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S. HRG. 109–348

ASBESTOS: MIXED DUST AND FELA ISSUES

HEARING

BEFORE THE

COMMITTEE ON THE JUDICIARY 

UNITED STATES SENATE

ONE HUNDRED NINTH CONGRESS

FIRST SESSION

FEBRUARY 2, 2005

Serial No. J–109–2B

Printed for the use of the Committee on the Judiciary

(

(II)

COMMITTEE ON THE JUDICIARY 

ARLEN SPECTER, Pennsylvania, Chairman 

ORRIN G. HATCH, Utah 

CHARLES E. GRASSLEY, Iowa 

JON KYL, Arizona 

MIKE DEWINE, Ohio 

JEFF SESSIONS, Alabama 

LINDSEY O. GRAHAM, South Carolina 

JOHN CORNYN, Texas 

SAM BROWNBACK, Kansas 

TOM COBURN, Oklahoma 

PATRICK J. LEAHY, Vermont 

EDWARD M. KENNEDY, Massachusetts 

JOSEPH R. BIDEN, JR., Delaware 

HERBERT KOHL, Wisconsin 

DIANNE FEINSTEIN, California 

RUSSELL D. FEINGOLD, Wisconsin 

CHARLES E. SCHUMER, New York 

RICHARD J. DURBIN, Illinois 

DAVID BROG, Staff Director 

MICHAEL O’NEILL, Chief Counsel 

BRUCE A. COHEN, Democratic Chief Counsel and Staff Director 

(III)

C O N T E N T S 

WEDNESDAY, FEBRUARY 2, 2005

STATEMENTS OF COMMITTEE MEMBERS 

Page

Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont .................... 2

prepared statement .......................................................................................... 90

Specter, Hon. Arlen, a U.S. Senator from the State of Pennsylvania ................. 1

WITNESSES 

Brickman, Lester, Professor of Law, Benjamin N. Cardozo Law School of 

Yeshiva University, New York, New York ......................................................... 11

Epstein, Paul E., M.D., Clinical Professor of Medicine, Chief, Pulmonary 

and Critical Care Medicine, Penn Medicine at Radnor, Radnor, Pennsylvania ...................................................................................................................... 14

Griffin, Donald F., Director of Strategic Coordination and Research, BMWEDTeamsters, Washington, D.C. .............................................................................. 34

Hoferer, Paul, Vice President and General Counsel, BNSF Railway, Forth 

Worth, Texas, on Behalf of the Association of American Railroads ................. 32

Martin, Michael B., Maloney, Martin and Mitchell, LLP, Houston, Texas ........ 7

Rodman, Theodore, M.D., Retired Professor of Medicine, Ardmore, Pennsylvania ...................................................................................................................... 12

Weill, David, M.D., Associate Professor, Division of Pulmonary and Critical 

Care Medicine, University of Colorado Health Sciences Center, Denver, 

Colorado ................................................................................................................ 9

Welch, Laura, M.D., Medical Director, Center to Protect Worker Rights, Silver 

Spring, Maryland ................................................................................................. 5

QUESTION AND ANSWER 

Response of Dr. Laura Welch to a question submitted by Senator Coburn ....... 40

SUBMISSIONS FOR THE RECORD 

Brickman, Lester, Professor of Law, Benjamin N. Cardozo Law School of 

Yeshiva University, New York, New York, prepared statement ...................... 44

Epstein, Paul E., M.D., Clinical Professor of Medicine, Chief, Pulmonary 

and Critical Care Medicine, Penn Medicine at Radnor, Radnor, Pennsylvania, prepared statement .................................................................................. 71

Griffin, Donald F., Director of Strategic Coordination and Research, BMWEDTeamsters, Washington, D.C., prepared statement .......................................... 73

Hoferer, Paul, Vice President and General Counsel, BNSF Railway, Forth 

Worth, Texas, on Behalf of the Association of American Railroads, prepared 

statement .............................................................................................................. 78

Martin, Michael B., Maloney, Martin and Mitchell, LLP, Houston, Texas, 

prepared statement .............................................................................................. 92

Rodman, Theodore, M.D., Retired Professor of Medicine, Ardmore, Pennsylvania, prepared statement .................................................................................. 105

Weill, David, M.D., Associate Professor, Division of Pulmonary and Critical 

Care Medicine, University of Colorado Health Sciences Center, Denver, 

Colorado, prepared statement ............................................................................. 107

Welch, Laura, M.D., Medical Director, Center to Protect Worker Rights, Silver 

Spring, Maryland, prepared statement .............................................................. 114

(1)

ASBESTOS: MIXED DUST AND FELA ISSUES 

WEDNESDAY, FEBRUARY 2, 2005 

UNITED STATES SENATE, COMMITTEE ON THE JUDICIARY, Washington, DC. 

The Committee met, pursuant to notice, at 9:30 a.m., in room 

SD–226, Dirksen Senate Office Building, Hon. Arlen Specter, 

Chairman of the Committee, presiding. 

Present: Senators Specter, Hatch, Grassley, Cornyn, Coburn, 

Leahy, Feinstein, Durbin, and Carper (ex officio). 

OPENING STATEMENT OF HON. ARLEN SPECTER, A U.S. 

SENATOR FROM THE STATE OF PENNSYLVANIA 

Chairman SPECTER. Good morning, ladies and gentlemen. The 

Judiciary Committee will now proceed. 

This hearing will deal with the proposed legislation on asbestos. 

We will take up two subjects, although I hope the issue on the Federal Employers Liability Act will be largely resolved. 

Our principal concern this morning is on the issue of disease 

caused by asbestos contrasted with disease caused by silicosis or 

other airborne particles. We are moving along on what I still hope 

and project will be a very early timetable. 

As you all know, a draft bill has been circulated. There have 

been agreements on many of the contested issues as a result of 

very extensive meetings held among the stakeholders presided over 

by Judge Becker, former Chief Judge of the Court of Appeals for 

the Third Circuit, who is with us today. On issues where understandably we cannot find consensus and agreement, decisions have 

been made on what is viewed as an equitable and appropriate handling of the issue. 

The matter of asbestos versus silicon is a challenging one, and 

our preliminary findings are that it is possible to distinguish in almost all cases what is caused by asbestos and what is caused by 

silicon. And we want to refine that even further to see how we can 

define that in legislative terms so that individuals who are suffering from both silicosis as well as asbestosis are not precluded 

from having claims for their silicosis ailments, but that we do not 

have people who have been compensated for asbestosis go back and 

have a second recovery which is unjustified. This is a very knotty 

problem, and it could be enormously problemsome for any proposed 

legislation. But that is what we are working on. 

The draft bill was submitted some time ago. A few remaining 

blanks will be inserted as promptly as we can work them through, 

with the proposed bill to be filed of record. 

2

With respect to the issue on the Federal Employers Liability Act, 

there has been a concern that those in workmen’s compensation 

not be treated better and people in FELA not be treated worse, 

that there be an equality. And there have been many, many, many 

discussions, which is characteristic of what we have done generally. 

And the parties are again reportedly very close to an agreement, 

and I am informed that if there is ultimately no agreement, there 

is an agreement that the bill should provide for language that 

within a certain time frame the issue would be submitted to compulsory arbitration, which would be a good resolution with the parties agreeing to that kind of conclusion. So we are moving ahead. 

We have very good attendance today, and with that statement of 

three and a half minutes, I am going to yield to my distinguished 

Ranking Member, Senator Leahy. 

STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR 

FROM THE STATE OF VERMONT 

Senator LEAHY. Thank you, Mr. Chairman. And I also commend 

you for starting on time, which is a nice way to do things here. And 

I commend you for holding the hearings. We have tried very hard 

in the last 2 years to get a bipartisan consensus on this issue. I 

was talking to Judge Becker on the way in, and I commended him, 

as both Senator Specter and I have. His work on this has been herculean, and I think it is one of the reasons why we are this far 

along. He also said the various stakeholders have worked diligently 

with him, and I think that is why we are so close to an agreement 

on many of the aspects of the national trust fund to fairly compensate victims of asbestos exposure. 

I am worried that it appears that some special interests are trying to limit their liability in cases not related to asbestos through 

a last-minute and I believe overly broad provision that could jeopardize years of work by both Republicans and Democrats trying to 

develop an asbestos trust fund. 

Despite its title, I am afraid that the latest draft would dramatically alter the proof requirements and recovery rights within the 

tort system for ‘‘any personal injury claim attributable to exposure 

to airborne dust, fibre, or minerals.’’ I put a chart up which shows 

this. 

The chart shows the relevant language from the latest asbestos 

draft. This sort of 11th hour provision was not in the bill reported 

by this Committee last Congress or in the substitute bill considered 

by the full Senate last year. It is not limited to so-called mixed 

dust. It appears to cover hundreds and perhaps thousands of injuries caused by airborne substances other than asbestos, including 

silicosis, black lung disease, even lead poisoning. That is overreaching. 

The Leahy-Hatch medical criteria adopted unanimously by this 

Committee in the last Congress and agreed to by all the stakeholders addressed only asbestos-related injuries. The purpose of 

this legislation has always been to address compensation for asbestos victims, not to provide compensation for injuries caused by 

other material. As a matter of fact, I am glad to see Dr. Laura 

Welch here for an encore performance before this Committee. She 

provided insightful testimony and critical assistance with the deVerDate 0ct 09 2002 11:37 Apr 07, 2006 Jkt 026796 PO 00000 Frm 00006 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\26796.TXT SJUD4 PsN: CMORC
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velopment of the Leahy-Hatch medical standards for compensating 

asbestos-related disease that we crafted in the last Congress. 

It is clear to me that requiring victims to prove that asbestos was 

not a cause of their injuries in court would preempt State law. It 

would shift the burden of proving defenses to plaintiffs and greatly 

expand the scope of liability protection for corporations without 

adding a balancing or corresponding method of compensation for 

additional victims. 

Now, remember, we are taking away people’s rights to jury trials 

in this legislation. In doing that, we should always balance—if you 

are taking away rights, you have got to balance that with having 

other rights given to them. 

Both my grandfathers, my Irish grandfather and my Italian 

grandfather, worked as stone cutters in the granite quarries of 

Vermont. Both suffered from silicosis because of the workplace exposures to stone dust. One of my grandfathers I never knew because he died at the age of 35 from that. 

Now, they did not have asbestos-related disease, so they would 

not have qualified for compensation under the proposed trust fund. 

And under this language, they would have faced unprecedented 

legal hurdles to recover any compensation in a court of law. It is 

not fair, and I do not find it acceptable. 

Now, the biggest danger to enacting bipartisan asbestos legislation is over-reaching by some interests for immunity from lawsuits 

brought by victims with legitimate injuries caused by silica or other 

substances. So I hope those who are pushing this overly broad sort 

of last-minute—I hate to call it a Christmas tree, maybe Christmas 

present might be better—legislation will step back and realize that 

we are trying—let’s not kill the greater good by some last-minute, 

special interest legislation. 

The second issue we are addressing today should be easier to resolve in a fair manner. FELA, the Federal Employers Liability Act, 

is a unique statute. It has provided workers’ compensation benefits 

for railroad workers and provided compensation tort law for injuries to railroad workers such as asbestosis. The latest asbestos 

draft bill overrides FELA for victims of asbestos exposure. But by 

preempting FELA, the proposal also eliminates the railroad workers’ compensation program, even though all other workers’ compensation programs remain intact in the bill. I think we can 

change that because it would not be fair. 

I commend the representatives of the railroad workers for coming 

to the table to bargain in good faith for special awards under the 

proposed trust fund. I hope the representatives of the railroads will 

do the same. 

I look forward to working with the Chairman, and I want to commend him again for the enormous amount of time and effort he has 

put into this, and Senator Feinstein and other members of the 

Committee and the stakeholders. We can resolve these efforts. We 

can bring about a solution. 

Mr. Chairman, I will put the rest of my statement in the record. 

This was somewhat long, but I wanted people to understand that 

we are getting so many calls in my office from all the stakeholders, 

and I wanted them to know just where I was. And, of course, SenVerDate 0ct 09 2002 11:37 Apr 07, 2006 Jkt 026796 PO 00000 Frm 00007 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\26796.TXT SJUD4 PsN: CMORC
4

ator Hatch and I worked so hard on this last year to get the medical criteria in there. 

Thank you. 

[The prepared statement of Senator Leahy appears as a submission for the record.] 

Chairman SPECTER. Thank you very much, Senator Leahy. When 

you talk about hard work on this bill, it applies far and wide, with 

what Senator Hatch and you did last year in originating the idea 

of the trust fund, which after a lot of analysis, is, in my judgment, 

the only way we are going to move toward a solution here. And we 

have had very lengthy hearings, and Senator Feinstein has been in 

the forefront last year and again this year. She and I sat—she is 

considering a bill of her own or perhaps we will work a bill out. 

The legislative process here I think is all going to—I am optimistic 

it will all come together in the end. How we will parse it through 

and how we will work it through remains yet to be seen, and that 

is precisely what we are doing. 

Again, I think the number of meetings where Judge Becker has 

presided are now 38 in number, in addition to many, many individual meetings and calls on a continuing and constant basis. During the league championship game in Philadelphia a week ago Sunday, Judge Becker was working on Sunday calling some of the witnesses who are on this panel. And I was not totally cooperative 

while the game was in play, but a little during half-time and a little during a break. And I will tell you that Judge Becker handed 

me the cell phone after talking to some of these people while 

McNabb was running, and I declined—and not respectfully. I just 

declined. 

Well, we have asked the stakeholders to produce witnesses today. 

