Hershel W. Gober

April 26, 2005

Testimony of
Hershel W. Gober
On Behalf of The Military Order of the Purple Heart
Before the
United States Senate
Committee on the Judiciary

"The Fairness in Asbestos Injury Resolution Act"(S. 852)

April 26, 2005

The Honorable Chairman Specter, Ranking Member Leahy, and other distinguished Members of the Committee, my name is Hershel W. Gober. As its National Legislative
Director, I am appearing today on behalf of the Military Order of the Purple Heart. The Military Order of the Purple Heart is unique among all veterans service organizations in that our membership is comprised entirely of combat veterans who suffered wounds or injuries in service to our country for which they were awarded the Purple Heart Medal. I am honored to have this opportunity to testify on behalf of the Military Order of the Purple Heart in support of S. 852, the Fairness in Asbestos Injury Resolution Act or "FAIR Act."
Tragically, the asbestos litigation crisis has hit veterans especially hard. Men and
women of our nation's armed forces were unknowingly exposed to asbestos due to its
prevalent use by the military during and after World War II, particularly in insulation
products built into ships for the U.S. Navy and bulkheads, pipes, ceilings, floors and
machinery, which were all coated with asbestos. Moreover, those who worked in shipyards
and dry docks, building and repairing Navy vessels, were also heavily exposed to asbestos.
As late as 1979, the U.S. government continued to claim that asbestos use remained
necessary "for purposes of national defense."
Due to the long latency period from the time of asbestos exposure to the first signs
of symptoms of asbestos-related disease, veterans who served before the 1980's are still
being diagnosed with life threatening and terminal illnesses. Individuals with military
service make up a significant number of the total asbestos victims in the United States. In
November 2003, the Wall Street Journal reported that data has shown that claims from
individuals exposed in military and shipyard construction accounted for 26% of all
mesothelioma cases, 16% of all other lung-cancer cases, and 13% of all disabling lungdisease
cases.
The avenues open to veterans to seek compensation through the tort system,
however, are very limited. The Federal government, as the members of this committee
know, has sovereign immunity, thereby restricting veterans' ability to recover from the
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government; and most of the companies that supplied asbestos to the Federal government
have either disappeared or are bankrupt and, therefore, are only able to provide a fraction
of the compensation that should be paid to asbestos victims, if anything at all. Even if there
is a solvent defendant company for a veteran or his/her family to pursue, there remains the
lengthy, costly, and uncertain ordeal of filing a civil lawsuit and going through discovery
and trial, where the plaintiff bears a heavy burden of proof and often has the very difficult
to impossible task of establishing which defendant's product caused their injuries.
Moreover, under the current system, far too much money is being diverted to claimants
with no discernable illness or injury, victims too often receive widely divergent recoveries
depending simply on where their lawsuit is filed or who their attorney is, and attorneys'
fees and other transaction costs are consuming far too much money that would otherwise
be available to compensate those that are ill.
The U.S. Department of Veterans Affairs continues to receive claims for benefits
from veterans for illnesses related to asbestos exposure while serving in the military;
however, due to the difficulty of proof, less than one-third of the known VA asbestos
claimants receive service connected compensation for their asbestos disease.
Veterans and their families with asbestos-related diseases desperately need and
certainly deserve relief as the current system is simply not taking care of their needs or
treating them fairly.
The Military Order of the Purple Heart supports S. 852, the FAIR Act, because it
believes it will provide an immediate and effective solution to the asbestos litigation
problem for victims and will provide many needed benefits for veterans, including the
following:
(1) Establishment of a Streamlined, No-fault, Administrative System (Section
101(a)(1)-(2); Section 114(b),(c),(d)(1)(a) & (d)(2); Section 102) The FAIR Act will
establish a new federal Office of Asbestos Disease Compensation (Office) for the
processing and payment of asbestos claims. Administrative review of claims will occur
through an efficient, streamlined, and no-fault process, with strict time lines on when
eligibility determinations must be made. The new administrative system is expressly
designed to ensure that eligible claimants will receive timely, fair and certain
compensation based on clearly defined eligibility criteria.
(2) Protection of Veterans' Benefits (Section 3(3)(B); Section 3(6); Section
134(b)) The FAIR Act will preempt all claims for asbestos-related injuries, but will
preserve claims brought under Workers' Compensation and Veterans' Benefits Programs.
