WORKING DRAFT March 24, 2004 ABA/TIPS Task Force on Asbestos Litigation By Leo J. Jordan, Esq. Co-Chair of Task Force This paper represents the continuing work of this task force. It is intended as a working and reference document. It is not intended to represent the view of the American Bar Association, The Tort Trial and Insurance Practice Section, or any other ABA entity. Comments on the draft are welcome. Write to firstname.lastname@example.org Fair in Asbestos Injury Resolution Act of 2003 – S. 1125, 108th Congress Funding Proposal – Role of Federal Government I. Introduction S. 1125 was reported favorably (10-8) out of the Senate Judiciary Committee on July 30, 2003. This legislation takes asbestos claims out of the existing tort system and administers them through a federally administered trust fund. This plan will compensate present and future claims on a non-fault basis according to standardized medical criteria and designated claim awards. Claimants need only to satisfy the eligibility requirements under the Act. (The House of Representatives has not yet taken formal action on asbestos legislation, apparently preferring the Senate to take the lead.) The trust fund will operate on two fronts: first, through the collection and management of assessments against corporate defendant and insurance companies, as well as a smaller part from existing asbestos compensation trusts; and second, through the payment of such funds to compensate claimants who can establish eligibility based upon legislatively approved medical criteria. The legislation proposes differing funding levels based upon the severity of the asbestos- related disease. The issues presented in this paper include (1) whether the funding anticipated by this legislation is adequate to satisfy pending and future claims; and (2) if funds are deemed insufficient, should the federal government contribute to the fund as either a “responsible party” or in its overall role to provide for the public welfare? II. Number of Asbestos Cases, Present and Future According to a 2002 study by the RAND Corporation Institute for Civil Justice, more than 600,000 asbestos claims have been filed to 20021. -2- It is estimated that there are currently almost 300,000 asbestos-related bodily injury claims pending in state and federal courts. Roughly 50,000-70,000 new claims were filed per year from 2000-2002.3 Moreover, there are currently about 2,000 new mesothelioma cases filed each year. There are another 2,000-3,000 cancer cases that are likely attributable (at least in part) to asbestos. There are a smaller number of asbestosis cases. The remaining cases are either pleural injuries or from claimants who do not presently show signs of injury. It is estimated that more than 90 percent (or more than 54,000 claims filed during 2002) are for claimants alleging nonmalignant injuries.4 There is no agreement as to the ultimate cost of asbestos-related injuries. Estimates range from a low of $108 billion to a high of $275 billion. The former estimate was reported by the Senate Judiciary Committee. The latter estimate is from a leading actuarial firm.5 III. Funding Mechanism(s) The bill, as approved by the Senate Judiciary Committee in July 2003, would require $108 billion in aggregate contributions. Insurers and defendant corporations would each contribute $52 billion and $4 billion from existing bankruptcy trusts. An amendment by Senator Diane Feinstein (D. CA) provided additional contingency funding amounting to $45 billion to be raised from corporations and insurers. S. 1125 as reported out of Senate Judiciary would therefore have an overall capitalization of $153 billion. Insurers balked at the contingency funding and walked away from the debate. 6 Senate Majority Leader Bill Frist (R. TN) later took personal charge of the legislation and insurers and corporations appear in agreement on the following funding mechanism. A. An approximate $105 billion in mandatory contributions from defendants and insurers spread over 27 years. Insurers will be responsible for $46 billion. Corporations would contribute $57.5 billion. Existing bankruptcy trusts would contribute $1.5 billion. Insurer contributions would be front-loaded to provide for adequate funding in the early years. Defendant corporations would be expected to pay $2.5 billion each year over this period, or perhaps a shorter period. B. Defendant corporations would also be required to participate in a contingency funding proposal of $10 billion. C. Under the Frist proposal the total funding base would be about $114 billion. This is $6 billion above the basic funding reported by the Judiciary Committee. Absent from the Frist