We have offered two slots for AFL–CIO. They felt that our lead 

witness would be their spokesperson on this issue, and she is Dr. 

Laura Welch, Medical Director for the Center to Protect Worker 

Rights, a research and development institute affiliated with the 

building and construction trades of AFL–CIO. She has held faculty 

positions at Yale, George Washington University, is the author of 

over 50 peer-reviewed publications and technical reports in the 

field of occupational and environmental medicine. She has many 

years of experience in medical surveillance programs for asbestos. 

Dr. Welch received her medical degree from the State University 

of New York at Stony Brook in 1978 and a bachelor’s from 

Swarthmore College in 1974. 

We have, as is our custom, established a 5-minute rule which we 

would ask you to observe, and there will be time to amplify your 

views during the question-and-answer period. And I think it best 

to start with 5-minute rounds among the members so that people 

get at least a chance to ask without waiting throughout the entire 

morning. But we will have multiple rounds, and we will be here as 

long as any member has questions and as long as any panelists 

have something that they want to add. 

So you are the lead-off, Dr. Welch. Thank you for joining us and 

the floor is yours. 

5

STATEMENT OF LAURA WELCH, M.D., MEDICAL DIRECTOR, 

CENTER TO PROTECT WORKER RIGHTS, SILVER SPRING, 

MARYLAND 

Dr. WELCH. Thank you very much for the opportunity to appear 

here, and as everyone has heard already, I had the honor of assisting the Senate in developing the medical criteria going into this 

legislation. So I will have some comments on how I think this Section 403 integrates with that. But I understand that the main concern is that cases of asbestosis would also be filed as injury due to 

other dust, such as silica. I really do not think that is a problem. 

Asbestosis and silicosis really are different diseases, and they are 

separable from each other based on the history of exposure, the 

chest X-ray, and pulmonary function testing. 

I was able to read Dr. Epstein’s testimony before coming here 

this morning, and he is going to discuss it in more detail. So I am 

just going to defer to him to describe how silicosis and asbestosis 

are different. But really, the history is different, the X-ray is different, the pulmonary function tests are different. They are really 

fairly easy to separate. 

Senator Leahy has already pointed out but I want to re-emphasize that the medical criteria for this fund were designed to identify 

and compensate workers or individuals with asbestos-related diseases. And I think a lot of work went into the development of criteria that do not compensate for diseases that are not related to 

asbestos. The X-ray and pulmonary function test criteria that are 

in the bill identify asbestosis and the pleural disease caused by asbestos. And, in addition, the medical criteria require a physician 

statement that asbestos was a substantial contributing cause to the 

disease that is being put forth for compensation and excluding 

other, more likely causes of that pulmonary condition. So essentially the medical report will say this is asbestosis and that the 

physician has considered other cases such as silicosis and is not a 

more likely cause. 

So it is really set up so an applicant has to have significant lung 

disease with impairment caused by asbestos to be compensated 

under the fund. So we are not going to be seeing other diseases like 

silicosis being compensated under this fund. 

So in some ways, this term that has been used of ‘‘mixed dust 

disease,’’ and I wanted to just state that the textbook definition of 

mixed dust pneumoconiosis has nothing to do with asbestos. Mixed 

dust pneumoconiosis is caused by simultaneous exposure to crystalline and silica and other dusts, like iron oxides, coal, and graphite. So asbestosis and silicosis together are not mixed dust disease. 

And I know that the other doctors on the panel are going to talk 

about how likely that is to occur. There may be some that have 

both diseases, but that is really very rare. 

Now, let me make a couple comments on the specific language 

of the bill. The language was up there a little while ago, but it 

states that, ‘‘To proceed with a civil suit for a disease attributable 

to an airborne, dust, fibre, or mineral, the claimant must prove 

that their functional impairment was not caused by exposure to asbestos.’’ And as a physician, I think that is an impossible statement 

to respond to. I cannot swear exposure to asbestos made no contribution to a person’s lung disease. Almost everyone who has lung 

6

disease in this country from silica or from anything else will have 

had some exposure to asbestos, and the bill would require me to 

say there was no contribution from that. 

I can make an affirmative statement that this is asbestosis, that 

asbestos is a substantial contributing cause, that it is the primary 

cause, that the disease is another disease. But to say there was absolutely no physiologic contribution at all from asbestos is really 

not medically possible. So I have a lot of concern with that particular language. 

In addition, the scope of the diseases and exposures covered by 

the term ‘‘personal injury claim attributable to exposure to airborne 

dust, fibre, or minerals,’’ I started to make a list, and that term 

‘‘mineral’’ alone encompasses over 500 different substances. It includes all metals and metal compounds. So there is a range of lung 

diseases that would be impacted by that language. In addition to 

asbestosis and silicosis, it would include chronic beryllium disease, 

asthma that is caused by wood dust or other dusts, cotton dust disease, coal workers’ pneumoconiosis. There is a list as an appendix 

to my written testimony that goes through that in more detail. 

And then, in addition, minerals cause diseases that are not lung 

disease: lead poisoning, mercury causes kidney disease, arsenic 

causes neurologic injury, chromates cause contact dermatitis. It is 

a very long list. So any person with a personal injury claim, for example, lead poisoning, would have to submit the evidence required 

in 403, even though the disease of lead poisoning has nothing to 

do with asbestos exposure and might not even need a chest X-ray 

for diagnosis. And when I was making my list of other conditions 

and exposures, I would say that the language could cover personal 

injury claims for medical malpractice as well because there are 

metals that are used as therapeutic drugs. Lithium, for example, 

is used to treat bipolar disorder. Platinum is a cancer 

chemotherapeutic that is used for a lot of different agents. And I 

do not think the intent of this legislation was to reach out into 

other areas that are not even product liability. But the way I read 

it, it would. 

Chairman SPECTER. Dr. Welch, your time is up. Could you summarize, please? 

Dr. WELCH. Okay. The only other point I wanted to make was 

everybody has had exposure to asbestos who was alive in the 

1970’s. There is asbestos in everyone’s lungs. So the requirement 

that if you had asbestos exposure you come under this bill would 

include an untold number of people. So I would agree with Senator 

Leahy’s initial comments. My impression is that the range of diseases, conditions, exposures that are included under this language 

is way too broad, and trying to solve a problem of this combined 

asbestosis and silicosis that as a physician specializing in the field 

I do not see presents a problem. 

So thank you very much, and I could answer questions. 

[The prepared statement of Dr. Welch appears as a submission 

for the record.] 

Chairman SPECTER. Thank you, Dr. Welch. We will be coming 

back to you for questions, which will give you an opportunity to 

amplify your testimony. 

7

Our second witness is Mr. Michael Martin from the law firm of 

Maloney, Martin and Mitchell in Houston. For 15 years, he has 

been a specialist in environmental toxic torts after his father was 

diagnosed with asbestosis. He represented families suffering from 

occupational diseases—silicosis, asbestosis, and many others. He 

has been a member of the Texas State Legislature, was twice 

named Texas Monthly’s 10 Best Legislators, law degree from South 

Texas College in 1985, and a bachelor’s from the University of 

Texas in 1982. 

Thank you for joining us, Mr. Martin, and we look forward to 

your testimony. 

STATEMENT OF MICHAEL B. MARTIN, MALONEY, MARTIN AND 

MITCHELL, L.L.P., HOUSTON, TEXAS 

Mr. MARTIN. Thank you, Mr. Chairman, and it is an honor and 

a privilege to be before you here today. I find it ironic, actually, 

that I am standing here or sitting here before you talking about silicosis when this august body declared war on silicosis in 1932 when 

the disaster surrounding silicosis first hit this country. And here 

we are in 2005 still talking about the issue. 

I have spent a large part of my legal career specializing primarily in silicosis cases. I really do not do much other types of occupational lung disease cases. And some of my clients that are currently active and on file and have cases are individuals who are 

truly sick at young ages. My client Rafael Martinez is a victim of 

a bilateral lung transplant at the age of 32. My client Rick Mahar 

in Washington is a victim of a bilateral lung transplant at the age 

of 42. These gentlemen have had their lungs taken out of their 

body, and hyalinized silicotic nodules and conglomeration of silicotic nodules were found as a product as a result of their employment as sandblasters, which involves very intense exposure to silica dusts. 

But it cannot be said in looking at the pathology of those gentlemen, which we have and can confirm, that there is not some asbestos in their lungs because as Dr. Churg, who I think everyone on 

the panel is familiar with, as noted in his book, ‘‘The Pathology of 

Occupational Lung Disease,’’ over the past 50 years some 50 million workers were exposed to asbestos, and if you add to that the 

general environmental exposure to asbestos, everyone in this room 

can qualify as a person who was exposed to asbestos. 

No doubt Mr. Mahar and Mr. Martinez, two people who suffer 

from acute silicosis and are victims of a rapidly progressive disease 

that caused their lung transplantations, certainly had asbestos in 

their lungs, but they did not have asbestosis. 

And as I look at Section 402 or 403(a), as provided and demonstrated before the Committee, the primary problem I see from a 

pleading practice as a lawyer is that it requires me as a lawyer 

representing a silicosis victim on claims that are substantially 

smaller in number across the country than asbestos cases, it requires me to plead a negative. It requires me to plead that something does not exist. If I file a pleading for acute silicosis or accelerated silicosis or chronic silicosis, that should be dispositive. If I file 

a pleading for berylliosis or if I file a pleading for hard metal lung 

8

disease, all of which are diseases caused by other minerals or 

heavy metals, that should be dispositive. 

But what this language does is shifts the burden of proof to me 

to prove that something does not exist, and then requires me to say 

that my client was never exposed to asbestos, which I probably can 

never do if you take Dr. Churg’s opinion on its word that most 

workers in the workplaces across the country and in the industrial 

environment have been exposed to asbestos. 

So this double-negative scenario that the language presents 

under 403(a) is very problematic, and it creates this risk: It creates 

the risk of throwing a person like Rick Mahar, a victim of a bilateral lung transplant, into the Asbestos Trust, where he does not belong, where he would not get compensation, and for his family, his 

future is in great question. And to throw him into a trust would 

potentially delay the resolution of his claim and ultimately result 

in the extinguishment of his claim because that trust is not designed to provide him a remedy. Moreover, those companies that 

are potentially responsible for creating the trust are not responsible for causing his disease. So there is a fundamental unfairness 

on both sides if you include silica, silica-related claims, mineral 

dust claim in the same breath with asbestos, which has been a 

ubiquitous substance involving high numbers and large numbers of 

litigation. 

In summary, Mr. Chair, I think it is important that we look at 

this language very carefully and identify the fact that it shifts the 

burden inappropriately, and it creates the risk that clients who are 

truly ill from silicosis or other serious lung diseases not associated 

with asbestos will have their remedies extinguished and not have 

any recourse at all to secure and provide some security for the future of their families and themselves. 

With respect, we would hope that 403(a) be relooked at in terms 

of narrowing its scope and application. 

[The prepared statement of Mr. Martin appears as a submission 

for the record.] 

Chairman SPECTER. Thank you, Mr. Martin. 

For the record, it should be noted that Senator Grassley and Senator Hatch have departed for a Finance Committee hearing. Senator Grassley is Chairman and Senator Hatch is the senior member. And thank you for your testimony, Mr. Martin. We will be 

coming back to you to utilize your experience to see if you have 

some ideas as to how we can insert the legislative language. You 

have had experience in the field and as a legislator as to how we 

do it, how we separate them out to be sure that people who have 

disease from silica can collect but not collect it twice. 

Our third witness is Dr. David Weill from the University of Colorado Health Sciences Center in Denver, Associate Professor of Medicine, Associate Director of the Lung Transplant Program, diagnosed and treated numerous patients with asbestosis or silicosis, 

and is a certified so-called B reader. He has recently been involved 

in reviewing such matters and lawsuits, a medical degree from 

Tulane, and a bachelor’s also from Tulane. 

Thank you for joining us, Dr. Weill, and the floor is yours. 

9

STATEMENT OF DAVID WEILL, M.D., ASSOCIATE PROFESSOR, 

DIVISION OF PULMONARY AND CRITICAL CARE MEDICINE, 

UNIVERSITY OF COLORADO HEALTH SCIENCES CENTER, 

DENVER, COLORADO 

Dr. WEILL. Senator Specter, Senator Leahy, and members of the 

Judiciary Committee, thank you for the opportunity to testify before you about silicosis and asbestosis. I am board certified in internal medicine and pulmonary medicine and have diagnosed and 

treated silicosis and asbestosis patients. Last spring, I was invited 

to serve as a visiting professor in Beijing, China, where I saw hundreds of cases of asbestosis and silicosis, and many of these cases 

were very advanced. The Chinese experience, of course, was sobering and far different from what I have seen in the United States, 

where genuine cases of these diseases are, fortunately, quite rare. 

It is critical to understand that asbestosis and silicosis are very 

distinct diseases. They are not easily confused in practice, and it 

is very rare for one person to have both diseases. 

There are several different types of silicosis, but in the United 

States today, chronic simple silicosis is the most common form. It 

is characterized by rounded nodules, like tiny marbles, found principally in the upper lobes of the lungs. In its lower grade forms, 

simple silicosis usually does not result in respiratory impairment, 

although it may progress over time. When progression does occur, 

it tends to be slow and depends on several factors, most importantly whether or not exposure continues. 

If there is respiratory impairment, it typically is restrictive or involves both restriction and obstruction. Unlike silicosis, which is 

characterized by the presence of small nodules in the lungs, asbestosis involves fibrosis in the area of the lungs where oxygen exchange takes place. Asbestosis can result in both a restrictive pattern of disease—effectively a reduction in the lung volume—and interference with the gas exchange process. From a pathologic, radiographic, and clinical perspective, asbestosis and silicosis are very 

distinct diseases. 

