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employment and smoking history, x-ray evidence of abnormalities such as pleural thickening or opacities, pathological evidence of lung scarring, and impaired breathing shown by measures such as forced vital capacity. The bills provide a presumption that the presence of cancer, or particular kinds of cancer, entails physical impairment. (Whether the disease was caused by asbestos may still have to be proven.) The bills also specify qualifications for those professionals who render diagnoses.

Administrative System

Two bills in the 108' Congress (H.R. 1114 and S. 2290) would in effect establish administrative systems to settle claims along the lines of the Georgine settlement. Their intent is to circumvent the seemingly insurmountable requirements of the Federal Rules of Civil Procedure - while assuring a reasonable measure of justice for all parties.

Like the other bills just discussed, H.R. 1114 (Kirk) would require all claimants to first establish that they have an eligible asbestos-related medical condition; failing that, their right to future action would be preserved until such time as impairment occurs. Unlike the other bills, the determination of impairment and causation would be made administratively rather than judicially, through medical review panels appointed by a new agency in the Justice Department, the Office of Asbestos Compensation (OAC).

The OAC would perform a number of functions beyond determining medical eligibility, most importantly taking a direct part in litigation and settlement. First (upon issuing a claimant a certificate of medical eligibility), the OAC, acting through a Trustee, would receive offers of settlement from both sides. The Trustee would also make offers of its own to claimants. If a claimant accepts the Trustee's offer, the Trustee would assume the claim and pursue it against the defendants. Claimants could accept or reject any offers they wish, and for any cases not settled, either pursue a regular lawsuit or an administrative proceeding under the auspices of the OAC. A federal fund would be established for the purpose of facilitating the Trustee's assumption of claims, with the intention of the fund breaking even financially in the long run.

S. 2290 - Points of Debate

S. 2290 (Hatch), the Fairness in Asbestos Injury Resolution Act, will be discussed at further length here, as it has been the focus of considerable attention in the Senate. It is a somewhat revised substitute for S. 1125, a bill that emerged out of negotiations encouraged by the Senate Judiciary Committee among groups representing all parties. Most observers do not expect the House to act on the asbestos issue until the Senate passes a bill. (For further explanation of the bill's detailed provisions, see CRS Report RS21815, Fairness in Asbestos Injury Resolution Act of 2003, by Henry Cohen.)

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