ENGROSSED COMMITTEE SUBSTITUTE FOR. Senate Bill No (By Senators Takubo, Carmichael, Ferns, Gaunch and Mullins)

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1 ENGROSSED COMMITTEE SUBSTITUTE FOR Senate Bill No. 411 (By Senators Takubo, Carmichael, Ferns, Gaunch and Mullins) [Originating in the Committee on the Judiciary; reported February 24, 2015.] A BILL to amend the Code of West Virginia, 1931, as amended, by adding thereto a new article, designated 55-7E-1, 55-7E-2, 55-7E-3, 55-7E-4, 55-7E-5, 55-7E-6, 55-7E-7, 55-7E-8, 55-7E-9, 55-7E-10 and 55-7E-11; and that said code be amended by adding thereto a new article, designated 55-7F-1, 55-7F-2, 55-7F-3, 55-7F-4, 55-7F-5, 55-7F-6, 55-7F-7, 55-7F-8, 55-7F-9 and 55-7F-10, all relating to procedures for determining liability for exposures to asbestos or silica; 1

2 setting forth findings and purposes; setting forth definitions; requiring disclosures of existing and potential asbestos bankruptcy trust claims; establishing legal standards and procedures for the handling of certain asbestos and silica claims; providing for sanctions; establishing procedures for set offs and credits; establishing medical criteria procedures for certain asbestos and silica claims; providing for statute of limitations standards and other limitations on liability; and providing for applicability future asbestos and silica claims. Be it enacted by the Legislature of West Virginia: That the Code of West Virginia, 1931, as amended, be amended by adding thereto a new article, designated 55-7E-1, 55-7E-2, 55-7E-3, 55-7E-4, 55-7E-5, 55-7E-6, 55-7E-7, 55-7E-8, 55-7E-9, 55-7E-10 and 55-7E-11; and that said code be amended by adding thereto a new article, designated 55-7F-1, 55-7F-2, 55-7F-3, 55-7F-4, 55-7F-5, 55-7F-6, 55-7F-7, 55-7F-8, 55-7F-9 and 55-7F-10, all to read as follows: ARTICLE 7E. ASBESTOS BANKRUPTCY TRUST CLAIMS 2

3 TRANSPARENCY ACT. 55-7E-1. Short title. 1 This article shall be known and may be cited as the 2 Asbestos Bankruptcy Trust Claims Transparency Act E-2. Findings and purpose. 4 (a) The West Virginia Legislature finds that: 5 (1) The United States Supreme Court in Amchem Prods., 6 Inc. v. Windsor, 521 U.S. 591, 598 (1997) described the asbestos 7 litigation as a crisis; 8 (2) Approximately one hundred employers have declared 9 bankruptcy at least partially due to asbestos-related liability; 10 (3) These bankruptcies have resulted in a search for more 11 solvent companies, resulting in over eight thousand five hundred 12 companies being named as asbestos defendants, including many 13 small- and medium-sized companies, in industries that cover 14 eighty-five percent of the United States economy; 15 (4) Scores of trusts have been established in 16 asbestos-related bankruptcy proceedings to form a multi-billion 17 dollar asbestos bankruptcy trust compensation system outside of the 3

4 1 tort system, and new asbestos trusts continue to be formed; 2 (5) Asbestos claimants often seek compensation for alleged 3 asbestos-related conditions from solvent defendants in civil actions 4 and from trusts or claims facilities formed in asbestos bankruptcy 5 proceedings; 6 (6) There is limited coordination and transparency between 7 these two paths to recovery; 8 (7) An absence of transparency between the asbestos 9 bankruptcy trust claim system and the civil court systems has 10 resulted in the suppression of evidence in asbestos actions and 11 potential fraud; 12 (8) West Virginia's Mass Litigation Panel has previously 13 entered cases management orders that apply substantive 14 transparency provisions requiring plaintiffs to disclose, among other 15 things, any claims that may exist against asbestos bankruptcy trusts; 16 and 17 (9) It is in the interest of justice that there be transparency 18 for claims made in the asbestos bankruptcy trust claim system and 19 for claims made in civil asbestos litigation. 4

5 1 (b) It is the purpose of this article to: 2 (1) Provide transparency for claims made in the asbestos 3 bankruptcy trust claim system and for claims made in civil asbestos 4 litigation; and 5 (2) Reduce the opportunity for fraud or suppression of 6 evidence in asbestos actions E-3. Definitions. 8 For the purpose of this article: 9 (1) "Asbestos action" means a claim for damages or other 10 civil or equitable relief presented in a civil action arising out of, 11 based on or related to the health effects of exposure to asbestos, 12 including loss of consortium, wrongful death, mental or emotional 13 injury, risk or fear of disease or other injury, costs of medical 14 monitoring or surveillance and any other derivative claim made by 15 or on behalf of a person exposed to asbestos or a representative, 16 spouse, parent, child or other relative of that person. The term does 17 not include a claim for compensatory benefits pursuant to workers' 18 compensation law or for veterans' benefits, or the Federal 19 Employees Liability Act, 45 U. S. C. 51 et seq. 5