It is theoretically possible for one person to have both diseases, 

but in my clinical experience in the United States, I have never 

seen a case like this. Even in China, where I saw workers with jobs 

involving high exposure to asbestos and silica, I did not see anyone 

or review the chest X-rays of anyone who had both silicosis and asbestosis. 

I would now like to talk about the recent increase in silica litigation. In the last few years, I have reviewed numerous diagnoses in 

the ongoing Texas MDL concerning silicosis liability. Almost invariably these cases have involved alleged simple chronic silicosis in 

low perfusion categories where there is no significant respiratory 

impairment due to silica exposure. 

From a medical standpoint, it is puzzling to see so many ostensible silicosis cases in such a short period of time. Although the statistical evidence is imperfect, few would question the proposition 

that industrial dust control mechanisms have made silicosis much 

less common today than it was a generation ago. This conclusion 

is supported by reviews of death certificates undertaken by NIOSH, 

which reports that ‘‘Over the past several decades, silicosis mortality has declined from well over 1,000 deaths annually in the late 

10

1960’s to fewer than 200 pre year in the late 1990’s.’’ This decline 

should be associated with fewer and fewer silica lawsuits. Instead, 

my experience is that silica lawsuits are sharply increasing. 

I have several observations about this: 

First, nearly all of the litigation diagnoses come not from treating physicians, but from screening companies that provide their diagnostic services to plaintiffs’ law firms. 

Second, among the 3- to 400 silicosis claims I have reviewed, only 

two involve actual silicosis. 

Third, many of the silicosis plaintiffs whose films I have reviewed have also been diagnosed by plaintiff experts, at one time 

or another, with asbestosis. In most of these cases, the plaintiff was 

X-rayed twice. The first X-ray was taken typically as part of an asbestosis screening conducted several years ago and resulted in the 

conclusion that the plaintiff had abnormalities consistent with asbestosis. Subsequently, the plaintiff returned for a second X-ray 

and a new silicosis diagnosis was based on the second film which, 

in all instances, was very similar to the first film. Silicosis was not 

mentioned in the first report and asbestosis wasn’t mentioned in 

the second report. 

In other cases, the claimant was X-rayed only once, yet received 

two different diagnoses based on the same film. This must be litigation driven because there is no medical explanation for it. 

There are real cases of silicosis, but the majority of silicosis diagnoses I have seen in litigation are simply not valid. As a physician, 

I find this very concerning. The current rise in silicosis lawsuits 

cannot be explained medically. Most of these claims have involved 

workers who originally filed asbestosis claims, but it is exceedingly 

rare for a patient to have both diseases. 

As based on characteristic chest X-ray findings and other clinical 

factors, it should not be difficult for a doctor to distinguish between 

these two conditions. Genuine confusion in a medical setting would 

be rare. 

Thank you, Mr. Chairman. 

[The prepared statement of Dr. Weill appears as a submission for 

the record.] 

Chairman SPECTER. Thank you very much, Dr. Weill. 

Our next witness is Professor Lester Brickman, from the Benjamin Cardozo School of Law, Yeshiva University of New York. His 

expertise includes administrative alternatives to mass tort litigation, a member of the New York State Bar Association Committee 

on Professional Ethics, the Committee of Professional Responsibility of the New York Bar. He has been consulted for the United 

States Office of Education, the National Science Foundation, Council on Legal Education for Professional Responsibility, master of 

law degree from Yale, a law degree from Florida and bachelor’s 

from Carnegie Mellon. 

Thank you for being with us today, Professor Brickman, and we 

look forward to your testimony. 

11

STATEMENT OF LESTER BRICKMAN, PROFESSOR OF LAW, 

BENJAMIN N. CARDOZO LAW SCHOOL OF YESHIVA UNIVERSITY, NEW YORK, NEW YORK 

Mr. BRICKMAN. Thank you, Mr. Chairman, Senator Leahy, in his 

absence, and Members of the Committee. 

I welcome the Committee’s interest in addressing a critical issue 

in the proposed FAIR Act. As proposed, the FAIR Act would preclude claimants with asbestos-related conditions from bypassing 

the National Asbestos Compensation Program and filing ostensible 

silica claims in State and Federal courts, seeking recovery for what 

is, in reality, the asbestos-related condition or, even worse, filing a 

claim with the program and then seeking additional money for the 

same medical condition by pursuing silica claims in court. 

Without this provision, the same entrepreneurial lawyers and 

their allies who brought us the elephantine mass of asbestos claims 

will simply continue the litigation under another name. Indeed, 

this is already happening. A Federal MDL proceeding in Texas on 

silicosis is overseeing over 10,000 silicosis claims. As the chart 

being shown illustrates, over 60 percent of these silica claimants 

have previously filed asbestos claims with the Manville Trust. One 

would expect a similar result for silica lawsuits pending in other 

jurisdictions. Let me explain what is going on. 

First, the very consideration of asbestos litigation by the Congress is motivating lawyers to switch to silicosis. Today, you have 

already heard doctors testify that there is no medical explanation 

for the recent and rapid increase in silicosis claims. Indeed, there 

is a broad consensus and the statistics indicate that the incidence 

of silicosis is decreasing. Yet, when the Congress started to focus 

seriously on asbestos litigation reform, entrepreneurial lawyers and 

their allied mass screening enterprises began to shift to the manufacturer of silica lawsuits. Now, here are some astounding figures. 

For 26 years, until 2001, a major silica defendant faced as few 

as zero and as many as a few hundred claims a year. In the next 

few years, in the most recent few years, as legislation began to be 

seriously considered by the Congress, claims shot up into the thousands, reaching as many as 20,000, as the chart shows. That your 

serious consideration of asbestos litigation stimulated this sharp 

rise in silica claims is not merely conjecture on my part. Heath 

Mason, the co-owner of the mass screening entity, N&M, has testified that the Hatch bill was bad for his asbestos business, but good 

for his silicosis because ‘‘it gets lawyers to have to change gears on 

what they think is going to work.’’ 

As one asbestos silica attorney ventured, ‘‘Why reinvent the 

wheel?’’ 

These mass screenings are manufacturing silica claims at a rate 

never seen before. 

Second, the silicosis claims are being brought in the same relatively few ‘‘magic’’ jurisdictions where asbestosis claims have been 

brought. As the current chart shows, Texas and Mississippi account 

for the vast majority of silicosis claims. For one defendant, they account for 90 percent of the claims filed against it. 

Third, advertisements routinely list screenings for both asbestos 

and silica. Note, the advertisement for a May 2002 screening, with 

states in capital letters. Well, first, you have the billboard that 

12

reads, ‘‘Have you been tested? Asbestos/Silica Disease Screening.’’ 

And now you have the advertisement reading, ‘‘Asbestosis, mesothelioma, cancer, lung cancer or silicosis.’’ 

Fourth, in using the same advertisements, the same screening 

companies, the same carefully selected B readers in the silica cases 

that they have used in nonmalignant asbestos cases, the lawyers 

are retreading their prior asbestos diagnoses into silica diagnoses 

for the same alleged injuries. 

So it is not surprising, as I mentioned before, that approximately 

60 percent of silica plaintiffs in the silica MDL have received two 

diagnostic reports—one for asbestosis and one for silicosis. Dual diagnosing, as we have heard, occurs in various ways. Dr. William 

Oaks, for example, issued one report where he interpreted the Xray as consistent with silicosis and without pleural plaques and in 

the other report, written on the same day, with regard to the same 

X-ray, interpreted as consistent with asbestosis. 

With dual diagnoses, lawyers can get two claims for the price of 

one or perhaps for a modest add-on. Heath Mason testified that his 

screening company pays one of his doctors $50 extra to write a second diagnostic report for silicosis based upon the same tests the 

doctors relied upon to diagnose asbestosis 

Chairman SPECTER. Professor Brickman, your time is up. Could 

you summarize it. 

Mr. BRICKMAN. Yes, I will. Thank you. 

The FAIR Act, Mr. Chairman, should close this loophole. I understand that this is not a silica bill, and I do not expect that it will 

deal with pure silica claims, but it should not be possible to evade 

the National Asbestos Compensation Program by means of the entrepreneurial, if not fraudulent, conduct that I have described. 

Thank you, Mr. Chairman. 

[The prepared statement of Mr. Brickman appears as a submission for the record.] 

Chairman SPECTER. Thank you, Professor Brickman. 

We will turn now to Dr. Theodore Rodman, retired pulmonary 

physician who developed an expertise in occupationally related 

drug diseases early in his career. He began his career at the University of Pennsylvania Medical School and recently retired as a 

professor of medicine at Temple. He has examined and participated 

in the care of hundreds of patients with asbestos-related lung diseases and reviewed X-rays on thousands of such patients. He is a 

member of numerous professional organizations, such as the American Thoracic Society, the American college of Chest Physicians, 

and the American Federation for Clinical Research, an M.D. from 

Penn and a bachelor’s from Dickinson Law School. 

Thank you for coming to Washington today, Dr. Rodman, to give 

us the benefit of your expertise. 

STATEMENT OF THEODORE RODMAN, M.D., RETIRED 

PROFESSOR OF MEDICINE, ARDMORE, PENNSYLVANIA 

Dr. RODMAN. Thank you very much, Mr. Specter, for giving me 

the opportunity to address the Judiciary Committee. Somehow or 

other I got the wrong understanding that the statement could be 

as long as 10 minutes. So I am certain that I will be cut off by you. 

Much of what I have to say is repetitive of what Dr. Weill had said. 

13

And although I have never met nor spoken to Dr. Weill, I endorse 

his statement in its entirety and would adopt it as my own. 

I am a 77-year-old pulmonary physician who retired about 4 

years ago. After about 50 years of practice, teaching and research, 

I ended my career as a professor of medicine at Temple University 

Medical School. I began my medical career at the University of 

Pennsylvania Medical School and was on its faculty for a number 

of years. 

Early in my career, I developed an interest in occupational lung 

diseases. In the following half-century, I examined and participated 

in the care of hundreds of such patients. I have reviewed X-ray 

studies on thousands of such patients. By virtue of its industrial 

base, the Delaware Valley, with its shipyards, power plants, oil refineries and manufacturing facilities, has had no shortage of patients with occupationally related lung disease. The commonest exposure by far was to asbestos in shipyard and construction industry 

workers. We also saw many who had been exposed to silica, primarily those who worked in mines, quarries, tunnels, and foundries. Of the hundreds whom I examined, I can remember only one 

or two who gave a clear-cut history of significant occupational exposure to both asbestos and silica—not surprising, considering the 

disparity in occupations in which asbestos and silica exposure 

occur. 

Among the thousands of chest X-rays, which I reviewed in 

asbestos- and silica-exposed individuals, I cannot remember a single chest X-ray which showed clear-cut findings of both asbestos exposure and silica exposure. 

During the decades of the 1970’s, 1980’s and 1990’s, in connection with the asbestos litigation, I evaluated a large number of litigants. Not one of them had medical records suggesting a history of 

significant silica exposure. I found evidence of asbestos-related 

changes in many. I found no evidence of silica-related changes in 

any. I found no evidence in the reports of any physician, whether 

retained by the plaintiff or the defendants, that concluded that the 

patient had silica-related changes. 

On the basis of this personal experience, I have concluded that 

both asbestos- and silica-related changes and disease are common, 

but rarely occur in the same patient. The medical literature and 

textbooks with which I am familiar are consistent with my conclusion. 

In contrast, when we took care of the anthracite coal miners, 

combined occupational lung disease was seen commonly in the 

same patient. These miners were exposed to both coal dust, producing coal workers’ pneumoconiosis, black lung, and silica, from 

drilling into stone, producing silicosis. 

The changes of both occupational lung diseases were readily apparent. This combination was, and still is, known as mixed-dust 

pneumoconiosis. It is seen rarely in patients with asbestos-related 

disease because they are rarely exposed to silica. 

At this point, I was going to show a number of color illustrations, 

but I think that would be time-consuming, and I will postpone that 

hopefully for later. 

In conclusion, my experience in the asbestos litigation in the 

Philadelphia area has created in me the impression that the plainVerDate 0ct 09 2002 11:37 Apr 07, 2006 Jkt 026796 PO 00000 Frm 00017 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\26796.TXT SJUD4 PsN: CMORC
14

tiffs’ attorneys had assembled a small collection of medical experts 

who were willing to perceive on chest X-rays and testify that asbestos changes were present when, in fact, none was. This impression 

was recently supported by a carefully controlled research study 

done at Johns Hopkins Medical School, in which review of these Xrays by a panel of impartial expert pulmonary radiologists confirmed the absence of asbestos-related changes in the vast majority 

of these X-rays. 

I have been told that there has been a dramatic increase in the 

United States in the number of silica injury lawsuits, many initiated on behalf of plaintiffs who had previously received monetary 

awards for asbestos-related injuries. Based upon my experience 

that asbestos-related disease and silicosis very uncommonly occur 

in the same individual, and based upon my observations in the asbestos litigation in the Philadelphia area, I strongly recommend 

that medical evaluation for litigation purposes of such litigants 

should be done by an impartial group of physicians, free of any 

vested monetary interest in finding silicosis present or absent. This 

medical evaluation should include a careful review of all available 

prior medical records and X-rays. 

I have finished what I have to say. 

[The prepared statement of Dr. Rodman appears as a submission 

for the record.] 

