[Congressional Bills 108th Congress]
[From the U.S. Government Publishing Office]
[S. 413 Introduced in Senate (IS)]







108th CONGRESS
  1st Session
                                 S. 413

    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 SENATE OF THE UNITED STATES

                           February 13, 2003

  Mr. Nickles introduced the following bill; which was read twice and 
               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 Claims 
Criteria and Compensation Act of 2003''.
    (b) Table of Contents.--The table of contents is as follows:

Sec. 1. Short title; table of contents.
Sec. 2. Findings and purposes.
Sec. 3. Definitions.
Sec. 4. Physical impairment.
Sec. 5. Procedures; removal.
Sec. 6. Statute of limitations; two-disease rule.
Sec. 7. Miscellaneous provisions.
Sec. 8. Effective date.

SEC. 2. FINDINGS AND PURPOSES.

    (a) Findings.--Congress finds that--
            (1) asbestos is a mineral that was widely used before the 
        1980s for insulation, fireproofing, and other purposes;
            (2) millions of American workers and others were 
        significantly exposed to asbestos, especially during and after 
        World War II and before 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, and 
        such nonmalignant 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, but the most serious asbestos-related 
        disease, mesothelioma, is fatal within 1 to 2 years, and other 
        related cancers are often fatal;
            (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 created a flood of litigation 
        targeting approximately 8,400 defendant companies in Federal 
        and State courts that the United States Supreme Court has 
        characterized as ``an elephantine mass'' of cases that ``defies 
        customary judicial administration and calls for national 
        legislation,'' Ortiz v. Fibreboard Corporation, 119 S. Ct. 
        2295, 2302 (1999);
            (7) the American Bar Association supports enactment of 
        Federal legislation that would--
                    (A) allow persons alleging non-malignant asbestos-
                related disease claims to file a cause of action in 
                Federal or State court only if those persons meet the 
                medical criteria in the ``ABA Standard for Non-
                Malignant Asbestos-Related Disease Claims'' dated 
                February 2003 or an appropriate similar medical 
                standard; and
                    (B) toll all applicable statutes of limitations 
                until such time as the medical criteria in such 
                standard are met;
            (8) asbestos personal injury litigation can be unfair and 
        inefficient, imposing a severe burden on litigants and 
        taxpayers alike, in most cases involving defendant companies 
        that were never involved in the production of asbestos;
            (9) the extraordinary volume of nonmalignant asbestos cases 
        continues to strain Federal and State courts, with over 200,000 
        cases pending and over 50,000 new cases filed each year;
            (10) asbestos personal injury litigation has already 
        contributed to the bankruptcy of more than 60 companies and the 
        rate of asbestos-driven bankruptcies is accelerating;
            (11) the vast majority of asbestos claims are filed by 
        individuals who--
                    (A) have been exposed to asbestos;
                    (B) may have some physical sign of exposure; and
                    (C) suffer no present asbestos-related impairment;
            (12) the cost of compensating exposed persons 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; and
                    (B) strains the ability of courts to manage the 
                deluge of cases involving nonimpaired plaintiffs;
            (13) an estimated 50,000 to 60,000 workers have lost their 
        jobs as a direct result of asbestos litigation and related 
        bankruptcies of defendant companies and each displaced worker 
        will, on average, lose between $25,000 and $50,000 in lost 
        wages;
            (14) employees of defendant companies declaring bankruptcy 
        (who are often stockholders of those companies) will, on 
        average, lose 25 percent of the value of their retirement 
        investment under section 401(k) of the Internal Revenue Code of 
        1986 because of lost stock value;
            (15) 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 those 
        claimants become impaired;
            (16) consolidations, joinder, and similar procedures, to 
        which some courts have resorted in order 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 persons who are not yet sick and who may never 
        become sick;
            (17) the availability of sympathetic forums in States with 
        no connection to the plaintiff or to the exposures that form 
        the basis of a lawsuit has encouraged the filing of thousands 
        of cases on behalf of exposed persons who are not yet sick and 
        may never become sick;
            (18) asbestos litigation, if left unchecked by reasonable 
        congressional intervention, will--
                    (A) continue to inhibit the economy and run counter 
                to plans to stimulate economic growth and the creation 
                of new jobs;
                    (B) threaten the savings, retirement benefits, and 
                employment of defendants' current and retired 
                employees;
                    (C) affect adversely the communities in which these 
                defendants operate; and
                    (D) impair interstate commerce and national 
                initiatives, including national security; and
            (19) the public interest and the interest of interstate 
        commerce requires deferring the claims of exposed persons who 
        are not sick in order to--
                    (A) preserve, now and for the future, defendants' 
                ability to compensate people who develop cancer and 
                other serious asbestos-related injuries; and
                    (B) safeguard the jobs, benefits, and savings of 
                American workers and the well-being of the national 
                economy.
    (b) Purposes.--It is the purpose of this Act to--
            (1) give priority to those asbestos claimants who can 
        demonstrate actual physical harm or illness caused by asbestos;
            (2) fully preserve the rights of claimants who were exposed 
        to asbestos to pursue compensation should those claimants 
        become sick in the future;
            (3) enhance the ability of the Federal and State judicial 
        systems to supervise and control asbestos litigation and 
        asbestos-related bankruptcy proceedings; and
            (4) 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 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'' under section 1910 of title 29 of the 
        Code of Federal Regulations.
            (3) Asbestos claim.--The term ``asbestos claim''--
                    (A) 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 and any other derivative claim made by or on 
                behalf of any exposed person or any representative, 
                spouse, parent, child or other relative of any exposed 
                person; and
                    (B) 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) Certified b-reader.--The term ``certified B-reader'' 
        means an individual qualified as a ``final'' or ``B-reader'' 
        under section 37.51(b) of title 42 of the Code of Federal 
        Regulations.
            (6) Civil action.--The term ``civil action''--
                    (A) means all suits of a civil nature in Federal or 
                State court, whether cognizable as cases at law or in 
                equity or in admiralty; and
                    (B) does not include an action relating to any 
                workers' compensation law, or a proceeding for benefits 
                under any veterans' benefits program.
            (7) 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.
            (8) FEV1.--The term ``FEV1'' means forced expiratory volume 
        in the first second, which is the maximal volume of air 
        expelled in 1 second during performance of simple spirometric 
        tests.
            (9) 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.
            (10) 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 by the International Labour Office.
            (11) Nonmalignant condition.--The term ``nonmalignant 
        condition'' means any condition that is caused or may be caused 
        by asbestos other than a diagnosed cancer.
            (12) Pathological evidence of asbestosis.--The term 
        ``pathological evidence of asbestosis'' means a statement by a 
        Board-certified pathologist that--
                    (A) more than 1 representative section of lung 
                tissue uninvolved with any other disease process 
                demonstrates a pattern of peribronchiolar or 
                parenchymal scarring in the presence of characteristic 
                asbestos bodies; and
                    (B) there is no other more likely explanation for 
                the presence of the fibrosis.
            (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, as 
        referenced in the AMA Guides to the Evaluation of Permanent 
        Impairment.
            (14) Radiological evidence of asbestosis.--The term 
        ``radiological evidence of asbestosis'' means a chest x-ray 
        showing small, irregular opacities (s,t) graded by a certified 
        B-reader as at least 1/1 on the ILO scale.
            (15) Radiological evidence of diffuse pleural thickening.--
        The term ``radiological evidence of diffuse pleural 
        thickening'' means a chest x-ray showing bilateral pleural 
        thickening of at least B2 on the ILO scale and blunting of at 
        least 1 costophrenic angle.
            (16) 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 
        entities under this paragraph.
            (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''--
                    (A) means a law respecting a program administered 
                by a State or the United States to provide benefits, 
                funded by a responsible employer or an insurance 
                carrier of that employer, for occupational diseases or 
                injuries or for disability or death caused by 
                occupational diseases or injuries;
                    (B) includes the Longshore and Harbor Workers' 
                Compensation Act (33 U.S.C. 901 et seq.) and chapter 81 
                of title 5, United States Code; and
                    (C) does not include the Federal Employer's 
                Liability Act (45 U.S.C. 51 et seq.).

