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Asbestos litigation prospects for legislative resolution

CRS Report for Congress

Order Code RL32286

Asbestos Litigation: Prospects for Legislative Resolution

Updated February 8, 2005

Edward B. Rappaport Analyst in Industry Economics and Finance Domestic Social Policy Division

Congressional Research Service •:• The Library of Congress

CRS-10

Medical Criteria

Eligibility for benefits would require certain kinds of evidence, including documentation of occupational exposure to asbestos (preceding a minimum 10-year latency period), smoking history, physical examination, pulmonary function test, x rays, and pathology report. With this evidence, administrators are to apply the criteria in Subsection 121(d) and determine the highest of the 10 disease levels to which each claimant belongs (if any). The goal is a non-adversarial system that is prompt, efficient, and as accurate as possible in a field where there are substantial scientific uncertainties. While in some respects the benefit of the doubt is given to claimants, on the other hand the system is meant to eliminate screening "mills" that produce thousands of claims upon evidence that is fragmentary at best, if not fraudulent.19

Disputed Categories. Several of the disease categories have drawn criticism on the ground that they are not credibly linked to asbestos exposure. Among these are as follows:

  • Simple asbestosis (Level I). It is agreed on all sides that claimants at Level I are not impaired hence do not receive cash compensation, only the right to monitoring. If illness on other levels is subsequently found, compensation can then be claimed. Some dispute the rationale for monitoring, arguing that being at Level I does not imply any higher probability of subsequent illness than for other workers who are not at Level I. On the other side it is argued that, as done with many toxic substances, all exposed workers should get screening regardless of whether they show symptoms.20

  • "Other cancers" (Level VI). There is dispute here on whether asbestos causes non-lung cancers (such as colorectal). Proponents of the provision note that the existing bankruptcy trusts compensate for non-lung cancers, but opponents claim that this is due to quirks of bankruptcy bargaining dynamics. The bill would award $150,000 for such cases, but also mandate a study by the Institute of Medicine to be completed within two years.21

  • Lung cancer without asbestosis (Levels VII and VIII). Some claim that when asbestos causes lung cancer, there is almost always evidence of clinical asbestosis.

The Tobacco Question. Beyond the foregoing disputes, however, the most contentious issue of all is the relevance of smoking history. The committee report states that "The Fund is not intended to be a compensation system for smokers,

__________________________________________________________________

19On allegations of fraudulent testing, see Sen. Kyl's statement, Committee report pp. 95-98.

20Compare Committee report pp. 98-99 and pp. 212-213.

21Presumably the results of the study would not affect cases already decided.