Chairman SPECTER. Thank you, Dr. Rodman. We gave you a little extra time because of the confusion in information which you 

received. 

We turn now to our final witness on this panel, Dr. Paul Epstein, 

clinical professor of medicine at the University of Pennsylvania, 

board certified with a specialty in internal medicine and a subspecialty in pulmonary diseases. 

He spent a large portion of his career studying occupational lung 

disease and is certified at the National Institute of Occupational 

Health Safety, NIOSH, by its highest qualification rating as a socalled B reader of chest X-rays, people who have been occupationally been exposed to potentially toxic dust, such as asbestos, silica 

and coal dust. Over the past 30 years, he has personally examined 

17,000 individuals who have been exposed to these substances. His 

medical degree is from Tufts and his bachelor’s from Princeton. 

Thank you for joining us, Dr. Epstein, and we look forward to 

your testimony. 

STATEMENT OF PAUL E. EPSTEIN, M.D., CLINICAL PROFESSOR 

OF MEDICINE, CHIEF, PULMONARY AND CRITICAL CARE 

MEDICINE, PENN MEDICINE AT RADNOR, RADNOR, PENNSYLVANIA 

Dr. EPSTEIN. Thank you, Chairman Specter, and thank you, Senator Leahy and other Members of the Committee. I appreciate your 

asking me to testify today. 

I would like to describe a little about the diagnosis of dust-related diseases of the lung. When an individual inhales certain 

types of potentially toxic dust, the lung may react by developing 

some scar tissue. This combination of the presence of dust in the 

lung, the development of scar tissue, is known by the medical name 

15

pneumoconiosis. There are several different kinds of pneumoconiosis, and the most common are asbestosis and silicosis. 

Both asbestosis and silicosis are caused by long-term inhalation 

and retention of particular kinds of dust in the lung. Although each 

of these diseases requires a substantial amount of dust retention, 

a longer and more consistent daily exposure to silica dust is required in order to produce silicosis than the amount of asbestos 

needed to produce asbestosis. 

Lung diseases like asbestosis and silicosis are both characterized 

by scar tissue formation and take a long time to develop after the 

initial exposure. The time lapse between exposure and the onset of 

lung disease related to that exposure is called the latency period. 

And for both asbestos and silica exposure the latency period is at 

least 20 years. 

There is an individual susceptibility to the scar-producing effects 

of both asbestos and silica, so that if two individuals work side-byside, one may develop the disease while the other may not. While 

both diseases share common factors, such as dust inhalation, scar 

tissue formation and a long latency period, each of them has a very 

different clinical appearance and can be recognized easily by their 

relatively distinct patterns of abnormality on the chest X-ray. 

For instance, asbestosis produces linear, streaky or feathery patterns on the chest X-ray, predominantly in the lower portions of 

the lung. This pattern of asbestos-related scar formation is almost 

always accompanied by patches of thickening of the membrane that 

covers the outer surface of the lung. These thickened patches are 

known as pleural plaques or pleural thickening. Frequently, the 

pleural plaques caused by asbestos exposure contain calcium that 

can be seen on the chest X-ray. 

Silicosis has quite a different appearance on the chest X-ray. In 

this disease, the deposits of scar tissue occur in a distinct, rounded, 

nodular pattern, similar to the appearance of buckshot, and they 

are predominantly at the top of the lung rather than at the bottom 

of the lung. The rounded nodules of silicosis are not accompanied 

by pleural plaques or by pleural thickening. In other words, the Xray appearance of these two dust-related diseases are vastly different. 

Abnormalities on breathing tests are also somewhat different in 

people who have asbestosis as compared with those who have silicosis. In asbestos, the characteristic changes cause a restriction of 

the amount of air that can fit inside the lungs, and there is a decrease in the efficiency of the lung tissue in taking up oxygen. 

These changes occur relatively early in the evolution of asbestosis, 

even when chest X-ray abnormalities are mild. 

On the other hand, people with silicosis often have no abnormalities on their breathing tests until the rounded nodules proliferate 

in great numbers and become larger in size. At that point, the volume of air in the lungs may decrease, and there may be a decrease 

in the person’s ability to exhale air rapidly from the lungs. 

When people have both diseases, that is, both asbestosis and silicosis, the characteristic clinical and X-ray manifestations are each 

discernible as separate features and the diagnosis of dual disease 

processes can be made with relative ease. 

16

Over the course of the last 30 years, I have personally examined 

approximately 17,000 individuals who have been occupationally exposed to asbestos. These workers have held many different jobs, including those of shipyard workers, oil refinery employees, construction workers, steel mill employees, chemical workers, insulators, 

electricians, painters and riggers, to name a few. 

Additionally, I have evaluated many workers who are occupationally exposed primarily to silica, including coal miners, sandblasters, 

stone quarry workers, glass makers and refractory brick manufacturers. A large number of these workers were exposed to both silica 

and asbestos. 

While it is theoretically possible to have combined disease consisting of asbestosis and silicosis, it has been my clinical experience 

that the overwhelming majority of patients I have seen with asbestos-related disease have no evidence of silicosis. In fact, I can recall 

no more than about a dozen or so individuals who have had combined asbestosis and silicosis. And these were people who had substantial occupational exposure to silica, often in jobs that were separate from their subsequent jobs that involved exposure to asbestos. 

Chairman SPECTER. Dr. Epstein, your time is over. Could you 

summarize, please. 

Dr. EPSTEIN. Yes. For this reason, it is my professional opinion 

that the dual occurrence of asbestosis and silicosis is a clinical rarity. 

Thank you. 

[The prepared statement of Dr. Epstein appears as a submission 

for the record.] 

Chairman SPECTER. Thank you very much, Dr. Epstein. 

Mr. Martin, you have been in the field. You have been a legislator. You think we can improve the formulation of a statute. What 

suggestion would you give us? 

Mr. MARTIN. I do think you can improve it, and this is what I 

would suggest. I think, in looking at 403, what you have to do is 

move away from the idea that a plaintiff has to require to prove 

a negative. I would suggest, as a solution to that, the issue of disclosure; that what a plaintiff should do under the circumstances 

the distinguished members of the panel have related to today, 

where there are retreads or double filings, is that a plaintiff should 

disclosure that up front. If he has already filed an asbestos claim, 

that should be disclosed, and that should be the point from which 

you legally then move. 

If a client walks into my office and he says, ‘‘Well, I have already 

filed a claim for asbestos,’’ my radar is going to go up because I 

agree with the panel that it is rare. I have had two cases involving 

asbestos and silicosis together in my entire career. And so I think 

one of the other questions that you have to look at in that disclosure is did these men who are attempting to file an additional 

claim for silicosis, what was their actual exposure at the workplace 

and did they really have exposure to silica? In those two instances, 

the two gentlemen sandblasted, which involved intense exposure to 

silica, resulting in their contraction of silicosis, and then later they 

were assigned to another job where the had to cut couplings for asbestos insulation on pipe, and they did both for several years. 

17

Chairman SPECTER. Dr. Epstein, you say that the medical determination is clear-cut on the X-rays? 

Dr. EPSTEIN. Yes, it is. 

Chairman SPECTER. So why should there be a problem of someone who has collected from asbestos exposure, asbestosis, mesothelioma, being able to collect from silicosis if he or she has not actually been exposed to silica, if the evidence is conclusive as to what 

is the cause? 

Dr. EPSTEIN. First of all, these are very rare, overlapping diseases. I think that part of the answer to that question is that the 

individual with asbestosis is probably more commonly impaired severely by that type of abnormality than is the person who has silicosis. The number of people who have silicosis at the present—

Chairman SPECTER. If someone has collected from the Asbestos 

Fund, and he makes a claim for silicon exposure, and you take a 

look at the X-rays, and except in these very, very rare cases, it is 

demonstrated that he suffered from asbestos, then isn’t he precluded from collecting from this silicon claim? 

Dr. EPSTEIN. Yes. 

Chairman SPECTER. Professor Brickman, what is so complicated 

about defeating, you used the term ‘‘entrepreneurial’’ in a pretty 

heavily pejorative, derisive comment, some entrepreneurial activity 

is still regarded as legitimate in our society, but where you have 

an array of experts here—Dr. Welch, from AFL–CIO, and Dr. Epstein, Dr. Rodman, Dr. Weill—and you could look at the X-rays and 

tell. They come in and make a claim for exposure to silica, and the 

X-rays give you the facts. So what is the problem? 

Mr. BRICKMAN. In part, Mr. Chairman, 403 I think is being misrepresented. It does not say that you have to show you have—

Chairman SPECTER. Never mind 403. Answer my question. What 

is the problem? You come in and make a claim for silica, and the 

X-rays show it is asbestos. Are you not ruled out automatically? 

Mr. BRICKMAN. I am not speaking to the content of 403. So I do 

not claim any expertise in terms of the language. I do not see a 

problem in the way in which the implementation would occur. You 

do not require negation of exposure. You require negation of the 

cause of impairment, and that is a critical difference that I think 

would explain why the testimony against the provision really does 

not meet the test. 

If you claim impairment, then you must show that the impairment was not caused by asbestos. The medical testimony this 

morning is quite clear that the diagnosis of asbestosis is a reliable 

medical diagnosis when done by reliable medical experts. 

Chairman SPECTER. My red light went on during the middle of 

your answer, and I adhere meticulously to the time limits, so that 

I can ask my colleagues to do the same. 

Senator Leahy? 

Senator LEAHY. Thank you, Mr. Chairman. I assume that there 

will be the ability to file follow-up questions with some of them. 

Chairman SPECTER. By all means, sure. 

Senator LEAHY. Dr. Welch, after I started this process, about 21⁄2

years ago now, held the first Committee hearing on asbestos litigation, all of the medical testimony we have had, including yours, has 

involved asbestos exposure only. The Leahy-Hatch medical criteria 

18

in the bill, is designed to apply to asbestos disease only, they do 

not apply to silica diseases. Now, I understand from your testimony 

today that there is no basis in medicine for the concern of some of 

the business community that asbestos claims could be transformed 

into claims for diseases caused by other dusts, asbestosis, silicosis, 

other dust diseases, different ones that can be differentiated upon 

pulmonary exams, X-rays and so on. Now, if that is correct, diseases causes by exposure to non-asbestos-related dust, fiber and 

minerals, would not meet the asbestos medical criteria you helped 

the Committee draft a couple years ago. Am I correct in that? 

Dr. WELCH. That is correct. 

Senator LEAHY. The latest draft Asbestos Bill requires victims of 

silica exposure, other airborne dust, fibres or minerals, to submit 

medical evidence that proves asbestos exposure did not cause their 

injury, basically proving a negative. If a non-asbestos victim could 

not meet this high evidentiary standing in court, then my understanding, they would be barred from suit, and they would be precluded from receiving any recovery in the trust fund. 

Dr. WELCH. That is correct, because their disease would not meet 

the criteria under the trust fund, so they would not get compensation in the trust fund. But this languages seems to me to say they 

could not get compensation anywhere else either unless they could 

prove all these negatives, which in my opinion you really could not 

do. So they cannot be compensated under the trust fund because 

they do not have asbestosis, but they cannot go anywhere else either. 

Senator LEAHY. Some of the testimony today has been that people of a certain generation are going to have, including myself, are 

going to have some level of asbestos in their lungs from an unknown source, is that correct? 

Dr. WELCH. Correct. 

Senator LEAHY. I love the expression ‘‘those of a certain age,’’ and 

now that I am 64, I understand it better. 

So would a doctor be able to determine that asbestos exposure 

absolutely did not cause a patient’s impairment? 

Dr. WELCH. I do not think he could say that. 

Senator LEAHY. Mr. Martin, you have been a legislator too, as 

the Chairman has pointed out. I do not have all my questions with 

a celestial tone with it. But I am concerned that preemption of silica claims in this bill could leave silica victims, like my own grandfathers, without any remedy in court or the Asbestos Trust Fund. 

After all, we are taking away a right to jury here. Now, you have 

represented people exposed to silica for more than two decades I 

think you said in your testimony. During that time, have you ever 

been asked to prove that another airborne substance did not cause 

your client’s injury during those 20 years? 

Mr. MARTIN. No, never. It has never become an issue. And I 

plead what I plead, and I have to prove what I plead. Either I meet 

my burden of proof or I do not. It is as simple as that, and that 

is the way the legal system has worked since the Founding Fathers 

wrote the Constitution. 

Senator LEAHY. In fact that sort of suggests my next question. 

I mean are you aware of any other area of law where victims are 

19

required to plead and prove the substance other than the one alleged in the complaint was not a causal factor in their injuries? 

Mr. MARTIN. No, I am not, and it is nonsensical to have to prove 

something that should not even be relevant at trial because it is 

not part of what is being argued or pled as the injury in question. 

Senator LEAHY. I understand from some of the business community that they are concerned that victims would be allowed to double dip, receive double recovery unless we include this expansive 

language in the draft. This so-called mixed-dust language in the 

latest bill does not preclude double recovery because nothing in the 

language hinges on whether a victim has recovered from the Asbestos Trust Fund. It seems simply to create an unprecedented shift 

in the burden of proving defense for claims outside the scope of asbestos. I have not tried any cases for a long time, but am I correct 

in that? 

Mr. MARTIN. Yes, I think you are, and I think the problem is, is 

that I do not think the language does solve the problem of double 

dipping or double recovery. I think it just attempts to preclude a 

greater number of victims who are not in the asbestos world and 

exposed to other dusts and other minerals, many of which I provided pictures of in my testimony. So I think the problem is, is that 

by including everybody in this group, you are stripping rights of a 

certain group of people, whereas there might be a narrow way you 

could craft this thing to deal with the double-dipping issue. 

