Fairness in Asbestos Injury Resolution Act of 2005

FAIRNESS IN ASBESTOS INJURY RESOLUTION ACT OF 2005

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Mr. DURBIN. I would like to commend the Senator from Utah. He and I come from different parts of the political spectrum, and his life experience in business and otherwise is quite different from my own life experience. But I will tell you that I agree completely with your analysis. I think you have carefully looked at the impact of this pending bill on real-life companies, real-world companies, and there are clearly winners--and big winners--and losers--and big losers--in the course of creating this trust fund.

Without assigning any motive as to why some companies do so well and others do so poorly, I think what you have suggested as an alternative is the sensible middle ground. And the sensible middle ground, which I think will soon be offered by the Senator from Texas, is to look at successful efforts in States that have changed the whole environment on asbestos litigation.

I am looking to this amendment. I want to read it carefully before making any commitment on my part, but this seems to me to be the right move to make, to capitalize on the State efforts before we create a trust fund.

I would like to ask the Senator if he has any knowledge or personal experience with the creation of other trust funds in the past in an effort to solve problems like black lung, and even in the trust funds that were created by companies like Johns Manville, and whether the initial estimates of cost turned out to be accurate in the long run.

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Mr. DURBIN. Mr. President, I thank the Senator for bringing this important amendment to debate. I will ask him a question or two about his amendment.

I think the Senator is on the right track in noting that several States have made significant progress in dealing with the asbestos litigation. In some States, there has been an agreement between what are usually warring and opposing parties as to how the system can be improved. I wish to ask the Senator from Texas whether the approach he has suggested to the Senate today would preempt existing State laws and standards in this area?

Mr. CORNYN. I thank the Senator for his question. It is an important one. Our intention would not be to preempt local State laws but, rather, to create a national forum, in a way that would provide uniformity and would avoid the migration of claims from those States that have reform to those that do not, thus continuing the status quo.

Mr. DURBIN. One of the more controversial parts of the amendment relates to joint and several liability, which those of us who have practiced law know a little more about than those who have not. If a State already has joint and several liability in these cases, would your amendment preempt that State's joint and several liability standard?

Mr. CORNYN. Mr. President, I appreciate the question. This amendment calls for several liability, not joint liability. The Senator raises a good question and, frankly, one I want to make sure I do a little research on and confer with him, perhaps, so I can give him a more definitive answer.

Mr. DURBIN. Mr. President, I thank the Senator for allowing me to ask a question. I thank him also for offering the amendment. It is a valuable part of the debate. Parenthetically, I concur completely with the Senator from Texas in the fact that many States are doing very positive things to deal with this issue, and I think it would be wise for us to look to their leadership in some of these areas. Secondly, I think he feels as I do, that the underlying trust fund has some fundamental flaws.

I yield the floor.

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Mr. DURBIN. Mr. President, I thank the Senator from Pennsylvania, and I say with genuineness that I respect him more often than not. I go beyond ``sometimes'' which he said of me, and say I respect him more often than not. I respect his great work on this issue. This is not easy.

What the Senator is trying to do is nothing short of revolutionary. He wants to close down the court system of America for hundreds of thousands of individuals who otherwise would go to court, to a judge or a jury, and ask for fair compensation for their injuries.

The Senator from Pennsylvania has decided that system is wrong or inadequate or broken and has suggested that we are going to do away with the court system in America for these victims and create a brand new system.

That is a daunting task. I am not sure, given the 2 or 3 years that the Senator has put into it, that I could even come up with a suggestion that I would have confidence would work.

This is what we know about the trust fund and the system we are being asked to vote for in the Senate.

First, the cost of this is being estimated over a period of 50 years. Over 50 years, what are we likely to pay to those Americans who have been injured and died from asbestos exposure? If you will follow some of the best prophets and predictors in Washington, you will find them woefully inadequate to predict what is going to happen next year, let alone in 50 years.

So I have challenged the Senator from Pennsylvania and those in his corner, including my friend, the Senator from Vermont, Mr. Leahy, to tell me where you came up with the figure of $140 billion. The response we have been given is: Why, that is what Senators have been talking about for a long time, $140 billion.

I think that falls short of the kind of certitude that we should have before we close down the court system of America to hundreds of thousands of injured people and their families.

The second question I asked yesterday, which we again explored today, is; Who is going to pay for this? Who is going to provide the $140 billion, if it is not the taxpayers, to pay the people who were injured?

