Report from the Legislation Education Committee

To: Paul Safchuck, President, White Lung Association
Re: U.S. Senate Judiciary Committee Hearing On Asbestos Litigation Crisis
March 5, 2003

It is strange to arrive two hours early for a committee hearing and find what appears to be 100 homeless people sitting in a line from the committee door down the hall of the Hart Senate Office Building.

Actually the people huddled on the hallway floor are "place keepers". A large, bearded white man in dungarees manages them. He carefully checks his list to see who is supposed to be saving a place for whom. Most hold 8.5x11 signs with the names of insurance companies, trade associations, PR firm and law firms.

Some place savers have been here since six am. A few minutes before two pm hundreds of well dressed yuppies flood into the "places" and dispatch the colorfully dressed "place keepers" with yelps from their cell phones and envelopes of money.

Vice President Joseph Oliver from Belle Vernon, Pa. and Reverend James Knight from Dundalk, MD, led the White Lung Committee. The committee distributed over three hundred leaflets explaining the WLA Super Fund proposal and criticizing the ABA and insurance company scams.

The young woman in a blue suit and backwards nametag seemed to be running the "floor" of the judiciary committee. She brought Rev. Knight into the hearing room early and gave him eight seats for Committee Members in the fourth row of the second section.

There were new restrictions on distribution of literature related to the hearing. In the past people put statements on a table for everyone to take. Information brought to the Judiciary Committee by the public could be included. The WLA Committee presented the attached statement. However, the distribution of this was held until after the Committee Hearing and outside of the Hearing Room..

The entire procedure had the aura of bad theater, boring theater, in which the participants were grinding out the hours. Crocodile tears for asbestos victims were so intense that the victims required emotional raincoats. The special interest groups treated our delegation as if they breathed a special HIV-Leprosy-Ebola germ. However, health professionals, some lobbyists and the Judiciary Committee staff were kind to us.

Fred Baron, former American Trial Lawyers Association, president, seemed marginalized in these proceedings. He is perhaps the purest form of the civil tort attorney and is one of the most honest attorneys the WLA has spoken with. He has a record to taking legal action to halt nefarious schemes hatched by Kazen and the insurance companies. His participation in the creation of the Manville Trust was the best of any attorney.

Orrin Hatch began by whining about the bankrupt companies and how much their employees and stockholders loose as a result of asbestos litigation. He seemed to imply free loading workers largely caused the economic crisis gripping the United States. The "unsick" then were elevated to the role of "evil doers" who have been screened in a union parking lot. Then Hatch sounded the theme for the day, "Only Pay the Truly Sick". Hatch and others began their holier than thou rendition that the "unsick’ workers are sucking up all the benefits money.

Hatch had two charts showing increased numbers of cases (NY Times) and the fact that mesothelioma victims were only receiving 17% of the settlement dollar. (RAND or their ilk) He then unleashed a very slick video of mesothelioma victims pleading with Congress to pass legislation so the "unsick" could not get the compensation dollars of the truly sick. It brought to mind Jay Gould’s statement he could always buy one half of the working class to fight the other.

Senator Max Baccas gave the best testimony this reporter had ever heard from him. It seems that thousands of victims including children in his state (Libby, Mt) have broadened his horizons. In addition, the bankruptcy of WR Grace means no more contributions to him. The WR Grace Co. is also fighting the cleanup of asbestos waste left on their property. They also are fighting the compensation of Montana residents. Whatever the reason, Max has found "science" and is fighting to preserve the legal rights of environmentally exposed and non-worker exposure.

Senator Cole of Ohio who wanted the Asbestos Study Group and the Asbestos Alliance to get together followed Senator Baccas. He also alluded to the legal crisis made by the "unsick". He lamented the decline of manufacturing and that the "truly sick" were not getting their needs met while the unsick were clogging the courts.

Next up were the victims, Mr. Brian Harvey, a mesothelioma victims now living in Seattle. He was the star in the slick video urging Congress to clamp down on the "unsick."

Melvin McCandless of Williamston, NC, followed him. He was declared completely disabled by the state of North Carolina and can barely take out the trash. Yet under current legislation being considered (SB 413), he would not be considered disabled. He was probably the most articulate and accurate witness.

To our amazement, the second best testimony came from David Astern from the Manville Trust. He stated that the current Nichols Bill (S413) has criteria that would reduce the amount of cases the Trust sees from asbestosis from 55,700 a year to 51.

Astern backed the concept of the Asbestos Victims Super fund, but he called it a Trust.