proposal is the $45 billion Feinstein contingency measure. The $6 billion increase over the original $108 billion capitalization is reportedly to be used to increase benefit amounts. -3- IV. Adequacy of the Funding Mechanism The negotiations initiated by Senator Frist apparently included only representatives from corporate defendants and the insurance industry. Left out of these discussions were representatives of labor and the plaintiffs personal injury bar. It seems patently unlikely that legislation will be enacted unless there is greater agreement among all effected interests as to a reasonable evaluation of outstanding liabilities. The current legislative direction mandates that the asbestos trust funding is the primary responsibility of defendant companies and insurers. Sec. 405(a) of S. 1125 specifically exempts the federal government from any funding obligation. The RAND Corporation Institute for Civil Justice estimated the ultimate cost of asbestos claim payments and expenses at $200 billion. RAND reported that $70 billion had been paid through 2002, and estimated the future cost at $130 billion. The Judiciary Committee Report relied heavily on the anticipated savings in legal transaction costs to meet its goal of $108 billion7. How Much Money is Needed? From what we have seen, there remains a great deal of uncertainty as to the ultimate dollars needed to resolve the outstanding claims. There is neither agreement as to the number of claims or the final cost to resolve the more serious as well as the less impaired-type claims. Failure to narrow differences on the estimated number of future claims, as well as agreement on funding adequacy, could well impair the efforts of Senator Frist and others to move this legislation forward. We have seen the estimates of costs for pending and future claims ranging from: a) S. 1125 original estimate of $143 billion. (front-end $108 billion – contingent $45 billion) b) S. 1125 – Frist revision changed to $114 billion. (front-end $104 billion – contingent $10 billion) c) Congressional Budget Office (CBO) estimate $136 billion. d) Rand estimate $130 billion8. e) Tillinghast-Towers Perrin and Milliman $200-275 billion9. At the end of 2002, U. S. insurers and reinsurers had paid approximately $25.5 billion and held $19 billion in reserves to pay future claims, as disclosed in the Annual Statements filed with state insurance departments10. V. Role of the Federal Government The federal government appears willing to serve as the catalyst for a final resolution of the long-standing asbestos crisis. It is willing to take asbestos claims out of the tort system and have them administered by a federally administered trust fund. The -4- government will also have borrowing authority in any calendar year in an amount not to exceed anticipated contributions to the fund in the following year11. The Wall Street Journal recognized this limited role of government when it reported recently that “there is an empty chair at the Senate’s asbestos-settlement talks. It belongs to Uncle Sam.” The paper reported that some of the most lethal exposures to asbestos occurred in U.S. Navy shipyards. The Wall Street Journal cited industry data showing that claims from individuals exposed in military and shipyard construction accounted for 26 percent of mesothelioma cases, 16 percent of lung cancer cases and 13 percent of disabling lung disease cases.12 The New York Times in 1982 reported on the adverse impact on shipyard workers exposed to asbestos in Bethlehem Steel Corporation Key Highway Shipyard in Baltimore, Maryland. According to the Times, a 1979 study found that more than 86% of Key Shipyard workers suffered lung abnormalities associated with asbestos.13 A recent report of the Environmental Working Group has released a study of the impact of asbestos-related injuries upon former shipyard workers in the San Diego and Los Angeles areas. This report revealed that San Diego County had the eight- highest number of asbestos-related deaths in the country. The report also ranks Los Angeles County as No. 1 in asbestos deaths nationally. The study placed the blame for these injuries primarily upon asbestos insulation in old Navy ships.14 A 1992 NYU Law Review article by Susan L. Barna contains a comprehensive overview of the history of asbestos-related claims and the role of the federal government as a major factor in the genesis of these claims.15 Barna writes that there is an historical record dating from as early as 1930 of asbestos-related injuries due to exposure to a variety of dust particles, created in the process of manufacturing asbestos-related products. Even as early as 1928 asbestos manufacturers