The AFL-CIO has consistently supported the establishment of a federal asbestos trust fund to fairly compensate asbestos victims for their injuries through a no fault system. At the same time we have made clear that we cannot accept a substitute to the current civil litigation system unless it would provide a means by which victims could obtain fair compensation on a timely basis. Unfortunately, the Fairness in Asbestos Injury Resolution Act of 2005 (S. 852), introduced earlier this week by Senator Arlen Specter and Senator Patrick Leahy, fails to ensure victims just and timely compensation and would leave tens of thousands of individuals with no remedy at all.
After reviewing an earlier draft of the Specter bill, the AFL-CIO pointed out numerous provisions that would unfairly deny compensation to victims or result in unnecessary obstacles or delays in the processing of many types of asbestos claims. For example, the AFL-CIO strongly opposed the elimination of coverage for 40,000 asbestos-related lung cancers (the so-called level VIIs) without permitting these individuals to document asbestos exposure through CT scans. Although changes were made to permit use of CT scans for one category of claims, the bill as introduced still would result in denial of compensation to an estimated 25,000 to 30,000 victims of asbestos-related lung cancer, even though many would qualify if permitted to use appropriate diagnostic technology.
Similarly, S. 852 would prevent 60,000 to 80,000 individuals with varying degrees of illness from access to any forum for as long as two years in the event that the trust fund is not operational. The bill also includes provisions establishing medical criteria for lawsuits by individuals who have both asbestos-related disease and silica-related disease that will bar many of them from seeking redress in the courts for their silica-related injury, while at the same time limiting their compensation from the asbestos fund to $25,000.
As drafted, the bill fails to establish clear and workable criteria to trigger the statute of limitations for bringing claims for specific disease levels, particularly for victims of non-malignant diseases that get progressively worse. It is also unclear what circumstances will trigger the sunset of the Fund, which claims will be allowed to go forward in court if the Fund sunsets, and what statutes of limitation will apply. The victims of asbestos disease deserve to have these issues clearly and squarely addressed. We cannot support legislation that leaves such critically important questions to be resolved through litigation in the courts, which may further delay justice for thousands of asbestos victims.
We continue to believe that all of these issues can still be addressed in a manner that is fair to victims and takes into account the legitimate concerns of those who have a stake in the success of the proposed Fund. However, it is now clear that defendant companies and insurers have succeeded in blocking almost every change to the draft bill that would have removed unfair and unnecessary barriers to valid claims, despite the best efforts of Senators Specter and Leahy to negotiate a fair compromise.
The AFL-CIO commends the bill's sponsors for their countless hours of hard work and determined efforts to resolve these contentious issues. The new Specter-Leahy bill is an improvement over previous asbestos bills in a number of key respects. It increases award values for many victims, clarifies exposure proof requirements, establishes a medical screening program for high-risk workers and ensures that awards will be protected from subrogation. But S. 852 as drafted creates a new system that will leave thousands of seriously ill asbestos victims with no guaranteed right to receive timely compensation for their injuries.
The AFL-CIO has played a constructive and responsible role in this process, and we intend to keep working to obtain the changes that would enable us to support the bill. However, the AFL-CIO is opposed to S.852 in its present form, and we will oppose any effort to take away the rights of asbestos victims to go to court without establishing a workable system to ensure just and timely compensation.
Contact: Suzanne Fflokes (202) 637-5018