I am afraid today the Senator from Pennsylvania continues along the same line of reasoning. Someone--an undisclosed company--which he has promised he will now tell me, some undisclosed private entity decided which businesses in America would pay into this trust fund and how much they would pay.

A curious thing: I don't know who contacted this private group to create this information. It is certainly essential to this concept of a trust fund. But the group that created the information was so loathe to share it with the Congress which is considering this bill that the chairman of the committee had to subpoena the information from the company that created it for his bill which we are now considering.

It is a strange process. On the one side, the chairman of the committee would rely on this private company to determine who will pay into the trust fund and how much they will pay, and then having relied on them to write this bill to close down our court system for millions of Americans exposed to asbestos, he couldn't get the information from them unless he sent them a subpoena demanding it under his power of the Judiciary Committee. At some moment in time, they produced it. Then when it came in, this information, essential to know whether this trust fund will work, it turns out it was marked ``committee confidential.''

I have been around the Senate for a few years. I was on the Intelligence Committee. I know when things are marked classified and top secret and confidential, it is clear that they are secret. They are not to be shared with the public. But what is it about this bill and who is going to pay into it that is so classified and so confidential and so secret that the American people have no right to know? That is the question I asked yesterday. Because if we are going to say to millions of Americans and their families: Give up your day in court, what has been your constitutional and legal right for the 200-plus years America has been in existence; give it up, trust us, we will create a trust fund that is going to be more fair and more generous, shouldn't we share with the American people the basic information that was used to create this alternative to a day in court?

No. The chairman comes before us today and tells us he thinks it is illegal, it may be illegal, it may even violate Senate rules to share this information.

I struggle with it because I think this gets to the heart of the matter. If we cannot justify the cost of this trust fund over 50 years, if we cannot say to the American people: ``Here is how it will be paid for,'' then I am afraid we are asking too much. We are asking them to walk away from their American-given right for redress in our courts for a trust fund that cannot be explained, a trust fund that was created by some private company that did not even want to share the information that led to its creation. That is not a confidence builder.

Despite my admiration for the chairman of the committee--and it is truly something I would say on this floor without reservation. He is a man I respect very much, in a variety of ways, for his service in the Senate. Despite that, this bill should not be passed. This bill, which will literally change the system of justice in America, should not be passed on such a flimsy foundation.

A moment ago, the Senator from New Hampshire, the chairman of the Budget Committee, came to the floor and made an interesting statement. He said he will rely on the Congressional Budget Office to determine whether this trust fund will work. But if the Congressional Budget Office comes back and says: We don't know, we can't tell you--maybe it will and maybe it will not--I think I heard the Senator from New Hampshire say that is good enough. If they say it will not work, OK. But if they are not sure, that is good enough.

Is it good enough? Is it good enough for the millions of Americans who are counting on us not to take away their rights as American citizens to go to court when a wage earner and his or her family have been exposed to asbestos, unwillingly, unknowingly exposed and now cannot breathe and has a limited amount of time left on this Earth and believes that the company that sold the asbestos product should be held responsible and accountable--is it good enough for us to say: No, we are not going to let you go to court any longer?

Is it fair for us to say to the housewife who--and this is a real case; I am not making this up--who literally had a husband who worked in the asbestos industry, brought home his work clothes, piled them up in the laundry room, and before she stuck them in the washer she shook his clothes, not knowing that she was breathing in asbestos fibers, and she contracted mesothelioma, the deadly lung disease from asbestos, simply by being exposed that much--is it wrong for us to say she should not hold a company such as W.R. Grace and Company responsible for the fact that for more than 70 years they refused to disclose the danger of this asbestos fiber to their workers and people who used their products?

I know how I feel about it. All we are asking is that that family have a chance to argue their point of view in a court and let a jury of that woman's neighbors and peers decide what is fair and what is just. That is what is at issue here; to close the courthouse door to her and her family and say, no, you can no longer go before the courts of America, the courts of your State, you have to go to a trust fund, a trust fund that may get around to considering your claim, may end up paying your claim--all of these possibilities.

I am also troubled by the fact that when you take a hard look at this trust fund of $140 billion over 50 years, you realize what is going to happen as soon as this bill passes. Should it pass, there will be a rush of people filing under the trust fund, asbestos victims. Why? Because the instant this bill is signed into law, anyone who has a claim pending in American courts is stopped. They cannot move forward. They cannot take their case any further. If they are not arguing their case in trial before a jury or a judge, they are finished; closed down and stopped. They could have the trial scheduled that they have been working for years to start next week, and they are finished the day this bill is signed.

