[Congressional Bills 108th Congress]
[From the U.S. Government Publishing Office]
[H.R. 1737 Introduced in House (IH)]







108th CONGRESS
  1st Session
                                H. R. 1737

    To provide for the fair and efficient judicial consideration of 
   personal injury and wrongful death claims arising out of asbestos 
  exposure, to ensure that individuals who suffer harm, now or in the 
     future, from illnesses caused by exposure to asbestos receive 
        compensation for their injuries, and for other purposes.


_______________________________________________________________________


                    IN THE HOUSE OF REPRESENTATIVES

                             April 10, 2003

Mr. Dooley of California (for himself, Mr. Moran of Virginia, Mr. Smith 
  of Washington, Mr. Larson of Connecticut, Mr. Davis of Alabama, Mr. 
Larsen of Washington, and Mr. Stenholm) introduced the following bill; 
          which was referred to the Committee on the Judiciary

_______________________________________________________________________

                                 A BILL


 
    To provide for the fair and efficient judicial consideration of 
   personal injury and wrongful death claims arising out of asbestos 
  exposure, to ensure that individuals who suffer harm, now or in the 
     future, from illnesses caused by exposure to asbestos receive 
        compensation for their injuries, and for other purposes.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE; TABLE OF CONTENTS.

    (a) Short Title.--This Act may be cited as the ``Asbestos Victims' 
Compensation Act of 2003''.
    (b) Table of Contents.--The table of contents for this Act is as 
follows:

Sec. 1. Short title; table of contents.
Sec. 2. Findings and purposes.
Sec. 3. Definitions.
Sec. 4. Physical impairment.
Sec. 5. Consolidation.
Sec. 6. Venue.
Sec. 7. Removal.
Sec. 8. Limitations; two-disease rule; general releases.
Sec. 9. Miscellaneous provisions.
Sec. 10. Effective date.

SEC. 2. FINDINGS AND PURPOSES.