Senator LEAHY. Thank you, Mr. Chairman. 

Chairman SPECTER. Thank you very much, Senator Leahy. 

Senator Cornyn? 

Senator CORNYN. Thank you, Mr. Chairman. 

I think we can all agree that the Asbestos Trust Fund is designed to compensate people who are sick as a result of asbestosrelated disease, and is not designed to compensate people for exposure to other carcinogens or create other medical problems. That is 

one of the reasons why I have concerns, for example, about a provision that is currently in the bill to compensate for colorectal cancer. 

Dr. Epstein, are you aware of any medical justification for tying 

the inhalation of asbestos fibres to colorectal cancer? 

Dr. EPSTEIN. There have been a number of articles in the medical 

literature that have suggested that colorectal cancer is associated 

with asbestos exposure. I personally have gone over the literature 

in detail. That is not my opinion. But there is opinion within the 

medical literature that says that that is correct. 

Senator CORNYN. I admit that my understanding of the human 

anatomy is pretty elementary, but the idea that you can inhale an 

asbestos fibre and end up with cancer in your rectum or in your 

colon seems pretty far-fetched. 

Dr. EPSTEIN. It does if you think of it as being inhaled. But frequently what happens is that the asbestos is inhaled in the lung, 

it is coughed up and is then swallowed. But in my opinion, that is 

not a valid cause of colorectal cancer. 

Senator CORNYN. Thank you for explaining that. That had not occurred to me. 

Professor Brickman, I know that you have talked to us a little 

bit about the abuses of mass screening of people who claim to have 

asbestos-related or silica-related disease. This bill, as currently 

20

written, provides up to $600 million for screening of potential 

claimants to the asbestos fund. Does that cause you any concerns, 

or how can we make this bill as strong as possible to prevent the 

kind of abuses that we see here demonstrated on your chart, where 

we hear from the medical experts that it is clear when somebody 

has silica-related disease as opposed to asbestos-related disease, 

but you have people here apparently claiming both? 

Mr. BRICKMAN. Senator Cornyn, as you know, I have written extensively on the subject of asbestos litigation and have focused on 

asbestos screenings, writing a fairly substantial law review article 

on it, in which I describe the entrepreneurial model, which I would 

depict as reality rather than characterize it in any other way. That 

article sets forth what I see is occurring in asbestos litigation. And 

what I see now occurring in silicosis litigation: the same B-readers, 

the ones that the Manville Trust professional staff referred to generically as ‘‘Dr. Bogus,’’ are being hired by the same plaintiff lawyers, in some cases some new plaintiff lawyers, by the same screening entities, the same kind of false witness memories being implanted to generate witness testimony. These are the facts that I 

empirically support in my written statement. 

I believe you have the same thing going on now with silicosis litigation as occurs in the asbestos litigation. You have the phenomenon of the retreading of claims, which I have described in far 

more detail in my prepared statement, and what you also have now 

which is in anticipation of the possible passage of the FAIR Act is 

the bypass procedure, and this is not a medical cardiological process. The bypass procedure is where somebody who would otherwise 

claim 1/0 asbestosis who is unimpaired and who, under the FAIR 

Act will not get compensation, instead will claim 1/0 silicosis, because the same B reader, at the same time he reads the X-ray fills 

out two forms, 1/0 asbestosis, 1/0 silicosis. Or in the second model, 

the same X-ray is read as 1/0 asbestosis, and then two, three, 4 

years later by that same B reader or a different B reader is read 

as 1/0 silicosis, because it saves money not to have to take a second 

X-ray. 

This is the reality that the Committee needs to deal with in 

terms of drafting language. If the bypass works, then the defendant 

community that is paying the $140 billion will have to pay tens of 

billions more again for what would have been asbestosis claims, 

but are now being dressed up as silicosis claims. 

Senator CORNYN. I see my time has expired. I will wait till my 

next round. Thank you, Mr. Chairman. 

Chairman SPECTER. Thank you, Senator Cornyn. 

Senator Feinstein? 

Senator FEINSTEIN. Mr. Chairman, actually, this is one of the 

most informative panels I have heard on the issue, so I want to 

just thank everybody. Obviously, you all know what you are talking 

about, so it is very much appreciated. 

Let me just ask a couple of questions just to cement this. I guess 

everybody agrees that asbestosis and silicosis are easily distinguishable. Does anybody not agree to that? 

[No response.] 

Senator FEINSTEIN. Are there any other asbestos-related diseases 

that could be confused with silica-related diseases? 

21

Dr. Epstein? 

Dr. EPSTEIN. If I may answer that, the answer to that question 

is no. They are really quite separate diseases. 

Senator FEINSTEIN. Anybody differ with that? Dr. Welch? 

Dr. WELCH. Well, asbestosis definitely causes lung cancer, and 

there is some information that silica is a cause of lung cancer, but 

I do not think it is really relevant to this issue because then you 

would be having to say that, that you are manufacturing claims of 

lung cancer in a different jurisdiction. But just to be precise, they 

both can cause that. Not mesothelioma, however. That is uniquely 

due to asbestos. 

Senator FEINSTEIN. As one who has worked on this issue, and I 

know the Chairman knows this, and I know Judge Becker knows 

it too, this is a huge issue. It is really a potential deal-breaker. It 

is very hard to solve. I would like to ask that each one of you kind 

of look at the language and come up with some recommendations 

for us. I particularly think that we do have to prevent dual claiming. I do not know how you would work sanctions for fraud, but I 

certainly think dual claiming. I think disclosure that was mentioned today, that a claimant would disclose dual claims. I think 

the occupational history is important to be in the bill so that when 

you evaluate it, that is in the bill. 

My own view is, as we have discussed, Mr. Chairman, that Dr. 

Rodman was one that did at the end of his written testimony 

present a possible solution and it is really a medical screening 

panel. How you set that panel up to really avoid a huge bureaucracy I think is a problem, but I think some of these criteria are important to include in that. 

I am very concerned by the growth in silica cases in court now. 

I do not know how you prevent someone from going to court. Assuming we can make the clear distinction of what the Asbestos 

Trust would apply to, I do not know how you say to others, ‘‘You 

do not have any remedy.’’ Does anyone have a suggestion there? 

Mr. BRICKMAN. Senator Feinstein, if I may, what we have involved here is the economics of mass litigation. The purpose is not 

to prevent somebody from going to court. Because of the economics 

of mass litigation, the cost to a defendant to prove that somebody 

claiming silicosis actually has something that would come under 

the compensation program and therefore would not be eligible, 

would be several thousand dollars. It could be three, four, five, six, 

seven thousand dollars. You multiply that by 10,000, 20,000, 

30,000 claimants and you being to see the dimensions of the problem. What you need therefore is to have a procedural device so that 

the court can dismiss the claim very early on before there are large 

expenses incurred. That way the plaintiff gets his day in court, but 

the defendant does not have to spend $10,000 to prove that he really comes under the compensation program and should not get a silicosis award. 

Senator FEINSTEIN. What would that process be? 

Mr. BRICKMAN. I can provide language I think that would—it is 

similar to what is being suggested now, but I could certainly provide language procedurally that would accomplish that. 

Senator FEINSTEIN. See, I have a problem with this language because I agree that the plaintiff should not have to prove a negative 

22

and it seems to me that this is meant to be for people who are sick, 

therefore medical criteria are important, therefore a medical 

screening panel as a deciding point with some references I think 

is important. I mean what really complicates this is the dramatic 

growth of silica cases now in court. If you have any further comments, I would very much like to hear them. 

Mr. MARTIN. Senator, if I may, I mean when I first started handling silicosis cases it was kind of like boutique litigation. I mean 

there were not but 150 cases on file in Texas I think back in the 

1980’s all together amongst five or six firms. 

I think the key, as opposed to a medical panel, which might be 

a little too bureaucratic and costly, I think the key is disclosure. 

If someone has filed a previous asbestos claim and is coming back 

into the litigation system, they ought to be able to have to show 

a good reason for doing that. This language does the opposite. It 

creates a situation where a victim who has not been in the litigation system, but who has a very debilitating disease such as silicosis or hard metal lung disease, has got to prove that he is not 

guilty before he even gets to prove his own case. 

So I think to look at it from the other perspective, from that perspective, and say these guys up here, maybe they ought to be disclosing that they had a previous lawsuit on file as the trigger point 

for something else happening to perhaps address Professor 

Brickman’s concern about the cost and the burden that is placed 

on the litigation system. 

Mr. BRICKMAN. May I briefly respond? Disclosure is a necessary 

but not a sufficient response because that does not—I fully agree 

that disclosure should be part of the bill, but it is not sufficient because it does not deal with the economic costs imposed on a defendant to prove that this is a national program case that is, that it 

falls under the FAIR Act, and not one that should be eligible in the 

tort system. 

Senator FEINSTEIN. So what would you do? 

Mr. BRICKMAN. I would provide the Committee with language, 

which I will go back to my office and draft, that I think will deal 

with that procedural problem of creating an early dismissal process 

before all of the costs need to be incurred. 

Senator FEINSTEIN. Thank you. Thank you, Mr. Chairman. 

Chairman SPECTER. Thank you, Senator Feinstein. 

Senator Coburn? 

Senator COBURN. Thank you, Mr. Chairman. 

And thank each of you for your testimony. I had a good time late 

last night reading it because we did not have a 48-rule with which 

I had the time to do it. 

I have just a couple of comments. No. 1, as a practicing physician 

the difference between the restrictive and obstructive patterns seen 

in these two diseases is not uncommon at all. We see it all the 

time. There are mixed disease patterns. 

My question to each of you is how many times have you seen 

true clinical silicosis and true clinical asbestosis in non-smokers? 

Anybody ever seen that? 

Dr. WEILL. Senator, are you talking about those two diseases in 

one patient? 

Senator COBURN. In the same patient at the same time. 

23

Dr. WEILL. I have never seen it. 

Senator COBURN. Anybody here ever seen, in a non-smoker, true 

clinical asbestosis and true clinical silicosis? 

Dr. WELCH. But I think the testimony was even in the smoker, 

people do not see them combined, so smoking is not that relevant. 

Senator COBURN. I understand, but I am asking specifically 

about non-smokers? 

Dr. RODMAN. I have no recollection, Senator, of having seen it, 

but theoretically it is possible, and therefore it almost certainly has 

occurred on occasion. 

Senator COBURN. Okay. Now take away the smoking restriction, 

how often has this panel seen active clinical disease manifested 

both by chest X-ray and pulmonary function tests and diffusion capacity of the lung, how many times have you seen that in your entire careers in this panel? 

Dr. EPSTEIN. Very rarely. I’ve seen maybe a couple of such cases. 

Dr. RODMAN. The same response, I have never. I have no recollection, but I am 77 years old. 

[Laughter.] 

Senator COBURN. I use that excuse all the time, doctor. I am 40-

years-old and I have never seen it. 

Mr. MARTIN. I have had two clients. 

Senator COBURN. With clinically proven, medically documented 

pleural plaques and pulmonary nodules—

Mr. MARTIN. Yes. And the distinguishing factor is that along 

with that, they had specific job histories that involved intense exposure to silica and asbestos both. 

Senator COBURN. Dr. Welch? 

Dr. WELCH. Yes. I would agree, I have not seen a combined case 

of the two. I would also want to point out, an occupational history 

is really important. 

Senator COBURN. I agree. 

Dr. WELCH. And that is a major criteria in differentiating the 

two, as well as the X-ray. 

Senator COBURN. Dr. Welch, would you do me a favor? I read 

your resume a moment ago. Would you, after this, give to the Committee, if we may, your references on small-cell, large-cell, adenocarcinoma of the lung related to asbestosis for me so I can review 

that? 

Dr. WELCH. Sure. Actually there was a paper just published this 

month that is very helpful in asbestos lung cancer. 

Senator COBURN. Thank you very much. I would love to have 

that. 

So I just want to make the point, you know, the old adage I was 

taught when I was in business is ‘‘greed conquers all technologic 

difficulty,’’ and what we are seeing in the personal injury case is 

that, as the Congress moved to consider asbestosis, the technologic 

difficulty was to get somebody to read an X-ray a different way for 

money so that a different claim could be made. We need to not shy 

away from that. That is what this is all about. 

This is about making sure people who have true injury get true 

compensation and that that compensation goes to the people who 

are injured more than it goes to the trial bar. And we need to not 

shy away from trying to be very rigorous in placing demands that 

24

false claims cannot be made out of this asbestos trust and then 

turned around and turned into something else, because what I see 

coming is us sitting down to have a silicosis trust, and I do not 

think we are that very far away. So I believe it is important that 

people who are injured are compensated, and I want them compensated. But I want us to be real clear about the game that is 

going on in this country today in the courts that does not have anything to do with my patient’s true injury, but has everything to do 

with how you manipulate the system. 

Dr. Welch? 

Dr. WELCH. If I could comment on that. I mean I think that 

there is a difference between the burden of disease in this country 

from asbestos and from silica. If there are claims that are not silicosis, do not have an impairment, do not have the occupational history, that is a problem. But the asbestos claims that have come forward in this country, the vast majority of them are people who are 

really sick, mesothelioma, lung cancer. I just want to remind people, the reason there is an asbestos problem, asbestos disease and 

this bill, is because so many people were exposed and so many people were sick, not because plaintiff lawyers made up bad cases. We 

would not be creating a billion dollar trust fund if there was not 

illness out there. 

So I am just afraid that the discussion begins to seem like, oh, 

the whole problem—that you would have to have a silicosis bill because there are bad claims. I mean we have an asbestos bill because people are sick. 

