Diversion of Funds For Military Operations In Iraq

DIVERSION OF FUNDS FOR MILITARY OPERATIONS IN IRAQ

Mr. HATCH. Mr. President, I listened to the distinguished Democratic leader on the Judiciary Committee, Senator Leahy. He made a number of statements I feel need to be corrected. I know he sincerely made them. I am not trying to disparage him in any way, but he has made the same mistake I think the minority leader made this morning, that only $25,000 is given to these people who are heavy smokers, who have no sign of asbestosis, no markers, no signs on their X-rays, where we have $25,000 to $75,000 for these people, even though in all likelihood their maladies have come from their smoking.

If smoking and asbestos work in concert, together, why don't any of the bankruptcy trusts pay any money for lung cancer claims that do not present any markers or impairment at all? They do not.

Here we are giving $25,000 to $75,000 for complaints that get absolutely zero in court. Why are these same claims almost always met with a defense verdict in the tort system? Even the tort system, as out of whack as it is, will not give these people money. Yet we do. You would think it was a crime that it is not more. That is typical of the arguments on the other side. You will never have enough money here to satisfy some on the other side no matter what you do. What we are trying to do is resolve this problem so the country can go forward, so these businesses don't all go belly up, so the jobs are not lost, pensions are not lost, and so people can get money without paying 60 percent of the recoveries to attorneys and for transaction fees.

By the time you add the defense attorneys' costs, the plaintiffs' attorneys' contingent fees, and the transaction costs, it is 60 percent of every dime that is raised in these horrendous court decisions that are paying people who are not sick to the exclusion of people who are. This bill solves that problem.

Isn't it true this bill pays up to $1 million to lung cancer claims where there is more certainty it was caused by asbestos exposure? The fact is, it is true. That is $1 million some of these-a lot of these people will never get under the current tort system. But a lot of people who have never suffered 1 day of impairment in these jurisdictions I have been talking about will wind up with millions of undeserved dollars because this system is out of whack.

I am getting a little sick and tired of hearing my colleagues blast Halliburton. There is only one reason they do that. That is because, even though he has nothing to do with it, even though he has long been gone from it, even though everything he has had to do with it has been finalized and closed, the Vice President used to work for Halliburton. It gets old. I mean it is cheap shots, there is no question about it. Frankly, let me say I have to respond to the dubious argument that Halliburton is gaining a windfall by this fund. Anybody who believes that should call them and ask how they feel about this fund. The truth is they may actually be better off by not having this legislation.

Even some personal injury lawyers involved in the settlement with Halliburton believe that is the case, that they are better off not being part of raising the $124 billion.

The truth has not stopped some of my colleagues from making exaggerated statements about this bill. I suppose it is no surprise that when they get the chance to take a shot, truthful or not, at their favorite whipping boy, they are not going to pass it up. That is what they do-as if all big businesses are bad and all big businesses screw their employees and all big businesses are out to hurt the economy.

Let me state for the record how this bill compares to the Halliburton settlement. The conditional settlement reached with the plaintiffs' lawyers is just over $4 billion. There is a conditional settlement that Halliburton entered into that is a little over $4 billion. Only $2.7 billion of that amount is cash. Of this $2.7 billion, about $2.3 billion may be recovered by Halliburton from insurers. The remaining amount of the settlement, about $1.3 billion, involves issuing shares of stock. If the legislation is adopted, it seems likely the stock value will increase so that any dilution of stock values in the short run will be offset by medium- and long-term capital gains. So the actual cost to Halliburton is not the $4 billion they throw in, which some of my colleagues claim.

We understand the firm believes recoveries from insurers in issuing new stock-two elements that those who argue this is a bailout always neglect to mention-will act together to create an actual out-of-pocket liability to the firm of less than $1 billion.

How does their fund liability compare? As a tier 1 company in this bill, under the fund they would pay $86.5 million per year. The total nominal value of their liability under the fund would be just short of $2 billion. This is a bailout? It is a lot more than they would have to pay under their settlement. I hesitate to even say this in the Senate because if I were with Halliburton, I would take care of the settlement, the heck with this. But it would take some real effective money away from this trust fund. Halliburton is not the only one.

Again, it appears some of my colleagues are not interested in hearing details such as these. They would rather confuse the facts and do anything they can to make sure the personal injury lawyers who support them do not lose out on their more than $60 billion of projected fees-just from asbestos litigation-if this bill is not passed.

