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July 30, 2003
VIA FAXCIMILE TRANSMISSION (202) 228 - 2197
The Honorable Senator Corzine
United States Senate
502 Hart Senate Office Building
Washington, D.C. 20510
RE: Strong Opposition to S. 1125, the so-called
Fairness in Asbestos Injury Resolution Act
Dear Senator Corzine:
Please take a moment out of your busy schedule to read this letter
describing a little know American tragedy. The tragedy is known to
a relatively small number of Americans who have had the misfortune
of being exposed, or have had a close friend or family member who
has been exposed, to Asbestos during their lifetime. Little
know in the sense that most Americans aren't aware of the
whole story behind this tragedy, and tragic because each
year thousands of Americans die a horrific death due to their
exposure to this deadly substance, in most cases 20, 30 or even 40
years after their exposure. It is no surprise that those affected
by asbestos, as well as their families and friends, find the
pending Bill Senator Orrin Hatch is forcing on the American people
without a through and comprehensive analysis to be tragic as well.
The Bill is known as S.1125, the Fairness in Asbestos Injury
Resolution Act. This letter is respectfully submitted to voice my
strong opposition to S.1125, to provide you with some useful
information on the topic, and ask your help in defeating this Bill
in its current form.
This tragic issue is extremely important to me on a number of
levels*:
* On a personal level since I am an immediate family
member of a malignant mesothelioma sufferer. Malignant mesothelioma
is an insidious and fatal cancer that affects the lining of the
chest cavity (pleural) and / or abdomen (peritoneum). The only
known cause of malignant mesothelioma is asbestos exposure. My
father was diagnosed with advanced pleural malignant mesothelioma
on October 16, 2002. I see first hand the horrible pain and
suffering experienced by my father, causing unimaginable hardship
and strain on my mother and entire family as well. My father
courageously receives chemotherapy, however the side effects he
experiences are as devastating as the disease itself. It is
unfortunate that current chemotherapy agents are relatively
ineffective on this type of cancer in which the tumor grows as a
sheet, rapidly enveloping the lungs and internal organs making it
almost impossible for my father to breath or swallow.
Mesothelioma is considered by cancer professionals as an orphan
disease due to the small number of cases diagnosed in the United
States (only about 2,000 - 3,000 new cases diagnosed annually).
This results in a lack of understanding or interest in the disease
by the general public, a lack of uniform standards for care and
treatment, a lack of visibility for research funding opportunities,
and a prevailing sense of nihilism by the majority of the medical
community. Interesting, Senator Hatch's bill does little to
HELP the cause of this disease, or Americans inflicted with it. For
example, the Bill contains no funding provisions to fund research
to eradicate mesothelioma. Such a provision is just one of a number
of components that are missing from the Bill. If the objective of
the Bill is to be comprehensive then it must include such a
provision.
* Tragic on a human level since my father, and others
inflicted with this insidious, debilitating, painful disease,
didn't have to face this fate had the asbestos industry
disclosed the dangers of Asbestos back in the early 1900s when
first identified rather then covering them up, taking advantage of
the 30 - 40 year latency period from the time of exposure to the
time the effects of the exposure are experienced. It is well
documented that by the 1920's, and well established by the
1930's, that asbestos exposure caused disease. Lung cancer
resulting from asbestos dust inhalation had been well established
by 1949. In fact, Mesothelioma has been reported in medical
literature since the late 1940s. In 1955, a major human
epidemiology study concluded that asbestos inhalation caused lung
cancer in humans, confirming reports from the 1940's and
earlier. Additionally, documents from the early 1900's through
the 1970's has shown that the asbestos industry had known or
clearly should have known that inhaling asbestos dust could cause
incurable disease, yet did nothing to protect people from this
dangerous material. In fact, the industry made a clear and
conscious decision not to disclose the dangers since the health
effects weren't experienced until 20, 30 or over 40 years after
the exposure. Knowing this, for the United States Government to
protect an industry that employed this behavior, in my opinion, is
as criminal as the act itself. Even the cigarette industry had a
greater moral conscious by labeling their products back as early as
the 1960s and 1970s. To date the asbestos industry still has not
made a far-reaching attempt to label their products and people
continue to be exposed.
* Tragic on a national level since Senator Hatch's
so-called Fairness in Asbestos Injury Resolution Act has been
shoved through the Senate Judiciary Committee and is likely to go
to the floor of the full senate sometime in September. I believe
Senator Hatch is, as the asbestos industry has done all along,
attempting to deceive the American people as demonstrated by his
determination and ability to speed this Bill through the Senate
Judiciary Committee to the Senate floor without a through and
comprehensive analysis to ensure that the Bill is fair to the
entire population of the United States, including those inflicted
with asbestos injuries. Senator Hatch seems to be more concerned
about protecting the industries that inflicted the injuries rather
then those suffering with them. I strongly question Senator
Hatch's rush to get the Bill out of the Senate Judiciary
Committee without a through and comprehensive analysis and with so
much opposition swirling around the issue. For example, a few flaws
in the Bill that must be investigated and resolved before the Bill
is even considered by the full Senate are:
- Senator 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 and other asbestos
cancer claimants should not be restricted by legislation. Since
there are only 2,000 to 3,000 cases of malignant mesothelioma
diagnosed nationally per year, I don't believe that this small
number can lead to bankruptcies and that the responsible parties
should compensate these suffering victims. Malignant mesothelioma
sufferers rights should be preserved and not striped away by any
legislative mechanism. Senator Patrick Leahy has even said, "I
still feel that victims are giving up too much to guarantee
finality to those who are responsible for the diseases they
inherit." 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.
