Dear Senator,

I am writing to you on behalf of the 50,000 members of the American Public Health Association to express our concerns with the asbestos compensation legislation that is now under consideration by the Senate Judiciary Committee.

We believe this legislation-the Fairness in Asbestos Injury Resolution Act (S. 852)-will, if enacted, adversely affect those who have been exposed to asbestos and are at risk of dying or becoming sick as a result.

Fundamentally, the American Public Health Association believes that everyone who has been injured by asbestos exposure should be compensated for the cost of their medical care, for their loss of income, and for all other losses customarily considered in our legal system. Anything less than this creates an environment of inequality, where some workers enjoy a greater measure of protection under the law than others. Changing the rules for workers exposed to asbestos might help solve the short-term problem of administering to the needs of millions of victims, but we believe such action could have long-lasting consequences in at least two ways:

1. Some employers and landlords with in-place asbestos will interpret the new asbestos compensation rules as a signal to take even fewer precautions to protect workers and residents from asbestos, because the new rules will protect them from liability; and

2. Many victims will risk financial ruin in situations where physicians diagnose them with asbestos-related disease, but they do not meet all the new criteria for compensation. With a medical diagnosis of asbestos-related disease, these victims will not be able to obtain adequate medical insurance coverage, leaving them nowhere to turn.

The bill creates a new medical standard to define asbestos-related disease, instead of relying on the professional diagnoses of physicians. For instance, the bill requires that a person be exposed to asbestos for at least 15 months in order to establish a valid claim of asbestos-related disease. We could not find support for that minimum exposure requirement in any medical or scientific literature, which physicians use to make medical decisions. On the contrary, evidence points to situations where, under heavy exposure conditions, one month's occupational exposure to asbestos can double the risk of lung cancer. Similarly, we are concerned about rules that limit the ability of smokers to file valid claims, even though occupational exposure to asbestos was a significant factor in contracting lung cancer. Frankly, the bill's criteria seem to be suited toward administrative expediency, instead of science-based criteria, such as those issued by the American Thoracic Society. Our concern is that many legitimate victims of asbestos-related disease will be ineligible for compensation based on these criteria.

Even for those workers who successfully file a valid claim, the new rules do not provide a fair, full and expedited compensation to victims. Interestingly, the size of the trust fund is determined by the companies who will contribute to it, not by an actuarially valid projection of the cost of compensation. Although studies show there are many unknown variables about the future incidence of asbestos-related disease, we do know there are potentially millions of potential future claims. However, the bill doesn't seem to be well prepared for that eventuality. For instance, the schedule for contributions to the trust fund will not adequately cover the claims that are filed in the first few years of operation, which means victims with ripe claims will be forced to wait for years before receiving any compensation. Furthermore, each valid claim will receive an amount of compensation fixed by the text of the bill, instead of basing compensation on actual economic loss. Also, the bill proposes terminating all asbestos-related liability litigation and converting those cases into claims to the trust fund. No one can say how long it will take for the trust fund to begin making payments, but it is probable that victims will not receive payments as quickly as they would have if their cases had been allowed to remain in court.

The American Public Health Association believes there is an asbestos disease crisis in this country that needs to be treated, not an asbestos litigation crisis. "Solving" the asbestos litigation crisis will do nothing to resolve the disease crisis, and may actually make it harder for victims of asbestos-related disease to recover. We strongly urge you to reject the Fairness in Asbestos Injury Resolution Act in its current form.

Sincerely yours,

Georges Benjamin, MD, FACP
Executive Director

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