No wonder they can afford to run these stupid ads all over America, acting as if they are fighting for little individual people. Give me a break. The fact is, everybody in this body knows there is a tremendous rip-off of a lot of people who have suffered from mesothelioma and other related asbestos diseases who are not going to get anything, or will get relatively nothing, if this bill does not pass.

Now, we are faced today with a historic opportunity to right a serious wrong being committed against victims of asbestos exposure, as well as the thousands of companies and individuals who stand to lose out in terms of potential bankruptcies, loss of jobs, loss of pensions, under today's downright irrational system of compensation under our current tort system.

For more than 20 years, our compensation of legitimate asbestos victims has been unacceptably diminished and delayed. It has become quite evident to the Judiciary Committee that tens of thousands of true asbestos victims, including their families, are faced with agonizing pain and suffering, with uncertain prospects of any meaningful recovery in the existing tort system.

These inequitable results are particularly troubling when viewed against the reality that large dose exposures to asbestos, associated with asbestos-related diseases, ended in the 1970s. That is when they ended. Asbestosis is considered by many as a "disappearing disease." These victims are left with little to nothing because, among other things, precious resources are being diverted toward the defense and payment of a massive influx of asbestos claims brought largely by a group of overzealous personal injury lawyers on behalf of these many unimpaired plaintiffs, people who have never suffered from anything to do with asbestos.

Cardozo law school professor, Lester Brickman, found that more than 80 percent of claims made in recent years and 90 percent at present do not involve a medically recognizable injury. You wonder what is going on. That would not happen but for courts that literally are not abiding by the law, where judges are bought by trial lawyers, and where they are totally plaintiffs oriented and the jurors come from areas where it is not their money, so they will put up any amount of money for people who are not even injured.

In other words, a great majority of asbestos lawsuits today are brought by those who are not even sick. These claimants show lung conditions similar to the general population, including that of individuals with absolutely no asbestos exposure at all.

To put the asbestos litigation problem in perspective, I will share the story of Mary Lou Keener, the daughter of an asbestos victim, who has spoken out in support of this legislation. Mary Lou knows all too well how the current asbestos crises has failed some of our Nation's true patriots, our veterans.

Mary Lou Keener's father served in the engine rooms of the USS Mayrant, Lindsey, and Columbus in World War II in the Pacific. Both the Mayrant and Lindsey suffered serious damage from enemy attacks. Mary Lou's father had the dangerous assignment of helping to bring these crippled ships back to port, spending months fighting to keep them afloat, and beginning massive repair work while they were still at sea. He then spent months at the shipyard helping to finish the repairs.

What Mary Lou's father did not know was that the countless hours spent in the engine rooms and boilers would cost him his life. The same is true of thousands of veterans like him. These ships, like almost every vessel in our fleet at the time, contained massive amounts of asbestos. Every moment he spent working to return these ships to battle, breathing the contaminated dust and debris, worsened his condition and guaranteed that he would never ever be able to recover.

Not surprisingly, he developed mesothelioma, ultimately succumbing to this horrible, painful, and deadly disease on-guess what-Veterans Day, 2001.

Mary Lou's father was more fortunate in one way than many veterans: He had a daughter, a truly exceptional woman who is a nurse, a lawyer, and a Navy Vietnam veteran. She is also a member of the Veterans Rights Commission.

When she learned of her dad's condition, she rushed to help him and her mother navigate the complicated maze of regulatory and legal systems that he faced. Unwilling to take no for an answer, Mary Lou pushed to have him examined at the National Cancer Institute, part of the National Institutes of Health. It was there that Mary Lou's father received the definitive diagnosis that he suffered from mesothelioma. Mary Lou made sure he received the best treatment available from experts throughout the country.

After his death, Mary Lou helped her mother fight through the regulatory requirement to obtain dependent indemnity compensation from the Federal Department of Veterans Affairs for a service-connected death. She helped her mother find an asbestos plaintiffs law firm to file a tort and wrongful death claim. Now, despite Mary Lou's efforts, her father's lawsuit, even with a resourceful and tenacious advocate like his daughter, has been languishing in the courts for over 18 months.

