-yourself' homeowners unwittingly installing asbestos insulation, also would be barred from the courts and would have no recourse if they become ill. They would not be allowed to dip into the $140 billion pot of money. This legislation is riddled with problems. This is roughly a 300-page bill that has been in the works for at least three years. At stake are the interests of tens of thousands of victims and billions of dollars." THE HOUSTON CHRONICLE Editorial: "Unwanted Intrusion: Asbestos bill in U.S. Senate would undercut recent Texas legislation with an inferior law opposed by consumers and corporations," June 21, 2005: "[T]he Fairness in Asbestos Injury Resolution Act . . . would eliminate defendants' and plaintiffs' access to state and federal courts. Instead, it would use borrowed federal funds and mandatory assessments on all corporate defendants in asbestos civil litigation and their insurers to establish a $140 billion fund. Only ill workers who could prove five years of occupational exposure to asbestos, and their dependents, would be eligible for compensation . . . By limiting claimants to workers exposed to asbestos on the job, the Senate bill ignores the plight of people who purchased asbestos products, installed them in their homes and suffered exposure. Residents of neighborhoods polluted by asbestos ... would be ineligible for compensation, with the exception of a single community in Montana. As the bill cuts off victims' access to the judicial process, there's also the question of what happens if the compensation fund runs out of money and eligible patients have no other option for redress of their claims." BANGOR DAILY NEWS Editorial: "Faulty Trust Fund, June 10, 2005": "Although the Senate Judiciary Committee late last month overwhelming passed a $140 billion fund, committee members immediately said they would not support the deal on the floor. The biggest problem is that there is too little money in the fund . . . Under the bill passed by the Senate committee, victims could not sue but would receive between $25,000 and $1.1 million, depending on the severity of their illness. This is too little for victims that will basically suffocate to death. It is far less than the companies expected to pay out." Spokane SPOKESMAN-REVIEW Editorial: "Asbestos Bill Needs More Work," May 23, 2005: "[I]t isn't clear what will happen when the [proposed trust fund] money runs out. Are victims out of luck? Will taxpayers pick up the tab? What is clear under the current bill is that litigation at that point won't be an option. The complications don't end there. The bill limits compensation to those who worked in direct contact with asbestos for at least five years, but it makes an exception for residents of Libby, Mont., who got sick from the dust workers carried home with them on their clothing. Nobody begrudges compensation for Libby residents; hundreds of them have died. But what about communities where the ore was shipped for processing? Spokane had such a plant. So did numerous communities around the country. . . . There is no solution that will satisfy industry and all legitimate victims of asbestos. But Congress should work toward a more balanced solution." THE BILLINGS GAZETTE of Billings, MT, Editorial: "More Work Needed on Asbestos Bill," May 18, 2005: "An asbestos bill isn't good enough unless it assures people who have contracted serious illnesses from asbestos exposure that they will receive compensation as adequate as they would get through the court system . . . [The proposed $140 billion trust fund] seems like a huge amount of money, but if it wasn't enough, those responsible for asbestos-caused illness and disease would have no further liability. Congress would be under pressure to use tax money to pay compensation . . . A bad asbestos bill would be worse than none at all." ALAMEDA NEWSPAPER GROUP News Feature Published by THE OAKLAND TRIBUNE, ALAMEDA STAR-NEWS, SAN MATEO COUNTY (CA) TIMES, PLEASONTON (CA), and THE ARGUS of Freemont-Newark, CA.: "Asbestos trust may leave Californians in the dust," May 13, 2005: "Americans who never worked with asbestos but have been breathing its toxic fibers could lose valuable legal rights and have a tough time getting medical bills paid out of a $140 billion asbestos trust fund headed for Senate debate today, legal experts say. As Congress rushes to eliminate asbestos litigation and replace it with a federal compensation program for victims, lawmakers have concentrated on ailing asbestos workers but left in limbo thousands of people who have non-occupational or environmental exposures to asbestos. . . . Millions of tons of vermiculite contaminated by asbestos fibers were shipped by rail and truck to 200 locations nationwide, most of it to 40 sites where workers used ovens to expand the vermiculite and repackaged it as attic insulation, a garden-soil additive or coating for building materials. According to investigations by the Agency for Toxic Substances and Disease Registry, workers at some of those plants are dying of asbestos-related disease. Plants' smokestacks billowed a fine mist of invisible asbestos fibers over blocks of homes, and at unfenced sites where children played. They breathed the same asbestos as people in Libby, but if the trust fund bill passes as written, their eligibility for compensation would be dubious and they would have no legal recourse." THE DAILY INTERLAKE of Kalispell, MT, Editorial: "Asbestos Solution Must Be Fair," May 11, 2005: "In large part, the covered class of victims would be asbestos workers with at least five years of exposure, or their families. Consumers of asbestos products would not be covered, nor would workers with milder forms of asbestos disease. Yet the asbestos industry would gain immunity from all lawsuits, even those from people not covered by the legislation. And even though $140 billion seems like an inexhaustible supply of money, it isn't. Some estimates suggest that even with the limits on coverage, the fund will come up $100 billion short, which raises the possibility that down the road it will be taxpayers picking up the bill instead of the guilty parties. . . . If Congress is going to get involved in this monumental issue, it must do the job right." THE TAMPA TRIBUNE Editorial: "Asbestos Fund Inadequate for Size of Potential Problem," May 9, 2005: [T]he fund being considered by the Senate is a bad deal for many people injured by asbestos fibers, including Tampa residents who lived near a plant that processed the cancer-causing material. The $140 billion fund, provided by asbestos-using companies and their insurers, may not be large enough for all legitimate claims, raising the