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which would otherwise overwhelm the Fund leaving no money for asbestos victims." Thus the compensation scheme discounts the awards to smokers in two ways. First, the three lung cancer levels (VII through IX) are distinguished by the degree of pathology or x-ray evidence linking the cancer to asbestos. Implicitly, Levels VII and VIII attribute a higher probability to other causes (e.g., tobacco or radon) where asbestos cannot be specifically linked. Second, levels are divided explicitly into sublevels for smokers, former smokers²² and non-smokers, and the compensation matrix to be developed by the Administrator would differentiate awards within each sublevel according to smoking history.

The resulting scheme has been criticized from both sides. On the one hand, as noted, some claim that asbestos is almost never the cause of cancer without also causing clinical asbestosis, so there should be no Levels VII or VIII. On the other hand, plaintiff advocates note that a high percentage of the blue collar workers most exposed to asbestos were indeed smokers, so that the widely publicized figure of up to $1 million for lung cancer would be received by very few.

A key point of disagreement is whether there is synergy between tobacco and asbestos in causing cancer. Many believe that there is such a synergistic effect (i.e., when one is exposed to both asbestos and tobacco), the risk of lung cancer is enhanced greatly beyond the sum of the two factors independently. If this is so, then it could be argued that the awards to smokers should not be reduced very much vis-avis non-smokers. However, differing testimony on the matter was received by the committee and consensus not reached.²³

Diagnostic Quality Control. In addition to the foregoing disagreements about defining eligible medical categories, there is the issue of types of evidence to be deemed credible. In the existing tort law system, plaintiffs present evidence favorable to their case and defendants have an opportunity to challenge it. Since S. 2290 would replace tort law with a non-adversarial, administrative system, it explicitly defines what kinds of evidence are necessary and acceptable, and requires auditing of the results.

Subsection 121 (b) sets general rules for expertise of those developing evidence. Thus, (1) x-ray interpretations must be done by "B-readers," a certification overseen by the National Institute for Occupational Safety and Health; (2) pulmonary function testing for asbestos (Levels III to V) is to be done in accordance with the standards of the American Thoracic Society; and (3) diagnosis of malignancies (Levels VI through X) must be done by board-certified pathologists.²⁴

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²²Those who quit at least 12 years before diagnosis.

²³Both sides were supported by expert witnesses. The committee majority in favor of the bill relied particularly on testimony of Dr. James Crapo of the University of Colorado. The dissenting minority claimed a "scientific consensus" for synergy as expressed by institutions such as the National Toxicology Program (Department of Health and Human Services) and the International Agency for Research on Cancer. Compare Committee report pp. 64-66 with pp. 200-202.

²⁴According to the bill text, diagnoses of non-malignant conditions (Levels I through V) can be rendered by any physician. However, the Committee report (at p. 39) expresses the intent that "the documentation would be provided by an appropriately board-certified physician in occupational medicine or pulmonary medicine," while recognizing that access to same "may not be feasible for all claimants due to geographical constraints."

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