As most veterans learn, there are few viable defendants left who are responsible for supplying asbestos to the Navy. Mary Lou's mother received three checks from defendant companies, but they are all bankrupt and the amounts are very tiny. She can only cling to the hope that there may be other viable defendants, but the reality is that far too many veterans will go uncompensated under the current tort system.

Perhaps this is why Mary Lou Keener spoke out in support of S. 2290, stating:

The courts are clogged with asbestos cases, and even if [my mother] finally has her day in court, the law firm will collect almost half of any jury award. That's why passage of [the FAIR Act] is so important. The Trust Fund solution to this problem envisioned by [the FAIR Act] will bring much needed compensation to veterans suffering from asbestos related diseases and end the vagaries and lengthy delays of the current/tort wrongful death systems.

Last year, Mary's mother received a call from her attorney. Unfortunately, it was not about her husband's case. Instead, she was told she should consider contacting her Senators immediately and ask them to vote against the asbestos legislation. Needless to say, she declined that request. She understands that for veterans like her husband, while the status quo might benefit a handful of personal injury lawyers, it completely fails the one group that should be given the ultimate priority; that is, the asbestos victims.

Now, let me refer to this chart: What is wrong with asbestos litigation? This is for the Navy veteran I have been talking about with mesothelioma. Under the tort system, he gets nothing. Under the FAIR Act, each of them gets $1 million. I have to say, no amount of money will compensate people for what they have gone through, but that is so much more than any of them are ever going to get without this bill.

Now, as I say, unfortunately, the asbestos litigation problem reaches beyond our veterans and into the lives of everyday, hard-working Americans who are victimized by asbestos and the very system designed to vindicate their rights. One matter I find particularly troubling is the case of Huber v. Taylor. That is a class action lawsuit currently pending in the Western District of Pennsylvania. The suit was filed by 2,644 plaintiffs in asbestos personal injury suits against the personal injury lawyers who represented them. The suit charges that the lawyers treated their clients as mere inventory, distributing only a few thousand dollars to each plaintiff for their injuries, while retaining tens of millions of dollars in attorneys' fees.

Now, I bring this case to the Chamber's attention because it underscores the severity of the asbestos litigation crisis and why it is imperative we, as a legislative body, must now act to address this problem.

Ronald Huber spent 35 years as a steelworker, inhaling asbestos fibers while working on the job. In 1995, he joined a class action against nearly 200 companies that made or distributed asbestos or asbestos-containing products. Although that class action settled for approximately $140 million, Mr. Huber has not seen a single penny from this award. How much did Mr. Huber's lawyers walk away with? They received $56 million.

Look at this chart: What is wrong with asbestos litigation? Huber v. Taylor. The trial lawyers got $56 million; asbestos victims basically nothing. Think about it. That is right, the lawyers received $56 million and the asbestos victims received nothing.

In response to this severe injustice, Mr. Huber and over 2,000 of his fellow class members filed a lawsuit on February 7, 2002, in the U.S. District Court for the Western District of Pennsylvania against the personal injury lawyers who represented them in the first action. As of today, the court is still hearing arguments on various motions.

The complaint charges the defendants with breach of fiduciary duty; failure to disclose the identity and nature of the actions they had joined; false representation to deprive the plaintiffs of funds belonging to the plaintiffs; failure to exercise the degree of competence and diligence exercised by lawyers in similar circumstances; and misrepresentation of material facts. The plaintiffs are seeking compensatory and punitive damages.

All of the plaintiffs to this action are described as "hard-working union members in blue-collar trades." All of them were exposed to asbestos during their working years. All, to a large extent, have little knowledge or experience in the legal system. All state they were "recruited" by plaintiffs' law firms for inclusion in "mass actions," and all say their lawyers told them nothing about the lawsuits in which they were involved.

Their complaint arises from what they call the "corruption of the personal injury bar." The lawsuit states that, as early as the early 1980s, the prosecution of asbestos personal injury claims had evolved into an industry and the lawyers who were prominent in that industry had accumulated a vast amount of wealth. To quote the complaint:

The promise of such wealth drew additional plaintiffs' lawyers into the field, and this resulted in more and more aggressive efforts to recruit asbestos personal injury plaintiffs.

I think it is a sad state of affairs when asbestos victims have to sue their own lawyers to receive compensation for their injuries. We cannot allow the current, broken system to continue in this manner. It deprives victims of a meaningful remedy and diminishes public confidence in our civil justice system.