possibility that taxpayers will have to pay for damages. About the only people who could file claims would be workers with five years of occupational exposure and their families. Consumers of asbestos products couldn't file claims. Nor could neighbors possibly harmed by airborne emissions. Also excluded would be smokers. They would lose the right to file a lawsuit, even if they are diagnosed with an asbestos-caused illness. . . . If Congress can't do better than that, it should just toss the problem back to the state and federal courts." THE CAPITAL TIMES of Madison, Wisconsin, Editorial: "Kohl's Wrong on Tort Reform," March 3, 2005: "President Bush, emboldened by the easy passage of his deceptively named Class Action Fairness Act of 2005, wants to push for passage of additional pieces of so-called "tort reform." Now the question facing U.S. Sen. Herb Kohl, D-Wis., is whether he will continue to side with the president's radical - and dangerous agenda - or stand up for what is best for Wisconsin families and communities . . . Passage of the Class Action Fairness Act has provided momentum for an administration agenda on tort reform that includes proposals to restrict asbestos litigation and to curb medical malpractice suits . . . Now Herb Kohl has to decide which side he is on: that of the mighty corporations that are looking for every loophole they can find to avoid responsibility for the harm they do, or that of the Wisconsinites who will be injured and defrauded as a result of tort reform measures." DETROIT FREE PRESS Editorial: "LAWSUIT LIMITS: In haste to cap damages, don't forget real victims," February 28, 2005: "A trust fund [to compensate asbestos victims] that could release money without litigation could help, if it were adequately funded and the caps on awards were fair. . . In the coming debate, Congress should not let Bush forget the real victims." HOUSTON CHRONICLE Editorial: "DECLINING FEDERALISM: This year, Presidents Day finds the president busily expanding federal power at the states' expense," February 21, 2005: "The [class action] bill also takes long-held powers from states and gives them to federal judges with little federal consumer protection law to rule by. The suits that aren't thrown out will still be decided by state law, but by overworked judges unfamiliar with it. Bush's federal power grab doesn't stop there. He wants to federalize asbestos litigation and medical malpractice suits . . . President Bush's push to make the entire nation protective of deep-pocketed big business goes against the principles of limited federal government that Ronald Reagan embraced." [Note: This editorial was also published by THE VICTORIA ADVOCATE of Victoria, TX, under the headline "Federalism Redefined" on February 28, 2005.] ST PETERSBURG TIMES of Florida, Editorial: "Montana Horror Story," February 14, 2005: "Whatever the outcome [of the criminal indictment of W.R. Grace for knowingly exposing its workers and customers to highly toxic tremolite asbestos fibers and covering it up], at least one question will remain unanswered. Why does the culture at the top of some corporations turn otherwise decent people into merciless automatons who turn their backs on human suffering?" THE RECORD of North Jersey, Editorial: "Big Win For the Cheaters," February 14, 2005: "The courts exist to help balance the scales of justice between the powerful and powerless, the moneyed and the poor. Congress and Mr. Bush are weighting the scales toward the moneyed. And they are on a roll. Republicans are now turning toward overhauling asbestos litigation and medical malpractice claims. They'll probably use the same tactics that have worked well so far [on class action "reform"]: Demonize all trial lawyers for the excesses of a few, exaggerate the frequency of "frivolous lawsuits," belittle the legitimate claims of ordinary people." THE DENVER POST Editorial, "Grace Under Pressure," February 10, 2005: "It's rare for an American corporation to face criminal charges for breaking environmental laws, but this week the U.S. Justice Department indicted W.R. Grace & Co. for asbestos contamination in Libby, Mont. Staffers at the Denver office of the Environmental Protection Agency were instrumental in cracking this important case. The case underscores why Congress shouldn't pass current legislation that would erase the liability of Grace and other asbestos companies. The bill, sponsored by Sen. Arlen Specter, R-Pa., would make it nearly impossible for victims of the type of asbestos used by Grace to recoup medical expenses and disability payments." ARIZONA DAILY STAR of Tucson Editorial: "A Matter of Justice," January 14, 2005: "The president appears determined in his crusade against trial lawyers and juries not to let the facts get in the way of his argument. The rhetoric of tort reform is being fashioned by its promoters to ignore the purpose of the tort system. A tort is a harmful act, and to employ this right in court is nothing less than to seek justice for that harmful act. In asbestos lawsuits, for example, there are two diseases that afflict workers, asbestosis and mesothelioma, a form of cancer. Both attack the lungs. Both diseases shorten lives. And both develop over a long period of time. Plaintiffs who bring lawsuits must persuade juries that they have suffered a great harm. The same is true of any plaintiff who files a malpractice lawsuit. The purpose of tort reform is to impose severe limits on the judgment of juries. Yet it offers no better arbiter of justice. It really represents an effort to provide insurance companies yet another leg-up in the world of commerce. In that sense, it is the worst form of corporate welfare. The president's views to the contrary, it's a movement that should be thwarted." RENO GAZETTE-JOURNAL Editorial: "Finger Pointing Won't Fix System," January 12, 2005: "The problem isn't a system that can't quickly resolve difficult disputes, we're told, but too many 'frivolous' lawsuits. The problem is greedy, unethical lawyers (or doctors, depending on your point of view), not an insurance system that makes it difficult for injured parties to get compensation. Yes, the medical malpractice system is in trouble (though probably not nearly as much as the president and supporters would have you believe). And, yes, the litigation over asbestos is a mess - an extremely costly mess. Fixing them, however, requires that we look for the best way to help those who have been injured, not for ways to get even with the lawyers who supported the Democratic candidate for president. Cosmetic fixes, like artificial caps on 'punitive' damages or pushing lawsuits into the federal courts, won't meet that goal."