were soliciting the U.S. Navy to secure a list of products that could be sold to the Navy.16 The use of asbestos-rated products in naval shipbuilding accelerated greatly during World War II. About 4.5 million shipyard workers were employed during World War II. The number of shipyards either owned by the Navy or used predominantly by the Navy increased from 32 to 131 during the period of the war. The Navy entered contracts with many asbestos manufacturers during WWII. Many shipyard workers contracted asbestosis and other asbestos-related diseases. Extended latency periods delayed the actual manifestation or diagnosis of disease until many years following the ending of the war.17 Manufacturers of asbestos products initially attempted to shift responsibility for asbestos claims to the federal government. A number of studies pointed directly to the federal government as the primary source and cause of these injuries. One -5- study found that shipyard workers whom the federal government exposed to asbestos during World War II have filed one-half of the compensation claims pending against asbestos companies.18 Moreover, the Department of Health, Education and Welfare reported that asbestos exposure occurred to 4.5 million shipyard workers during World War II.19 While shipyard workers might well have chosen to bring suit against the government, many found it far easier to sue the manufacturer in strict liability. Injured employees wanting to bring suit in tort against the government faced insurmountable difficulties: 1. The United States enjoys sovereign immunity and cannot be sued without its consent. 2. Congress has waived sovereign immunity in tort by enacting the Federal Tort Claims Act. (FTCA)20 3. Although the government is subject to suit under the FTCA, most government-employed shipyard workers instead sued asbestos manufacturers. Government employees are not generally eligible to sue under the FTCA. The usual path of recovery for injuries suffered by government employees is under the Federal Employees Compensation Act. (FECA)21 Federal workers compensation protection did not work well for injured shipyard workers especially those suffering not from accidental injury but from occupational diseases: (a) The time requirements for filing a claim are often shorter than the latency period for asbestos-related diseases. (b) Causation is difficult to prove in asbestos-related cases to establish the disease was work-related. (c) Even where workers compensation claims are successful, compensation is likely to be inadequate.22 Because of the difficulties inherent in the FTCA, employees brought actions in strict liability directly against asbestos manufacturers. Manufacturers in turn sought contribution or indemnity from the federal government for liability resulting from the use of asbestos in government products. This path also proved to be difficult. 23 In order to obtain contribution under the FTCA, manufacturers must show that the government owed an independent duty to the original plaintiffs, the shipyard employees. Government is statutorily immune from suit from first-party employee liability. Manufacturers subsequently filed their claim in contract against the government under the Tucker Act.24 The U. S. Claims Court has been given exclusive jurisdiction over contract claims (over $10,000) against the government. -6- Many asbestos cases were brought against the government alleging various expressed or implied warranties by the government to its contractors. Most were dismissed for lack of subject matter jurisdiction. Ultimately, several important cases, although not consolidated, were considered under one heading. In GAF Corporation v. the United States25 the manufacturer filed a claim against the government for damages sustained as a result of lawsuits by government-employed shipyard workers to recover for injuries or death due to exposure to asbestos. The principal argument advanced by GAF was under the “superior knowledge” doctrine. This doctrine sets out the government’s duty to its suppliers to disclose information essential to successful contract performance. There was evidence that the government withheld important information relating to the dangers of asbestos exposure. This doctrine assumes the contractors would not have agreed to the contract terms if the government had not withheld certain information. Barna in the NYU Law Review outlines the GAF arguments regarding the government’s early knowledge: 1. There was considerable evidence that the government, through its investigation of workers’ complaints at shipyard facilities, had substantial data on such hazards as early as 1943. 