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 be presumed to 
involve physical impairment.
    (b) Prima Facie Evidence of Physical Impairment.--
            (1) In general.--No person shall bring or maintain a civil 
        action alleging a nonmalignant asbestos claim in the absence of 
        a prima facie showing of physical impairment as a result of a 
        medical condition to which exposure to asbestos was a 
        substantial contributing factor.
            (2) Requirements of prima facie showing.--A prima facie 
        showing under this subsection shall include all of the 
        following minimum requirements:
                    (A) Permanent respiratory impairment rating.--A 
                determination by a qualified physician, on the basis of 
                a medical examination and pulmonary function testing, 
                that the exposed person has a permanent respiratory 
                impairment rating of at least Class 2 as defined by and 
                evaluated under the AMA Guides to the Evaluation of 
                Permanent Impairment.
                    (B) Diagnosis.--A diagnosis by a qualified 
                physician of asbestosis or diffuse pleural thickening, 
                based at a minimum on pathological evidence of 
                asbestosis, radiological evidence of asbestosis, or 
                radiological evidence of diffuse pleural thickening.
                    (C) Substantial contributing factor.--A 
                determination by a qualified physician that asbestosis 
                or diffuse pleural thickening (rather than solely 
                chronic obstructive pulmonary disease) is a substantial 
                contributing factor to the exposed person's physical 
                impairment, based at a minimum on a determination that 
                the exposed person has either--
                            (i) a ratio of FEV1 to FVC that is equal to 
                        or greater than the predicted lower limit of 
                        normal; or
                            (ii) a chest x-ray showing small, irregular 
                        opacities (s,t) graded by a certified B-reader 
                        at least 2/1 on the ILO scale.
    (c) Compliance With Technical Standards.--
            (1) In general.--Evidence relating to physical impairment 
        under this section, including pulmonary function testing and 
        diffusing studies, shall comply with--
                    (A) the technical recommendations for examinations, 
                testing procedures, quality assurance and quality 
                control, and equipment of the AMA Guides to the 
                Evaluation of Permanent Impairment; or
                    (B) if the AMA Guides to the Evaluation of 
                Permanent Impairment are not applicable, other 
                authoritative standards.
            (2) Adjustments.--No adjustments with respect to pulmonary 
        function testing shall be made on the basis of race.
    (d) No Presumption at Trial.--Presentation of prima facie evidence 
of asbestos-related impairment 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 the 
exposed person made a prima facie showing of impairment shall not be 
admissible at trial.