6 1 (2) "Asbestos trust" means a government-approved or 2 court-approved trust, qualified settlement fund, compensation fund 3 or claims facility created as a result of an administrative or legal 4 action, a court-approved bankruptcy, or pursuant to 11 U. S. C (g) or 11 U. S. C. 1121(a) or other applicable provision of 6 law, that is intended to provide compensation to claimants arising 7 out of, based on or related to the health effects of exposure to 8 asbestos. 9 (3) "Plaintiff" means a person asserting an asbestos action, 10 a decedent if the action is brought through or on behalf of an estate, 11 or a parent or guardian if the action is brought through or on behalf 12 of a minor or incompetent. 13 (4) "Trust claims materials" means a final executed proof of 14 claim and all other documents and information related to a claim 15 against an asbestos trust, including claims forms and supplementary 16 materials, affidavits, depositions and trial testimony, work history 17 and medical and health records, documents reflecting the status of 18 a claim against an asbestos trust, and if the trust claim has settled, 19 all documents relating to the settlement of the trust claim. 6

7 1 (5) "Trust governance documents" means all documents that 2 relate to eligibility and payment levels, including claims payment 3 matrices, trust distribution procedures or plans for reorganization, 4 for an asbestos trust E-4. Required disclosures by plaintiff. 6 (a) For each asbestos action filed in this state, the plaintiff 7 shall provide all parties with a sworn statement identifying all 8 asbestos trust claims that have been filed by the plaintiff or by 9 anyone on the plaintiff's behalf, including claims with respect to 10 asbestos-related conditions other than those that are the basis for the 11 asbestos action or that potentially could be filed by the plaintiff 12 against an asbestos trust. The sworn statement shall be provided no 13 later than one hundred twenty days prior to the date set for trial for 14 the asbestos claim. For each asbestos trust claim or potential 15 asbestos trust claim identified in the sworn statement, the statement 16 shall include the name, address and contact information for the 17 asbestos trust, the amount claimed or to be claimed by the plaintiff, 18 the date the plaintiff filed the claim, the disposition of the claim and 19 whether there has been a request to defer, delay, suspend or toll the 7

8 1 claim. The sworn statement shall include an attestation from the 2 plaintiff, under penalties of perjury, that the sworn statement is 3 complete and is based on a good faith investigation of all potential 4 claims against asbestos trusts. 5 (b) The plaintiff shall make available to all parties all trust 6 claims materials for each trust claim that has been filed by the 7 plaintiff or by anyone on the plaintiff's behalf against an asbestos 8 trust, including any asbestos-related disease. 9 (c) The plaintiff shall supplement the information and 10 materials provided pursuant to this section within ninety days after 11 the plaintiff files an additional asbestos trust claim, supplements an 12 existing trust claim or receives additional information or materials 13 related to any claim or potential claim against an asbestos trust. 14 (d) Failure by the plaintiff to make available to all parties all 15 trust claims materials as required by this article shall constitute 16 grounds for the court to decline to extend the trial date in an 17 asbestos action E-5. Discovery; use of materials. 19 (a) Trust claims materials and trust governance documents 8

9 1 are presumed to be relevant and authentic and are admissible in 2 evidence. No claims of privilege apply to any trust claims materials 3 or trust governance documents. 4 (b) A defendant in an asbestos action may seek discovery 5 from an asbestos trust. The plaintiff may not claim privilege or 6 confidentiality to bar discovery and shall provide consent or other 7 expression of permission that may be required by the asbestos trust 8 to release information and materials sought by a defendant E-6. Scheduling trial; stay of action. 10 (a) A court shall stay an asbestos action if the court finds 11 that the plaintiff has failed to make the disclosures required under 12 section four of this article within one hundred twenty days prior to 13 the trial date. 14 (b) If, in the disclosures required by section four of this 15 article, a plaintiff identifies a potential asbestos trust claim, the 16 judge shall have the discretion to stay the asbestos action until the 17 plaintiff files the claim and provides all parties with all trust claims 18 materials for the claim. The plaintiff shall also state whether there 19 has been a request to defer, delay, suspend or toll the claim against 9

10 1 the asbestos trust E-7. Identification of additional or alternative asbestos 3 trusts by defendant. 4 (a) Not less than ninety days before trial, if a defendant 5 identifies an asbestos trust claim not previously identified by the 6 plaintiff that the defendant reasonably believes the plaintiff can file, 7 the defendant shall meet and confer with plaintiff to discuss why 8 defendant believes plaintiff has an additional trust claim, and 9 thereafter the defendant may move the court for an order to require 10 the plaintiff to file the asbestos trust claim. The defendant shall 11 produce or describe the documentation it possesses or is aware of 12 in support of the motion. 13 (b) Within ten days of receiving the defendant's motion 14 under subsection (a) of this section, the plaintiff shall, for each 15 asbestos trust claim identified by the defendant, make one of the 16 following responses: 17 (1) File the asbestos trust claim; 18 (2) File a written response with the court setting forth the 19 reasons why there is insufficient evidence for the plaintiff to file the 10

11 1 asbestos trust claim; or 2 (3) File a written response with the court requesting a 3 determination that the plaintiff's expenses or attorney's fees and 4 expenses to prepare and file the trust claim identified in the 5 defendant's motion exceed the plaintiff's reasonably anticipated 6 recovery from the trust. 7 (c) (1) If the court determines that there is a sufficient basis 8 for the plaintiff to file the trust claim identified by a defendant, the 9 court shall order the plaintiff to file the trust claim and shall stay the 10 asbestos action until the plaintiff files the trust claim and provides 11 all parties with all trust claims materials no later than thirty days 12 before trial. 13 (2) If the court determines that the plaintiff's expenses or 14 attorney's fees and expenses to prepare and file the trust claim 15 identified in the defendant's motion exceed the plaintiff's reasonably 16 anticipated recovery from the trust, the court shall stay the asbestos 17 action until the plaintiff files with the court and provides all parties 18 with a verified statement of the plaintiff's history of exposure, usage 19 or other connection to asbestos covered by the trust. 11