2. Instead of informing the workers and manufacturers, the government classified the results of its investigation under the Espionage Act, making it a criminal act to review the results. 3. Naval documents show the government not only knew of shipyard dangers, but also made a conscious effort to suppress the information, thus raising serious questions about the government’s conduct.26 Despite this evidence establishing government involvement, the Claims Court granted summary judgment dismissing the GAF claim. The court determined the Navy had no contractual duty to warn an asbestos producer of hazards contained in its own products. The Court of Appeals for the Federal Circuit affirmed; the Supreme Court refused to review the case. These Claims Court decisions essentially ended further efforts to hold the federal government responsible under either a tort or contract basis. VI. History of Federal Government Programs Caused by Injury or Disease Despite the government’s refusal to accept responsibility for asbestos-related injuries, there is recent history of the federal government’s role in resolving public policy issues associated with injury or disease. The role of government is set out in a letter from the General Accounting Office to Sen. Don Nickles (R. OK).27 The GAO offered a comparison of funding mechanism offered under two somewhat comparable federal programs. They are the National Vaccine Injury Compensation -7- Program28 and the Black Lung Benefits Program29 GAO then compared these programs with S. 1125, as reported July 30, 2003. Under the Vaccine Program 1. For an injury: past and future medical care, pain and suffering (capped at $250,000), lost earnings and reasonable attorney fees. Death payments capped at $250,000. 2. The source of benefit funding is the Vaccine Injury Trust Fund. Claims may be payable only from the Fund. 3. A trust fund was established in the U.S. Treasury. 4. Sources of fund income came from an excise tax of 75 cents on every dose of vaccine purchased. 5. Treasury is required to invest funds only in interest bearing obligations of the U.S. and claims are payable only out of the Fund. 6. There is no designation of explicit fiduciary responsibility under the Fund. 7. No borrowing authority is permitted. 8. The claim process is on a “no fault” basis. 9. The current status of the vaccine fund was $1.9 billion (FY 2003) Under the Black Lung Program 1. Monthly income maintenance payments and medical benefits are allowed. 2. The source of benefit funding is from “responsible operators” or by the Trust Fund where no coal mine operator can be held liable. Under the current practice, claims are processed by the Department of Labor and benefits paid by the mine operators or from the Fund. 3. Source of Fund income is an excise tax on coal mining companies. 4. Treasury is required to invest funds only in interest-bearing obligations of the U.S. 5. There is no explicit fiduciary responsibility. 6. If tax revenues are insufficient, Congress may appropriate “repayable advances” to the Fund. 26 U.S.C. Sec. 9501 (c). 7. There is no explicit provision in the Black Lung legislation prohibiting tort lawsuits by miners; however, they are problematical. 8. Coal taxes have been inadequate to cover expenditures and the Fund has borrowed extensively from the General Fund. The outstanding debt at the end of FY 2003 was over $8 billion. Under the proposed Asbestos Fund (S. 1125) as described in GAO letter 1. Benefits payable include cash awards payable over 3-4 years, derived from “benefit table” based upon medical conditions. “Medical monitoring” costs for patients with “nonmalignant disease” and “minimum exposure.” Sec. 132. 2. The Source of Benefits Funding is the Asbestos Injury Claims Resolution Fund. All claims must be paid from the Fund. Sec. 132 (a) (1). -8- 3. A “Trust Fund” is established in the Office of Asbestos Injury Claims Resolution’ unlike Vaccine and Black Lung where funds are established in the U. S. Treasury. (GAO stresses that while S. 1125 shares many characteristics of a federal trust fund, it is not designated as a “trust fund” in the bill.) 4. Sources of income are assessments from defendant corporations and insurers. Additional contributions may come from asbestos-related civil trusts. 5. Fund investments are permitted under a “prudent person” standard, but no specific role for Treasury. Sec. 222 (a), (b). 6. There is a specific limitation on government liability, “nothing my be construed to create any obligation of funding from the U.S.” Sec. 405 (a). 7. The Fund is to be administered “in a fiduciary capacity.” (Sec. 222) (a), (b). 