    (a) Findings.--The Congress finds that--
            (1) asbestos is a mineral that was widely used prior to the 
        1980s for insulation, fire-proofing, and other purposes;
            (2) millions of American workers and others were 
        significantly exposed to asbestos, especially during and after 
        the Second World War and prior to the advent of regulation by 
        the Occupational Safety and Health Administration in the early 
        1970s;
            (3) exposure to asbestos has been associated with various 
        types of cancer, including mesothelioma and lung cancer, as 
        well as such noncancerous conditions as asbestosis, pleural 
        plaques, and diffuse pleural thickening;
            (4) the diseases caused by asbestos have latency periods of 
        up to 40 years or more;
            (5) although the use of asbestos has dramatically declined 
        since 1980 and workplace exposures have been regulated since 
        1971 by the Occupational Safety and Health Administration, past 
        exposures will continue to result in significant death and 
        disability from mesothelioma and other cancers well into the 
        21st Century;
            (6) exposure to asbestos has led to the filing of at least 
        600,000 asbestos claims in State and Federal courts, with 
        50,000 to 100,000 new cases filed each year, and, if nothing is 
        done to control the litigation, as many as 2,000,000 additional 
        claims may be filed before the litigation runs its course;
            (7) asbestos personal injury litigation can be unfair and 
        inefficient, imposing a severe burden on courts, litigants and 
        taxpayers alike;
            (8) asbestos personal injury litigation has already 
        contributed to the bankruptcy of more than 60 companies, 
        including nearly all manufacturers of asbestos textile and 
        insulation products, and the rate of asbestos-driven 
        bankruptcies is accelerating;
            (9) the vast majority of asbestos claims are filed by 
        individuals who have been exposed to asbestos and who may have 
        some physical sign of exposure, but who suffer no present 
        asbestos-related impairment;
            (10) the cost of compensating exposed individuals who are 
        not sick--
                    (A) jeopardizes the ability of defendants to 
                compensate people with cancer and other serious 
                asbestos-related diseases, now and in the future;
                    (B) threatens the savings, retirement benefits, and 
                jobs of these defendants' current and retired 
                employees;
                    (C) adversely affects the communities in which 
                these defendants operate; and
                    (D) impairs the national economy and interstate 
                commerce;
            (11) the several thousand asbestos-related cancer cases 
        that are filed each year would be manageable by the courts and 
        the litigants but for the volume of noncancer claims brought by 
        those who suffer no present asbestos-related impairment;
            (12) concerns about statutes of limitations can force 
        claimants who have been exposed to asbestos but who have no 
        current injury to bring premature lawsuits in order to protect 
        against losing their rights to future compensation should they 
        become impaired;
            (13) consolidation, joinder, and similar procedures, to 
        which some courts have resorted to deal with the mass of 
        asbestos cases, can undermine the appropriate functioning of 
        the judicial process and encourage the filing of thousands of 
        cases by exposed individuals who are not yet sick and who may 
        never become sick;
            (14) similarly, the availability of sympathetic forums in 
        States with no connection to the plaintiff or to the exposures 
        that form the basis of the lawsuit has encouraged the filing of 
        thousands of cases on behalf of exposed individuals who are not 
        yet sick and may never become sick; and
            (15) the United States Supreme Court has characterized 
        asbestos cases as ``an elephantine mass'' that ``defies 
        customary judicial administration and calls for national 
        legislation'', Ortiz v. Fibreboard Corporation, 119 S. Ct. 
        2295, 2302 (1999), and has reaffirmed its call for national 
        legislation in Norfolk & Western Railway. Co. v. Ayers, No. 01-
        963 (decided March 10, 2003).
    (b) Purposes.--The purposes of this Act are--
            (1) to give priority to those asbestos claimants who can 
        demonstrate actual physical harm or illness caused by asbestos;
            (2) to fully preserve the rights of claimants who were 
        exposed to asbestos to pursue compensation should they become 
        sick in the future;
            (3) to enhance the ability of the State and Federal 
        judicial systems to supervise and control asbestos litigation 
        and asbestos-related bankruptcy proceedings; and
            (4) to conserve the scarce resources of the defendants, and 
        marshal assets in bankruptcy, to allow compensation of cancer 
        victims and others who are physically harmed by exposure to 
        asbestos while securing the right to similar compensation for 
        those who may suffer cancer or other physical harm in the 
        future.

SEC. 3. DEFINITIONS.