I think we have to do something now to ensure there are no more Robert Hubers who are left with no recourse other than to sue their own lawyers.

We must also act now to ensure that the tireless efforts of everyday Americans such as Mary Lou Kenner are not taken in vain. These are two of just thousands and thousands of people.

It is because of these problems that I urge my colleagues to support S. 2290. Under this bill, victims will receive prompt and certain compensation through a privately funded trust administered by the Department of Labor. Moving existing claims to the fund will significantly cut out the exorbitant transaction costs inherent in our tort system-especially given the no-fault nature of the new system being proposed.

In today's tort system, victims bear the heavy burden of proving that a specific product caused their illness. They must show culpability through causation and connect the dots that lead to the ultimate defendant. Unfortunately, few victims today are capable of producing sufficient evidence to show their illnesses were caused by a particular company's products. In fact, because of the long latency period associated with these asbestos-related diseases, the quality of evidence will inevitably degrade over time where memories fade and documents get lost. Thus, for the scores of victims who do not have an ironclad case against any one defendant, a no-fault system is an extremely important component when crafting a solution to the asbestos problem.

Now, to illustrate my point, I would like to share the story of siblings Paul and Suzanne Verret. After being diagnosed with plural mesothelioma, both brought suit against four defendants, each a potentially responsible party under tort law. But after hearing evidence presented by the defense, a Texas jury ruled, just last month, that the Verrets' conditions were not caused by any of the four defendants who were likely to have been the result of exposure to asbestos from a Johns Manville factory in the neighborhood.

Asbestos tailings from the plant have been used for driveways and parking lots in the neighborhood where the Verrets grew up. Johns Manville, however, is now bankrupt and its asbestos trust is paying pennies on the dollar on all claims. As a result of the jury's verdict, the Verrets are unlikely to recover any compensation for their injuries, but under S. 2290 they stand to recover $1 million each in compensation.

Now, look at these Texas mesothelioma victims, Paul and Suzanne Verret. Under the current tort system, as shown on the chart on the left, victims hire lawyers and sue defendants. After years of trial processes and delays, victims are unable to prove causation. They use trial lawyers and collect zero. But under this bill, S. 2290, with the trust fund-if enacted-each of these people will collect $1 million in compensation.

By the way, unless they are lucky enough to get a lawyer who is going to forum shop for them into a jurisdiction where the judges are basically in the pockets of the plaintiffs' lawyers, the personal injury lawyers, they might get something that way, but there are going to be very few who get that, and most of those people are not going to be ill. They are not going to have suffered and not going to be able to prove their case in other courts of law in the country. It is pathetic.

Naturally, there are some great lawyers who do what is right here. I do not mean to find fault with them. I find fault with these phonies who use forum shopping jurisdictions and really what I consider to be corrupt judges and, in many cases, corrupt juries, to obtain humongous verdicts for people who are not even sick, taking the moneys away from those who are sick, which this bill would solve.

In the coming days, we will be engaged in a historic debate regarding the asbestos litigation crisis facing this country. The outcome of this debate will have very real consequences on the victims of asbestos and their families. These victims are counting on us, their elected Senators, to do the right thing and address the problems in our tort system that is badly broken by asbestos litigation.

I have to say, when you folks out there see these phony ads about how this bill is bad and the tort system is good, those ads are paid for by these attorneys who have already taken $20 billion in fees away from victims, and will take another $40 billion more, for a total of $60 billion, out of their pockets. It is easy to see why they do not want this bill. It is a gravy train they do not want to stop.

They certainly don't want it to be stopped by this bill, which is where the gravy train would end for lawyers and recoveries that are worthy will begin for victims.

Let me say, although the stakes in this debate are high, the risk of not acting or allowing a broken system to remain broken is even more consequential. We at the very least owe it to people such as Mary Lou Kenner and Ronald Huber to make this bill the pending business of the Senate. We really need to do that.

Let me tell you one more story about the impact of the current asbestos system on American business. The reach of the personal injury lawyers-I am talking about the dishonest ones-and their web of abusive litigation practices appears to have no limit. At last count these personal injury lawyers have cast their asbestos net to include some 8,400 defendant companies representing virtually every industrial sector of the U.S. economy.