Senator COBURN. I do not deny that we have an asbestos bill because people are sick, but I also would not deny the fact that a lot 

of people have claimed asbestosis when clinically they do not have 

it, and are seeking compensation for an injury based on exposure, 

when there is no true injury there. And I think the data will show 

that true in lots of the claimants. 

Mr. BRICKMAN. If I may add, Senator, the vast majority of asbestos claims, claims of disease from exposure to asbestos that have 

been brought in this country, there have been 850,000 claimants. 

Each one sues 60, 70, 80 different companies. So you can do the 

math. The vast majority of those claimants have no medical illness 

caused by asbestos as recognized by medical science. At least 

500,000, maybe 600,000 of those claimants do not have an illness. 

They have sued in the system. They generate $50,000, $60,000 

$70,000 it used to be $100,000 worth of payments made, of which 

they get about half and the lawyer takes about half for fees and 

expenses. So I would take issue with Dr. Welch’s characterization. 

I call it Senator, diagnosing for dollars. 

Senator COBURN. It also is a reflection on my profession as well 

for not standing up for what is true and diagnosing for dollars. 

Chairman SPECTER. Thank you, Senator Coburn. 

Dr. Welch, how would you solve the problem? How would you 

structure the system to compensate the asbestos victims who are 

truly sick, and be sure that the so-called double dipping does not 

occur? 

Dr. WELCH. Well, I am neither a lawyer nor a legislator, so my 

opinion is—

Chairman SPECTER. Puts you in a pretty good position. 

25

[Laughter.] 

Dr. WELCH.—somewhat maybe uninformed. But what I hear is 

the problem is people are filing claims for silicosis who do not have 

silicosis, that lawyers may be manufacturing claims just based on 

an X-ray. And if you were to examine that case at all, if anyone 

were to examine that case from a distance even, they are probably 

unlikely to have an exposure to silica that is sufficient to cause disease, and the X-ray may not be characteristic. 

So from my point of view, if people are paying those claims, that 

is the problem, and if people are not paying those claims, they will 

go away. So I do not quite see why you have to craft this legislation. I do not like to think that cases go into court that you could 

just file any case and you get paid on it, and that is the kind of 

implication that the testimony is giving, that these claims that 

clearly are not silicosis are getting paid. So I do not know how you 

would solve that in the language. 

I think Mr. Martin had a good suggestion, that you identify the 

people who have an asbestos claim, because once you have asbestosis—and this bill does not compensate all the people who applied 

to Manville Trust. I mean it is more narrow. It is people with impairment. It is not junk cases. I mean this bill does not compensate 

junk cases. So if people have been compensated under this bill, 

given the criteria that are there, for most of them it is likely they 

do not have silicosis, and so they would have to affirmatively prove 

they have something else to go forward. The burden on those people would probably need to be higher, because as we are saying, we 

do not expect a lot of combined disease. 

Chairman SPECTER. Mr. Martin, you talked about identification 

of having made an asbestos claim preliminarily. How would you 

follow up on that in subsequent litigation for somebody who tries 

to collect on silicosis where there really is no bona fide basis? 

Mr. MARTIN. You craft it this way. A plaintiff who has filed a 

previous asbestos suit would have to disclose that in his pleadings 

up front. Then in order to overcome a presumption of preemption 

under the bill, he would have to rebut that presumption by establishing that silica is truly a significant contributing cause of the 

disease. 

Chairman SPECTER. Are you starting to deal with a negative 

there, proof of a negative? 

Mr. MARTIN. Yes, but it is predicated on disclosure, you see. 

Chairman SPECTER. Your proof of a negative is different from the 

other proof of—

Mr. MARTIN. Well, I do not want to be inconsistent, Senator, I 

truly do not in terms of my criticism of proving a negative. But the 

issue here is disclosure. If an individual has previously filed an asbestos lawsuit, he should disclose that. That should be the first 

step. And then some way, whether you create a presumption or not 

is maybe not the best way to craft it because I am just kind of 

thinking out loud and brainstorming. Some way, if he truly does 

have an asbestos disease—and I think everybody on the panel 

agrees that that would be a very rare instance—that there be some 

mechanism where he would be able to prove that this is a significant cause, but otherwise, he has to deal with the issue that he has 

already filed this old suit here. 

26

I think that is where you start from, as opposed to starting from 

somebody who never filed a lawsuit before for asbestos. 

Chairman SPECTER. So there would be a provision in our Federal 

bill which would impose a disclosure requirement on a plaintiff 

who sues in some other forum at some other time, and the Federal 

legislation would deal with a presumption to impact on litigation 

in some other court, in some other forum, which relates to silica? 

Mr. MARTIN. Something along those lines. I am thinking in generalities as opposed to specific language, but it is triggered off disclosure that someone knows that a previous lawsuit for asbestos 

was filed. Then, you can craft some language that would attempt 

to deal with Professor Brickman’s concern about letting this thing 

generate too much cost too quickly and being able to address it earlier. I do not know whether that would be through a presumption 

or some other language. I would have to sit down and craft it. 

Chairman SPECTER. It is not going to be dealt with in a summary 

fashion. It is not going to be dealt with until there is an examination of the proofs, the X-ray. My red light just went on, but it does 

not apply to answers—only to questions. 

[Laughter.] 

Mr. MARTIN. I think you are exactly right. There has to be some 

medical threshold involved there in order to meet that—once that 

disclosure is made, there has to be some medical threshold established that silica or hard-metal lung disease or cobalt exposure or 

something else is involved. 

Chairman SPECTER. Senator Feinstein? 

Senator FEINSTEIN. Clearly, there is a problem. If you go from 

2002, with 3,500 cases, to 2003, with 22,000 cases, you have a net 

gain of cases of 17,000 in a year which indicates to me that something is afoot. I would like to hear from both Professor Brickman 

and Dr. Epstein. They both seem to have some reaction to Dr. 

Welch not to be adversarial, but to hopefully come up with a solution here. 

Mr. BRICKMAN. Well, one possible solution or, perhaps that is too 

strong a word, resolution for the silicosis epidemic would be to stop 

consideration of the FAIR Act. That would reduce the pressure on 

plaintiff lawyers to retread their cases. 

Senator FEINSTEIN. Do you mean just drop an asbestos bill—just 

forget it? 

Mr. BRICKMAN. I predict you would have fewer silicosis claims if 

you dropped the FAIR Act because that is the reality. This is an 

entrepreneurial venture, and is a function of the profitability of the 

claiming process. How much does it cost to generate a claim? It 

generally costs somewhere about $1,000 to $1,500 for a plaintiff’s 

lawyer to generate a claim. That is through a screening process. 

Then, it is a question of how much do you get in return for putting 

that claim in, and that is a function of how many § 524 (g) trusts 

are being created and what they pay, what solvent defendants are 

paying and so on. 

So the reality is, I mean, as I have testified, and I think there 

is a considerable volume of evidence on this point, that the silicosis 

epidemic occurs in perhaps one, maybe two places only—the courts 

and maybe Dr. Welch’s office. But in the Mayo Clinic, in hospitals 

around the country, in pulmonologists’ offices, you do not see siliVerDate 0ct 09 2002 11:37 Apr 07, 2006 Jkt 026796 PO 00000 Frm 00030 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\26796.TXT SJUD4 PsN: CMORC
27

cosis. You only see it in certain courts. There is a disconnect between medical science and what is happening in certain courts, and 

that disconnect is a mirror image of what has happened with asbestosis claiming, with nonmalignant asbestosis claiming. It is deja 

vu all over again. 

Senator FEINSTEIN. Since you mentioned Dr. Welch’s name, 

would you like to respond to that or do you just want to avoid it? 

Dr. WELCH. Well, I am going to ignore the insult, but I do want 

to say we did spend a lot of time when this bill was starting talking about what claims were, what diseases were, their projections 

of diseases. And of the asbestos claims, there are a lot of claims 

that are made for people who are not impaired, and so when you 

talk about these numbers of claims—but in terms of dollars paid 

out, it is primarily paid to people with impairment and people with 

cancer. We are still seeing 2,500 mesotheliomas, most of which are 

caused by asbestos, every year in this country, a lot of lung cancers. 

So the burden of disease—I just want to make it clear—that 

there are people with asbestos-related disease who are impaired, 

sick and dying from it. If there are a lot of junk claims as well, my 

understanding is most of those claims wed not be compensated 

under this trust because they would not have any impairment. And 

once someone has an abnormal X-ray, an occupational history and 

impairment, they are beginning to meet the criteria that would fit 

under this bill, depending on what their occupational history is. 

So you can sort of have both. You can have a lot of junk, but people are not getting compensated for that. 

Senator FEINSTEIN. Dr. Epstein and then Dr. Rodman. 

Dr. EPSTEIN. I think that there is less of a disparity between Dr. 

Welch’s opinion and mine, certainly about impairment. I would like 

to point out that probably all of the physicians in this room understand that in order to have silicosis, in order to develop that disease, you have to have a large amount of exposure to silica. This 

is not a whiff of silica. This is a lot of silica over a long period of 

time. 

Now, the Congress has experience in dealing with this type of 

problem before. In fact, the Federal Coal Mine, Health and Safety 

Act did deal with the problem of who comes through the door. And 

the way the Congress decided to act in the past was that there had 

to be a certain provable amount of exposure in order to get in the 

door and be compensated under that act. I think that that may be 

one of the ways of dealing with this problem, at least have some 

threshold beyond which an individual can claim silicosis. 

Senator FEINSTEIN. Thank you. 

Dr. Rodman? 

Dr. RODMAN. I have a very strong personal conviction that we 

are skirting around a very big and important issue, and that is the 

presence of a few bad apples or—

Senator FEINSTEIN. Turn on your microphone, please. 

Dr. RODMAN. My personal conviction is that a major problem 

that we have not yet addressed directly is the presence of some bad 

apples in the legal profession and perhaps more bad apples in the 

medical profession. As long as there are doctors who, on paper, are 

well qualified, who are willing to read a chest X-ray which they 

28

once said showed signs of asbestosis and re-read it or read a second 

X-ray on the same patient which does not differ significantly, as 

showing silicotic changes, I do not think the law will have sufficiently addressed this problem. 

Senator FEINSTEIN. Thank you. 

Thank you, Mr. Chairman. 

Chairman SPECTER. Thank you, Senator Feinstein. 

Senator Cornyn? 

Senator CORNYN. Thank you, Mr. Chairman. 

As I understand the language that is on the board up here and 

the process, if someone has a claim of asbestos-related exposure or 

injury, we are in the process the proposal is to create a $140-billion 

fund, which is a no-fault, nonadversarial process by which they can 

be compensated for their asbestos disease. That is the goal. But if 

they do have asbestos-related disease and they file a lawsuit after 

that fund is created, then the court could, and should, say you are 

in the wrong place. You should not be in court. You should be filing 

your claim against the fund. 

So it just makes good sense to me to say that there ought to be 

some threshold to show that your disease is not related to asbestos 

if you file a subsequent civil lawsuit. And from what I hear of the 

medical experts here all arrayed is that ought to be relatively easy 

for a well-qualified physician to do, to read an X-ray and distinguish between silicosis-related disease and asbestos-related disease. 

Would you agree or disagree or have I missed something, Dr. Epstein? 

Dr. EPSTEIN. I would agree with that. 

Senator CORNYN. Dr. Rodman? 

Dr. RODMAN. I would agree, except that my experience has been 

that many X-rays that I read as showing no signs of asbestos-related changes were differently read by other physicians whose credentials on paper were good and who did see asbestos-related 

changes when I think none were present. And I think this was—

Senator CORNYN. That is the scandal you alluded to in some 

parts of the medical profession and even legal profession as well. 

Unfortunately, we are always going to have unscrupulous people 

who occasionally will take advantage of the situation. 

Dr. WEILL. Senator, may I make one comment? 

Senator CORNYN. Doctor? Yes, sir. 

Dr. WEILL. I think one way to deal with the unscrupulous nature 

of some of the B readers out there—

Senator CORNYN. Let me ask you, please, will you tell me whether you agree or disagree that it ought to be relatively easy on the 

X-ray to distinguish between asbestos- and silicosis-related disease 

so you could make this sort of showing relatively straightforward. 

Dr. WEILL. Yes. In an ideal world, and certainly in the clinical 

setting, it is easy. However, in the world in which we live, I think 

because of some unscrupulous B readers, we are in situation 

where, if your entry into the system is simply to get a B read on 

an X-ray that is abnormal, that is too low of a threshold. And I 

think what we ought to do is what some countries in Europe that 

I visited do is set up panels. I know that may be bureaucratically 

29

difficult to do and cumbersome, but it really helps validate the system and validate the diagnosis. 

Senator CORNYN. Our time is a little short. I wanted to ask Mr. 

Martin, you and Professor Brickman had a discussion about disclosure and whether that would be adequate. 

First of all, let me ask you are you involved in this multi-district 

litigation in Corpus Christi, where these duplicative claims have 

been made? 

Mr. MARTIN. I have one case there. I have never filed a duplicative case in my career. And that one case involves a man with massive conglomeration in the upper lobes with cavitation. 

Senator CORNYN. So you are aware at least of the occurrence of 

people making silica-related claims who have previously made 

claims for asbestos. 

Mr. MARTIN. And that is the concern. And I think the point that 

you hit on—

Senator CORNYN. My time is short, so let me just get to what I 

am trying to ask, and we will give you a chance to answer as long 

as the Chairman does not cut you off. 

