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Asbestos Reform Group Looks to Revive Medical-Criteria Bills
[February 16, 2006]

Asbestos Reform Group Looks to Revive Medical-Criteria Bills


(BestWire Services Via Thomson Dialog NewsEdge)
In the aftermath of a vote that scuttled, at least temporarily, a proposed $140 billion asbestos victims trust fund, advocates of a medical-criteria solution to asbestos litigation are angling to revive stalled legislative efforts in both the U.S. House and Senate.

The Coalition for Asbestos Reform includes American International Group Inc. and Liberty Mutual Insurance Co., among other insurers that opposed the Fairness in Asbestos Injury Resolution Act. They praised the budgetary point of order raised on the Senate floor by Sen. John Ensign, R-Nev. The move recommitted the bill to the Senate Judiciary Committee after proponents failed to muster the 60 votes necessary to waive Ensign's motion (BestWire, Feb. 15, 2006).

"From the beginning of this debate, C.A.R. has expressed significant concerns over the fund, including its lack of transparency; how many companies will contribute, how many claims will be filed, and the likelihood that the trust fund will fail," coalition Chairman Thomas O'Brien said in a statement. "These concerns spoke directly to the budgetary point of order."


But while the FAIR Act's backers return to the drawing board, the coalition is calling on the Senate to revive a substitute amendment offered by Sen. John Cornyn, R-Texas. The Senate voted 70-27 on Feb. 9 to table Cornyn's amendment, which would have replaced the FAIR Act's current framework with a mandate that all plaintiffs seeking damages for asbestos exposure demonstrate physical impairment consistent with standard medical criteria.

After the vote to table, Cornyn said he expected to revisit his proposal, which closely mirrors provisions of the Asbestos Compensation Fairness Act, introduced in the House last April by Rep. Chris Cannon, R-Utah. Though Cannon's bill currently has 60 House cosponsors, it has been viewed as unlikely to garner much support in the Senate, where tort-reform efforts tend to face an uphill climb.

But O'Brien pointed to comments this week from the Senate's Democratic leadership, which opposed the FAIR Act, as suggesting that some form of medical-criteria bill could have a shot at passage. Before the point-of-order vote, Senate Minority Leader Harry Reid, D-Nev., who strongly opposed the FAIR Act, said from the floor that he had "made a commitment to the junior senator from Texas, Mr. Cornyn" to explore alternative asbestos legislation.

Reid said he designated Senate Minority Whip Richard Durbin, D-Ill., to work with Cornyn on legislation patterned after state-level reforms in Texas, which instituted medical screening criteria for asbestos-related torts, and in Illinois, which operates a pleural registry allowing those exposed to asbestos who don't manifest any current signs of impairment to be excluded from the statute of limitations should they later contract asbestos-related diseases.

"There wasn't an ample amount of time to debate (Cornyn's) suggestion, and that is too bad, but we are willing to work with him on something similar to what he came up with," Reid said. "I believe it is important that we do that, and I am certainly making a commitment that we will work to see what we can come up with on medical-criteria legislation to, in effect, get rid of the bad cases and allow these two sets of victims to move forward."

But the FAIR Act's lead Democratic cosponsor -- Vermont Sen. Patrick Leahy, the Judiciary Committee's ranking Democrat -- has blasted Cornyn's medical-criteria approach as failing to provide any avenue for compensation to asbestos victims who don't have tort options available.

According to Leahy, these include family members of former asbestos workers who were exposed to the substance at home; former employees of firms that are defunct or in bankruptcy; and many veterans who were exposed to asbestos during their military service and are precluded by sovereign immunity from suing the U.S. government.

Moreover, a report issued by Leahy's staff pointed to a study by Rand Corp. that found asbestos victims recover only 42% of the funds spent on asbestos litigation, with 31% going to defense costs and 27% to plaintiffs' attorneys.

"The current system for compensating victims of asbestos exposure is inefficient and inequitable," Leahy's office said in a statement. "Senator Cornyn's medical criteria amendment is not a solution because it operates within the same broken tort system. A true alternative will avoid the problems with the current asbestos tort system and bankruptcy compensation process."

(By R.J. Lehmann, Washington bureau manager: raymond.lehmann@ambest.com)

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