Asbestos Talks Stalled on Fund, Mediator Says
Companies, Unions Differ Widely on Dollar Amount

(Washington Post, 01/12/05) Defendant companies and their insurers remain unable to agree with unions and trial lawyers on a funding level and a few other key issues in a proposed asbestos trust fund, so Congress may have to decide itself, a senior federal judge overseeing negotiations said yesterday.

Edward R. Becker, former chief judge of the U.S. Court of Appeals for the 3rd Circuit, told the Senate Judiciary Committee that the major stakeholders have generally agreed that a national trust fund to compensate asbestos victims could work. But he said the cost of such a fund, how it would compensate lung-cancer patients who once smoked and were exposed to asbestos, and the question of if and when victims could resume bringing lawsuits are among the important issues still unresolved.

I don't think we are going to get labor and business to agree on a dollar amount," Becker said.

A fund with a limit of around $140 billion has been discussed, but opponents said that figure is far too low. The unions and lawyers accuse companies of trying to evade responsibility for widespread injury and death, while the companies and insurers say they are paying vast sums that in many cases go to lawyers, and claimants who aren't really sick

The asbestos issue surfaced more than 20 years ago when workers exposed to the mineral fibers, used in fireproofing materials in buildings and ships, began getting ill, sometimes with mesothelioma, an asbestos-related cancer that is aggressive and almost always fatal. Asbestos claims, many from workers who are not sick, have clogged the courts and led more than 70 companies to seek bankruptcy protection from claims.

Becker, who said he has made at least 33 trips to Washington for negotiating sessions, said the parties are going to have to accept some uncertainty. For example, he said, "we will never solve" the question of how numerous and how expensive future asbestos claims will be. "We just have to make some informed predictions" and if they are wrong, cases could return to the courts, he said.

Sen. Arlen Specter (R-Pa.), the new chairman of the committee, who recruited Becker, said he hopes to have a bill ready early next month. Specter circulated a "discussion draft" of a bill that has been the basis of recent negotiations.

Specter said he has called the parties back for more talks next week. "It's obvious we are not going to have consensus on all the issues," he said, but "with respect to improvements, we are still open."

"It's really now or never," he said.

The draft bill divides victims into 10 categories, from the exposed but not sick to the sickest, those with mesothelioma. Each category or subcategory is assigned a compensation amount. For example, lung cancer patients who once smoked but stopped and were exposed to asbestos would get $200,000 under the draft bill. Some have argued that they should get as much as $500,000.

John M. Engler, the former Michigan governor who heads the National Association of Manufacturers, said the fund must not be more than $140 billion. He also said provisions that would allow cases back into the courts are unacceptable.

Michael Forscey, testifying for the Association of Trial Lawyers of America, said the fund could be as much as $200 billion. And, he said, the "sunset, as we see it, has always been a crucial incentive" to get companies to meet their financial obligations to the trust.

Posted: 01/15/05