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Asbestos Bill Raises Impossible Hurdles for Victims
The Specter-Leahy bill asks asbestos victims to bear the risk of an inadequately funded, unfairly structured and untested new compensation program that is not even a "no fault" system. In fact, victims must surpass huge new hurdles to prove their asbestos exposure and that it is the cause of their illness. Based on the current version of the bill, it will be impossible for them to do so.
Worst 10 Hurdles Are:
Victims who have already been through the legal system and have pending claims would have their settlements thrown out under this bill. They would be forced to get back in line to wait for a new bureaucracy to be set up before they could get any compensation or help with medical bills.
Even victims dying of mesothelioma, which typically kills within a year, would have their cases thrown out of court and be forced to wait nine months. Many will die while waiting for their claims to be heard.
Because even victims with pending settlements would be forced into the fund, the asbestos fund will start with a 500,000 case backlog that cannot be timely processed.
Victims must prove at least five years of "substantial occupational exposure" and document the extent, duration, and intensity of the exposure in order to be compensated. This will be impossible for most victims because the records simply don't exist. Employers were not required to monitor exposures before the mid-70s and many employers failed to do so even after OSHA required such monitoring. Employees have no right under the bill to access exposure information from their former employers, some of which no longer exist.
The experience of past government-run compensation programs indicates this one is doomed to fail victims too. A new study of the Black Lung Program, the Energy Employees Occupational Illness Compensation Program Act and the Radiation Exposure Compensation Act shows all funds dramatically underestimated potential claims, leading to delays in compensation and the need for taxpayer dollars. ["Commentary on the Creation of a Fund for Victims of Asbestos Caused Diseases," by Professor Peter S. Barth]
There is special compensation in the bill for victims in Libby, Montana, but other victims of community asbestos exposure—such as families in hundreds of communities all over the country that received asbestos shipments from Libby—are shut out completely and would be ineligible for compensation.
Many people who were exposed to asbestos in the World Trade Center collapse on 9/11—would be ineligible for compensation.
The vast majority of victims poisoned by non-occupational exposure would be ineligible for compensation.
Victims who can prove a claim will have to wait months or years for the fund to start paying compensation. The bill gives the fund administrator three to four years to pay a claim after it has been approved, with exceptions for some mesothelioma cases.
If the fund is about to run out of money, there is no automatic sunset provision that would allow asbestos victims to return to the legal system. Instead the administrator can simply change the medical criteria or reduce benefits for victims—in essence changing the rules in the middle of the game—rather than allow victims to return to court.
These hurdles are why every major asbestos victims group opposes the bill, including the Asbestos Disease Awareness Organization, the Committee to Protect Mesothelioma Victims, the White Lung Asbestos Information Center, the White Lung Association, the American Public Health Association, and 9/11 Environmental Action.
July 2005

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