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Fairness in Asbestos Injury Resolution Act of 2005

Location: Washington, DC



Mr. COBURN. Mr. President, I want to spend a few minutes talking about the bill.

There is one thing that is an absolute certainty: There are a ton of people in this country who have bad diseases from asbestos who aren't getting treatment and aren't getting cared for. That is what certainty is. You can bet on that, that the problem is made worse because the trial bar is clogging the courts with cases of people who do not have diseases from asbestos, claiming they do. That is one of the reasons the courts want reform.

Having been on the Judiciary Committee during the process of this and voting this bill out of committee, even though I have significant reservations about this bill. Let me talk a couple of minutes about that.

It doesn't matter to me what the Congressional Budget Office says because their track record in estimating everything from the cost of Medicare to the benefits in capital gains taxes is usually 180 degrees off what actually happens. Having CBO's estimate about what is going to happen with this trust fund I don't think lends any credence or undermines it one way or the other. Because I think they do not know, and I don't think anybody can know.

There is a second problem in this bill; that is, the problem we face today is this bill will allow people who do not have injury from asbestos to receive hundreds of thousands of dollars for an asbestos claim when they do not have it. That deals with the medical criteria. It will allow smokers who have some exposure to asbestos who develop lung cancer--smoking is the No. 1 cause of lung cancer--who have no evidence of significant disease caused by asbestos causing their lung cancer to be compensated for a disease that they themselves were responsible for by smoking tobacco products.

The intended purpose of the FAIR Act is to compensate those who are truly sick from asbestos exposure, without destroying the companies and jobs and opportunities in the future. My worry with this bill is the defendants and the plaintiffs will end up back in the tort system in a very short period of time.

I am rising today to support Senator Cornyn's alternative, the Asbestos and Silica Claims Priorities Act. I am doing that because I think it addresses the real problem.

If you look at the abuse in the courts and if you look at what is wrong with this bill, it has to do with putting people in court who do not have disease from asbestos. The Cornyn Amendment has a very defined medical criteria which the courts will have to follow when making judgments about who is eligible to file a claim on this bill.

A major reason the FAIR Act won't have enough money--and the major reason people can attack the FAIR Act in terms of the amount of the trust fund--is because the medical criteria is going allow too many people to be in the process who do not have disease related to asbestos. There have not been significant changes in the medical criteria associated with this bill.

I tried to amend this in committee. I could not win. I have a significantly different level of knowledge on the committee than the rest of the members in terms of medical knowledge, having continued to be a practicing physician, and I know it is going to be very difficult to explain all those medical issues to Members of this body to try to get them changed. That is why I think Senator Cornyn's approach is a better alternative.

We have to create a fair system in the courts for allowing those who are truly sick from asbestos exposure to seek compensation from those who are truly responsible, rather than creating another Federal bureaucracy that is likely to fail.

More than 73 companies have already gone bankrupt, and many others have suffered a great deal of financial difficulty, not because many sick people have sought compensation for their injuries but because smart trial lawyers have learned to game the system and file phony claims. These aren't faceless companies with unlimited resources. And the people who are truly injured are not faceless people who didn't contribute something good to the companies they worked for. The businesses, by and large, are ready and willing to right the past wrongs. The question is, Should they be paying when nobody is injured? With the medical criteria in this bill today, a third of the claims, in my estimation, will be paid to people--$50 billion will be paid to people--who will file under the medical criteria, as written, who have no injury whatsoever from asbestos but yet these companies will be paying them for a perceived injury from asbestos.

Ninety percent of the claimants out there in the courts today who have filed claims that allege to have impairment from asbestos have no impairment. If you read the press stories about how the game has been played, how the B-Readers have falsely read, for payments from trial lawyer organizations, the chest x-rays, and the pulmonary function tests have been manipulated illegally to claim benefits from some of these companies, you can see we cannot have loose medical criteria and ever expect to have this trust fund survive.

The other thing to mention--it is not mentioned much--there is a background caseload in this country of mesothelioma, cancer of the lining of the lung, of about 800 people a year. If there had never been any asbestos, 800 people a year would develop mesothelioma.

At my age, and for most people somewhat younger who went to any public school where the ceiling tiles had asbestos components, we can qualify under this bill not because asbestos truly caused it. There is no causal effect in that low an exposure. There is no particle load count at all in terms of measuring exposure, which is what we know is important. A small amount of asbestos exposure is harmless, a large amount of asbestos exposure is terribly disease causing. When we don't look at load factors, we are going to have medical criteria that make people eligible who are truly not diseased from asbestos.

For example, there are 174,000 new cases each year in this country of lung cancer.

This is kind of a wordy chart. I don't think it is going to project well. But the important thing about that is they may have no true, actual asbestos exposure but could claim under this system asbestos exposure from environmental background exposure. Most of these people have lung cancer because they are smokers, and they are going to have lung impairment, and they are going to meet some of the requirements under the medical criteria but have no true asbestos exposure.

If you look at that, and take 10 percent of the cases based on lung cancers alone, you are talking $5 billion a year. Just lung cancer alone times 30 years, at $5 billion a year, is more than the trust fund has in it.