    In this Act:
            (1) AMA guides to the evaluation of permanent impairment.--
        The term ``AMA Guides to the Evaluation of Permanent 
        Impairment'' means the American Medical Association's Guides to 
        the Evaluation of Permanent Impairment (Fifth Edition 2000).
            (2) Asbestos.--The term ``asbestos'' includes all minerals 
        defined as ``asbestos'' in 29 C.F.R. 1910 as amended from time 
        to time.
            (3) Asbestos claim.--The term ``asbestos claim'' means any 
        claim for damages or other relief presented in a civil action 
        or bankruptcy proceeding, arising out of, based on, or related 
        to the health effects of exposure to asbestos, including loss 
        of consortium, wrongful death, and any derivative claim made by 
        or on behalf of any exposed person or any representative, 
        spouse, parent, child or other relative of any exposed person. 
        The term does not include claims for benefits under a workers' 
        compensation law or veterans' benefits program, or claims 
        brought by any person as a subrogee by virtue of the payment of 
        benefits under a workers' compensation law.
            (4) Asbestosis.--The term ``asbestosis'' means bilateral 
        diffuse interstitial fibrosis of the lungs caused by inhalation 
        of asbestos fibers.
            (5) Cancer claim.--The term ``cancer claim'' means an 
        asbestos claim that is based upon the exposed person's 
        diagnosed cancer.
            (6) Certified b-reader.--The term ``certified B-reader'' 
        means an individual qualified as a ``final'' or ``B-reader'' 
        under 42 C.F.R. 37.51(b) as amended from time to time.
            (7) Civil action.--The term ``civil action'' means all 
        suits of a civil nature in State or Federal court, whether 
        cognizable as cases at law or in equity or in admiralty, but 
        does not include an action relating to any workers' 
        compensation law, or a proceeding for benefits under any 
        veterans' benefits program.
            (8) Exposed person.--The term ``exposed person'' means any 
        person whose exposure to asbestos or to asbestos-containing 
        products is the basis for an asbestos claim.
            (9) FEV1.--The term ``FEV1'' means forced expiratory volume 
        in the first second, which is the maximal volume of air that 
        can be expired from a full inspiration in one second.
            (10) FVC.--The term ``FVC'' means forced vital capacity, 
        which is the maximal volume of air expired with maximum effort 
        from a position of full inspiration.
            (11) ILO scale.--The term ``ILO Scale'' means the system 
        for the classification of chest x-rays set forth in the 
        International Labour Office's Guidelines for the Use of ILO 
        International Classification of Radiographs of Pneumoconioses 
        (1980) as amended from time to time by the International Labour 
        Office.
            (12) Nonmalignant claim.--The term ``nonmalignant claim'' 
        means an asbestos claim that is based upon a condition of the 
        exposed person that is caused or may be caused by asbestos 
        other than a diagnosed cancer.
            (13) Predicted lower limit of normal.--The term ``predicted 
        lower limit of normal'' for any test means the fifth percentile 
        of healthy populations based on age, height, and gender, based 
        on an appropriate reference population.
            (14) Pulmonary function testing.--The term ``pulmonary 
        function testing'' means spirometry, lung volume tests, 
        diffusing capacity tests, and arterial gas tests.
            (15) State.--The term ``State'' means any State of the 
        United States, the District of Columbia, Commonwealth of Puerto 
        Rico, the Northern Mariana Islands, the Virgin Islands, Guam, 
        American Samoa, and any other territory or possession of the 
        United States or any political subdivision of any of the 
        foregoing.
            (16) TLC.--The term ``TLC'' means total lung capacity, 
        which is the volume of air in the lungs after maximal 
        inspiration as measured by plethysmography or timed gas 
        dilution.
            (17) Veterans' benefits program.--The term ``veterans' 
        benefits program'' means any program for benefits in connection 
        with military service administered by the Veterans' 
        Administration under title 38, United States Code.
            (18) Workers' compensation law.--The term ``workers' 
        compensation law'' means a law respecting a program 
        administered by a State or the United States to provide 
        benefits, funded by a responsible employer or its insurance 
        carrier, for occupational diseases or injuries or for 
        disability or death caused by occupational diseases or 
        injuries. The term includes the Longshore and Harbor Workers' 
        Compensation Act (33 U.S.C. 901-944, 948-950), and chapter 81 
        of title 5, United States Code (known as the Federal Employees 
        Compensation Act), but does not include the Act of April 22, 
        1908 (45 U.S.C. 51 et seq.) (popularly referred to as the 
        ``Federal Employers' Liability Act'').

SEC. 4. PHYSICAL IMPAIRMENT.

