WASHINGTON -- For the third year in a row, full-page newspaper ads and prime-time TV spots have been bought to highlight the plight of workers with asbestos disease or the industries that are targets of their lawsuits. But senators in both parties say it will take a lot more than an advertising blitz to pass a program to pay those sickened with cancer-causing fibers to stop clogging the courts with tens of thousands of suits for damages.
The Fairness in Asbestos Injury Resolution Act, which was reintroduced late last month, would establish a $140 billion trust fund for victims who meet government medical criteria for the disease. But a report yesterday by the Institute of Medicine of the National Academies might have further dimmed the bill's chances of passage.
The institute found "sufficient scientific evidence" to link asbestos exposure to cancer of the larynx. That would further strain the resources of the proposed trust fund: The Senate Judiciary Committee had agreed to be bound by the findings of the institute, which means an additional type of cancer would be covered by the proposed law.
The bill, co-sponsored by Sens. Arlen Specter, a Pennsylvania Republican, and Patrick J. Leahy, a Vermont Democrat, initially won fervent backing from business because it promised protection from the more than 800,000 asbestos injury lawsuits already in the courts.
But now, many of the same businesses are lobbying against it because they fear the $140 billion in the trust fund won't be enough to cover the tens of thousands of new cases being diagnosed each year. The money in the fund would come from businesses involved in mining, shipping, using or producing products containing asbestos.
Arguments for and against the legislation are passionate.
One side presents examples of bogus diagnoses of asbestos disease by unqualified physicians on workers who have no signs of the disease. The other side conveys the financial and physical pain of miners, military veterans, builders, factory workers and their family members who have been sickened or died from asbestosis, lung cancer and the quick-killing mesothelioma.
Meantime, there is concern that too many people actually ill with the disease might not qualify for inclusion. In February, when a similar measure was defeated by a 58-41 vote, many thought the fund was dead for good. However, Senate Republican leader Bill Frist of Tennessee reminded the Senate that President Bush urged passage for the trust fund in his State of the Union address.
In new statements that urged passage of the measure, Specter and Leahy said they had made improvements in the bill.
"I am proud to report that we have also maintained our core medical criteria so that those who have been impaired by asbestos exposure will receive compensation according to their injuries," Leahy said.
Medical criteria have sparked the most opposition.
The guidelines as to who will be accepted for inclusion in the trust were, for the most part, conceived by a panel convened by the American Bar Association. The criteria have been vehemently denounced as unfair and unrealistic by medical associations and asbestos specialists, including those who follow the American Thoracic Society's Diagnostic Criteria, considered by most physicians to be the standard for evaluating asbestos-caused disease.
The revised criteria aren't being received any better.
"Its use will result in untreated disease and unnecessary death," said Dr. Michael Harbut, who worked on the thoracic society's criteria.
"I've diagnosed and treated over 10,000 patients for asbestosis and asbestos cancers over the past 20 years. And under this criteria, the United States Senate would dismiss about 85 percent of them as apparently having something else," said Harbut, co-director of the National Center for Vermiculite and Asbestos-Related Cancers at Michigan's Karmanos Cancer Institute. "The bill's criteria violate medicine's first oath - to first do no harm."
"We're being asked to do a pretty radical thing here - to tell people, who've become ill because of asbestos exposure, that they can no longer seek justice in court," said Democratic Sen. Joseph R. Biden Jr. of Delaware, who sits on the Judiciary Committee. "This new bill amounts to little more than tinkering around the edges with legislation that is fundamentally flawed. To the extent it makes changes, it harms victims more than it helps."
In a briefing for Senate staff members and the media scheduled for today, several medical experts will discuss the criteria and the value of the cancer findings by the Institute of Medicine.