An Open Letter from Jim Grogan of the Asbestos Workers Union Regarding S. 852 the "Fairness in Asbestos Injury Resolution Act of 2005 (FAIR Act)"
Click here to Read the full text of House Resolution 1360, the companion legislation to Senate Bill 852, also titled "Fairness in Asbestos Injury Resolution Act of 2005. Below, read the Jim Grogan letter.
Oppose Senate Bill 852
Recently, a daughter of one of our members was diagnosed with mesothelioma, an extremely aggressive cancer of the outside lining of the lung or stomach wall whose only known cause in the U.S. is exposure to asbestos. Her exposure to asbestos probably came from just living in the house of an insulator or asbestos worker, as asbestos would be brought in on a worker’s clothes and shoes.
In recent days, since the Asbestos Bill (S.852) has been introduced, there has been talk in press releases from industry and insurance sponsored groups that suggest that industry is somehow a victim. They have it wrong. Asbestos disease was preventable, but Industry, Insurance Companies, and even our Federal Government found reasons to hide, suppress, or minimize the dangers of exposure to asbestos for decades.
Asbestos is odorless and tasteless. So when people work with products that contain asbestos fibers (or when they were exposed at home), they don’t even know they are getting injured. Asbestos fibers that get into the lungs are invisible. Asbestos disease does not show up in many people until 15-40 or more years after exposure.
Now those that suppressed or downplayed or hid the information about the hazards of asbestos don’t want to take responsibility for their outrageous misconduct. Consider, if you would, the following:
From the 1930s through the 1970s Industry, Insurance Companies, and Even Our Own Government Hid or Suppressed Information About The Dangers of Asbestos
Industry knew in the 1930s and before that asbestos had a toxic effect on humans; and knew by the 1930s that asbestos was associated with lung cancer and death. By the 1950s the link between asbestos and cancer was undisputed to industry medical directors and scientists. See documents on opposite page.
Insurance companies knew in the 1930s and before that those exposed to asbestos came to premature death, and some advised against selling insurance to asbestos workers. Claims under workers compensation and occupational disease acts showed an alarming trend. Metropolitan Life, the Travelers, and a host of other insurance companies realized that asbestos exposure was causing illness, disease, and death. See Internal Travelers Insurance Company document to the left.
The Federal Government knew by 1918 that asbestos was dangerous. Specifically, the Department of Labor wrote in June 1918: "in the practice of American and Canadian life insurance companies asbestos workers are generally declined on account of the assumed health-injurious conditions of the industry." The title of this 1918 article was "Mortality from Respiratory Diseases in Dusty Trades (Inorganic Dusts)." Later in the 1930s and 1940s the Federal Government published that U.S. shipyard workers were coming down with asbestosis, a disease known at that time to cause death in advanced stages. See U.S. Government document from 1918 below.
No one was more patriotic than those who were exposed to asbestos dust while constructing, repairing, or living aboard Naval or flagged ships. But if those who knew that asbestos was harmful would have told us of the dangers, we would have taken measures to protect ourselves. We wouldn’t have taken our asbestos laden clothes home and exposed our families.
Asbestos Disease Continues at an Alarming Rate Asbestos exposures that started in the 1950s are still causing asbestos cancers and death today in record numbers. We have not even seen the full crest of the thousands of asbestos deaths from exposures that started in the 1960s, 1970s, 1980s and beyond.
The incidence of asbestos disease is not yet going down. The asbestos manufacturers and their insurance companies want to minimize forecasts of asbestos disease in the future. They don’t want to put adequate funds in a Trust Fund today for asbestos disease and death that will occur in the decades to come.
The Center for Disease Control confirms that in the last two reportable years, the incidence of mesothelioma (the cancer whose only known cause is asbestos) is averaging over 2,500 deaths in the U.S. Asbestos will kill over 7,000 Americans each year for decades to come when one considers mesothelioma, asbestos induced lung cancer, and disabling asbestosis.
The Recent Explosion of Asbestos Claims and Lawsuits for People Who Have No Breathing Problems or Impairment: The popular press has reported the recent explosion of non-malignant asbestos claims or lawsuits by persons without any breathing problems or impairment. This has contributed, in a significant way, to the present asbestos claims that now are some 600,000 or so in number.
Many have had to legitimately file their un-impaired asbestos claim or lawsuit to stop the statute of limitations from running, even though they are not now sick. Industry claims that there have been some fraudulent practices regarding this explosion. In true catastrophes, medical care is triaged. That is, those that are less sick give up their place in line for those that are truly in need of medical care. In a similar way, we believe a person who has no breathing problem from asbestos (in technical terms, a person without impairment) should not be paid under the asbestos Trust. They should be timely paid if and when they develop some impairment, and they should be able to come back for additional payment if their impairment gets worse. Some law firms represent over 10,000 un-impaired asbestos claimants. Many un-impaired asbestos claims have been said to average $100,000 or more.
