Asbestos Fund Effort Survives in Senate

A painstaking effort to end years of litigation over cancer-causing asbestos survived a procedural hurdle on Tuesday in the Senate, paving the way for a floor debate over a $140-billion plan to compensate victims outside the courtroom.

By a vote of 98 to 1, lawmakers agreed to move forward with the plan to create the compensation fund, designed to stem a tide of litigation that dates back to the 1970s and continues to rise.

“It’s not been easy to get to the point where we are,” said Sen. Patrick J. Leahy (D-Vt.), urging colleagues to vote to keep the beleaguered plan alive. “It’s taken years and years of work.”

Throughout the day, the asbestos bill appeared in danger. But Senate Minority Leader Harry Reid (D-Nev.) ultimately chose not to challenge the Republicans who wanted to bring it up.

Asbestos has been used in insulation, brake linings, cement pipes and many other products. Its negative health effects range from shortness of breath and coughing to an often fatal cancer known as mesothelioma.

Advocates of the compensation plan say it is needed to stem the increasingly costly litigation and economic uncertainty faced by companies being sued; at the same time, they say it would establish a system to ensure that victims get compensated. The fund would be financed by asbestos manufacturers and their insurance firms.

“I think it is an unconscionable vote to vote no,” said Sen. Arlen Specter (R-Pa.), a leading architect of the plan. He described the current situation as “an anathema and travesty and unworthy of the American judicial system.”

Opponents have argued that the fund could prove insufficient for the large number of claims expected in the coming years, while relieving companies of a financial burden that is theirs to shoulder.

By some estimates, future claims might exceed $140 billion, raising concerns about how that could affect victims and whether costs would be shifted to taxpayers. In addition, legislators disagree on whether the plan would accomplish its aim of adding greater certainty to asbestos claims or if employers might be able to manipulate the new system at the expense of victims.

The debate is scheduled to continue this week. The bill has emphatic opponents, and Tuesday’s lopsided vote is not viewed as a reflection of the Senate’s sentiment on the legislation.

“One would have to search long and hard to find a bill in my opinion as bad as this,” Reid said.

Reid’s initial objection to bringing the matter to the floor triggered Tuesday evening’s procedural vote, which required 60 votes for approval. Sen. James M. Inhofe (R-Okla.) was the sole no vote.

Under the bill, asbestos victims would be compensated from the fund, with payments ranging from $25,000 to $1.1 million, depending on the gravity of the illness. A goal of the approach is to make asbestos claims more like a workers’ compensation system than to be based on the unpredictability of jury verdicts. Workers would not have to prove that their symptoms were caused by a particular exposure to asbestos

“We’ve been working on this for quite a few years, and I feel more strongly than ever it’s time to fix this broken system,” said Sen. Jeff Sessions (R-Ala.) “The asbestos litigation in America today is out of control.”

A 2005 report by the Rand Corp. found that asbestos-related claims cost businesses and insurance companies more than $70 billion from the early 1970s through 2002.

Hundreds of thousands of asbestos injury claims have been filed, contributing to the bankruptcy of more than 70 companies. An additional 300,000 claims are pending.

Proponents Tuesday cited the cooperation between Specter, who is chairman of the Judiciary Committee, and Leahy, its senior Democrat, as an increasingly rare example of bipartisan cooperation, particularly over a highly complex and controversial matter.

“I think it’s fair and accurate to say it’s the most complex piece of legislation ever considered by a legislative body,” Specter said. “I know that’s a grandiose statement ... but I think it’s accurate.”

The role of trial lawyers has emerged as a major flashpoint in the debate.

The Rand study found that out of each dollar spent on asbestos litigation, claimants got 42 cents, with the remainder going to compensate attorneys and paying for other costs.

Advocates of the legislation have seized on such figures as proof that the current system does not work to the benefit of victims.

“The fact that only 42 cents of every dollar spent on the burgeoning dockets of litigation in this area goes to actual victims of asbestos exposure is a national disgrace,” Leahy said earlier this week. “We can and we must do better for all involved in this crisis. They need our help and they need it now.”

But Reid countered Tuesday evening that the emphasis on trial lawyers was misplaced. “The crisis that confronts us is not an asbestos litigation crisis,” he said. “It’s an asbestos-induced disease crisis.”