What will they do--all that work, all that preparation, gathering all the medical records? They will start over. Sick people, dying people in America will start over, filing the paperwork for the new system. We expect a lot of them, if this bill passes, to rush in and say: Pay us, for goodness sakes. We have been working at this for years. Why wouldn't they do that?

As they do, they will swamp the system. This trust fund is not designed to collect all this money from all these corporations and insurance companies in a hurry. It collects it over a 30-year period of time. So at the outset, if the trust fund is going to actually pay the victims, they have to borrow money to do it.

We have had some calculations that if they borrow the money to pay the claims in a timely fashion, more than a third of the $140 billion trust fund will be spent on interest payments for borrowed money--more than a third: $52 billion will be spent over the life of this trust fund.

When the Senator from Pennsylvania addressed this issue the other day, he was brutally frank and candid. What would we do if we ran out of money? What would happen if $140 billion did not compensate all the asbestos victims we know are out there? I have to say over the course of the history of asbestos that we have underestimated the potential claimants time and time again. What happens if $140 billion does not work? The Senator from Pennsylvania came to the floor and said: We will adjust the payments to the victims; the medical criteria for eligibility. In layman's language, we will cut the victims' compensation.

When the Senator comes to the floor and suggests that an alternative from the Senator from Texas will leave some people in the lurch, it may not be as inclusive as the underlying bill, I hope he will recall his own words on the floor when he said if $140 billion is not enough, those same victims will be shortchanged and will receive less.

I am going to close at this moment and say, as I said at the outset, the Senator from Pennsylvania accepted a Herculean assignment to try to replace the court system in America. If you are going to do that for hundreds of thousands and maybe millions of Americans, it is a task that many Senators would never accept. I salute him for trying. But I say in all honesty that, as we stand here today, this will not work. This trust fund will fail.

It will not be the first time a legislative effort will fail. Many of our efforts do. We try our best, but we are human. Men and women try to create laws that will make America better. Sometimes they do and sometimes they don't. The Medicare prescription drug plan, Part D, is a good indication of something that doesn't work. It was passed 2 years ago by this Senate and the House, was signed by the President--2 years to get ready to get 40 million Medicare recipients into prescription drug coverage, which we all support, and we created a system which has been nothing short of a disaster, an unsalvageable fiasco. So our best efforts will leave some poor senior citizens without the drugs they need and many others completely confused and perplexed by this bureaucratic mess we created called the Medicare prescription drug plan, Part D.

I think we will learn our lesson quickly, and I hope we change that law. But think about this law. What if we get this law wrong? What if we say to thousands of American families with someone deathly ill in their home: You are finished in court. Walk away from all of your efforts for compensation. Trust us that we will create a new system that will be as just and even more fair than the court system in America.

If we are wrong on that one, if we make a mistake on that one, the human suffering and misery that will result goes far beyond what we have seen on the Medicare prescription drug plan, Part D.

I don't think it is worth the risk. I think we ought to look at this in more modest terms and honest terms and realize that a trust fund whose total amount we cannot justify, from sources that are still on a secret list that cannot be seen by the American public, is not the best way to go.

I yield the floor.

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Mr. DURBIN. Through the Chair, I wish to ask the Senator if he would agree with the following: If we can't say beyond a reasonable doubt or great certainty, if we reach the point where $140 billion is inadequate, and it cannot compensate as we called for in this bill, is it not true at that point there are only three options? One option is to go back to the businesses that contributed to the trust fund and ask for more; the second is for the Government to assume the liability; and the third is to reduce the payments to the victims as called for in the existing legislation.

Is there another option I am missing?

Mr. SPECTER. Mr. President, the answer to the first question is no. The answer to the second question is yes. OK?

Mr. DURBIN. Would the senator be kind enough to give me a few more words? I know he has a lot.

Mr. SPECTER. I do not know if it is possible for this Senator to give a few words. I will try.

The answer is no, those are not the only options. The answer is yes, there is another option. The ``yes'' answer is to go back to the tort system. Senator Biden offered that amendment in July of 2003. I am on it because it seemed to me that claimants should not bear the risk of the failure of the trust fund, and in this bill you go back to the tort system. So the claimants are no worse off than they are now.

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