Fairness in Asbestos Injury Resolution Act of 2005--Motion to Proceed--Continued

FAIRNESS IN ASBESTOS INJURY RESOLUTION ACT OF 2005--MOTION TO PROCEED--Continued

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Mr. DeWINE. Mr. President, I come to the Chamber this afternoon to support the asbestos reform bill, S. 852. This bill is simply about helping victims. It is about doing the right thing for extremely sick individuals. It is about doing the right thing for very sick people by compensating them quickly and fairly.

As we know, this bill addresses the asbestos litigation crisis by removing most cases from the court system and paying claims from a national trust fund, using money contributed by company defendants and insurance companies.

Let me say up front that removing cases from our court system is not something we should ever do lightly. Our civil justice system usually works well. Our State and Federal courts are a vital part of our system of government. That is where cases should normally be. Our court system, as a rule, ensures a level of fairness and justice for our citizens that is second to none, and I don't like removing cases from that system.

But our justice system is not perfect. Unfortunately, we all know that our justice system, in this case, has failed to deal with the asbestos crisis. The system is not adequately protecting the rights of victims, nor is it adequately protecting the rights of defendants. In fact, the system has been overwhelmed by asbestos litigation.

The numbers tell the story. The sheer volume of claims is staggering. More than 750,000 individuals have made claims for asbestos exposure, and approximately 300,000 of those claims are still pending. The most recent Rand study estimates that anywhere between 2.5 million and 3.3 million individuals could make claims in the future.

Part of the problem is the unusual nature of the illnesses caused by exposure to asbestos. Specifically, there is a long latency period between exposure to asbestos and the actual illness or impairment. In other words, people can be exposed to asbestos for long periods of time but usually don't show symptoms of illness for 25 or 30 years. Not everybody exposed to asbestos gets sick, but our tort system requires a potential victim to file a claim for injury within a year or two of discovering the potential harm. So a vast majority of people who are filing claims are not actually sick at that time, and many may not ever get sick, but to protect their legal rights, they file suit.

This enormous volume of lawsuits--again, many from people who are not ill at that time--crowds court dockets, slows the decisionmaking on claims from those who are sick, and imposes huge costs on defendants. As more and more defendants are pushed toward bankruptcy, actual payments to victims are diminished.

Perversely, the process creates a greater incentive to sue immediately because someone who has been exposed to asbestos--even if he or she has no symptoms--may decide to sue now or take the risk that nobody will be left to pay a claim down the road. This increases the problem, and the cycle of excessive litigation and decreasing payments to victims continues.

As a result, justice is not being served. Many victims wind up with no one to sue and receive pennies on the dollar for their claims from asbestos bankruptcy trusts. That is not right. That is not just. That is not fair to these victims. We have to do something about that. On the other extreme, a few victims receive huge awards or settlements that are, frankly, sometimes out of proportion to their injuries.

The bottom line is that very few people are compensated fairly, and more and more victims face a risk of never being compensated at all for asbestos-related illnesses. It is our responsibility in the Senate to deal with this crisis. We simply must not wait any longer to act. We must take steps to help the victims of asbestos exposure, and the bill we have in front of us today does just that.

There is another critical problem we have to address with regard to asbestos, and that is the issue of jobs. Not only is the current mass of litigation hurting victims, but it is also causing tremendous problems for the business community and, subsequently, of course, for the creation and retention of jobs, which hurts workers. As more and more businesses are drawn into this endless cycle of litigation, more and more money is being spent on legal fees. These costs, and the uncertainty that engulfs these businesses, make it harder to invest in improving their companies and creating new jobs. In fact, asbestos liability is actually bankrupting many potential defendants. It has gotten to the point where claims are now being brought against businesses that have a very remote connection with the manufacture of asbestos. So the impact of asbestos claims today is simply overwhelming--not just to some of our Nation's largest companies but to our small businesses as well.