8. The Administrator is authorized to borrow from commercial lending institutions, in any calendar year, an amount not to exceed anticipated contribution to the Fund in the following calendar year. (Sec. 223) (a). 9. There is no alternate avenue of redress available. No asbestos claim may be pursued in Federal or State court, except for enforcement of claims for which an order or judgment has been entered. (Sec. 2(3); 403 (c) (1). 31 VII. Legislative Efforts to Force A Government Solution 1977-2001 Numerous legislative efforts have been underway for the past 25 years to make the federal government participate in the overall resolution to what is now known as the “asbestos crisis.” Following is a summary of these efforts: Beginning in 1977 Rep. M. Fenwick (R. NJ), serving the legislative district of Johns- Manville introduced legislation to compensate asbestos victims from a federally administered central fund. This bill was reintroduced in 1981 and, again, failed to pass. 32 Sen. Gary Hart (D. CO) in 1980 introduced the Asbestos Health Hazards Compensation Act. This bill left the administration of asbestos-compensation with the states. It also called for the establishment of federal minimum standards for compensating asbestos victims. The Hart proposal also called upon contributions from the federal government to fund the additional cost of compliance with the enhanced federal standards. This proposal reintroduced in 1981 was unsuccessful.33 (The American Bar Association (ABA) in its 1983 meeting advocated appropriate legislation to provide adequate compensation for asbestos injuries. In a subsequent hearing before the Senate Commerce Committee, the Chairman of the ABA Section on Torts and Insurance Practice formally recommended federal legislation in areas such as asbestosis.) In 1994, Congress enacted the Bankruptcy Reform Act. This enabled some asbestos manufacturers to reorganize and establish a trust to channel future asbestos-related liability. -9- In 1999-2000, H.R.1283 was introduced and would establish the Asbestos Resolution Corporation. This bill would provide full compensatory awards, including pain and suffering. The corporation would receive funding from defendant corporations, not through tax revenue. This effort was unsuccessful. In 2001, H.R. 1412 Retroactive Tax Relief provided that no tax be imposed on any settlement fund to resolve present or future asbestos claims. Did not pass. VIII. Judicial Calls for Legislative Action Through 2001 1990 – U.S. Supreme Court panel appointed by Chief Justice Rehnquist said in 1991, “(This) situation has reached critical dimensions and is getting worse,” and the courts were ill-equipped to address the mass of claims in an effective manner.”34 1996 – State v. Mac Queen, “Congress. . . has effectively forced the courts to adopt diverse, innovative and often nontraditional judicial management techniques to reduce the burden of asbestos litigation that seems to be paralyzing the active dockets.”35 1997 – Amchem v. Windsor, The Supreme Court observed that, “the argument is sensibly made that a nationwide administrative claims processing regime would provide the most secure, fair, and efficient means of compensating victims of asbestos exposure. Congress, however, has not adopted such a solution.”36 1999 – Ortiz v. Fibreboard, Supreme Court again calls on Congress, says existing asbestos litigation is an “elephantine mass. . . that calls for national legislation.”37 2003 – Norfolk & Western Railway Co. v. Ayers, the court repeated the call for legislation.38 IX. Arguments for Federal Government Contribution There are several arguments available to conclude that the federal government should contribute its financial resources toward an ultimate and final resolution of the asbestos crisis. A. Legal Arguments We have reviewed earlier decisions arising under the FTCA and the Tucker Act (actions in contract) that essentially insulated the federal government from responsibility for contributions to the resolution of this asbestos problem. Even though substantial evidence was available showing the government intentionally - 10 - exposed its shipyard employees to danger of which it was fully aware, the courts have been generally unsympathetic to claims for contributions. The government was held immune to suit under the FTCA because of the exclusive right of government employees to compensation under the FECA. Asbestos manufacturers attempts to seek indemnity under the FTCA from the government were not successful. Later efforts by asbestos manufacturers to seek indemnification from the federal government in the Claims Court under Tucker Act were also unsuccessful. In GAF the plaintiff manufacturer alleged that (1) the government promulgated