Oppose Senate Bill 1125 Rancho Mirage, CA

July 5, 2003

The Honorable Orrin G. Hatch, Chairman
Committee on the Judiciary
United States Senate
224 Dirksen Senate Office Building
Washington, DC 20510

Dear Senator Hatch,

I write to express my strong opposition to S. 1125, the so-called "Fairness in Asbestos Injury Resolution Act."

I oppose S. 1125 for many reasons.

First, you should know that I suffer from malignant mesothelioma. The only known cause of malignant mesothelioma is asbestos exposure. My exposure came while serving in the U.S.Navy. I have exercised my legal rights to seek redress, I have retained counsel, and I have complied with all applicable laws.

• I know first hand that malignant mesothelioma causes horrible pain and suffering. I underwent two major surgeries in the last 14 months. The recovery period is long and painful, and the surgery is considered a success if the patient lives 18 months past the original diagnosis. Other treatments included chemotherapy, which caused extreme nausea, vomiting, and weight loss. Despite the highest and best efforts, mesothelioma frequently recurs in the chest cavity or the peritoneum, the lining of the abdominal cavity. As the tumor grows, so does pressure against vital internal organs, such as the heart and liver. Such pressure commonly causes severe shortness of breath and excruciating pain. The direct cause of death is often mechanical pressure upon the internal organs; the patient is literally crushed to death.

• I understand that S. 1125 offers $750,000 as compensation for all losses suffered by the families of those suffering from mesothelioma. Proponents of S. 1125 cite bankruptcies by a number of asbestos manufacturers as justification for S. 1125.

• However, I understand that the bankruptcies were driven by claims filed on behalf of those with signs of asbestos exposure who were not seriously ill, the so-called unimpaired asbestos claimants. I believe that further bankruptcies could be curtailed by creating a registry for the unimpaired asbestos claimants which would preserve their right to file suit should they ever develop a serious illness. I understand that over a year ago Congress briefly considered, then inexplicably abandoned this reasonable compromise.

• In most instances, the jury system would compensate someone with mesothelioma many times more than $750,000 for his pain and suffering alone, before considering other claims such as for lost wages or loss of consortium by a wife or minor child. Because I believe an unimpaired registry would eliminate the need for S. 1125 by stemming the bankruptcy tide, I think it is unfair to eliminate the right to a jury trial for families suffering from this asbestos-related disease at such a low cost.

• The "one size fits all" approach of a $750,000 payment is unfair to those with substantial lost wage claims, and acutely unfair to those who will leave young, financially dependent children behind. All asbestos cancer victims are deserving. Yet a 45 year-old working father with three minor children who earns $50,000 per year will receive the same amount as an 85 year-old retired claimant with the same cancer.

• Prior settlements would be counted against the $750,000 cap. Fiscally solvent companies are in effect released from unpaid settlement agreements if a mesothelioma claimant has already reached the cap level. In my case, the bill will reward Union Carbide, Quigley, Uniroyal, and Garlock, all companies that signed settlement agreements with me but have not yet paid.

• S. 1125 immediately halts all asbestos litigation, including cases which are on the eve of trial or in trial. S. 1125 does so even in cases where mesothelioma claimants have spent tens or even hundreds of thousands in dollars in case expenses in preparing for trial, without making any provision (beyond the $750,000) to reimburse those expenses. This is a hidden cost which would be born by mesothelioma patients.

• Even where a jury has years ago awarded a verdict in favor of someone with mesothelioma, but the losing defendant has an appeal pending, the judgment is automatically reversed in favor of the defendant and the case dismissed. S. 1125 in effect punishes plaintiffs who prove and win their case and rewards the guilty who have filed frivolous appeals.

• S. 1125 creates a new federal bureaucracy, a federal asbestos "court" packed with politically appointed judges, no resort to the jury system, an extremely limited right of appeal, and no funding for attorneys to represent claimants. Under the current system, asbestos plaintiffs attorneys desperately try to avoid federal court, because many of the relative handful of cases there have not been resolved after ten years. Claims processing under a new federal bureaucracy with responsibility for all asbestos claims is not the answer. The bureaucracy's mandate will be to hold onto and grow their precious trust money. The bureaucracy will fight against our right to full compensation. The new federal bureaucracy will be funded by our tax dollars -- another windfall to the wealthy corporate wrongdoers.

• S. 1125 is inadequately funded. I understand that the Congressional Budget Office estimates that S. 1125 would require three or four times more money than presently proposed to sufficiently fund the trust under the agreed-upon medical criteria. With a cap of $5 billion on funding per year and about 300,000 pending claims, the trust will be underfunded and essentially bankrupt from the outset. Delay will be the rule, swift fairness the extreme exception.

• S. 1125 is a windfall for corporate wrongdoers. For example, in the past year Haliburton agreed to settle all pending asbestos claims in a lump sum payment of about $4 billion. Under S. 1125, Haliburton's agreement would be voided. Instead of a $4 billion lump sum, Haliburton would pay into the Trust about $400 million over 27 years, which is only 8% of its debt.

• The companies that are in bankruptcy now, such as United States Gypsum, Owens Corning, GAF, Federal Mogul, and WR Grace, who have agreed to pay most or all of their value to present and future asbestos claimants, will now pay only a fraction of their promise. For example, Armstrong has agreed to pay $1.9 billion net present value to its bankruptcy trust under its proposed reorganization plan. But under S. 1125, Armstrong's payments would be capped at around $600 million, just over a quarter of its obligation. Asbestos companies who file bankruptcy are allowed to sell product and earn profits while they reorganize. When an asbestos cancer patient dies, he or she cannot be revived.

• If passed, S. 1125 will give immunity to some of the biggest corporations in the world, such as General Motors, Ford and Dow/Union Carbide. How can it be "fair" for the largest and most powerful corporations to get a free pass on their debts while the men and women they made sick get the shaft? Last year the C.E.O. for Honeywell, which is liable for the asbestos debts of its brake unit Bendix, reported income of over $56 million.

In summary, S. 1125 takes away the right to a jury trial for mesothelioma patients who have been poisoned with asbestos, and bails out the companies who knowingly poisoned them. Please be assured that I am motivated to fight S. 1125 with my remaining strength and hope you will join me in that fight. I have followed the history and do not believe that S. 1125 can be "fixed." It is defective and must be scrapped. Please stand up for the rule of law and hold wrongdoers accountable.

I anxiously await your response.

Sincerely,

Ron Simkins

{ to read Ron Simkins' medical profile, please click here }

• Click here for more letters from asbestos cancer survivors taking action against inhumane asbestos trust/bail out bill (SB 1125)

• "Mesothelioma Takes Our Heroes: The Service-Connected Cancer Warrants Proportionate Federal Research Funding." CLICK HERE to review the MARF advocacy brochure.
  (NOTE: you will need to view the brochure [.pdf] using Adobe Acrobat)

*** POSTED ON JUNE 9, 2003 ***