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Asbestos Milestone

Tuesday, April 19, 2005; Page A18

WHAT MAY BE the last, best chance for fixing the tragically broken asbestos litigation system arrives in the Senate this week when Judiciary Committee Chairman Arlen Specter (R-Pa.) and ranking Democrat Patrick J. Leahy (Vt.) push a long-awaited attempt at a bipartisan compromise. The problem is immense: In court, many asbestos victims have been unable to obtain quick and fair compensation for the terrible diseases inflicted by the insulation material. Meanwhile, numerous companies with little responsibility for the suffering have been bankrupted, in part by having to pay people who aren't really sick -- and their lawyers. The massive quantity of litigation threatens companies ever more remotely connected to the actual production of asbestos.

The solution has long been clear, at least in theory, to members of both parties and the key players in the crisis: manufacturers, insurance companies and labor unions. A federally managed trust fund, paid for by defendant companies, should finance a non-litigation compensation system. Victims would receive prompt and predictable payments; industry would get predictability and protection from frivolous claims. But translating this conceptual agreement into policy has proved to be a challenge beyond Congress, so far. Senators have been unable to agree on the size of the fund, how to ensure its solvency over time, what to do if it runs dry and how much to pay individual claimants suffering from various asbestos-related maladies.

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Since taking over the Judiciary Committee, Mr. Specter has made asbestos a priority and has worked intensively with Mr. Leahy to close the gaps. The resulting draft bill would create a $140 billion fund over 30 years. It would somewhat increase payments to victims over the bills Senate Republicans have contemplated before. But it would also eliminate a category of compensation that industry and insurers feared would allow people with smoking-induced lung cancer to garner payments. If the fund proved insufficient, claims would revert to the court system, guaranteeing that people would not be deprived of their right to sue if the alternative was a bankrupt fund.

The Specter-Leahy bill will not satisfy everyone, and it will fully satisfy almost no one. Trial lawyers are working against it, and parts of the insurance industry have serious concerns as well. But balancing the multitude of competing demands requires all to give in on some important issues. The compromise Mr. Specter has engineered is significantly better than past bills and -- more important -- dramatically better than a status quo that should not be allowed to continue. The Supreme Court has been saying for years that "the elephantine mass of asbestos cases . . . defies customary judicial administration and calls for national legislation." This is Congress's chance.

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