12 1 (d) Not less than thirty days prior to trial in an asbestos 2 action, the court shall enter into the record a trust claims document 3 that identifies each claim the plaintiff has made against an asbestos 4 trust E-8. Valuation of asbestos trust claims; judicial notice. 6 (a) If a plaintiff proceeds to trial in an asbestos action before 7 an asbestos trust claim is resolved, the filing of the asbestos trust 8 claim may be considered as relevant and admissible evidence. 9 (b) Trust claim materials that are sufficient to entitle a claim 10 to consideration for payment under the applicable trust governance 11 documents may be sufficient to support a jury finding that the 12 plaintiff may have been exposed to products for which the trust was 13 established to provide compensation and that such exposure may be 14 a substantial factor in causing the plaintiff's injury that is at issue in 15 the asbestos action E-9. Setoff; credit. 17 In any asbestos action in which damages are awarded, a 18 defendant is entitled to a setoff or credit in the amount of the 19 valuation established under the applicable trust governance 12

13 1 documents, including payment percentages for trust claims pending 2 at trial and any amount the plaintiff has been awarded from an 3 asbestos trust claim that has been identified at the time of trial. If 4 multiple defendants are found liable for damages, the court shall 5 distribute the amount of setoff or credit proportionally between the 6 defendants, according to the liability of each defendant E-10. Failure to provide information; sanctions. 8 A plaintiff who fails to provide all of the information 9 required under this article is subject to sanctions as provided in the 10 West Virginia Rules of Civil Procedure and any other relief for the 11 defendants that the court considers just and proper E-11. Application. 13 The provisions of this article apply to all asbestos actions 14 filed on or after the effective date of this article. 15 ARTICLE 7F. ASBESTOS AND SILICA CLAIMS 16 PRIORITIES ACT F-1. Short title. 18 This article shall be known and may be cited as the 19 Asbestos and Silica Claims Priorities Act. 13

14 1 55-7F-2. Findings and purpose. 2 (a) The West Virginia Legislature finds that: 3 (1) Asbestos is a mineral that was widely used prior to the s for insulation, fireproofing and other purposes; 5 (2) Millions of American workers and others were exposed 6 to asbestos, especially during and after World War II and prior to 7 the promulgation of regulations by the Occupational Safety and 8 Health Administration in the early 1970s; 9 (3) Exposure to asbestos has been associated with various 10 types of cancer, including mesothelioma and lung cancer, as well as 11 nonmalignant conditions such as asbestosis and diffuse pleural 12 thickening; 13 (4) Diseases caused by asbestos often have long latency 14 periods; 15 (5) Although the use of asbestos has dramatically declined 16 since the 1970s and workplace exposures have been regulated since by the Occupational Safety and Health Administration, past 18 exposures will continue to result in significant claims of death and 19 disability as a result of such exposure; 14

15 1 (6) Over the years, West Virginia courts have been deluged 2 with asbestos lawsuits. 3 (7) The United States Supreme Court in Amchem Prods., 4 Inc. v. Windsor, 521 U.S. 591, 598 (1997), described the asbestos 5 litigation as a crisis; 6 (8) Lawyer-sponsored x-ray screenings have been used to 7 amass large numbers of claims by unimpaired plaintiffs; 8 (9) One of the country's most prolific B-readers was a 9 doctor from West Virginia; 10 (10) Approximately one hundred employers have declared 11 bankruptcy at least partially due to asbestos-related liability; 12 (11) These bankruptcies have resulted in a search for more 13 solvent companies, resulting in over eight thousand five hundred 14 companies being named as asbestos defendants nationally and many 15 in West Virginia, including many small- and medium-sized 16 companies, in industries that cover eighty-five percent of the United 17 States economy; 18 (12) Silica is a naturally occurring mineral as the earth's 19 crust is over ninety percent silica, and crystalline silica dust is the 15

16 1 basic component of sand, quartz and granite; 2 (13) Silica-related illness, including silicosis, can develop 3 from the prolonged inhalation of respirable silica particles; 4 (14) Silica claims, like asbestos claims, have involved 5 individuals with no demonstrable physical impairment, and 6 plaintiffs have been identified through the use of for-profit, 7 screening companies; 8 (15) Silica screening processes have been found subject to 9 substantial abuse and potential fraud; 10 (16) The cost of compensating plaintiffs who have no 11 present asbestos-related or silica-related physical impairment, and 12 the cost of litigating their claims, jeopardizes the ability of 13 defendants to compensate people with cancer and other serious 14 asbestos-related diseases and adversely affects defendant 15 companies; 16 (17) Concerns about statutes of limitations and available 17 funds can prompt unimpaired asbestos and silica claimants to bring 18 lawsuits in order to protect against losing their rights to future 19 compensation should they become impaired; 16

17 1 (18) Trial consolidations, joinders and similar trial 2 procedures used by some courts to handle asbestos and silica cases 3 can undermine the appropriate functioning of the courts, deny due 4 process to plaintiffs and defendants and encourage the filing of 5 cases by unimpaired asbestos and silica plaintiffs; and 6 (19) The public interest requires giving priority to the 7 claims of exposed individuals who are sick in order to help 8 preserve, now and for the future, defendants' ability to compensate 9 people who develop cancer and other serious asbestos-related 10 diseases, as well as silica-related injuries, and to safeguard the jobs, 11 benefits and savings of workers in West Virginia and the well-being 12 of the West Virginia economy. 13 (b) It is the purpose of this article to: 14 (1) Give priority to asbestos and silica claimants who can 15 demonstrate actual physical impairment caused by exposure to 16 asbestos or silica; 17 (2) Toll the running of the statutes of limitations for persons 18 who have been exposed to asbestos or to silica but who have no 19 present physical impairment caused by such exposure; 17