I will guarantee we will see an approach for compensation by anybody who has ever had any exposure or been around asbestos, and they will qualify to a certain extent more or less under this bill. What if it is 5 percent? You are still talking $78 billion. The numbers are massive.

If you are going to have a trust fund, you are going to have to have adequate medical criteria that truly reward those people and compensate those people who are truly injured. If you have good medical criteria, the trust fund system will work. If you do not have good medical criteria, if you have very loose medical criteria, the trust fund will fail.

We will not have solved the problem.

Either we have to get away from a trust fund program and design medical criteria the courts will use, or we have to keep a trust fund program and tighten up the medical criteria in this bill.

The bill as written today, I believe, will fail. It will fail because it will be overwhelmed with claims against this trust fund by people who do not have asbestos-related true disease.

I will give a couple of examples. Nonmalignant level 2 under the fund allows individuals who have obstructive pulmonary disease--people with emphysema, people with chronic bronchitis--to receive compensation by the fund even when they do not have restrictive pulmonary diseases. That is what asbestos causes, a restrictive disease, not an obstructive disease. Under the criteria written in this bill, smokers who have had exposure to asbestos, who do not have a disease related to asbestos, will be compensated under this bill.

Consequently this fund allows a smoker--the No. 1 cause of obstructive airway disease, not asbestos, but smoking--asbestos causes restrictive lung disease--to receive compensation. That cannot work with the fund as we see it today.

This fund also will compensate people for cancers where there is no scientific evidence whatever that their cancers are caused by asbestos. For example, for colorectal cancer, there are 130,000 cases of colon cancer a year. There are tons of scientific studies that show there is no connection between that and asbestos, but we have this in the bill. It is dependent on an IOM study, but it should not be in the bill. If new science sometime later shows some connection between colorectal cancer, stomach cancer, or esophageal, laryngeal, and pharyngeal cancer, we can put it back. We are putting it in, when there is no science whatsoever--and the small studies on laryngeal and pharyngeal cancer that show some connection were not modified for smoking and alcohol use, the No. 1 and No. 2 causes. So it is not good science.

Therefore, we have a large group. If you take lung cancers combined with all the other cancers and put them together and you say 10 percent of those who are coming through will try to go to the trust fund, you have $267 billion that will blow this thing wide open.

This trust fund, with the medical criteria it has today, will not work. That is why having a bill that has specific medical criteria in it will work.

Let me be clear why I support the Cornyn substitute. The Cornyn substitute does not shut anyone out of the courts. If you think you have asbestos exposure, and you want to sue, you can. But you will have to meet the medical criteria for it to be related to asbestos or silicosis. There is no unreasonable requirement; there is just upfront medical criteria that must be met to have application and that requirement must apply.

It does not mean you cannot have your day in court. You can. You have to demonstrate your disease matches the medical criteria which are recognized medical criteria associated with asbestos disease.

The other thing that is good about this bill is if you have had asbestos exposure and have no disease now, this does not cut you off from the future. If you develop disease that is truly related to asbestos, you will be able to have your day in court years--30, 40 years--down the road if, in fact, you develop impairment related to asbestos within this medical criteria that the medical community and the scientific community recognize is accurate.

Under this substitute, as compared to the present bill, physicians will have to comply with strict scientifically sound requirements. There is no room for doctors and x-ray B readers to fudge the data under the Cornyn substitute. The substitute makes sense. The trust fund concept will work if we have good medical criteria. We do not, so it is not going to work.

The answer is to keep people in the court system but define the medical criteria where they can win when they truly have a disease that is caused by asbestos, and they lose when they do not have a disease caused by asbestos.

The science is not that hard. But we cannot take care of the trial lawyers and take care of all the executives who want this problem solved the way they want it. They want an answer now. The answer is, use what this country has used in the past: the judgment of courts based on sound criteria that cannot be manipulated. Then we will get this problem solved and the people who are suffering today, who cannot get into court because of false claims--hundreds of thousands of them by people who do not have asbestos-related illness--the people who are injured will get compensated.

I thank Senator Cornyn for, first, his courage to offer a substitute. He is on the Judiciary Committee. We have a great chairman. He has done a lot of hard work on this. He has brought a bipartisan bill to the Senate. The bill will fail. It takes a great deal of courage on Senator Cornyn's part to offer a commonsense alternative to this. It is my hope that the many Members in this Senate will look at the trust fund with the medical criteria as set out today, and reject it as it is written. Either modify this bill or take the Cornyn substitute and put it in its stead.

This is an issue we will spend a lot of time on. I know people are considering points of order against the legislation. In fairness to the Senate and also the public, if that is going to happen, they ought to do it so we do not continue to spend time. Part of the process around here is to make things not happen so you can have a political advantage. If people are going to offer a point of order, they ought to offer it. Let's go on to the next thing on the agenda for the American people. If they are not going to offer it, let's have a real debate, file cloture, get a vote on this bill and move on.

I suggest the absence of a quorum.

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