- It is unimaginable to me that if the Bill were to pass in its
current form prior settlements not yet paid would be counted
against the cap, and fiscally solvent companies would in effect be
released from unpaid settlement agreements, if a mesothelioma
claimant has already reached the cap level. The Bill seems to
reward corporate debtors who break their promises.
- Another troublesome provision is that S. 1125 would immediately
halt all asbestos litigation including cases that are either in
trial or on the eve of trial. Considering this provision it is
inevitable that while the Bill is pending, asbestos defendants will
impose delay tactics in hope of delaying a trial date or settlement
pay out until the Bill is passed. This provision would be
devastating to my parents since my father had decided, in the time
he has remaining, to exercise his legal right to retain legal
counsel and file a claim to compensate my mother in what was to be
their retirement years together. I am disheartened to know that
"in an instant" S. 1125 could take this legal right away
from him, even if his case is at the courtroom door. 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 $1,000,000) to
reimburse those expenses. This is a hidden cost which would be born
by mesothelioma victims. It's not bad enough that malignant
mesothelioma will shortly take my fathers' life, but that our
own government will strip him of his rights as well, then require
him to pay his attorney fees and expenses out of a trust settlement
that may not be received for years after his death. This heartless
provision of the act 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. to
advance their cases. 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, and an
extremely limited right of appeal. The new federal bureaucracy will
likely need supplemental funding by our tax dollars to meet the
projected obligation (another windfall to the wealthy corporate
wrongdoers) particularly since S. 1125 is reported to be
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 under-funded and essentially bankrupt from the outset. Delay
will be the rule, swift fairness the extreme exception.
To understand how fragile and dangerous an asbestos trust would
be to those inflicted with asbestos injuries you need to look no
further then the failed Johns-Manville Personal Injury Trust
right here in our own state. As a result of a series of
miscalculations during its inception, the trust ultimately ended
up paying out only five cents on the dollar. Interestingly, the
trustees of an existing asbestos trust has complained about the
Bill and asked not to be a part of the new trust to be set up.
Others have written to senators warning that litigation against
the bill "will likely take years to resolve". A letter
from the AFL-CIO expressed concern that there would not be enough
money available at the start of the fund to pay an early rush of
claims from asbestos victims who are already in court. "If
there is a drain on the fund's finances, it will most likely
occur in the first few years, when a disproportionately large
number of claims are anticipated to be filed." This would
ultimately result in lengthy delays in getting funds to the most
needy, mesothelioma sufferers and their families. Others have
predicted the proposed fund would delay compensation for victims
already scheduled to receive money under settlements and could
take eight years for the estimated 300,000 victims who file
claims in the first year to get any money. Still others have
commented that while the Hatch bill seeks $5 billion in
contributions to the fund in the first year, it is estimated that
about 300,000 asbestos claims now in court would cost $20
billion, "So the money is not there". These
deficiencies with trust funding were identified and obviously
ignored by member of the Senate Judiciary Committee. Someone
obviously needs to take a long, hard look at the math and funding
mechanism before the Bill is given any serious consideration on
the Senate floor.
- 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, I understand that
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 that had made a conscious decision NOT to
disclose the dangers of asbestos. These corporations must be held
accountable to the victims suffering as a result of their decision.
The thought that the government of the United States will shield
such companies from their liability makes me question our
capitalist system. When theses companies made the choice to deceive
the public about the dangers they assumed the risk to someday have
to answer for their conduct. 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?
Some reasonable amendments have been proposed to soften the blow
but their status is not known. For example:
- An amendment to the Bill was presented to exempt pending
asbestos claims and existing settlements, such as Halliburton's
agreement to pay $4.25 billion to settle asbestos claims. This
amendment would avert the overwhelming initial rush of claims
likely to clog the administration of the trust fund from the onset
and protect claimants on the verge of court settlements who fear
they would not live to see payment if they had to wait for the fund
to be set up.
In consideration for those suffering from mesothelioma, It concerns
me that the Bill fails to include an important funding provision,
to be paid out of the trust fund, to fund research to eradicate
mesothelioma, or to at lease develop more effective and life
prolonging treatments.
I certainly don't have the answer, nor do I believe that
Senator Hatch does. One thing is clear, that Senator
Hatch's' Bill falls far short of addressing all the complex
issues associated with this important topic. It is obvious to me
that this bill would hurt far more Americans than it would every
help, while awarding countless companies for their past
wrongdoings. I am all for a mechanism that holds the asbestos
industry accountable while getting the money into the hands of
those that need it the most in an efficient and expeditious manner.
However, I strongly believe that this Bill is NOT the answer. All
S. 1125 seems to do is take away the right to a jury trial for
mesothelioma patients and others who have been poisoned with
asbestos, and bails out the companies who poisoned them. I would be
interested to know where the FAIRNESS is in Senator Hatch's
so-called Fairness in Asbestos Injury Resolution Act. Senator Hatch
seems to loose sight of who the Bill is intended to aid; or maybe
he knows exactly whom he intends to aid, I don't know…
I count on your support to defeat this Bill in its current form.
Don't hesitate to contact me if I can be of any assistance to
you on this matter. My entire family and I thank you in advance for
your support.
I anxiously await your response.
Sincerely,
Mark D. Thomasen
mthomasen@att.net
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Click
here for more letters from asbestos cancer survivors
taking action against inhumane asbestos trust/bail out bill (SB
1125)
*** POSTED ON AUGUST 1, 2003 ***
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