18 1 (3) Enhance the ability of the courts to supervise and 2 manage asbestos and silica cases; 3 (4) Reduce the opportunity for fraud in asbestos and silica 4 litigation; and 5 (5) Conserve the defendants< resources to allow 6 compensation to present and future claimants with physical 7 impairment caused by exposure to asbestos or silica F-3. Definitions. 9 For the purpose of this article: 10 (1) "AMA Guides to the Evaluation of Permanent 11 Impairment" means the American Medical Association's Guides to 12 the Evaluation of Permanent Impairment in effect at the time of the 13 performance of any examination or test on the exposed person 14 required under this article. 15 (2) "Asbestos" means chrysotile, amosite, crocidolite, 16 tremolite asbestos, anthophyllite asbestos, actinolite asbestos, 17 asbestiform winchite, asbestiform richterite, asbestiform amphibole 18 minerals and any of these minerals that have been chemically 19 treated or altered, including all minerals defined as asbestos in 29 18

19 1 CFR 1910 at the time an asbestos action is filed. 2 (3) "Asbestos action" means a claim for damages or other 3 civil or equitable relief presented in a civil action arising out of, 4 based on or related to the health effects of exposure to asbestos, 5 including loss of consortium, wrongful death, mental or emotional 6 injury, risk or fear of disease or other injury, costs of medical 7 monitoring or surveillance and any other derivative claim made by 8 or on behalf of a person exposed to asbestos or a representative, 9 spouse, parent, child or other relative of that person. The term does 10 not include a claim for compensatory benefits pursuant to workers' 11 compensation law or veterans' benefits or claims brought by a 12 person as a subrogee by virtue of the payment of benefits under a 13 workers' compensation law. 14 (4) "Asbestosis" means bilateral diffuse interstitial fibrosis 15 of the lungs caused by inhalation of asbestos fibers. 16 (5) "Board-certified in internal medicine" means a physician 17 who is certified by the American Board of Internal Medicine or the 18 American Osteopathic Board of Internal Medicine and whose 19 certification was current at the time of the performance of any 19

20 1 examination and rendition of any report required by this article. 2 (6) "Board-certified in occupational medicine" means a 3 physician who is certified in the subspecialty of occupational 4 medicine by the American Board of Preventive Medicine or the 5 American Osteopathic Board of Preventive Medicine and whose 6 certification was current at the time of the performance of any 7 examination and rendition of any report required by this article. 8 (7) "Board-certified in pathology" means a physician who 9 holds primary certification in anatomic pathology or clinical 10 pathology from the American Board of Pathology or the American 11 Osteopathic Board of Pathology, whose certification was current at 12 the time of the performance of any examination and rendition of 13 any report required by this Act, and whose professional practice is 14 principally in the field of pathology and involves regular evaluation 15 of pathology materials obtained from surgical or postmortem 16 specimens. 17 (8) "Board-certified in pulmonary medicine" means a 18 physician who is certified in the subspecialty of pulmonary 19 medicine by the American Board of Internal Medicine or the 20

21 1 American Osteopathic Board of Internal Medicine and whose 2 certification was current at the time of the performance of any 3 examination and rendition of any report required by this article. 4 (9) "Certified B-reader" means an individual who has 5 qualified as a National Institute for Occupational Safety and Health 6 (NIOSH) "final" or "B-reader" of x-rays under 42 CFR 37.51(b), 7 whose certification was current at the time of any readings required 8 under this article, and whose B-reads comply with the NIOSH 9 B-Reader's Code of Ethics, Issues in Classification of Chest 10 Radiographs and Classification of Chest Radiographs in Contested 11 Proceedings. 12 (10) "Chest x-ray" means chest films taken in accordance 13 with all applicable state and federal regulatory standards and taken 14 in the posterior-anterior view. 15 (11) "DLCO" means diffusing capacity of the lung for 16 carbon monoxide, which is the measurement of carbon monoxide 17 transfer from inspired gas to pulmonary capillary blood. 18 (12) "Exposed person" means a person whose exposure to 19 asbestos or silica or to asbestos-containing or silica-containing 21

22 1 products is the basis for an asbestos or silica action. 2 (13) "FEV1" means forced expiratory volume in the first 3 second, which is the maximal volume of air expelled in one second 4 during performance of simple spirometric tests. 5 (14) "FEV1/FVC" means the ratio between the actual values 6 for FEV1 over FVC. 7 (15) "FVC" means forced vital capacity, which is the 8 maximal volume of air expired with maximum effort from a 9 position of full inspiration. 10 (16) "ILO system and ILO scale" mean the radiological 11 ratings and system for the classification of chest x-rays of the 12 International Labor Office provided in Guidelines for the Use of 13 ILO International Classification of Radiographs of Pneumoconioses 14 in effect on the day any x-rays of the exposed person were reviewed 15 by a certified B-reader. 16 (17) "Nonmalignant condition" means any condition that 17 can be caused by asbestos or silica other than a diagnosed cancer. 18 (18) "Official statements of the American Thoracic Society" 19 means lung function testing standards set forth in statements from 22