But will you agree with me, Mr. Martin, that if someone, the disclosure might potentially be a problem, number one, for the lawyer 

whose client does not tell them the truth, the whole truth and 

nothing but the truth or perhaps the lawyer, an unscrupulous lawyer, and unfortunately there are bad apples among the legal profession as we all know who does not disclose it, but right now is it 

not a standard part of basic pretrial discovery in very silica claim, 

in every asbestos claim, to ask have you filed a lawsuit, have you 

made claims previously for any personal injury and that sort of 

thing? 

So how would an additional disclosure requirement get us to 

where we need to be in order to separate and distinguish between 

these two types of claims? 

Mr. MARTIN. The answer to your question is, yes. In terms of the 

discovery process, it must be disclosed and is typically disclosed. 

Senator CORNYN. But, apparently, that discovery process did not 

reveal, in this instance, and in the story reported in the New York 

Times related to this whole what appears to be a scandal, where 

people have made asbestos claims or silica claims and not disclosed—they have either failed to, they have not been asked, they 

have been asked or they have not told the truth or something has 

gone wrong. So how do we get over that hurdle? 

Mr. MARTIN. Well, I suspect if that is happening that there is a 

Federal district judge down in Corpus Christi who is going to start 

knocking some heads off because those are serious problems in 

court, when you are not being truthful and up-front in answering 

interrogatories. 

But I do think disclosure is the key to—what I am worried about 

is the fact that I have never filed one of these subsequent lawsuits. 

I have got a group of guys who are truly sick from independent illnesses, which these men have seen on occasion in their own offices, 

and I do not want them to be completely precluded because there 

is a group of people who filed second lawsuits. And this language 

precludes them from seeking that remedy, and that is the issue of 

concern. 

30

Chairman SPECTER. Thank you, Senator Cornyn. 

In Corpus Christi, they do not knock heads together, they knock 

them off? 

[Laughter.] 

Mr. MARTIN. Yes. We are close to the ocean, and we can just 

knock them right off into the Gulf. 

Senator CORNYN. And then they really get tough, Mr. Chairman. 

Chairman SPECTER. Well, Senator Cornyn, of course, is an expert 

at being a Texas Senator, and having been on the Supreme Court 

and the attorney general, but there appears to be somewhat different standards of conduct, as we are having it described, with two 

sets of X-rays simultaneously, different markings. 

I think it would be very useful for the Committee to hear Judge 

Becker, some views from Judge Becker. I have asked him if he 

would care to make a few comments at this point. 

Let us turn to Judge Becker. 

Judge BECKER. Thank you, Senator. 

I think I share Senator Feinstein’s comments that this has been 

an extraordinarily useful hearing. I think we have learned a lot 

from the experts. My sense is that this problem is soluble by drafting. I think there are certainly flaws in Section 403 of the discussion bill. I do not think it made it clear enough that the intention 

for discussion purposes was that the preemption would only be for 

those who qualified for the Asbestos Fund. There not a Catch 22 

to put anybody in limbo or in no man’s land. 

And I think the testimony also makes clear that you cannot rule 

out any possible contributing factor because of the widespread exposure in the Nation’s population to asbestos. I think, however, 

that some other adjectives like ‘‘significant’’ or ‘‘substantial,’’ that 

it be some significant factor or even a minor factor. In other words, 

it would have to be more than a minor factor in order to rule out—

Senator FEINSTEIN. Mr. Chairman, would you just allow me one 

thing? 

Could it be primary—primarily? 

Judge BECKER. It could be primarily. I mean, that would be one 

possible solution, Senator Feinstein. I know that was in an earlier 

draft of yours. But the question that everybody is fighting about is 

who has got the burden of proof. Everybody talks about not proving 

a negative. 

The problem there, I mean, what we are talking about here is 

preempting—and this is the overarching issue here—we are talking 

about preempting cases that are going to be brought in State court. 

There is no doubt, I mean, what we are saying because these cases, 

if anybody is going to bring, has a legitimate silica claim, they are 

going to bring it in State court. 

So we are talking about the Congress of the United States preempting—some are going to say this is a kind of tort reform. Does 

the Congress have the power to do this? Plainly, the Congress has 

the power to do this. This is the grand daddy of all tort reform bills 

in terms of abolishing asbestos litigation in State court. But what 

it would be doing, and plainly the power of the Congress, it is in 

the Commerce Clause to do so, is regulating practice in State court. 

I think not only can you do it, but it needs to be done. Among the 

31

things that need to be talked about are disclosure, the question of 

burden of proof. 

But from the point of view of the defense community, the thing 

that they are upset about, and this is what Professor Brickman 

was stressing, is defense costs. Because as Dr. Welch says, well, 

okay, nobody is going to pay these cases, the problem that the defense community has brought to us is, well, if a lawyer has got a 

thousand of these cases, and they have to defend them, even if it 

costs $500 or $1,000 to defend each one, that is a big hunk of 

change. 

So, therefore, there has to be some threshold limitation. One of 

the threshold limitations, as I think might be considered and has 

not been mentioned here this morning, although the medical basis 

has been mentioned for it, and we have talked a lot about the 

unimpaired, is to preempt any claim in State court that is not impaired. In terms of this bill, that would be at least Level III in the 

medical criteria. Level I, where you get medical monitoring, where 

you do not get paid anything, those claims arguably could be preempted, and the question is whether or not the medical criteria fit, 

even though the medical criteria in the bill are different. There is 

asbestos and silica disease. In terms of the criteria for Level III, 

with respect to the degree of restriction, and I have them here, and 

I will not burden the Committee by reading them, but it is 80 percent of lung capacity in certain tests and so forth. 

To the extent that this has been described to us this morning, 

both silica and asbestos are interstitial lung diseases which have 

the same kind of sequelae, the shoe would fit, and, therefore, you 

could limit. And another thing that could be considered, in addition 

to the disclosure, in addition to the idea of a medical panel, and 

some kind of screening panel. You could, also, and I think we could 

fiddle with the burden of proof I think language, and I would welcome the opportunity to have my thirty-ninth meeting, thirty-nine 

steps—I do not know. It was a movie someplace or another, or a 

book—I would be willing to have my thirty-ninth meeting, and 

sooner rather than later, like this afternoon or over lunch. You 

have got everybody here. Let us get everybody in a room, and we 

do not leave them out—I have the Metroliner schedule, the Night 

Owl I think is 2 a.m. We will get them tickets on the Night Owl, 

and we will lock them in a room until we get something worked 

out. I think we can work something out. 

Chairman SPECTER. Judge Becker, that is—

Judge BECKER. I think this combination would work. 

Chairman SPECTER. That is an excellent idea. 

So why don’t we move on to Panel two now, and let us have a 

designation of those who are going to move from this proceeding to 

a drafting proceeding. 

Panel two is Mr. Paul Hoferer and Mr. Donald Griffin. 

Before panel one leaves, let me thank all of you very much for 

coming. You have already received a number of accolades for your 

very helpful testimony, and we do appreciate your coming long distances and leaving your professional activities to be in Washington 

today to provide this testimony. So thank you all very much, and 

some of you have drafting assignments to be completed after you 

leave here today. 

32

Mr. Paul Hoferer is Vice President and General Counsel of the 

Burlington Northern and Santa Fe Railroad. He began working 

there as a switchman in Kansas City during the summer while in 

high school, and then spent 3 years in the U.S. Army, including 

Vietnam and began his career with the Santa Fe law department 

in Topeka, Kansas, as a trial attorney. 

In the year 2000, he received the Paul C. Garrett Award for Meritorious Service to the Association of Railroad General Claims Conference. He has a business degree from Central Missouri State University and a law degree from Washburn University School of Law. 

In a sense, I worked for the Santa Fe years ago delivering bills 

of lading in Wichita at the age of 11. 

Thank you for joining us, Mr. Hoferer, and we look forward to 

your testimony. 

STATEMENT OF PAUL HOFERER, VICE PRESIDENT AND GENERAL COUNSEL, BNSF RAILWAY COMPANY, FORT WORTH, 

TEXAS, ON BEHALF OF THE ASSOCIATION OF AMERICAN 

RAILROADS 

Mr. HOFERER. Thank you very much, Mr. Chairman, members of 

the Senate Committee. Good morning. As Senator Specter said, my 

name is Paul Hoferer. I am the Vice President and General Counsel of the BNSF Railway Company, headquartered in Forth Worth, 

Texas. 

My background has given me a rather unique view of both sides 

of this issue because I worked 7 years as a railroad switchman 

while I was attending college and law school. As a switchman, I 

was a member of a national railroad union. I also spent 20 years 

after law school working as a trial attorney litigating FELA cases, 

and I am currently responsible for managing the litigation at 

BNSF Railway Company. 

First of all, I want to thank the Committee for the opportunity 

to present the views of the members of the Association of American 

Railroads concerning this asbestos act. 

The AAR members primarily have two concerns. The first one is 

the treatment of the asbestos claims under the Federal Employers 

Liability Act, which we call the FELA, and the second is the potential for claimants to subvert the Act’s intent by converting asbestos 

claims into ones that allege injury for other airborne substances. 

Railroads neither manufactured nor distributed asbestos, and 

had stopped significant use of it by the steam era in the 1950’s, 

roughly 50-some years ago. Despite this, we have been named as 

defendants in numerous lawsuits brought under the FELA. The 

FELA covers only rail employees and was enacted in 1908, prior to 

the State worker’s compensation laws to cover employees injured in 

other industries. That is what the State worker’s compensation 

bills were passed for. 

The proposed legislation would cover all asbestos-related injuries, 

including those which might otherwise have been brought under 

the FELA. That is as it should be. There is no justification for 

treating asbestos claims brought by railroad workers any differently than claims brought by other workers in the industries. 

Railroad labor has concerns and protested, claiming its members 

would be treated unfairly. That is not the case. All asbestos claimVerDate 0ct 09 2002 11:37 Apr 07, 2006 Jkt 026796 PO 00000 Frm 00036 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\26796.TXT SJUD4 PsN: CMORC
33

ants, not just railroad claimants, would lose their ability to file any 

civil litigation and instead would be compensated by the fund. 

Rail labor also claims that its members would likely receive less 

total compensation than other workers because its members would 

have recourse only to the fund, while employees in other industries 

would also have a remedy under the worker’s compensation laws. 

That concern is addressed in the most recent draft of your legislation. It grants railroad employees an additional payment which 

would be equal to any reduction in benefits that they would have 

been entitled to if they were covered by State worker’s compensation laws. I believe that amendment is one that Judge Becker proposed. 

Rail labor says that this isn’t enough. Instead, they want to receive additional payments equal to the historic FELA payments for 

asbestos claims, in addition to the fund. Although the fund is designed to substitute for all tort claims, under rail labor’s plan rail 

employees would be entitled to two payments that are a substitute 

for tort recoveries or litigation and would include payments to 

uninjured workers—something the Act seeks to eliminate. 

The AAR believes this is unwarranted. Under the tort system, including the FELA, plaintiffs are entitled to only one full recovery 

for their injury. Indeed, if an asbestos claimant who also sues other 

defendants, he or she is not entitled to collect multiple, full recoveries. Any settlement with one defendant is offset currently by the 

FELA settlement. 

Having said that, the railroads are negotiating, as was mentioned earlier by the Senator, with rail labor over this issue in an 

attempt to reach a compromise so that labor can support this legislation. We, too, hope to reach a compromise in this matter. However, our willingness to negotiate is predicated on one condition, 

that no additional compensation or contribution be made from the 

railroads to the fund for a special FELA adjustment. 

There are several other important elements we think have to be 

incorporated in any effort to add an FELA special adjustment to 

this Act. The adjustment must reflect only net FELA payout. I 

think there was a comment earlier that roughly half of the money 

does not go to the claimant; it goes to the attorneys and the cost 

of litigation. Any FELA adjustment will be treated the same way 

the bill treats worker’s compensation. It should be based on objective medical criteria, and no FELA lawsuit should be allowed while 

the law is passed. 

Finally, one brief comment about mixed dust. We too are concerned about the Act’s elimination of asbestos lawsuits, and it could 

be illusory because of the concerns previously expressed. The concern is that the plaintiff will seek recovery from the fund, while at 

the same time file lawsuits alleging respiratory injury caused by 

exposure to substances other than asbestos. 

I think Professor Brickman and Dr. Weill both mentioned this 

and covered it more than adequately. I do want to say, though, that 

we believe that the proposed legislation will represent a fair means 

of addressing the asbestos lawsuit crisis only if it effectively prevents claimants from controverting asbestos claims into other types 

of claims. 

I stand ready for any questions. 

34

[The prepared statement of Mr. Hoferer appears as a submission 

for the record.] 

Chairman SPECTER. Thank you very much, Mr. Hoferer. 

We turn now to Mr. Donald Griffin, who has been a very regular 

attendee at our stakeholders meetings. He is the Director of Strategic Coordination and Research for the Brotherhood of Maintenance of Way Employees Division of the International Brotherhood 

of Teamsters, which represents railroad employees primarily engaged in the construction and maintenance of railroad tracks, 

bridges and other structures. 

Prior to his arrival at BMWED in 1996, he was with the law firm 

of Hyshaw, Mahoney and Clark, here in Washington. He has a law 

degree from Rutgers, in 1987, and bachelor’s degree from the University of California, in 1972. 

Thank you for your steadfast attendance at 38 meetings and we 

look forward to your testimony here today. 

STATEMENT OF DONALD F. GRIFFIN, DIRECTOR OF STRATEGIC COORDINATION AND RESEARCH, BROTHERHOOD OF 

MAINTENANCE OF WAY EMPLOYEES DIVISION, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, WASHINGTON, 

D.C. 