Do the third grade math: 10,000 un-impaired claims times $100,000 each would yield $1 Billion dollars. That $1 Billion would go to a group of individuals who had no breathing problems or impairment from asbestos! Claims managers for insurance carriers and industry are rewarded for paying low amounts on large blocks of un-impaired claims, because they keep a corporation’s average asbestos settlement down, which in turn is reported to Wall Street. This practice must stop.
We believe there must be some objective medical evidence or markers of asbestos exposure in order for a lung cancer claim to qualify for payment under any Trust Fund established by legislation--whether it be pleural thickening, calcification, underlying asbestosis, or some elevated asbestos count in lung tissue. If lung cancer claims without markers are to be considered in some cases, they should be individually reviewed to determine the threshold question of whether asbestos exposure was a cause of the lung cancer. CT scans should be able to be used in making this determination. Since mesothelioma is a signal cancer for asbestos exposure, and unrelated to tobacco or other industrial carcinogens, no pleural markers are required.
So What’s New: Industry Wants a Bailout by Short Changing the Value of a Life, and by Proposing Unsafe Work Practices for Asbestos Removal in Public and Private Buildings: So why should a catastrophic asbestos death be valued any differently than other well-recognized insurance values? It has been estimated that a death case in the United States, a case against a negligent or reckless individual corporation that caused a death...is worth $2-3 Million or more. So why should a catastrophic asbestos death be valued significantly less just because industry profiteered for decades selling asbestos? We believe industry and their insurance carriers are using a double standard to the detriment of thousands who will die each year from asbestos disease caused by reckless industrial conduct. And that’s wrong.
And do you think industry ever tries to influence federal regulators? Recently, the popular press has reported efforts by industry to shortcut safety regulations for asbestos removal. The Cow Town Inn of Ft. Worth, Texas and the St. Louis Airport were recently involved in a scandalous attempt to have our government approve an unsafe shortcut for asbestos removal. And why do you suppose...for safety’s sake, or for the sake of the almighty dollar. The AFL-CIO, many affiliates including the Asbestos Workers, and trial attorneys gave of their time and effort to stop this un-tested and dangerous practice.
Who Will Pay this $140-150+ Billion Liability Under this Proposed Legislation? The proposed Asbestos Bill does not name the corporations, insurance companies, or reinsurance companies who will pay. We have asked numerous times for the names of those entities who will be responsible for the successful funding of the Asbestos Trust, but conferees on behalf of industry and insurance have refused such a disclosure. Before being able to support any such national legislation, the identities of the parties and their participation levels must be disclosed.
A recent review of the death certificates of the Asbestos Workers does not support the claim of industry that the incidence of asbestos disease is going down. Now daughters of asbestos workers are coming down with mesothelioma from exposures in the 1960s and 1970s. Significant exposures to asbestos that started in the 1970s and 1980s have not even started to show the full extent of mesothelioma deaths we are told are certain to come. We need real teeth in this bill to prevent industry from needlessly exposing another generation to asbestos in the workplace.
We support a legislative solution to the Asbestos Compensation Crisis. But victims of asbestos disease must not be victimized again by passage of legislation that is unfair. Timely and full payments must be made to asbestos victims. If that cannot be accomplished, access to appropriate state court forums must be preserved. Specifically, there must be a speedy return to the tort system if the Trust fails to timely meet its obligations.
There must be adequate upfront money paid to the Trust by Insurance and Industry so the Trust can timely pay true victims of asbestos. And our own Federal Government must take responsibility for their own part in suppressing information about the hazards of asbestos by guaranteeing any shortfall to the Trust.
It is only in this way that we could face a young woman today (or a young man tomorrow) and tell them we supported this legislation because it was fair and equitable and properly funded.
There may be more than a few special interest groups--including those who refuse to participate in the Trust Fund--seeking to derail the bi-partisan efforts of Senator Specter and Senator Leahy to bring some sense of proportion and equity to the asbestos crisis. To be sure, the Bill needs some additional and important work that could be addressed during and after initial markup.
We will continue in a constructive way to see if a fair, equitable, and adequately funded Bill can be passed. If not, we will fight for the right of any asbestos victim--union or nonunion--to a trial by a jury of their peers in an appropriate State Court.
Fundamental fairness demands no less, and neither do we.
James A. Grogan, General President
International Association of Heat and Frost Insulators and Asbestos Workers