Approximately 70 companies, 35 since the year 2000 alone, have now been driven into bankruptcy as a result of asbestos litigation. Disturbingly, most of these companies that now find themselves named as defendants in asbestos cases had little or nothing to do with the manufacture, sale, or distribution of asbestos or asbestos-containing products. Under the "deep pocket" theory of law now commonly subscribed to by many personal injury lawyers, liability is not based on culpability; instead, it is based on the nearest available pot of money.

What is more, an estimated 90 percent of the claims now being filed are on behalf of persons with no discernable illness, many of whom were recruited by for-profit, mass- screening operations being sponsored by enterprising trial lawyers.

I would like to talk about a company that has facilities in my home State of Utah. Philadelphia-based Crown Cork & Seal is representative of all too many of the businesses that have found themselves targeted by the personal injury lawyers over asbestos.

In 1963, Crown Cork & Seal, a consumer products packager in the can and bottle cap business, purchased, for $7 million, the stock of Mundet Cork Company, a New Jersey-based firm that made cork-lined bottle caps and insulation that contained asbestos. Because Crown was only interested in the bottle-cap business, Mundet sold its insulation division approximately 90 days after the purchase of its stock by Crown. Thereafter, Mundet, consisting only of its bottle cap business, was merged into Crown.

Crown never operated Mundet's insulation business, nor had it ever intended to operate its insulation business. Crown was only interested in acquiring Mundet's bottle-cap assets; no Mundet insulation managers ever worked for Crown, and no Mundet stockholders ever had any ownership interest in Crown.

The trial lawyers have made Crown Cork & Seal pay dearly for the 90 days it owned the insulation division of Mundet. To date, Crown has had to pay out over $400 million in asbestos claims. To give this some context, that is over 57 times what Crown paid for Mundet in 1963. In fiscal year 2003 alone, Crown paid over $200 million in asbestos-related costs, of which only $25 million-or 12.5 percent-went to real victims of asbestos-related diseases, and that is what is going on.

It is a rip-off. That is what is going on. That is what our colleagues are arguing for. It is a rip-off. Why? Some say it is because these personal injury lawyers are going to put up $50 million or $100 million for their nominee for President. I hope that is not true, but it is all too evident that that probably is.

Here are these victims who should not have been able to sue Crown Cork & Seal to begin with. Crown Cork paid over $200 million in asbestos-related costs last year alone, and the victims got $25 million out of $200-plus million or 12.5 percent. All the rest went to lawyers, claimants who were not ill, and other costs.

Look at this Crown Cork & Seal chart. What is wrong with asbestos litigation? Crown Cork & Seal: $25 million out of $200 million total. Of the more than $200 million paid by Crown Cork & Seal in 2003, actually only $25 million went to individuals impaired with asbestos-related illnesses. Where did the $175 million go? It is a rip-off. That is what is happening.

This bill will stop that. It is an expensive bill for the companies involved. They are going to have to pay for 27 years and pay through the nose. Many of them are in the same position as Crown Cork. They should never have had to pay a dime to begin with. The story of Crown Cork & Seal is just one of thousands of examples why we cannot put off fixing this problem any longer. Our current system is one that does not serve businesses and their employees whose livelihoods depend on them. Our current system surely has not served the victims of asbestos.

I urge my colleagues to join me in supporting the FAIR Act, to vote for cloture so that we can stop this obstructionist filibuster being led by some of my Democratic colleagues. Think about it. They are filibustering a motion to proceed to this bill so we can debate the bill itself, filibustering it so we cannot add amendments to the bill. If they have good amendments, bring them up. We will listen to them and hopefully pass them, if they are good. If they are not, they might get them passed anyway. The point is, let's at least allow the Senate to work its will. Let's not stop even a motion to proceed this bill.

I would like to respond to claims that were made earlier today that the Hatch-Frist-Miller bill is not fair to pending plaintiffs. This bill preempts and supersedes those claims pending in the tort system today, including verdicts that are still subject to appeal or judicial review. Preemption of such claims assures an end to a broken tort system that everyone agrees is slow, unwieldy, and fundamentally unfair to asbestos victims.

The opponents' solution to their concern that the FAIR Act is unfair for pending plaintiffs is to keep the tort system open for pending claims. These critics are asking Congress to perpetuate the very problem this bill is seeking to rectify; that is, a broken system that is failing victims by misallocating resources away from the truly sick, where such victims receive too little because so much is going to the unimpaired and to attorneys who take most of the money.