23 1 the American Thoracic Society including standardizations of 2 spirometry, standardizations of lung volume testing, 3 standardizations of diffusion capacity testing or single-breath 4 determination of carbon monoxide uptake in the lung and 5 interpretive strategies for lung function tests, which are in effect on 6 the day of the pulmonary function testing of the exposed person. 7 (19) "Pathological evidence of asbestosis" means a 8 statement by a board-certified pathologist that more than one 9 representative section of lung tissue uninvolved with any other 10 disease process demonstrates a pattern of peribronchiolar or 11 parenchymal scarring in the presence of characteristic asbestos 12 bodies graded 1(B) or higher under the criteria published in 13 Asbestos-Associated Diseases, 106 Archive of Pathology and 14 Laboratory Medicine 11, Appendix 3 (October 8, 1982), or grade 15 one or higher in Pathology of Asbestosis, 134 Archive of Pathology 16 and Laboratory Medicine (March 2010) (Tables 2 and 3), 17 or as amended at the time of the exam, and there is no other more 18 likely explanation for the presence of the fibrosis. 19 (20) "Pathological evidence of silicosis" means a statement 23

24 1 by a board-certified pathologist that more than one representative 2 section of lung tissue uninvolved with any other disease process 3 demonstrates complicated silicosis with characteristic confluent 4 silicotic nodules or lesions equal to or greater than one centimeter 5 and birefringent crystals or other demonstration of crystal structures 6 consistent with silica (well-organized concentric whorls of collagen 7 surrounded by inflammatory cells) in the lung parenchyma and no 8 other more likely explanation for the presence of the fibrosis exists, 9 or acute silicosis with characteristic pulmonary edema, interstitial 10 inflammation, and the accumulation within the alveoli of 11 proteinaceous fluid rich in surfactant. 12 (21) "Plaintiff" means a person asserting an asbestos or 13 silica action, a decedent if the action is brought through or on behalf 14 of an estate, and a parent or guardian if the action is brought 15 through or on behalf of a minor or incompetent. 16 (22) "Plethysmography or body (BOX) plethysmography" 17 means the test for determining lung volume in which the exposed 18 person is enclosed in a chamber equipped to measure pressure, 19 flow, or volume change. 24

25 1 (23) "Predicted lower limit of normal" means any test value 2 is the calculated standard convention lying at the fifth percentile, 3 below the upper ninety-five percent of the reference population, 4 based on age, height and gender, according to the recommendations 5 by the American Thoracic Society and as referenced in the 6 applicable AMA Guides to the Evaluation of Permanent 7 Impairment, primarily National Health and Nutrition Examination 8 Survey (NHANES) predicted values, or as amended. 9 (24) "Pulmonary function test" means spirometry, lung 10 volume testing and diffusion capacity testing, including appropriate 11 measurements, quality control data and graphs, performed in 12 accordance with the methods of calibration and techniques provided 13 in the applicable AMA Guides to the Evaluation of Permanent 14 Impairment and all standards provided in the Official Statements of 15 the American Thoracic Society in effect on the day pulmonary 16 function testing of the exposed person was conducted. 17 (25) "Qualified physician" means a board-certified internist, 18 pathologist, pulmonary specialist or specialist in occupational and 19 environmental medicine, as may be appropriate to the actual 25

26 1 diagnostic specialty in question, that meets all of the following 2 requirements: 3 (A) The physician has conducted a physical examination of 4 the exposed person and has taken or has directed to be taken under 5 his or her supervision, direction and control, a detailed 6 occupational, exposure, medical, smoking and social history from 7 the exposed person, or the physician has reviewed the pathology 8 material and has taken or has directed to be taken under his or her 9 supervision, direction and control, a detailed history from the 10 person most knowledgeable about the information forming the basis 11 of the asbestos or silica action; 12 (B) The physician has treated or is treating the exposed 13 person, and has or had a doctor-patient relationship with the 14 exposed person at the time of the physical examination or, in the 15 case of a board-certified pathologist, examined tissue samples or 16 pathological slides of the exposed person; 17 (C) The physician prepared or directly supervised the 18 preparation and final review of any medical report under this 19 article; and 26

27 1 (D) The physician has not relied on any examinations, tests, 2 radiographs, reports or opinions of any doctor, clinic, laboratory or 3 testing company that performed an examination, test, radiograph or 4 screening of the exposed person in violation of any law, regulation, 5 licensing requirement or medical code of practice of the state in 6 which the examination, test or screening. 7 (26) "Radiological evidence of asbestosis" means a quality 8 1 or 2 chest x-ray under the ILO system, showing bilateral small, 9 irregular opacities (s, t or u) occurring primarily in the lower lung 10 zones graded by a certified B-reader as at least 1/0 on the ILO scale. 11 (27) "Radiological evidence of diffuse bilateral pleural 12 thickening" means a quality 1 or 2 chest x-ray under the ILO 13 system, showing diffuse bilateral pleural thickening of at least b2 14 on the ILO scale and blunting of at least one costophrenic angle as 15 classified by a certified B-reader. 16 (28) "Radiological evidence of silicosis" means a quality 1 17 or 2 chest x-ray under the ILO system, showing bilateral 18 predominantly nodular or rounded opacities (p, q or r) occurring in 19 the lung fields graded by a certified B-reader as at least 1/0 on the 27

