Arlen Specter on Asbestos Legislation, Paul Zygielbaum, May 18, 2005

Op Ed to the New York Times, May 18, 2005

Dear Editor:

Last Monday's New York Times ran an op-ed piece from Sen. Arlen Specter (R-PA) regarding the asbestos trust fund legislation that he's trying to ram through the Judiciary Committee. He attacked Dick Armey for opposing the bill through Armey's FreedomWorks group. As a mesothelioma patient myself, I offer my view on this issue, which is literally a matter of life and death for thousands of Americans - possibly yourself, your children, or your children's children.

Do not believe Arlen Specter's rosy picture of pending Senate asbestos legislation. It is a gift to the perpetrators of many thousands of deaths and unknowable suffering. Contrary to his claim, it does not propose a no-fault system! The bill places the fault on the victim instead of the perpetrator. Counter to Specter's claim that the victims will not have to prove fault for their injuries, they will have to prove lengthy occupational exposure to themselves or a family member. (My mesothelioma apparently will not qualify me, even though I have multiple documented occupational exposures.) Non-occupational exposures won't qualify a victim for compensation, even though many cases happen that way. Because the bill will stop all lawsuits, those who have asbestos disease but don't qualify for coverage under the fund will have no recourse to the court either. Those without medical insurance will be impoverished, to die in agony while their families watch.

Those victims who are eligible for the trust fund will have to do about the same amount of research to establish cause as is needed for a lawsuit, but victims will be left without benefit of attorneys under this bill. Today this research generally takes months of work by teams of attorneys, paralegals and clerks. Who could do that research while dying of a horrible disease? And how many could afford to pay someone out of their own pocket to do the research, especially when the resulting compensation may barely cover the research expenses, as will be the case for many victims? Many will simply not file for compensation, and they will be without recourse in the courts.

One must ask why any such victim should be allowed no day in court, when, for example, the W. R. Grace executives who knowingly killed people for profits at the Libby, MT, asbestos mine will have theirs? Why are the victims lower than the lowest criminals in the eyes of certain senators?

The bill's $140 billion figure for company contributions to the trust fund is a sham. Realistic estimates are that less than $70 billion will come from the companies, and the rest will have to be borrowed from the taxpayers. The borrowing will not be repaid from the fund, since it is virtually designed to become insolvent after several years. As one Judiciary Committee witness pointed out at the hearing I attended, why is $70 billion in interest payments from the taxpayers a better solution than the $70 billion that the companies have paid to defend themselves against lawsuits?

The bill's sponsors claim that their aim is to fix the problem of victims going unpaid because of company bankruptcies. If that is the problem under discussion, why don't they fix the bankruptcy law that allows companies like Halliburton to restrict the liability to one subsidiary and then take that subsidiary bankrupt, leaving the rest of the company to post record profits? The Federal Government just made it harder for private citizens to file bankruptcy, but companies are having a field day with the process in regard to their asbestos liability.

Contrary to what President Bush has said repeatedly, asbestos lawsuits are not frivolous. That is a damnable insult to the memory of the half-million Americans who have been killed by asbestos since World War II. It's a slap at the 30 Americans who will die of asbestos disease today and the 30 who will die of it tomorrow. Remember that America suffers the equivalent of THREE 9-11's every year because of asbestos. We went to war over 9-11; what are we doing about asbestos poisoning? As an expert industrial hygienist pointed out to me yesterday, there is easily enough asbestos loose in this country to contaminate every square inch of America with hundreds, if not thousands, of asbestos fibers. And we continue to import and use something like 6,000 metric tons every year. We don't need to worry about foreign terrorists. We have enough in corporate America.

I've heard companies claim that if the trust fund isn't passed, some 60,000 jobs will be lost. Well, I've lost jobs before. You get another one. I don't know how they can be so concerned about that when they're not concerned about the half-million lives lost already, or the hundreds of thousands more that will be lost to asbestos disease by the middle of this century. If they're so concerned, why don't they put up a little more money to create 60,000 jobs in asbestos abatement, disease prevention, and medical research?

As a plaintiff in a private mesothelioma lawsuit myself, I also object to the bill's attempt to limit attorney's fees to 5% of compensation, rather than the 30% or more that good trial attorneys can earn. I just spent the last two days with my attorneys, and I am so pleased to have them. They're doing a phenomenal job for me against companies that are behaving so outrageously that they have angered even the judge! I'm paying the going rate for competent help, I don't begrudge one penny, and I don't need Sen. Specter in the middle of that business deal. From my view, it's none of his business, nor is it the business of the defendants, how much I choose to pay my attorney. The senator seems to hate trial attorneys more than he wants to help victims. There are some abusive attorneys, so fix that problem if you must, Sen. Specter, but leave the rest of them alone.

You want to understand the motivation for this egregious bill? Follow the money! Sen. Specter won't tell you this, but the truth is that he and his Republican cohorts want to cut fees to liability trial attorneys, whose job is to protect individual constitutional rights, because many trial attorneys are major contributors to the Democratic Party! And with this same bill, they want to improve profits for their own corporate contributors. A noble step toward a one-party system, with fewer protections for individuals against corporate and government abuse! You think they'll stop with just asbestos liability?

Dick Armey's group opposes the bill on two assertions close to the hearts of neo-conservatives: that it will set up a new bureaucracy that costs the taxpayers, and that it will still reward trial attorneys by guaranteeing them 5%. These are red herrings, from my view. Read his group's material, and you'll understand that his true aim is a bill that would be even harsher to the real victims. But he's right to oppose this bill. In this case, the enemy of my enemy is my friend.

I call on everyone who wants a stronger America, an America that can claim moral leadership, to oppose S. 852 in total. If we really want to strengthen America, we can do better!

Paul Zygielbaum
Santa Rosa, CA