We all know the statistics. The vast majority of the claims being filed today, as high as 90 percent, are by individuals with little or no current functional impairment. Let me tell you how this translates into real money. Using the values cited by the minority views in the report of the Judiciary Committee on S. 1125 for unimpaired claimants, it is $40,000 to $125,000. Allowing pending claims to continue could direct anywhere from $10.8 billion to $33.8 billion or more to unimpaired claimants.

How many of these claims are based on mass screenings? It has been estimated that the abuse of mass screenings has resulted in $28.5 billion having been paid for meritless claims. That is almost $30 billion that has gone to people who don't really have claims. This completely undermines the consensus public policy decision to redirect these funds to those who are truly sick from asbestos exposure and the whole purpose of this asbestos legislation.

The bipartisan medical criteria argument forged in the Judiciary Committee recognizes unimpaired claimants should be monitored but should not be paid for illnesses they have not and may never develop. But we will pay for monitoring.

Opponents of the bill who seek to perpetuate the tort system would also preserve the exorbitant attorney's fees associated with such claims. As much as 40 to 50 percent of awards go to the personal injury plaintiffs' lawyers fees and costs. Indeed, while we debate the bill, personal injury attorneys likely will file a large number of claims in the tort system, most of which undoubtedly will be for unimpaired claimants which would be allowed to continue if these opponents have their way. The rest, probably another 10 percent, goes to the defendant attorneys who have to defend these companies, many of which should not have any liability at all.

There is no justification for allowing personal injury lawyers to continue to siphon significant resources out of the system when these resources could be dedicated to compensating those who are truly sick from asbestos exposure. The intent of the FAIR Act is to fix a system that everyone agrees is badly broken and in desperate need of repair.

John Hyatt, the counsel for the AFL-CIO who testified before the Judiciary Committee in 2002, described the tort system as having "high transaction costs, inequitable allocation of compensation among victims, delays in payment to victims, and a general climate of uncertainty that is damaging business far more than it is compensating victims." That is the counsel for the AFL-CIO. I have often heard Democratic colleagues make similar statements perpetuating the tort system, claims that undermine the bill, saying that would be better or more "fair" treatment than they would get under the FAIR Act. "Fair" has to be in quotes in that manner.

In fact, the Hatch-Frist-Miller bill provides relief to current pending claims. Any claimant who has filed a lawsuit in any State would be eligible for prompt compensation from the fund provided they meet the eligibility criteria set forth in the bill. These criteria are quite wrong. We should not treat plaintiffs in court as second class citizens. Cases filed in the tort system take years to process, and there is no guarantee that even with the trial date, a case will proceed. Cases in New York City given trial dates in 2002 have yet to go to trial. Even then, in most jurisdictions, cases that actually have been tried are often appealed, and years pass before the case is formally resolved. In the interim, plaintiffs are without relief, and money is being spent on lawyers, with no relief. There is no reason to leave this type of system in place. Moreover, the mere fact that a case is filed is no guarantee it will proceed. Claimants' cases proceed sometimes based on how many slots the trial has for your lawyer, where the cases were filed, what defendants are left, and other vagaries completely out of a claimant's control. That day will stop with the passage of this bill, which now provides expedited payments to anyone who can demonstrate a hardship, who has been diagnosed-anybody who can demonstrate a hardship or who has been diagnosed with mesothelioma or with another asbestos-related disease who has less than a year to live or can otherwise establish a circumstance requiring accelerated payment. The money is there now, when it is needed, and it can be paid out quickly to help these families. This bill also fixes the judicial system, unclogs the courts, allowing these judges to deal with other matters, not asbestos cases in the wings waiting for court time that is precious and, at this point, unavailable.

There is no need or benefit to leave these cases which have been clogging the courts pending in the courts. These cases are the very reason we are seeking to fix a broken system. There is no evidence the courts can or will handle them properly and not prejudice the litigants waiting their turn. Creating a two-track process is likewise unfair to victims and defendants. Despite all the rhetoric from opponents to the bill, when compared to what the current tort system will provide, legitimately ill claimants will fare much better under this FAIR Act.

We will have victims who get immediate relief through the fund, while those with litigation pending must wait and hope for a court date and then hope the company responsible is still solvent and can afford the cost. What will we say to them when we have left a system that we agree is broken, and they are sitting in court for years? Great care has been made to ensure that the compensation program would be processing and paying claims soon after the date of enactment. There are no assurances that plaintiffs would have claims resolved in the tort system within this same amount of time. Indeed, experienced staffs say they are likely to continue to sit in court even longer.

