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The Honorable Patrick Leahy
June 26, 2003
Statement of Senator Patrick Leahy
Perhaps we should not be surprised that lightening did not strike twice within one week on the same bill and that we did not achieve a breakthrough on the critical issues remaining for this bill. We still need to find common ground on appropriate award values and on safeguards against insolvency risks.
After Tuesday's markup, I had genuine hope that we would be able to agree upon a real solution to the asbestos litigation crisis. We had worked hard, and then harder, to reach consensus on fair and reasonable medical criteria. The next two steps - defining the right compensation values, and ensuring the solvency of the trust fund - also pose difficulties, but they did not seem insurmountable. And in fact, they need not have been beyond our grasp.
How much money the fund will require depends on how many people become ill, and how much they are compensated for their illnesses. All the pieces of this puzzle must fit together. We have all been working for weeks with financial projections as we consider the necessary financial aspects of this trust fund. Indeed, parties have in good faith shared projections and have been working with similar figures. At least we have all known where we differed and the assumptions underlying the projections.
Late last night, during the "vampire hours" that have so dominated these discussions, the defendants' numbers changed dramatically. The analysts retained by some of the business groups were suddenly saying that the worst case scenarios were much more dire than they had previously predicted.
I realize that the medical criteria the Committee adopted on Tuesday differ in some ways from those used by other funds, and I realize that some other changes might have been necessary to adjust prior projected figures to account for new information. But I find it very difficult to believe that the number of victims and the projections needed to be so significantly increased. The changes in assumptions and projections will require explanation and examination. That could not happen in the wee hours of this morning.
Time may help. It has helped to restart discussion before and to make progress when all seemed lost.
If we were to take the time to consult with the people in the best positions to help us understand the changes in the financial projections, and to help us develop accurate estimates of the likely number of claimants that this fund will see in the future, we might still be able to develop a bill that would perform the function of providing fair compensation to victims and reasonable certainty to defendants.
But that cannot happen in a couple of all-night sessions. It requires thoughtful consideration and the time for real deliberation.
I must reemphasize one fundamental bedrock principle: I will not support a bill that contains inadequate compensation for victims. I will not adjust fair award values for those who have been poisoned by asbestos into some discounted amount just to make the final tally come within a pre-determined, artificial limit. From the beginning of this effort, I have been committed to finding fair medical criteria, reasonable awards, and effective solvency solutions. I will not sacrifice any of these fundamental principles. I do not believe other fair-minded Senators will, either.
I do not fault anyone for our not being able to reach agreement overnight. This is not a recipe to which we just add water and stir. We have only had a day and one-half since adopting the medical criteria on Tuesday.
I understand that the business community and their insurers may be taking time to determine whether they really want a bill or not and whether they are willing to contribute what it will cost for fair compensation to the victims of asbestos exposure.
During our consideration of ideas to solve the asbestos litigation crisis, this was the theme that all Senators have been sounding: fair compensation to those who have suffered from asbestos exposure. We have already adopted an amendment that defines those victims for purposes of this proposed trust. We still need to ensure fair compensation for all 10 categories of asbestos-related disease, the five levels of non-malignant disease of increasing severity and five levels of cancer, including colorectal cancer, lung cancer and Mesothelioma.
Both Senator Specter and Senator Biden spoke last week about the need to be sure this bill is fair and provides an alternative process and outcomes that will be fair in compensating asbestos victims before taking away people's rights. I totally agree.
This week's agreement on medical criteria will be meaningless if we fail to reach common ground on what victims should be entitled to receive as compensation for their illnesses. Unfortunately, we were essentially prohibited from negotiating award values until after this Tuesday. Even with consensus on medical criteria, if the award values are unfair, the bill itself will be unfair, unworkable and unworthy of our support.
The one constant in our experience with projections of asbestos liabilities is that the projections of today will be wrong tomorrow. The risk of insolvency in a national trust fund - and, indeed, the risk of inadequate funding short of insolvency -- must be addressed in order to provide certainty to asbestos victims as well as to defendants and insurers. There is no more fundamental concern underlying this bill. I thank them for their dedication to finding a solution.
Similarly, I thank Senator Durbin for all his efforts and his attempts to ensure fairness by avoiding windfalls to those who have previously made agreements with regard to dedicating funds to compensate asbestos victims. The trust fund that would be created by this bill is not intended to undercut the agreements already reached by others.
We need to continue our work to achieve the common ground needed to enact a law. Acting together through consensus remains, in my view, the best way to move a bill through the legislative process and into law.
Intellectual property matters are among those on which Senator Hatch and I have worked hard to cooperate and limit partisanship. I look forward to our continuing bipartisan efforts in these matters.
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