TheWeekInCongress.com (TM)

Week Ending February 17, 2005

The three year old bill aiming to remove tens of thousands of  asbestos poisoning cases from the courts and pay claimants  from a fund paid into by defendants gave way to opposition who saw it as poorly constructed and with significant flaws that could lead to the fund drying up before all claims were satisfied. But the bill is not dead yet: Senate Majority Leader William Frist (R-TN) made a last minute vote change that assures he can return to the bill when he thinks he has the 60 votes necessary for passage.

The bill failed by two votes to earn the 60 needed. The original count was 59 to 40 with one Senator, Daniel Inouye, (D-FL) not voting. When Senator Frist exercised a procedural move and changed his vote to a 'Nay' the count dropped to 58 to 41.

The bill was stopped by a vote to waive provisions of the Congressional Budget Act that the bill violates. The vote was on waiving the CBA. If the motion had gained 60 votes it would have allowed for more debate and a final vote next week. Senator Frist expects to revisit the bill next month when Senator Inouye's expected 'Yea" vote, coupled with one from Senator Frist will deliver the 60 need for passage.

S 862, called the FAIR Act, has been on the Senate floor yearly since before 2003 and has gone from a modest $90 billion fund from which to pay claimants injured by exposure to asbestos to the current $140 billion. Other estimates raise the need amounts to nearly one trillion dollars. The money would come from insurance companies and businesses facing an onslaught of injury cases.

The bill simplifies the procedures that claimants must follow to receive an award and the awards would be based on how the claimant was exposed to asbestos and mitigating factors such as smoking. The highest award would be $1.1 million for someone with Mesothelioma down to medical monitoring for a claimant who is not sick but fears exposure might soon cause problems. Often, symptoms do not appear until ten to thirty years after exposure.

Defendants would save greatly from elimination of attorney fees and avoiding large, multi-million dollar settlements, some already awarded, but further savings would come from a provision in an amendment to the bill that would allow companies to write off some of their donations--in the tens of millions--from their income taxes. A provision that would remove over $1 billion in expected tax revenue from the US Treasury.

The tax break provision, a provision that leaves the Federal government harmless if the fund runs out of money and a provision that would return a claimant to court after three years if the fund ignored the claim were elements in the bill along with a 'manager's amendment' offered by the Majority at the last minute as a complete substitute for the original bill. Opponents mustered against the substitute bill procedure as well, claiming that the matter is too important to vote blindly on the substitute without time to consider the changes it makes to the original bill.

The original TheWeekInCongress.com report on the bill can be read here

How Senators voted on the waiver can be read here