mandatory specifications, encouraged development of, purchased and had control of the conditions under which GAF products were used; and (2) the government implied by warranty that the specifications and use of the products would not expose GAF to liability for damages. While other variations of this implied warranty were also alleged, they essentially came down to this: the government made an implied warranty to sellers that its own use of the product would not expose the sellers to unforeseen defective product liabilities to persons who might be injured. These arguments were rejected by the Claims Court and by the Federal Circuit. Even though there is evidence that the government failed to disclose information regarding shipyard asbestos hazards, the Claims Court refused to accept the implied warranty standard. Even if the government possessed “superior knowledge” of the product, GAF was unable to overcome the presumption of the “experienced manufacturer.” Barna in the NYU Law Review article forcefully argues that the designation of the “experienced manufacturer” is, in effect, an irrebuttable presumption and is contrary to existing contract law. GAF essentially established an “irrebuttable presumption that the government never had knowledge “superior” to that of an experienced manufacturer.” In her law review article, Barna argues that if the government did have “superior knowledge,” this should result in government liability. Asbestos manufacturers argued that had they been aware of the inside information possessed by the government they would have revised the price of their services as well as changing the nature of their products insurance coverage. Despite determined efforts by asbestos manufacturers to hold the government responsible for injuries to government employees, these efforts have been unsuccessful. It appears almost certain now that asbestos manufacturers may never be able to use judicial means to shift some of the financial burden of asbestos tort claims to the federal government. Public Policy Arguments - 11 - While the legal arguments for holding the federal government responsible for injuries inflicted on its government workers, as well as employees of government contractors, have not been persuasive, public policy arguments may press government to own up to its responsibilities. It is patently obvious today that the injured claimants cannot receive adequate compensation without government contribution. While the federal courts have avoided stating they might have ruled differently if manufacturers could show absolute funding inadequacy, it may be only because this is not the role of the courts. But surely it is the role of Congress and this has been reportedly voiced by the courts, including the Supreme Court on several occasions. Finally, Barna in the NYU Law Review article argues that manufacturers should be allowed to sue the government for two additional reasons: First, the financial strain of litigation has caused a number of asbestos manufacturers to file for bankruptcy. If government were found liable and forced to contribute, the added funds could be used to provide greater compensation to victims. Second, in the absence of Congressional action regarding government responsibility, keeping the legal channel open for manufacturers to sue the government may be the only way of forcing government disclosure of its inside information. Perhaps there is no better public policy argument supporting government financial participation in the asbestos trust fund than the pleas of the Supreme Court, as well as other judicial pronouncements. The conclusion from these sources is one of absolute frustration. The federal courts, including the Supreme Court, have refused to hold the government responsible under either the Federal Tort Claims Act or the Tucker Act. Efforts to seek approval of an enormous class action settlement by the Supreme Court were equally unsuccessful. It is highly unlikely that the courts will reverse present lawn and hold the government responsible for its own misconduct under either a tort or contract basis. X. Conclusion and Recommendation The asbestos crisis has been a formidable issue for over 25 years. Multiple efforts to resolve the crisis through government and private sources have failed for many reasons. Efforts failed in part because asbestos manufacturers and insurers could not agree on a solution. Organized labor and the plaintiffs’ trial bar had sufficient resources to thwart whatever proponents offered. However, the time may be closer when the interests of all relevant parties have begun to merge. Several corporations have found at least temporary relief in bankruptcy