    (a) Impairment Essential Element of Claim.--Physical impairment of 
the exposed person, to which asbestos exposure was a substantial 
contributing factor, shall be an essential element of an asbestos 
claim. For purposes of this section, cancer shall satisfy the 
requirement for physical impairment.
    (b) Medical Report and Diagnosis: Filing.--The plaintiff in any 
civil action involving an asbestos claim shall file, together with the 
complaint or other initial pleading, a narrative medical report and 
diagnosis, signed by a diagnosing doctor, that meets the requirements 
of this section. In any civil action involving an asbestos claim that 
is pending on the effective date of this Act, the plaintiff shall file 
a narrative medical report and diagnosis within 60 days following such 
effective date but in no event later that 30 days prior to trial. The 
plaintiff's claim shall be dismissed without prejudice if a medical 
report and diagnosis fail to substantially meet the requirements of 
this section or are not timely filed.
    (c) Medical Report and Diagnosis: Contents.--The medical report and 
diagnosis filed under this section shall contain each of the following:
            (1) An employment and exposure history, which shall include 
        all of the principal employments and exposures of the exposed 
        person to airborne contaminants and shall state whether each 
        such employment involved exposure to airborne contaminants 
        (including but not limited to asbestos) that can cause 
        pulmonary impairment, and the nature, duration, and level of 
        any such exposure. The employment and exposure history shall be 
        obtained from the exposed person or, if that person is deceased 
        or otherwise unable to provide the required information, from 
        the person or persons most knowledgeable about the exposed 
        person's employment or exposures. The diagnosing doctor shall 
        certify that the employment and exposure history was taken by 
        the diagnosing doctor, or a medical professional employed by 
        and under the direct supervision and control of the diagnosing 
        doctor.
            (2) A detailed medical and smoking history, which shall 
        include a thorough review of the exposed person's past and 
        present medical conditions and their most probable cause and 
        full information regarding the exposed person's history of 
        smoking of tobacco products. The diagnosing doctor shall 
        certify that the medical and smoking history was taken by the 
        diagnosing doctor, or a medical professional employed by and 
        under the direct supervision and control of the diagnosing 
        doctor.
            (3) Certification that, in the opinion of the diagnosing 
        doctor, at least 15 years have elapsed between the exposed 
        person's first exposure to asbestos and the time of diagnosis.
            (4) Certification that--
                    (A) in the opinion of a certified B-reader, the 
                exposed person's chest x-ray shows either--
                            (i) bilateral small irregular opacities (s, 
                        t, or u) graded 1/0 or higher on the ILO scale; 
                        or
                            (ii) bilateral diffuse pleural thickening 
                        graded b2 or higher on the ILO scale and 
                        including blunting of at least one costophrenic 
                        angle; or
                    (B) in the opinion of a board-certified 
                pathologist, the exposed person has pathological 
                evidence of asbestosis graded 1(B) or higher according 
                to criteria published in Asbestos-Associated Diseases, 
                Special Issue of the Archives of Pathology and 
                Laboratory Medicine, Volume 106, Number 11, Appendix 3 
                (October 8, 1982).
            (5)(A) Certification that the exposed person has asbestos-
        related pulmonary impairment as demonstrated by pulmonary 
        function testing that shows--
                    (i) FVC below the predicted lower limit of normal 
                and FEV1/FVC (using actual values) at or above the 
                predicted lower limit of normal; or
                    (ii) TLC below the predicted lower limit of normal.
            (B) Notwithstanding subparagraph (A), where pulmonary 
        function test results do not meet the requirement of such 
        subparagraph, a claimant may submit an additional report, by a 
        board-certified pulmonologist, internist, or occupational 
        physician, that states that the doctor providing the report has 
        a doctor/patient relationship with the exposed person, that the 
        exposed person has a chest x-ray meeting the requirements of 
        this Act which in the opinion of a certified B-reader shows 
        bilateral small irregular opacities (s, t, or u) graded 2/1 or 
        higher on the ILO scale, and that the exposed person has 
        restrictive impairment from asbestosis. The additional report 
        shall set forth in detail the specific pulmonary function test 
        findings that the doctor relies upon to establish that the 
        claimant has restrictive impairment and shall include the 
reports and readouts from all pulmonary function or other testing upon 
which the report is based.
            (6) A statement that the diagnosing doctor has concluded 
        the exposed person's respiratory impairment is not more 
        probably the result of causes other than exposure to 
        asbestosis.
            (7) Copies of the B-reader's report and the results of 
        pulmonary function tests (including printouts of flow volume 
        loops and all other elements necessary to demonstrate 
        compliance with the technical standards required by this 
        section).
    (d) Compliance With Technical Standards.--The technical standards 
required by this section are as follows:
            (1) Chest x-rays shall be administered in accordance with 
        all applicable State and Federal regulatory requirements and 
        shall be quality 1 unless the exposed person is deceased and 
        tissue is unavailable for pathological analysis, in which case 
        the chest x-ray may be quality 2.
            (2) Pulmonary function testing shall be performed using 
        equipment, methods of calibration, and technique that meet the 
        criteria incorporated in the AMA Guides to the Evaluation of 
        Permanent Impairment and reported as set forth in 20 C.F.R. 
        404, Subpt. P, App.1, Part (A) section 3.00 (E) and (F), and 
        the interpretative standards set forth in the Official 
        Statement of the American Thoracic Society titled ``Lung 
        Function Testing: Selection of Reference Values and 
        Interpretative Strategies'' as published in the American Review 
        of Respiratory Diseases 1991: 144: 1202-1218. No adjustments 
        with respect to the interpretation of pulmonary function 
        testing shall be made on the basis of race.
    (e) No Presumption at Trial.--Submission of a medical report and 
diagnosis meeting the requirements of this section shall not result in 
any presumption at trial that the exposed person is impaired by an 
asbestos-related condition, and evidence that such a report was 
submitted shall not be admissible at trial.
    (f) Applicability.--This section shall govern the substantive rule 
of decision, regardless of forum.

