Sample letter no. 4 (letter sent to each member of Sen. Judiciary by the Advisory Board of the Mt. Sinai - Irving J. Selikoff Center for Occupational and Environmental Medicine in NYC)

April 11, 2005

The Honorable --
United States Senate
330 Hart Senate Office Building
Washington, D.C. 20510
Fax Number:

Dear Senator --,

I am writing to you on behalf of the Advisory Board of the Mt. Sinai - Irving J. Selikoff Center for Occupational and Environmental Medicine to express our strong opposition to the asbestos compensation legislation that is now under consideration by the Senate Judiciary Committee.

This legislation is deceptively named the Fairness in Asbestos Injury Resolution Act.  We believe that there is nothing about this proposed legislation that could correctly be characterized as "fair" to people who have been harmed by asbestos. It will, if enacted, adversely affect the welfare of the tens of thousands of people who have been exposed to asbestos and are at risk of dying or becoming sick as a result.

Our reasons for opposing this bill are numerous and include the following medical/scientific issues:

• The bill would usurp a physician’s responsibility to diagnose disease by setting forth erroneous "medical" criteria of illnesses caused by asbestos exposure. When one compares the bill’s so-called criteria to the American Thoracic Society’s "Diagnosis and Initial Management of Nonmalignant Diseases Related to Asbestos" (2004), it is apparent that the bill’s criteria have absolutely no support in the medical or scientific literature.

• If the bill’s criteria are adopted, thousands of people with asbestos-related disease will be declared ineligible for any compensation.

• 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. That requirement and all the other minimum exposure requirements in the bill have no support in the medical or scientific literature. For example, it is well established that, under heavy exposure conditions, one month’s occupational exposure to asbestos can double the risk of lung cancer.

• According to recent published reports, the bill will require that a claimant who is a smoker with a claim for lung cancer due to asbestos exposure, will not be able to establish a valid claim if the claimant does not have lung scarring. There is strong evidence in the medical literature that many people without lung scarring contract asbestos-related lung cancer.

• Other recent reports indicate that the bill will not provide any compensation for asbestos-related cancer of the colon, stomach or larynx. All those cancers can be caused by asbestos exposure and should be compensated. 

• The fact that one doctor or another is willing to say that asbestos cannot be a cause of these cancers does not make it so, any more than the doctors who testified for tobacco companies that there was no evidence that tobacco smoke caused lung cancer were expressing anything other than their prejudice.

Apart from the bill’s rejection of sound medical science, there are numerous financial issues to be noted:

• The size of the trust fund has been determined by the companies who will contribute to it, not by an actuarially valid projection of the cost of compensation.

• The authors of the Rand study clearly state that there are too many unknown factors about the future incidence of asbestos-related disease to make anything other than an educated guess concerning the cost of compensating the victims. An educated guess is not an actuarial projection. Every previous educated guess about the incidence of future asbestos-related disease and the cost of compensating it has turned out to be wrong, and always on the low side.

• The schedule for contributions to the trust fund that the bill sets up will not, in the funds first years of operations, take in enough money to pay the claims that are filed in those years, with the result that many people with ripe claims will be forced to wait for years before receiving compensation.

• Each valid claim will receive an amount of compensation fixed by the text of the bill. All of those compensation levels are lower than the amount that a plaintiff could expect to win in court. In particular, the compensation levels for lung cancer are unacceptably low.

• In court, plaintiffs who are young or plaintiffs who are disabled and who have dependent children generally receive larger awards then older plaintiffs and those without dependent children. The bill makes no special provision for the young or for those with dependents.

• People with asbestos-related disease, whose exposures occurred outside the workplace (for example at home), would be excluded by this legislation.

• If the bill becomes law, on the day it is signed all asbestos-related liability litigation will terminate, regardless of how close it is to a conclusion. Such cases will then need to be converted 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 may be safe to say that thousands of people, at the very least, will not receive payments as quickly as they would have if their cases had been allowed to remain in court.

There is an asbestos disease crisis in this country, not an asbestos litigation crisis. "Solving" the asbestos litigation crisis will do nothing to resolve the disease crisis. In fact, it will make the crisis even worse, creating a situation where every employer and landlord with in-place asbestos could be emboldened – by a bill that will make them judgment -proof - to take even fewer precautions to protect workers and residents from asbestos.

For all these reasons, and many more ably set forth by others, we urge you to reject this bill.

Sincerely,

The Advisory Board of the Mount Sinai-Irving J. Selikoff Center for Occupational and Environmental Medicine