28 1 ILO scale or A, B or C sized opacities representing complicated 2 silicosis or acute silicosis with characteristic pulmonary edema, 3 interstitial inflammation, and the accumulation within the alveoli of 4 proteinaceous fluid rich in surfactant. 5 (29) "Silica" means a respirable crystalline form of silicon 6 dioxide, including quartz, cristobalite and tridymite. 7 (30) "Silica action" means a claim for damages or other 8 civil or equitable relief presented in a civil action arising out of, 9 based on or related to the health effects of exposure to silica, 10 including loss of consortium, wrongful death, mental or emotional 11 injury, risk or fear of disease or other injury, costs of medical 12 monitoring or surveillance and any other derivative claim made by 13 or on behalf of a person exposed to silica or a representative, 14 spouse, parent, child or other relative of that person. The term does 15 not include a claim for compensatory benefits pursuant to workers' 16 compensation law or veterans' benefits, or claims brought by a 17 person as a subrogee by virtue of the payment of benefits under a 18 workers' compensation law. The term does not include any 19 administrative claim or civil action related to coal workers 28

29 1 pnuemoconiosis. 2 (31) "Silicosis" means simple silicosis, acute silicosis, 3 accelerated silicosis or chronic silicosis caused by the inhalation of 4 respirable silica. "Silicosis" does not mean coal workers 5 pnuemoconiosis. 6 (32) "Spirometry" means a test of air capacity of the lung 7 through a spirometer to measure the volume of air inspired and 8 expired. 9 (33) "Substantial occupational exposure to asbestos" means 10 employment in an industry and occupation in which, for a 11 substantial portion of a normal work year for that industry and 12 occupation, the exposed person did any of the following: 13 (A) Handled raw asbestos fibers; 14 (B) Fabricated asbestos-containing products so that the 15 person was exposed to asbestos in the fabrication process; 16 (C) Altered, repaired, or otherwise worked with an 17 asbestos-containing product in a manner that exposed the person on 18 a regular basis to asbestos; or 19 (D) Worked in close proximity to other workers engaged in 29

30 1 any of the activities described in paragraph (A), (B) or (C) of this 2 subdivision in a manner that exposed the person on a regular basis 3 to asbestos. 4 (34) "Substantial occupational exposure to silica" means 5 employment in an industry and occupation in which, for a 6 substantial portion of a normal work year for that industry and 7 occupation, the exposed person did any of the following: 8 (A) Handled silica; 9 (B) Fabricated silica-containing products so that the person 10 was exposed to silica in the fabrication process; 11 (C) Altered, repaired or otherwise worked with a 12 silica-containing product in a manner that exposed the person on a 13 regular basis to silica; or 14 (D) Worked in close proximity to other workers engaged in 15 any of the activities described in paragraph (A), (B) or (C) of this 16 subdivision in a manner that exposed the person on a regular basis 17 to silica. 18 (35) "Supporting test results" means copies of the following 19 documents and images: 30

31 1 (A) Pulmonary function tests, including printouts of the 2 flow volume loops, volume time curves, DLCO graphs, lung 3 volume tests and graphs, quality control data and other pertinent 4 data for all trials and all other elements required to demonstrate 5 compliance with the equipment, quality, interpretation and 6 reporting standards set forth herein; 7 (B) B-reading and B-reader reports; 8 (C) Reports of x-ray examinations; 9 (D) Diagnostic imaging of the chest; 10 (E) Pathology reports; and 11 (F) All other tests reviewed by the diagnosing physician or 12 a qualified physician in reaching the physician's conclusions. 13 (36) "Timed gas dilution" means a method for measuring 14 total lung capacity in which the subject breathes into a spirometer 15 containing a known concentration of an inert and insoluble gas for 16 a specific time, and the concentration of that inert and insoluble gas 17 in the lung is compared to the concentration of that type of gas in 18 the spirometer. 19 (37) "Total lung capacity" means the volume of gas 31

32 1 contained in the lungs at the end of a maximal inspiration. 2 (38) "Veterans' benefits program" means a program for 3 benefits in connection with military service administered by the 4 Veterans' Administration under Title 38 of the United States Code. 5 (39) "Workers' compensation law" means a law relating to 6 a program administered by the United States or a state to provide 7 benefits, funded by a responsible employer or its insurance carrier, 8 for occupational diseases or injuries or for disability or death caused 9 by occupational diseases or injuries. The term includes the 10 Longshore and Harbor Workers' Compensation Act, 33 U. S. C et seq., and the Federal Employees' Compensation Act, 12 Chapter 81 of Title 5 of the United States Code, but does not 13 include the Federal Employers' Liability Act of April 22, 1908, U. S. C. 51 et seq F-4. Filing claims, establishment of a prima facie case, 16 additional required information for new 17 nonmalignant claims, individual actions to be 18 filed. 19 (a) A plaintiff in an asbestos or silica action alleging a 32

33 1 nonmalignant condition shall file within ninety days of filing the 2 complaint or other initial pleading a detailed narrative medical 3 report and diagnosis, signed by a qualified physician and 4 accompanied by supporting test results, constituting prima facie 5 evidence that the exposed person meets the requirements of this 6 article. The report shall not be prepared by a lawyer or person 7 working for or on behalf of a lawyer or law firm. 8 (b) A defendant in an asbestos or silica action shall be 9 afforded a reasonable opportunity before trial to challenge the 10 adequacy of the prima facie evidence that the exposed person meets 11 the requirements of this article. An asbestos or silica action shall be 12 dismissed without prejudice upon a finding that the exposed person 13 has failed to make the prima facie showing required by this article. 14 (c) A plaintiff in an asbestos or silica action filed on or after 15 the effective date of this article shall also include an information 16 form with the complaint for nonmalignant conditions containing all 17 of the following with the: 18 (1) The name, address, date of birth, social security number, 19 marital status, occupation and employer of the exposed person and 33