He admitted the 18 other Trusts would pay even less than the Manville Trust. He forgot to mention that the White Lung Association had warned both himself, Steve Kazen and Judges Weinstein and Lifland that they were "seriously underestimating the amount of asbestos victims who would file" in their creation of the Manville Trust.

Dennis Archer, the President of the ABA, followed this witness. Archer was arrogant and very uninformed in his unqualified support to the ABA guidelines.

Archer was unmoved when other witnesses and Senators said his guidelines exclude asbestos victims sitting a few feet from him. An asbestos victim, who was ruled, "totally disabled" by the workers compensation system of North Carolina, MaCandless, would not be disabled according to Archer, the ABA and SB 413. His testimony reflected he is either very cold or uncaring of human misery or he is woefully uninformed. He also railed against the "unsick" although he never identified one single individual, nor did anyone else, whom he could say was "unsick" and yet compensated. He refused to personally endorse the ban of asbestos.

The AFL-CIO lawyer Mr. Hyatt followed him. Labor has no position; they are buffeted by their decline into oblivion. They are divided by their past participation in schemes (i.e. Georgine). It is sad. Mr. Hyatt was also either playing his cards close to the vest or else inadequate in the knowledge base. Hyatt stated there were 1,000,000 AFL-CIO members or retirees with asbestos related disease. He said they backed the superfund approach. He did not back ABA or SB 413. He refused to endorse the ban of asbestos.

After Hyatt was the plaintiff lawyer, Steve Kazan. His imitation of the "genuflecting scribe" was wooden and fake. He referred to Senator Hatch as "your honor" and Hatch was very complimentary and respectful of Kazan. Senator Hatch wanted everyone to know that Steve was "the man". His one remaining attribute is that Laurie is his sister, a fact that he bantered about with effective pride.

The room was filled with attorneys, paralegals, lobbyists, communications and public relation professional workers. The WLA Committee estimated over 1.2 million dollars was spent. This money was squandered while these hypocrites criticize workers who must file due to the statue of limitation. For years the insurance companies have agreed to pay much less up front before the horrors of the disease kick in rather than have an asbestos victim on oxygen before a jury. They know they ration of early payout is as great as 100 to 1. That is they cancel an eventual 473,000-dollar claim for less than five thousand dollars.

Now these same companies and hundreds of others who profited from asbestos use or purchased companies who profited from it want to change the rules. After all the "reforms", "class actions" and "consolidations" and "Trusts" that these same people created, have failed, they want to change the rules again. What they fail to see is that asbestos is very poisonous and has diseased millions of people and is continuing to do so. The financial and medical needs of our country, due to the asbestos contamination, need to be addresses systematically.

But no, each of these monsters wants only to better themselves and their masters as the needs of society perish. Whom will they consume now. Only the asbestos victims are left. Very little truth managed to find its way into this hearing. Most facts were dressed and twisted for the private gain of a few. It was so sad to see the huge amount of money and effort, which could have been used to help asbestos victims, instead being used to make them fight amongst themselves for the last dollar.

Senator Specter said little, as did Senator Kennedy. Senator Lehy made it clear he was a lap dog to Hatch. He talked a great deal about how this bill had bi partisan support. Hatch announced that the end of March a bill would be out and that these are the last of the hearings. Senator Hatch leered at Lehy as he acknowledged the "help" and cooperation of the Democratic Party. The perfume of Senate Solidarity was strong and insipid.

So many real issues of human health, exposure and health care are being ignored in this rush to judgment. What will happen to those exposed daily to asbestos in place or asbestos which is improperly removed, become the victims of the future. Senator Nichols and many others continue the myth of asbestos victims coming from the "pre-regulation" days of the fifties and sixties.

Summary: The fix appears to be in and all efforts are being made to use federal law to circumvent state law in regard to the conditions one must produce to file for compensation. Most of the people today who are considered victims of asbestos disease because they have millions of asbestos fibers destroying their lungs, causing infections and heart attacks, causing cancer and restricting breathing which increases 'flu' fatalities.

These people would be excluded from compensation. As Astern stated the reduction would be about 97%. The witnesses, with the exception of MaCandless, acted like shortness of breath was not a problem. They are preparing to install these draconian restrictions, which fly in the face of medical science. Those who appeared, with the exception of MaCandless and possibly Astern, did not represent asbestos victims. The Hearing was a lopsided "rush" to judgment to disenfranchise millions while money absolutely rules in Washington.