Pittsburg-Corning, Owens-Illinois, Celotex and their record of malfeasance and outrageous misconduct is common knowledge. This bill, Mr. Chairman, is for these companies. It effectively caters to their interests, though you might never guess this for all the attractive packaging in which the bill comes wrapped. As the Justice Department argued in recent testimony on S.464's companion bill in the House, "the asbestos industry and its insurers are attempting to shift to the taxpayers the industry's tort liability to tens of thousands of workers." And as the Sheet Metal Workers concluded at those very spirited hearings, the proposed legislation "will not achieve what is probably intended and instead will become a giant bailout for product liability." For these reasons, and for others to be detailed below, the Asbestos Victims Campaign feels strongly that S.464 is basically a Trojan Horse. Instead of being called the Government Workplace Safety Bill, as some have dubbed it, we believe that S.464 would be more accurately described as the Asbestos Industry Indirect Bailout Bill of 1990. But its effects would of course be the same under any designation. Before describing those effects, Mr. Chairman, I would like to make it clear that we have no problem with the stated intent of this legislation, and we do not for one moment doubt that the Senators who have sponsored this measure are sincere in their devotion to the public interest. Yet we do not believe that S.464 is a good way to achieve those legislative objectives, and the unintended consequences, again, will be quite severe. If the objective is to insure safety in the federal workplace, we can readily endorse the position advanced by our labor allies that the Occupational Safety and Health Act be extended to the federal workplace. If the objective is to clarify or narrow the discretionary function immunity, that could be considered in a comprehensive review not some piecemeal gutting of the Federal Tort Claims Act. - Such a proceeding would inevitably consider the tangible impact of proposed legislation on specific categories of litigation, including the asbestos litigation. Again, if the legislative objective is to provide for targeted federal relief to specific categories of claimants for injuries primarily or deliberately caused by the United States Government I am thinking specifically of the nuclear radiation victims of the Southwest, whose cause we strongly support please give us a call; we would be delighted to testify on behalf of the injured parties. So we share much of the legislative intent of S.464, and do not mean to impugn the motives of any member of this august body. At the same time we realize full well that the asbestos companies are peddling a bill of goods. - - The reason why S.464 would be so injurious to asbestos claimants, Mr. Chairman, is that it would inevitably advance the basic legal strategy of the asbestos companies and their insurers, namely, to shift or diffuse liability wherever possible, and in any event to play for time to delay, delay, delay, and delay again. Delay even more than getting off the risk is the very essence of their strategy and the motive for their behavior. The name of the game, again, is delay, for we are dealing here with large corporations and financial institutions for whom time is quite literally money. - Protracted delay in the asbestos litigation is obviously to the advantage of those corporations which can invest their billions for another few years at, say, a 13% annual rate of return, but it is devastating to those tens of thousands of citizens who are hoping to receive some kind of compensation before they die of asbestosrelated disease. Of course many claimants die before they have their day in court. This matter of delay, Mr. Chairman, cannot be overstated. It is far and away the principal grievance of the asbestos victims as a group, many of whom are old and poor, without personal resources and lacking adequate services on the part of government old men tied to their oxygen machines waiting for a lonely death from asbestosis or mesothelioma. These people desperately need their day in court, and in many jurisdictions the wait is a long one. Those who are fortunate to reside in the northern district of Ohio, where Judge Lambros presides over the Ohio Asbestos Litigation Project (OAL), have timely access to justice. But those whose cases are in the federal district court for Massachusetts, where Judge Rya Zobel is responsible for the asbestos docket, typically wait at least seven years. This is a hideous situation, one so reprehensible that 12 out of 13 members of the Massachusetts Congressional delegation last year declared in a delegation letter to the federal court that its administration of the asbestos docket "does not meet the standards by which our system of justice must be measured. "Two years of steady public and political pressure on the court at length resulted in appointment of a special master to study the situation, but in the interim no cases at all are moving in Judge Zobel's court. Mr. Chairman, Judge Zobel has not yet cleared the docket of asbestos cases filed in 1982. If a new administrative system for moving cases more expeditiously is not put in place in the next few months, I would venture to predict there will be a political explosion in Massachusetts. If administrative reform is not forthcoming I would respectfully urge this Subcommittee to hold field hearings in Massachusetts to explore the situation fully. Again, the Massachusetts situation may be an extreme case, but the importance that asbestos victims and their advocates throughout the country attach to speedy access to justice and prompt compensation is absolutely critical. - - -4 The asbestos victims as a group, together with their families and friends, cannot tolerate any additional delay for any reason whatsoever - and will inevitably view a vote for S.464 as a vote of support for the asbestos companies and a Congressionall; mandated delay of the victims' day in court. I am confident that our many friends and supporters in organized labor will have a similar reaction. With the Subcommittee's indulgence, I belabor this matter of delay and the resulting universal confusion and uncertainty in the asbestos litigation because I believe that this would be the - primary practical consequence of S.464. In the few minutes I have left, let me explain how this would happen. First, a Congressional bailout of the asbestos industry, even if partial and indirect, would inevitably slow the settlement process (some asbestos companies have decided, quite sensibly, to settle rather than fight, cutting their losses) and any slowing of the settlement process would lead to further clogging of the court dockets. Second, S.464 would encourage and greatly facilitate a relatively new type of asbestos litigation, in which the asbestos manufacturers will figure as plaintiffs and the federal government is cast as defendant. In a grotesque reversal of historic roles, the asbestos companies have for some time now had suits against the federal government along the lines contemplated in S.464, and I would recommend that this Subcommittee familiarize itself with this growing body of litigation. Having by and large failed in the courts, the asbestos manufacturers are now coming to the Hill; but is there any good reason why the people's representatives should feel obliged to make their game any easier? A third reason for the delay is that S.464 would result in more complexity and confusion. The bill itself is so vague in its language, and so deceptively simple in its appeal, that it seems calculated to take the courts a few years to figure out what it means and just exactly how it applies. Meanwhile, the asbestos defendants in the vast majority of pending cases will have a new defense in their legal arsenal and, of course, a new basis for time-consuming appeals. The precise scenario is impossible to predict, but this much is certain: there will be considerable additional delay in the asbestos litigation. By adding yet another layer or two of complication to this mass of litigation, which is already sufficiently complex in itself, the asbestos companies and their insurers will be able to push back the day of reckoning. Mr. Chairman, the asbestos victims of this country do not believe that this is in the public interest. - We would therefore urge that S.464 not be reported out favorably from this Subcommittee. There are alternative legislative strategies for insuring safety in federal workplaces and for clarifying or narrowing the discretionary function exclusion without threatening to wreck the asbestos litigation which already has enough problems of its own. And there are better ways to insure relief for toxic tort victims in situations where the federal government was the primary tortfeasor. If Subcommittee feels it must go forward with some version of S.464, the Asbestos Victims Campaign strongly recommends that the bill be made prospective with respect to the date of injury (necessary because of the long latency of asbestos disease) as well as the date of filing. We would be pleased to discuss specific legislative language with any member of this body. Thank you, Mr. Chairman, for the opportunity to present the viewpoin of the asbestos victims. I will be happy to answer any questions. -6 |