Furthermore, awards in the tort system are disparate and depend largely on where the claim was filed, what judge is presiding, rather than the severity of the illness. In other words, it is a phony system.

Professor Laurence Tribe described the system as resembling a lottery, noting: Some victims receive astronomical awards, while others receive little or nothing. Quite a few severely injured victims die before their cases could can be heard. Plaintiffs point to the larger awards in some cases and cannot be denied, so some have been able to win in this lottery system, or win the lottery. These awards, however, are the exception and reserved for the few claimants who can survive through a long and hard trial, as well as appeals, often taking many years to see any moneys at all. Then they will find that about 60 percent of the moneys are gone anyway.

The plaintiffs bar doesn't point to the majority of claims receiving significantly less money for more severe claims or even up to 40 percent taken out for attorneys' fees. As a stark example, a 2001 asbestos verdict awarded Mississippi plaintiffs $25 million each, where none of the plaintiffs claim prior medical expenses or absences from work due to any related illness with the case of a cancer victim who underwent a lung removal operation. This cancer victim grudgingly agreed to join a class action suit against an asbestos company. He never lived to see the outcome of the case, and after 7 months his estate was awarded a mere $3,000. The others didn't even have injuries.

Substantial judicial proceeds dating back to the early 20th century supports the constitutionality of Congress' authority to preempt tort claims when it believes it is in the public interest. It is clearly in the public interest, and especially in the interest of asbestos victims, that Congress used the full extent of its powers to preempt the current asbestos litigation system.

Finally, Mr. President, allowing personal injury lawyers and the unimpaired to continue to drain resources out of the system and away from those who deserve the resources would not only be unfair to the truly ill, it is likewise unfair to defendants who ask them to pay into a no-fault system, give up some of their insurance company, and still expose them to the litigation lottery. We cannot expect the defendants to bear the costs and risks if it fails the judicial process. This system will continue to take 60 percent of every dollar and waste it on lawyers' experts and administrative costs.

The Hatch-Frist-Miller bill will stop the litigation lottery in its tracks and instead replace it with a fair administrative process that treats all participants fairly and consistently.

I want to respond to a few statements made by my friend and colleague from South Dakota earlier this morning regarding S. 2290, the Fairness in Asbestos Injury Resolution Act of 2004.

Senator Daschle stated there was no reversion to the tort system. In fact, there is reversion to the tort system. It is one of the concessions we made. Should the fund become insolvent, then claimants with asbestos injuries who have not received compensation under the fund may pursue their claims in the courts. The statement that there is no reversion is simply wrong. I want to correct the record.

Senator Sarbanes stated that we "sprung" the bill on the Democratic Senators and their staffs. Senator Daschle called attention to the total fund value. For the record, Senator Daschle's staff was informed of the new numbers last October. That was 6 months ago. Since October, there have been repeated and continuing discussions of these numbers over the ensuing months. We repeatedly asked the Democrats for a response to the numbers. We have received absolutely none. We repeatedly asked the Democrats for a legislative proposal-some language, an outline, a concept of a structure, something, anything. We received nothing.

As Senator Daschle knows, this so-called new bill that we allegedly "sprung" on him includes the very numbers we released months ago, the changes demanded by the Democrats, and the changes demanded by the unions. We have had 8 months of serious negotiations. I don't think it is justified for anybody to say they have been kept out of the process, we have not tried to accommodate them about these matters.

Mr. President, I have one more comment that I would like to make to senator DASCHLE's statements this morning. He stated that a lung cancer victim with 15 years of exposure would receive only $25,000 in compensation. He painted an incomplete picture which I would like to finish. First, that figure is the bottom of the range of compensation. Under the claims values in FAIR Act, claimants who were exposed to asbestos and still smoking will receive between $25,000 to $75,000 in compensation. And for the record, Senators LEAHY and Kennedy have stated that they want $50,000 for claimants falling into this category. Mr. President, I have come here to discuss the FAIR Act. We have a chance to help those who have suffered from asbestos-related injuries for far too long. Many people have spent many months getting us to this point and I want to ensure that we have a complete picture of the bill for the record. We owe at least that much to those victims.
Mr. President, I yield the floor.