It, therefore, will keep intact all of the benefits currently available to veterans if they
choose to pursue those benefits. The FAIR Act will also exclude any recoveries under
Veterans' Benefits Programs from the requirement that awards under the Act be reduced
by prior recoveries.
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(3) Reduction of Evidentiary Burdens (Section 121(a)(16) & (c)) Unlike the tort
system, there will be no requirement under the FAIR Act to prove exposure to a particular
defendant's asbestos product. And, unlike Veterans' Benefits, there will be no "servicerelated"
requirement, easing the burden of proof on those individuals who were exposed
while in the military. The FAIR Act will also include heavier weighting for pre-1976 and
World War II shipyard exposures and provide special provisions for take-home
exposures. The Act will further reduce the burden on claimants through simplified claims
requirements and the requirement that exposure presumptions for certain industries,
occupations and time periods be developed. It is well known and documented that certain
individuals in some occupations within the military had high exposures to asbestos.
Current asbestos bankruptcy trusts, which have used exposure presumptions for military
service and occupations, will be looked to as a model by the Office's Administrator.
These presumptions should help ease the burden of proof for veterans.
(4) Application to Exposures on U.S. Ships and Overseas (Section
121(c)(1)(B)) The FAIR Act will expressly apply to exposures to U.S. citizens occurring
on U.S.-owned or flagged ships and occurring overseas while working for U.S. entities.
(5) Allowance of Recoveries by Dependants (Section 113(a)) Under the FAIR
Act, claimants will include family members of the victim, allowing spouses or children to
recover in place of the victim. The Act will provide a definition of "personal
representative" to ensure that the Office will not become embroiled in disputes over who
is the proper beneficiary.
(6) Providing Medical Monitoring (Section 132), Education and Medical
Screening Programs (Section 225) The FAIR Act will provide medical monitoring,
including reimbursement of an individual's costs for physical examinations in addition to
x-rays and pulmonary function tests. Such examinations and tests could be conducted
every three years. In addition, the FAIR Act will establish a medical screening program
for claimants considered to be at high risk of asbestos-related disease and provide an
outreach and education program about asbestos-related medical conditions.
(7) Establishment of a Claimant and Legal Assistance Program (Section 104)
The FAIR Act will establish a claimant and legal assistance program to assist claimants in
submitting claims or to find free legal representation to help file their claims. Among
other things, the Act will require that the claimant assistance program include outreach,
training of individuals providing assistance, and resource centers established in areas with
a high concentration of potential claimants. The Administrator will also be authorized to
contract with local community and labor organizations to provide such assistance.
(8) Providing $1,000,000 Grants to Mesothelioma Research and Treatment
Centers (Section 222(c)) As noted above, an estimated 26% of mesothelioma cases
involve individuals exposed to asbestos at military and shipyard constructions sites.
Recognizing the need for more research on mesothelioma, the FAIR Act will provide $1
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million in grants for each of fiscal years 2005 through 2009 for each of up to 10
mesothelioma disease research and treatment centers. These centers will be closely
associated with U.S. Department of Veterans Affairs medical centers to provide research
benefits and care to veterans. These research grants will help advance the current
treatments available for mesothelioma, especially for veterans, which the legislation
recognizes as having "suffered excessively from mesothelioma."
As the Committee Members know, in addition to the Military Order of the Purple
Heart, there are many other veterans service organizations that support the trust fund
solution embodied in the FAIR Act, including the Veterans of Foreign Wars of the United
States, the Non-Commissioned Officers Association, the Jewish War Veterans, the
National Association for Black Veterans, the Paralyzed Veterans of America, the
National Association for Uniformed Services, the Veterans of the Vietnam War, the Pearl
Harbor Survivors Association, the Women in Military Service for America, the Marine
Corp League Fleet Reserve Association, the Military Officers Association of America,
the Blinded Veterans Association, the American Ex-Prisoners of War, the Retired
Enlisted Association, the Arkansas Veterans' Coalition, the Florida Veterans of Foreign
Wars, the Louisiana Veterans of Foreign Wars, the Texas Veterans of Foreign Wars, the
West Virginia Veterans of Foreign Wars, the West Virginia American Legion, and the
National Association of State Directors of Veterans Affairs.
Again, thank you for providing me this opportunity to testify today on behalf of the
Military Order of the Purple Heart and our nation's veterans in support of the FAIR Act.