S. 852: The Fairness in Asbestos Injury Resolution Act of 2005 Page: 3 of 6
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CRS-3
The Administrator would establish a claimant assistance program to, among other
things, provide to claimants information and legal assistance.14 Attorneys representing
claimants under the draft bill could charge their clients no more than five percent of the
final award for filing the initial claim, or twenty percent for claims under "administrative
appellate review."15
Awards. In order to receive compensation, a claimant would have to show, by a
preponderance of the evidence, that the claimant suffers from an eligible disease or
condition.16 In addition, claimants would be required to demonstrate a minimum
exposure to asbestos." Claimants would be compensated according to the tiered
compensation scheme outlined in the bill. This scheme sets awards for nine levels of
asbestos-related injury, with awards ranging from medical monitoring for claimants in
Level I (asbestosis-related non-malignant disease and five years occupational exposure
to asbestos) to $1.1 million for claimants in Level IX (mesothelioma).18 The bill would
also allow claimants suffering from asbestos-related injuries that cannot fit into one of the
nine levels to seek compensation for their "exceptional medical claims."19
One of the more controversial aspects of the effort to reach a legislative solution to
the asbestos problem has been the question of smoking. Levels VII and VIII of the tiered
compensation scheme both deal with lung cancer, and some have expressed concern that
smoking may have contributed to many of these claimants' conditions.20 As a result, the
awards in Levels VII and VIII are pegged to each claimant's smoking history, in that non-
smokers would get higher awards than ex-smokers, who would get higher awards than
smokers.21
14 Id. at 104. In addition, the Administrator would be required to establish a program for the
medical screening and education of those with high risks of asbestos-related injuries. Id. at 225.
15 Id. at 104(e)(1).
16 Id. at 111. A claimant suffers from an eligible disease and condition where the claimant can
satisfy the medical criteria in the bill. Id. at 3(7).
1" Id. at 121(c).
18 Id. at 131(b)(1). Beginning in January, 2007, the award amounts would be adjusted annually
to account for cost of living increases. Id. at 131(b)(6).
19 Id. at 121(.
20 Under S. 852, all claims of lung cancer would have to be supported by additional physical
indicia of asbestos exposure (e.g., pleural plaques, asbestosis). Previous versions of this
legislation, however, had one level of compensation reserved for claims of lung cancer, without
any other physical indication that asbestos caused the lung cancer. Some have strongly objected
to the inclusion of these claims, in that isolating the cause of the lung cancer (i.e., smoking vs.
asbestos) can be very difficult ( See, e.g., T.R. Goldman, Firefight: The Art of the Asbestos Deal,
Legal Times, April 19, 2005). Consequently, no such level is included in S. 852.
21 According to the bill, a "non-smoker" is someone who has never smoked or has smoked fewer
than 100 cigarettes (or the equivalent of other tobacco products) in his or her lifetime, while an
"ex-smoker" is someone who has not smoked in the twelve years preceding diagnosis of lung
cancer. S. 852, 131(b)(2).
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Brooks, Nathan. S. 852: The Fairness in Asbestos Injury Resolution Act of 2005, report, April 26, 2005; Washington D.C.. (https://digital.library.unt.edu/ark:/67531/metadc811395/m1/3/: accessed July 17, 2024), University of North Texas Libraries, UNT Digital Library, https://digital.library.unt.edu; crediting UNT Libraries Government Documents Department.