34 1 any person through which the exposed person alleges exposure; 2 (2) The plaintiff's relationship to the exposed person or the 3 person through which the exposure is alleged; 4 (3) To the best of the plaintiff s ability, the location and 5 manner of each alleged exposure, including the specific location 6 and manner of exposure for any person through which the exposed 7 person alleges exposure, the beginning and ending dates of each 8 alleged exposure, and the identity of the manufacturer of the 9 specific asbestos or silica product for each exposure when this 10 information is reasonably available; 11 (4) The identity of the defendant or defendants against 12 whom the plaintiff asserts a claim; 13 (5) The specific asbestos-related or silica-related disease 14 claimed to exist; and 15 (6) Any supporting documentation relating to subdivisions 16 (3), (4) and (5) of this subsection. 17 (d) Asbestos and silica actions must be individually filed. 18 No asbestos or silica action filed on or after the effective date of this 19 article shall be permitted on behalf of a group or class of plaintiffs. 34

35 1 55-7F-5. Elements of proof for asbestos actions alleging a 2 nonmalignant asbestos-related condition. 3 (a) No asbestos action related to an alleged nonmalignant 4 asbestos-related condition may be brought or maintained in the 5 absence of prima facie evidence that the exposed person has a 6 physical impairment for which asbestos exposure was a substantial 7 contributing factor. The plaintiff shall make a prima facie showing 8 of claim for each defendant and include a detailed narrative medical 9 report and diagnosis signed under oath by a qualified physician that 10 includes all of the following: 11 (1) Radiological or pathological evidence of asbestosis or 12 radiological evidence of diffuse bilateral pleural thickening or a 13 high-resolution computed tomography scan showing evidence of 14 asbestosis or diffuse pleural thickening; 15 (2) A detailed occupational and exposure history from the 16 exposed person or, if that person is deceased, from the person most 17 knowledgeable about the exposures that form the basis of the 18 action, including identification of all of the exposed person's 19 principal places of employment and exposures to airborne 35

36 1 contaminants and whether each place of employment involved 2 exposures to airborne contaminants, including asbestos fibers or 3 other disease causing dusts or fumes, that may cause pulmonary 4 impairment and the nature, duration, and level of any exposure; 5 (3) A detailed medical, social and smoking history from the 6 exposed person or, if that person is deceased, from the person most 7 knowledgeable, including a thorough review of the past and present 8 medical problems of the exposed person and their most probable 9 cause; 10 (4) Evidence verifying that at least fifteen years have 11 elapsed between the exposed person's date of first exposure to 12 asbestos and the date of diagnosis; 13 (5) Evidence from a personal medical examination and 14 pulmonary function testing of the exposed person or, if the exposed 15 person is deceased, from the person's medical records, that the 16 exposed person has or the deceased person had a permanent 17 respiratory impairment rating of at least Class 2 as defined by and 18 evaluated pursuant to the AMA's Guides to the Evaluation of 19 Permanent Impairment or reported significant changes year to year 36

37 1 in lung function for FVC, FEV1 or DLCO as defined by the 2 American Thoracic Society's Interpretative Strategies for Lung 3 Function Tests, 26 European Respiratory Journal , , 4 Table 12 (2005) and as updated; 5 (6) Evidence that asbestosis or diffuse bilateral pleural 6 thickening, rather than chronic obstructive pulmonary disease, is a 7 substantial factor to the exposed person's physical impairment, 8 based on a determination the exposed person has: 9 (A) Forced vital capacity below the predicted lower limit of 10 normal and FEV1/FVC ratio (using actual values) at or above the 11 predicted lower limit of normal; 12 (B) Total lung capacity, by plethysmography or timed gas 13 dilution, below the predicted lower limit of normal; or 14 (C) A chest x-ray showing bilateral small, irregular 15 opacities (s, t or u) graded by a certified B-reader as at least 2/1 on 16 the ILO scale; and 17 (7) The specific conclusion of the qualified physician 18 signing the report that exposure to asbestos was a substantial 19 contributing factor to the exposed person's physical impairment and 37

38 1 not more probably the result of other causes. An opinion that the 2 medical findings and impairment are consistent with or compatible 3 with exposure to asbestos, or words to that effect, do not satisfy the 4 requirements of this subdivision. 5 (b) If the alleged nonmalignant asbestos-related condition 6 is a result of an exposed person living with or having extended 7 contact with another exposed person who, if the asbestos action had 8 been filed by the other exposed person would have met the 9 requirements of subdivision (2), subsection (a) of this section, and 10 the exposed person alleges extended contact with the other exposed 11 person during the relevant time period, the detailed narrative 12 medical report and diagnosis shall include all of the information 13 required by subsection (a) of this section, except that the exposure 14 history required under subdivision (2), subsection (a) of this section 15 shall describe the exposed person<s history of exposure to the other 16 exposed person F-6. Elements of proof for silica actions alleging silicosis. 18 No silica action related to alleged silicosis may be brought 19 or maintained in the absence of prima facie evidence that the 38

