Respirator Access Assurance Act of 2005

Mr. Speaker, I want to talk about a special aspect of a subject that has been in our news a great deal lately, emergency preparedness.

As a member of the Select Katrina Committee and as chairman of the subcommittee overseeing FEMA, I know that it is absolutely critical to prepare our Nation for natural disasters, terrorist attacks, or any other catastrophe and the spread of disease that could come with it.

When disasters strike, the most effective method of prevention depends, in part, on effective respiratory protection for millions who may be exposed. This protection is available through careful use of respirators, the masks, mostly disposable, that we see in pictures of first responders, emergency personnel and health care workers who are treating the sick.

The World Health Organization, for example, specifies certain respirators for use in avian flu treatments. The United States has a number of companies that manufacture respirators that are in a number of States around this country. One, Mine Safety Appliances, is headquartered in Pennsylvania and manufactures respirators in the State.

These are high quality products, recognized by industry, health care authorities and other experts as efficient, cost effective. More importantly, these products are 100 percent regulated by an agency of the U.S. Government, the National Institute for Occupational Safety and health, or NIOSH, which is part of the Centers for Disease Control in the Department of Health and Human Services.

NIOSH prescribes design standards for respirators, tests respirators in its own labs by its own professionals and monitors respirator manufacturers to ensure their products consistently meet the standards for which they are approved.

It also approves the warning labels that go on respirators to indicate what uses are and are not appropriate to emphasize the need for users to be sure that these respirators fit well.

It regulates the respirator manufacturers, but the Occupational Safety and Health Administration, or OSHA, regulates employers and prescribes what level of approved respirators should be used to protect against a particular workplace hazard.

Respirator manufacturers do not interact with respirator users. They make their products according to government standards for their uses approved by NIOSH and described on the label, but employers make the decision about whether to provide a respirator and which one to provide based on OSHA rules.

Unfortunately, in our litigation-obsessed society that separation of responsibility has not protected our respirator manufacturers from being sued in literally thousands of cases. Workers allege that a respirator was defectively designed or contained an inadequate warning label, and they got sick, and that somehow it is partly the fault of the manufacturer.

As absurd as this may sound, it is the premise for up to 30,000 individual claims brought against each major respirator manufacturer in the United States. There has been much controversy over many of these claims, since they involve workers who claim to be sick with asbestosis or silicosis.

In one situation, a Federal judge in Texas, a former nurse, found that thousands of claims were essentially without any legal or medical merit. They were produced by collusion between plaintiffs lawyers, doctors paid by the claim, and the x-ray mills that produced the diagnosis that could not survive medical review.

This corrupts the legal system and hurts most those few who are truly ill. It also threatens otherwise strong American industries like respirator manufacturing.

Our American respirator manufacturers are faced with the cost of administering and processing tens of thousands of claims. Some of these will be thrown out and some will be settled for a few hundred dollars, but each one requires thousands of dollars of research and process.

None of these cases has resulted in a trial and a judgment against a respirator manufacturer. It is the administrative cost of millions of dollars each year that are now about to exceed the net income of many companies from making respirators.

In short, we are in danger of losing a vital American industry that we are going to need desperately if disaster strikes. Whether the spread of a virus or biological terrorist attack, we already need respirators for countless industrial applications and routine medical and other health-related needs. Respirators are already providing protection from the airborne hazards that are everywhere in the recovery efforts from Hurricanes Katrina and Rita.

They also served thousands in the aftermath of September 11th. We cannot afford to have this vital industry torn down by inadequate claims with dollar signs at their hubs. That is why I am pleased to be the author, along with my original cosponsors, the gentlewoman from Pennsylvania (Ms. Hart) and the gentleman from Pennsylvania (Mr. Doyle) as well as the gentleman from Texas (Mr. Smith), of H.R. 2357, the Respirator Access Assurance Act of 2005.

This is a very simple bill. It says that if a manufacturer has the NIOSH approval for the design and labeling of a respirator, a manufacturer cannot be sued on the basis of the detective design or failure to warn.

It would apply to any case that has not gone to trial as of the enactment and to future cases. We need this legislation, and I am working with my colleagues and the House leadership to find an appropriate opportunity to bring it to the House floor for a vote soon.

I hope my colleagues will share my concern over the need to ensure that this American industry continues to produce these vital products for emergency preparedness, and will approve this and make it the law of the land.