proceedings. Others may be viewing this path as a possible resolution. With the advent of unknown thousands of claims from exposed but unimpaired victims, there simply may not be available the operational or financial resources to force a solution to a serious public policy issue. Surely this has been recognized as well by jurists from the lowest to the highest courts of our nation. - 12 - There is at hand, within the boundaries of S. 1125, the beginnings of a solution. Two of the four major interests are for the first time aligned. The remainder, organized labor and plaintiffs lawyers, have not yet acquiesced in the trust fund approach. Labor has not agreed mainly because of a lack of confidence in the adequacy of the funding. Plaintiffs’ lawyers are not on board for differing reasons. Some because of possible funding inadequacy; others because they simply dislike the fund approach, preferring the traditional litigation route. While the parties are earnestly searching for a solution to what is probably the most serious occupational disease problem ever facing this country, Congress remains no more than a spectator. Employees and insurers have agreed to commit massive resources ($114 billion) toward a resolution. Organized labor, and claimants through their attorneys are moving to close the elusive gap between promised funding and their reasonable expectation of funds needed to provide adequate compensation to over 600,000 victims. The best estimate of the required funding over time to meet asbestos liabilities is about $135 billion. This estimate results in a $20 billion shortfall between what has been promised and what is reasonably expected. This situation cries out for federal funding in an amount of $20 billion over approximately twenty-five years. This task force should make the following determinations: 1. The task force should seek to agree upon the amount of anticipated present and future liabilities arising out of asbestos-related injuries. 2. The task force should then recommend that the federal government contribute its financial resources to bridge the gap between this estimate of asbestos liabilities and the anticipated participation by insurers and corporate defendants. The Task Force should also consider whether any federal government contribution should be on a direct or contingent basis. 3. If at some future point it is determined that despite private and government funding, there remains claimants who are uncompensated, this task force should consider whether an “exit to tort” as prescribed in S. 1125 is appropriate. - 13 - Endnotes 1. Asbestos Litigation Costs and Compensation, an Interim Report, RAND Institute for Civil Justice, 2002, at 40. 2. Statement of Jennifer L. Biggs, FCAS, MAAA, Chair, Mass Torts Subcommittee American Academy of Actuaries, before the Committee on Property/Casualty Insurance National Conference on Insurance Legislators Hearing on “Proposed Resolution Regarding the Need for Effective Asbestos Reform, Jul 10, 2003, at 4. 3. Id. 4. Id. 5. Biggs, supra, at 5. 6. CQ Today – Legal Affairs, October 18, 2003. 7. Senate Report 108-118, Calendar No. 239, 108th Congress, 1st session, The Fairness in Asbestos Injury Resolution Act of 2003, S. 1125, at 59. 8. CQ Today – Legal Affairs, October 15, 2003. 9. Senate Report 108-118 at 58. 10. Biggs, supra at 5. 11. S. 1125, 108th Congress, 1st Session, Sec. 223 (a). 12. Wall Street Journal, November 11, 2003. 13. New York Times, September 5, 1982. page 22. 14. Study blaming Navy ships for asbestos deaths, Dana Wilkie, Copley News Service, March 15, 2004. 15. Susan L. Barna, Abandoning Ship: Government Liability for Shipyard Asbestos Exposure, 67 NYU L.R. 1034 (1992), hereafter cited as Barna or Barna 67 NYU L.R. - 14 - 16. Id at 1040. 17. Id at 1043. 18. Special Project, 36 Vanderbilt L.R. 573, 786. N. 1431 (1983). 19. Id citing National Cancer Institute Estimates. 20. 28 U.S.C. Secs. 1346(b), 2671 et seq. 21. 5 U.S.C. Secs. 8101 et seq. 22. Barna, NYU L.R. supra at 1048. 23. Barna, supra at 1049. 24. 28 U.S.C. Sec. 1491. 25. 19 Cl. Ct. 490 (1990); affd. 932 F. 2d 947 (1991); cert. denied, 112 S. CT. 965 (1992). 26. Barna, supra at 1057. 27. GAO Letter, B30139, September 4, 2003. 28. 42 U.S.C. Sec 30 aa-10 et seq. 29. 30 U.S.C. Sec 901 et seq. 30. Senate Report 108-118 at page 29, section 2. 31. Id at page 56. 32. Biggs, supra at 40. 33. Id. 34. Report of the Judicial Conference Ad Hoc Committee on Asbestos Litigation. March 12, 1991, at 26. 35. 479 S.E. 2d 300, 304 (W. VA 1996) 36. 521 U.S. 591 (1977) 37. 527 U.S. 815, 821 (1999) - 15 - 38. 155 L. Ed. 2d 261, 123 S. CT. 1210 (2003).
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