39 1 exposed person has a physical impairment as a result of silicosis. 2 The plaintiff shall make a prima facie showing of claim for each 3 defendant and include a detailed narrative medical report and 4 diagnosis signed under oath by a qualified physician that includes 5 all of the following: 6 (1) Radiological or pathological evidence of silicosis or a 7 high-resolution computed tomography scan showing evidence of 8 silicosis; 9 (2) A detailed occupational and exposure history from the 10 exposed person or, if that person is deceased, from the person most 11 knowledgeable about the exposures that form the basis of the 12 action, including identification of all principal places of 13 employment and exposures to airborne contaminants and whether 14 each place of employment involved exposures to airborne 15 contaminants, including silica or other disease causing dusts or 16 fumes, that may cause pulmonary impairment and the nature, 17 duration and level of any exposure; 18 (3) A detailed medical, social and smoking history from the 19 exposed person or, if that person is deceased, from the person most 39

40 1 knowledgeable, including a thorough review of the past and present 2 medical problems and their most probable cause; 3 (4) Evidence that a sufficient latency period has elapsed 4 between the exposed person's date of first exposure to silica and the 5 day of diagnosis; 6 (5) Evidence based upon a personal medical examination 7 and pulmonary function testing of the exposed person or, if the 8 exposed person is deceased, based upon the person's medical 9 records, demonstrating that the exposed person has or the deceased 10 person had a permanent respiratory impairment rating of at least 11 Class 2 as defined by and evaluated pursuant to the AMA's Guides 12 to the Evaluation of Permanent Impairment or reported significant 13 changes year to year in lung function for FVC, FEV1 or DLCO as 14 defined by the American Thoracic Society's Interpretative 15 Strategies for Lung Function Tests, 26 European Respiratory 16 Journal , , Table 12 (2005) and as updated; and 17 (6) The specific conclusion of the qualified physician 18 signing the report that exposure to silica was a substantial 19 contributing factor to the exposed person's physical impairment and 40

41 1 not more probably the result of other causes. An opinion stating 2 that the medical findings and impairment are consistent with or 3 compatible with exposure to silica, or words to that effect, do not 4 satisfy the requirements of this subdivision F-7. Evidence of physical impairment. 6 Evidence relating to physical impairment, including 7 pulmonary function testing and diffusing studies, offered in any 8 action governed by this article or article seven-e of this chapter, 9 shall: 10 (1) Comply with the quality controls, equipment 11 requirements, methods of calibration and techniques set forth in the 12 AMA's Guides to the Evaluation of Permanent Impairment and all 13 standards set forth in the Official Statements of the American 14 Thoracic Society which are in effect on the date of any examination 15 or pulmonary function testing of the exposed person required by 16 this article; 17 (2) Not be obtained and may not be based on testing or 18 examinations that violate any law, regulation, licensing requirement 19 or medical code of practice of the state in which the examination, 41

42 1 test or screening was conducted, or of this state; and 2 (3) Not be obtained under the condition that the plaintiff or 3 exposed person retains the legal services of the attorney or law firm 4 sponsoring the examination, test or screening F-8. Procedures. 6 (a) Evidence relating to the prima facie showings required 7 under this article shall not create any presumption that the exposed 8 person has an asbestos-related or silica-related injury or impairment 9 and shall not be conclusive as to the liability of any defendant. 10 (b) No evidence shall be offered at trial, and the jury shall 11 not be informed of: 12 (1) The grant or denial of a motion to dismiss an asbestos 13 or silica action under the provisions of this article; or 14 (2) The provisions of this article with respect to what 15 constitutes a prima facie showing of asbestos or silica-related 16 impairment. 17 (c) Until a court enters an order determining that the 18 exposed person has established prima facie evidence of impairment, 19 no asbestos or silica action shall be subject to discovery, except 42

43 1 discovery related to establishing or challenging the prima facie 2 evidence or by order of the trial court upon motion of one of the 3 parties and for good cause shown. 4 (d) Consolidation of cases (1) A court may consolidate for trial any number and type 6 of nonmalignant asbestos or silica actions with the consent of all the 7 parties. In the absence of such consent, the court may consolidate 8 for trial only asbestos or silica actions relating to the exposed 9 person and members of that person's household. 10 (2) No class action or any other form of mass aggregation 11 relating to more than one exposed person and members of that 12 person's household shall be permitted. 13 (3) The provisions of this subsection do not preclude 14 consolidation of cases by court order for pretrial or discovery 15 purposes F-9. Statute of limitations; two-disease rule. 17 (a) With respect to an asbestos or silica action not barred by 18 limitations as of this article's effective date, an exposed person's 19 cause of action shall not accrue, nor shall the running of limitations 43

44 1 commence, prior to the earlier of the date: 2 (1) The exposed person received a medical diagnosis of an 3 asbestos-related impairment or silica-related impairment; 4 (2) The exposed person discovered facts that would have 5 led a reasonable person to obtain a medical diagnosis with respect 6 to the existence of an asbestos-related impairment or silica-related 7 impairment; or 8 (3) The date of death of the exposed person having an 9 asbestos-related or silica-related impairment. 10 (b) Nothing in this section shall be construed to revive or 11 extend limitations with respect to any claim for asbestos-related 12 impairment or silica-related impairment that was otherwise 13 time-barred on the effective date of this article. 14 (c) Nothing in this section shall be construed so as to 15 adversely affect, impair, limit, modify or nullify any settlement or 16 other agreements with respect to an asbestos or silica action entered 17 into prior to the effective date of this article. 18 (d) An asbestos or silica action arising out of a 19 nonmalignant condition shall be a distinct cause of action from an 44

45 1 action for an asbestos-related or silica-related cancer. Where 2 otherwise permitted under state law, no damages shall be awarded 3 for fear or increased risk of future disease in an asbestos or silica 4 action F-10. Application. 6 This article shall apply to all asbestos actions and silica 7 actions filed on or after the effective date of this article. 45