This is not just some abstract or academic problem. When businesses are harmed, workers are harmed, too. Tens of thousands of workers--real people employed by these businesses--are today being affected. Many employees and their families--people who never had any exposure to asbestos at all--are feeling the effects in lost wages, lost jobs, and diminished pensions.

The impact in my home State of Ohio is particularly severe. Ohio is one of the top States in which asbestos litigants choose to file their suits. In fact, literally thousands of companies have been named as defendants in Ohio courts. Out of the more than 8,000 firms that have been named as defendants nationwide, over 7,000 of these businesses have been named in cases filed in Ohio. Of the almost 80 companies that have filed bankruptcy because of asbestos-related liability, more than 20 of those companies are headquartered or have significant facilities in the State of Ohio.

Let me be clear: I believe companies should be held accountable for their conduct. That is a basic principle of American jurisprudence. But most of the companies that manufacture asbestos are today now bankrupt. The legal system already has decided their liability, and they are paying their liability through asbestos trusts.

I am concerned, however, about the many companies that now find themselves held responsible for the actions of other companies. These companies have little to do with asbestos production or use, but they employ thousands of people who contribute to our economy and to our tax base. No one, including the victims of asbestos, is helped when these companies are punished.

I believe it is clear, bluntly, that we have a legal disaster--yes, a disaster--on our hands. The court system is clogged with claims by people who are not ill and may never get ill, and victims who are ill must wait a long time for sometimes very little compensation. Employers are at risk even when they have had little to do with asbestos, and their current employees and retired workers as well are paying the price.

Anyone who looks at this honestly has to conclude that the current system does not work for anyone involved. In fact, the Supreme Court on three separate occasions has called for a national solution, has called on Congress to take a look at this issue.

We have to do something about this crisis. We need to protect the rights of victims, and we need to provide business--the group of businesses which will provide compensation to those victims--with some way to predict how much this crisis will cost so they can plan for it and figure out a way to stay in business while they pay for it. The FAIR Act--this bill--provides that needed protection to victims and provides that needed predictability to businesses so they can continue to provide for their employees and retirees.

We know, of course, that no bill is perfect. This bill is not perfect. Many people believe it must be amended. As a matter of fact, I have heard from a number of Ohio companies that they are not happy about some of the provisions in this bill. Not surprisingly, some think the bill goes too far and some think it doesn't go far enough. We have spent a great deal of time discussing and modifying this bill over the years. I believe it has improved the process. During this whole process, I think we have simply improved it as a result of the work that has been conducted in the Judiciary Committee.

As we debate this bill in the Senate, I plan to work with Chairman Specter and many others to make some additional refinements to the bill. It truly is a work in progress. But the bottom line is that we must move forward and we must move forward now. The status quo is simply not acceptable. It is not fair to the victims, and it is not fair to the companies.

We all know this bill is not perfect and, in fact, this issue is so complicated that no bill could ever be perfect. But the bill we have before us is far better than the current situation. We must move forward.

I would like to conclude my remarks with a story that illustrates why we need to vote for this legislation. A fellow Ohioan came to my office recently and explained that he is very ill from asbestos exposure. He has retained a lawyer and has a trial date scheduled. He was worried that this bill would remove his ability to sue without giving him enough compensation to take care of his family and provide for their future and not give him the compensation he deserves.

After discussing the details of his case and explaining how the FAIR Act would apply to him, it was clear that the bill, if enacted, would likely provide him with more money much more quickly than he likely will get if he pursues his claim in court, although, of course, litigation is notoriously difficult to predict. Even though this Ohioan still has a difficult road to walk in dealing with his illness, he is now reassured that this bill, if it becomes law, will provide his family with hope for the future and provide him with some just compensation.

Nothing can ever be fair. Nothing can ever provide a victim with what would be considered just, but I think he was assured and felt better after my staff was able to discuss this bill with him, and the details of it.

As I have said, this bill is not perfect, but it will help the victims of this asbestos crisis. It will help the real people most at risk, and it will help save countless jobs. That is why I am supporting it. It simply is the right thing to do.

I thank the Chair. I yield the floor.

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