SEC. 5. CONSOLIDATION.

    Unless all parties otherwise consent, a court may not consolidate 
for trial--
            (1) asbestos claims relating to more than 20 different 
        exposed persons; and
            (2) a nonmalignant claim relating to one exposed person 
        with a cancer claim relating to another exposed person.

SEC. 6. VENUE.

    A civil action asserting a nonmalignant claim may only be brought 
in the State of plaintiff's domicile or a State in which there occurred 
exposure to asbestos that is a substantial contributing factor to the 
physical impairment on which the claim is based. This section does not 
affect venue for civil actions asserting a cancer claim, which shall be 
governed by otherwise applicable State or Federal law.

SEC. 7. REMOVAL.

    (a) In General.--Any party in a civil action involving an asbestos 
claim may remove such action to a district court of the United States 
in accordance with chapter 89 of title 28, United States Code. A civil 
action may be removed to the district court of the United States in 
accordance with this subsection by any defendant without the consent of 
all defendants.
    (b) Remand.--The district court shall remand any civil action 
removed solely under subsection (a) if it finds that the plaintiffs 
substantially met the requirements of section 4.

SEC. 8. LIMITATIONS; TWO-DISEASE RULE; GENERAL RELEASES.

    (a) Statute of Limitations.--Notwithstanding any other provision of 
law, with respect to any nonmalignant asbestos claim not barred as of 
the effective date of this Act, the limitations period on an asbestos 
claim shall not commence as a result of a purported diagnosis or 
finding of a nonmalignant condition related to asbestos that does not 
meet the substantive criteria in section 4.
    (b) Two-Disease Rule.--An asbestos claim arising out of a 
nonmalignant condition shall be a distinct cause of action from an 
asbestos claim relating to the same exposed person arising out of 
asbestos-related cancer. No damages shall be awarded for fear or risk 
of cancer in any civil action asserting only a nonmalignant asbestos 
claim.
    (c) General Releases From Liability Prohibited.--No settlement of a 
nonmalignant asbestos claim concluded after the effective date of this 
Act shall require, as a condition of settlement, release of any future 
claim for asbestos-related cancer.

SEC. 9. MISCELLANEOUS PROVISIONS.

    (a) Construction With Other Laws.--This Act shall not be construed 
to affect the scope or operation of any workers' compensation law or 
veterans' benefit program, to affect the exclusive remedy or 
subrogation provisions of any such law, or to authorize any lawsuit 
which is barred by any such provision of law.
    (b) Constitutional Authority.--The constitutional authority for 
this Act is contained in Article I, section 8, clause 3 of the 
Constitution of the United States and in Article III, section 1 of the 
Constitution of the United States.

SEC. 10. EFFECTIVE DATE.

    This Act shall be effective on the date of the enactment of this 
Act and shall apply to any civil action asserting an asbestos claim in 
which trial has not commenced as of such date.
                                 <all>