SEC. 5. PROCEDURES; REMOVAL.

    (a) Consolidation.--A court may consolidate for trial any number 
and type of asbestos claims with consent of all the parties. In the 
absence of such consent, the court may consolidate for trial only 
asbestos claims relating to the same exposed person and members of the 
household of the exposed person.
    (b) Venue.--
            (1) In general.--A civil action asserting an asbestos claim 
        may only be brought in the State of the 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.
            (2) Inapplicability.--Paragraph (1) shall not apply to a 
        claim that--
                    (A) is based upon an exposed person's cancer; and
                    (B) is filed by an exposed person who is diagnosed 
                with fatal mesothelioma or other asbestos-related 
                cancer by a qualified physician, resulting in a short 
                life expectancy of less than 3 years after the date on 
                which the claim is filed.
    (c) Preliminary Proceedings.--The plaintiff in any civil action 
involving an asbestos claim shall file with the complaint or other 
initial pleading a written report and supporting test results 
constituting prima facie evidence of the exposed person's asbestos-
related impairment meeting the requirements of section 4(b). The 
defendant shall be afforded a reasonable opportunity to challenge the 
adequacy of the proffered prima facie evidence of asbestos-related 
impairment. The plaintiff's claim shall be dismissed without prejudice 
upon a finding of failure to make the required prima facie showing.
    (d) Removal.--
            (1) In general.--If a State court refuses or fails to apply 
        this section, any party in a civil action for 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.
            (2) Jurisdiction over removed actions.--The district courts 
        of the United States shall have jurisdiction of all civil 
        actions removed under this subsection, without regard to the 
        amount in controversy and without regard to the citizenship or 
        residence of the parties.
            (3) Removal by any defendant.--A civil action may be 
        removed to the district court of the United States under this 
        subsection by any defendant without the consent of all 
        defendants.
            (4) Remand.--The district court shall remand any civil 
        action removed solely under this subsection, unless the court 
        finds that--
                    (A) the State court failed to comply with 
                procedures prescribed by law; or
                    (B) the failure to dismiss by the State court 
                lacked substantial support in the record before the 
                State court.

SEC. 6. STATUTE OF LIMITATIONS; TWO-DISEASE RULE.

    (a) Statute of Limitations.--Notwithstanding any other provision of 
law, with respect to any nonmalignant asbestos claim not barred on the 
effective date of this Act, the limitations period shall not begin to 
run until the exposed person discovers, or through the exercise of 
reasonable diligence should have discovered, that the exposed person is 
physically impaired by an asbestos-related nonmalignant condition.
    (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 date of enactment of 
this Act shall require, as a condition of settlement, release of any 
future claim for asbestos-related cancer.

SEC. 7. MISCELLANEOUS PROVISIONS.

    (a) Construction With Other Laws.--This Act shall not be construed 
to--
            (1) affect the scope or operation of any workers' 
        compensation law or veterans' benefit program;
            (2) affect the exclusive remedy or subrogation provisions 
        of any such law; or
            (3) 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 and Article 
III, section 1 of the Constitution of the United States.

SEC. 8. EFFECTIVE DATE.

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