Oppose Senate Bill 1125Lakewood, NJ
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July 9, 2003 Dear Senate Judiciary Committee Members Following is a draft of a letter I submitted to Senator Hatch this afternoon via Fax after becoming aware of tomorrows meeting of the Senate Judiciary Committee to vote on S.1125, the Bill proposed by Senator Hatch know as the Fairness in Asbestos Injury Resolution Act. I felt compelled to submit this letter after learning of the harm that this Bill would have on those inflected with malignant mesothelioma, as well as on their families. This Bill is a cold and callous way to protect a series of industries that had knowingly exposed people to cancer causing asbestos. While I am in full favor of legislating a solution to eliminate frivolous law suits I am extremely disappointed to learn that this Bill attempts to legislate a solution to eliminate creditable law suits brought against companies that had knowingly exposed individuals to cancer causing asbestos, specifically law suits brought by those individuals inflicted with malignant mesothelioma. If this Bill were to advance any further as a result of tomorrows meeting one of the messages that would be sent is that the rights of a small suffering segment of the country's population mean little and it's OK for companies to knowingly expose individuals to cancer causing substances because the government of the United States of America will eventually shield them from liability. To legislate away someone's rights is appalling. The letter that follows explains my position in greater detail. Please don't let this Bill advance any further in order to protect the right of those inflicted with malignant mesothelioma. July 9, 2003
The Honorable Senator
Dear Senator 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 am an immediate family member of a malignant mesothelioma sufferer. The only known cause of malignant mesothelioma is asbestos exposure. My father suffers from this devastating disease. It is difficult to see him suffer, causing unimaginable hardship and strain to my mother and our entire family. The challenges and expenses my parents face coping with this disease are at times insurmountable. My father had decided, in the time he has remaining, to exercise his legal right to seek legal counsel and file a claim to compensate my mother in what was to be their retirement years together. Unfortunately, I am disheartened to learn that S. 1125, could take this legal right away from him. It s not bad enough that malignant mesothelioma will shortly take his life, but that our own government will strip him of his rights as well. I see first hand that malignant mesothelioma causes horrible pain and suffering. I have learned that many patients undergo radical surgery involving removal of a lung, the heart sac, and a portion of the diaphragm. The recovery period is long and painful, and the surgery is considered a success if the patient lives 18 months past the original diagnosis. Unfortunately, my father did not meet the criteria for this life extending procedure. Other treatments include radiation therapy and chemotherapy, which can cause extreme nausea, vomiting, hair loss, and weight loss. My father has received chemotherapy, however the side effects he has experienced are as devastating as the disease itself. I understand that 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. Senator Orrin Hatch and others 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. It is my opinion that a mechanism should be established to deal with these claimants and that malignant mesothelioma claimants should not be restricted by legislation. Since there are only 2000 3000 cases of malignant mesothelioma diagnosed nationally per year, I don t believe that this small number can lead to bankruptcies and that responsible parties should compensate these suffering victims. Malignant mesothelioma suffers rights should be preserved and not striped away by any legislative mechanism. 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. It is unimaginable to me that prior settlements would be counted against the $750,000 cap and that fiscally solvent companies would in effect be released from unpaid settlement agreements if a mesothelioma claimant has already reached the cap level. The Bill will reward corporate debtors who break their promises. The most troublesome provision is that S. 1125 immediately halts all asbestos litigation, including my father s case, and cases that are either 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 of 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. This doesn t even consider the physical and metal pain and anguish my father and other mesothelioma sufferers have experienced participating in case related activities such as meetings, consultations, depositions, video testimony, etc. I know that these activities have taken a toll on my dad, my mom, and our entire family. It is my understanding that S. 1125 would create 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. It is my understanding that 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. I perceive S. 1125 as a windfall for corporate wrongdoers. For example, in the past year it is my understanding that Halliburton agreed to settle all pending asbestos claims in a lump sum payment of about $4 billion. Under S. 1125, Halliburton s agreement would be voided. Instead of a $4 billion lump sum, Halliburton would pay into the Trust about $400 million over 27 years, which is only 8% of its debt. It is my understanding that 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 sum, 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 poisoned them. Please be assured that my family is motivated to fight S. 1125 with our 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." Considering the added hardship that this Bill presents to those suffering from malignant mesothelioma, it is my opinion that it is defective and must be scrapped. Please stand up for the rule of law and hold wrongdoers accountable and give my father his day in court. I anxiously await your response. Sincerely, Mark D. Thomasen
*** POSTED ON JULY 14, 2003 *** |