Mr. GRIFFIN. Thank you, Mr. Chairman. On behalf of rail labor, 

I would like to thank you and Judge Becker and Senator Leahy for 

all of the hard work you have done here to try to get the parties 

to reach some sort of understanding on the FELA issue. 

Mr. Chairman, I am here today on behalf of all of the rail labor 

unions within the AFL–CIO, and I speak to you on a matter of 

great importance to the men and women who are members of those 

unions. 

To know someone suffering from deadly asbestos disease, as I do, 

and most people who work on the railroad do, is to know that, first 

and foremost, any legislation in this area must treat the sick and 

injured fairly. The proposed bill does not treat railroad workers 

fairly because it takes away a railroad worker’s Federal statutory 

right. 

Under this bill, a railroad worker may not bring a claim under 

the Federal Employers Liability Act, otherwise called FELA, for an 

asbestos-related injury or illness on the job. All other workers retain full rights to bring claims for asbestos-related injuries or illnesses under State or Federal laws with regard to their specific 

employers. 

I must emphasize that rail labor believes there is no compelling 

reason to take away rail workers’ rights under FELA. Asbestos 

claims under FELA have not clogged the courts, do not unfairly 

delay compensation due injury rail workers, and, importantly, do 

not threaten economic health of the Nation’s railroads. 

Nevertheless, at the urging of the Chairman and Senator Leahy, 

rail labor has made a proposal for an adjustment that would fairly 

compensate railroad workers for their unique loss of worker’s compensation benefits provided under FELA. Our proposal is Appendix 

A to my written testimony submitted to this Committee. 

Rail labor’s proposal is simple. It follows a pattern used by Congress since 1926 to legislate matters affecting rail labor and rail 

35

management: have labor and management negotiate a mutually 

satisfactory result. Our proposal provides that labor and management will negotiate quickly to create a fair adjustment to trust 

fund values for injured rail workers. 

If the parties cannot reach agreement, the dispute will be sent 

to a neutral party to provide a final and binding resolution of the 

entire dispute. Our goal is to provide a special adjustment to injured rail workers that both labor and management agree is fair—

nothing more. 

The FELA adjustment contained in the draft bill which is supported by rail management is unfair because most injured rail 

workers would not receive it. To receive rail management’s proposal, the claimant must also apply for an occupational disability 

payment from the Railroad Retirement Board. What this means, in 

practice, is that a claimant cannot apply for rail management’s proposed adjustment unless he or she has 20 years of service on the 

railroad. According to the Railroad Retirement Board, over half of 

the workers in its system do not have 20 years of service. So those 

employees cannot receive this adjustment. 

In addition to the 20-year service requirement, a railroad worker 

must have a current connection to the industry when or she applies, meaning the employee must be working in the industry. That 

means a railroad worker with 20 years’ service, but who has moved 

to another non-railroad employer cannot receive the adjustment. 

Additionally, all retired railroad workers are ineligible for the adjustment because they lack a current connection. This last point is 

especially significant because of the long latency periods between 

asbestos exposure and the manifestation of asbestos-related injury. 

What this means is that over half of active employees cannot receive the adjustment and all retired railroad workers are ineligible, 

as well. Under FELA, all of these employees would be eligible to 

file a claim for an injury against the railroad. Rail labor submits 

that an adjustment that is not available to the overwhelming majority of potential beneficiaries because they either lack the required railroad service or have worked so long they are retired is 

unfair. 

Finally, I have listened carefully to Mr. Hoferer’s testimony 

today and read his prepared remarks, and wish to make the following brief comment. Rail labor is delighted that rail management 

has taken up our more than year-old invitation to sit down and 

work this dispute out through negotiation. Rail labor views the 

railroads’ comments today as affirmation of the soundness of our 

proposal for a negotiated special adjustment. 

In conclusion, rail labor’s preferred position would be the preservation of injured railroad workers’ rights under FELA. However, if 

that is not possible, rail labor respectfully requests this Committee 

to adopt rail labor’s proposal for an FELA adjustment. 

Thank you very much. 

[The prepared statement of Mr. Griffin appears as a submission 

for the record.] 

Chairman SPECTER. Thank you very much, Mr. Griffin. 

Mr. Hoferer, there is a statement at pages 8 and 11 of your prepared testimony that, quote, ‘‘There should be no continuation of 

FELA suits after enactment of [asbestos fairness] legislation.’’ 

36

I take it that your real meaning there is that there are to be no 

more asbestos-related lawsuits. 

Mr. HOFERER. That is correct, yes. 

Chairman SPECTER. What we are dealing with here is to try to 

be sure that the rail workers are treated the same as workers generally under State workmen’s laws, so that where there is extra 

compensation or however that treatment is made that the rail 

workers would be treated the same way. 

Is that essentially correct, Mr. Griffin? 

Mr. GRIFFIN. That is essentially correct, given that FELA operates substantially different than worker’s comp in that it is a tortbased system. But that is the goal. 

Chairman SPECTER. Well, we have striven mightily to do that. It 

seemed to Judge Becker and me at the outset that it was not all 

that complicated, but it certainly has been. So I am delighted, and 

I compliment you both on your negotiations and your efforts in 

good faith to solve the problem. I compliment you even more on 

agreeing to binding arbitration, if you can’t come to an agreement, 

because I believe that will provide a legislative solution. 

I believe that that will effectively take this issue off the table, 

and I see the group of stakeholders, four in number, who have been 

at 38 meetings nodding in the affirmative, and I do not think it 

necessary to encumber the record any further. 

With 2 minutes and 55 seconds left, I yield to you, Senator 

Cornyn. 

Senator CORNYN. Does that means I can have the extra two minutes. 

Chairman SPECTER. You may. 

Senator CORNYN. If I can have that and my 5 minutes, I don’t 

expect to ask a lot of questions, but I do want to say that I think 

our goal is, both when we talk about silica-related disease and 

other diseases and how we treat the trust fund, to accomplish two 

goals. 

One is to make sure that the fund is actually successful and compensates asbestos-related disease and people who are actually suffering from that disease. There is also, I think, a related goal of 

making sure that we sweep in all asbestos claims into the fund, 

both to maintain the viability of the fund and the size of the fund, 

but also to make sure that we don’t have dual tracks, one under 

the fund and then one in the tort system, because, frankly, I am 

reminded from Judge Becker’s comments that he said this is tort 

reform. I have heard it referred to as scandal reform, and I think 

that really is what we are engaged in. Frankly, there is a consensus that the current system does not operate fairly. 

The other principle, I think, that is important is that someone 

be compensated once for a single, indivisible injury, a basic sort of 

legal principle. Now, in the workers’ comp, and I trust also the 

FELA area, I would like your comment first, Mr. Griffin. 

If you are successful in an FELA lawsuit and you subsequently 

sue an asbestos manufacturer for the asbestos exposure, then does 

the FELA claimant—does the plaintiff there have any obligation to 

offset or to repay to allow that FELA claim to be subrogated to the 

third-party lawsuit? 

37

Mr. GRIFFIN. Senator, unfortunately I am not one who has normally handled FELA cases. It is my understanding that there may 

well be an offset. Very often, a plaintiff will bring an action against 

the railroad only. Some bring actions against both the railroads 

and manufacturers. 

I know railroads have the right, after an FELA judgment against 

them, to go after third parties on joint and several tort liability 

theories. 

Senator CORNYN. Well, you are not suggesting, Mr. Griffin, that 

we ought to carve out FELA cases and allow those to proceed and 

then also permit individuals who are claiming asbestos-related impairment to sue under the trust fund or make a claim under the 

trust fund for the same indivisible injury, are you? 

Mr. GRIFFIN. No. This is actually an asbestos injury. Since the 

bill as proposed takes away the railroad worker’s rights under 

FELA to bring a claim under FELA for the asbestos-related injury, 

any recovery for that injury will come from the trust fund and any 

special adjustment that would accrue to railroad workers. That is 

the sole source of recovery for the asbestos injury under this bill. 

Senator CORNYN. Well, I would say that we ought to have two 

goals here. One is to make sure that we get as many asbestos-related claims into the fund as we possible can, because there are all 

sorts of groups and individuals who are trying to get the best deal 

they can for their group or interest. But, unfortunately, it has the 

concomitant effect of diluting the likelihood of success of the trust 

fund itself, and I think we all are interested in making sure that 

the trust fund actually works. 

Mr. Hoferer, can you comment on those two issues, both including everybody into the fund in order to maintain the viability of the 

fund, and then also the idea of dual compensation or what we used 

to call double-dipping? 

Mr. HOFERER. Sure, I will be happy to. Let me say first of all, 

a couple of years ago there was a United States Supreme Court decision, Ayers v. Norfolk Southern, and what it basically did was it 

allowed some FELA asbestos claimants who were suing the railroad to recover for all of the asbestos exposure caused by prior employers or other parties. The railroad had to pay one hundred percent of that because the Supreme Court said that under the FELA 

law contribution was not divisible and they had to pay all of the 

damages, which was a very expensive case. 

Under the current proposed legislation, what you have is the 

ability for everyone to be treated equally. We want the rail employees to be treated the same as anyone else in any industry. 

I think the way to do that is to have this measured by the worker’s compensation standard. I say that because I believe there is 

some confusion in talking about this whole subject. The FELA is 

a lawsuit tort-related matter that is conducted in a courtroom. It 

has elements of damages that are not covered in worker’s compensation. It is a whole different thing. 

That is why if the suggestion is that you get to collect under the 

fund and under the FELA, you are really collecting twice. Even if 

it is the average, you are collecting twice what the lawsuit damages 

would be. 

38

Now, on the other hand, you have a situation where the rail 

workers have a lot of other benefits that are not tied up with the 

FELA. Mr. Griffin mentioned one of them, the occupational disability annuity. We know that about 98 percent of the people that 

apply for it have it granted to them. Now, that is for active employees. 

We have total disability. That also is available to them. It is the 

Social Security equivalent. The occupational disability annuity is 

unique. No other workers in the United States have anything like 

that. It doesn’t exist under Social Security. Then we have sickness 

benefits. We have the continuing medical benefits if the employee 

is an active employee. And, of course, they get Medicare if they are 

retired. So these are all benefits that are in addition to the FELA. 

The other thing I would say that is important here is the vast 

majority of the rail employees who have filed for asbestos claims 

are retirees, and the reason is quite simple. The true, significant 

asbestos exposure ended in the 1950s with the steam-era locomotives. You can do the math. You are talking about people that 

are going to be in their 70s. 

I hope that addresses some of your concerns. 

Senator CORNYN. Thank you. 

Chairman SPECTER. Thank you very much, Senator Cornyn. 

We are joined here by Senator Carper, who is a prospective cosponsor of the draft legislation, and in that light we invite him to 

make a comment. 

Senator CARPER. Mr. Chairman, thanks very, very much to you. 

I want to say something about Seema Singh, the young woman sitting right behind you, and say how much we have enjoyed working 

with her and other members of the staff of this Committee and the 

people that are represented in this room and that are watching 

today. You are well served by her as a member of your staff. 

I enjoyed riding down on the train this morning, as I do many 

mornings. I come from Delaware on the train, and had the good 

fortune this morning of sitting across the table from a fellow whose 

picture was in the New York Times business pages, with yours, 

and that is Judge Becker. 

Chairman SPECTER. Odd, he didn’t mention it when he spoke. 

Senator CARPER. He mentioned he has known you for 53 years, 

Mr. Chairman—53 years. He told some great stories to everybody 

on the train about you—no, not really. 

Chairman SPECTER. Well, in that event, you can go ahead. 

[Laughter.] 

Senator CARPER. I want to say to Judge Becker, God bless you. 

Thank you for the time and energy and intellect that you have put 

into this. If we end with a bill, in no small measure the credit will 

be yours. 

Mr. Chairman, I am encouraged by hearing rail management 

and rail labor sit at the same table and say this is one they think 

they can work out, and that they are determined to do that, and 

if they can’t hammer it out, to turn to binding arbitration. I want 

to commend you. That is the kind of spirit that we need to be able 

to resolve some other difficult issues on this bill. 

People have asked me do I think in the end this is going to be 

a partisan bill or not. I certainly hope not. I certainly hope we have 

39

a bipartisan bill, maybe a consensus bill. That could be the triumph of man’s hope over experience, but I don’t know that it needs 

to be. 

I know the Chairman has done a huge amount of work on this 

and has a strong and abiding interest in this issue and coming to 

a fair resolution, as does Senator Leahy, as does Senator Feinstein, 

who has put enormous effort into this. I hope, in the end, that the 

bill that emerges from this Committee will be something very much 

like a consensus and we will end up with 75 or 80 people voting 

for it on the floor, and maybe convincing our friends in the House 

that the better part of valor here is to maybe side with the Senate 

on this one. 

I commend you for your efforts. I look forward to continuing to 

work with you and hope to be a cosponsor in the near future. 

Thanks, Mr. Chairman. 

Chairman SPECTER. Well, thank you very much, Senator Carper, 

for those kind comments. 

Thank you, Mr. Griffin and Mr. Hoferer. 

Mr. GRIFFIN. Thank you. 

Mr. HOFERER. Thank you, Senator. 

Chairman SPECTER. I think this has been a very useful hearing 

and we are going to plod ahead to try to get this all done. 

Mr. HOFERER. Good luck to you, sir. 

Chairman SPECTER. That concludes the hearing. 

[Whereupon, at 11:45 a.m., the Committee was adjourned.] 

[Questions and answers and submissions for the record follow.] 

[Additional material is being retained in the Committee files.]

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