[Congressional Bills 109th Congress]
[From the U.S. Government Publishing Office]
[H.R. 1957 Introduced in House (IH)]






109th CONGRESS
  1st Session
                                H. R. 1957

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


_______________________________________________________________________


                    IN THE HOUSE OF REPRESENTATIVES

                             April 28, 2005

Mr. Cannon (for himself, Mr. Pence, Mr. Flake, Mr. Bishop of Utah, Mr. 
 Hensarling, Mr. McHenry, Mr. King of Iowa, Mr. Bartlett of Maryland, 
   Mr. Feeney, Mrs. Myrick, Mr. Herger, Mrs. Cubin, Mr. Bachus, Mr. 
Gohmert, Mr. Sam Johnson of Texas, Mr. Pitts, Mr. Kirk, Mr. Keller, Mr. 
  Chabot, Mr. Sessions, Mr. Linder, Mr. Hostettler, Mr. Tom Davis of 
 Virginia, Mr. Carter, Mr. Burgess, Mr. Pearce, Ms. Hart, Mr. Smith of 
 Texas, Mr. Souder, Mr. Otter, Mr. Schwarz of Michigan, Mr. Weldon of 
   Florida, Mr. Goodlatte, Mrs. Blackburn, Mr. Cole of Oklahoma, Mr. 
   English of Pennsylvania, Mr. Simmons, Mr. Tiberi, Mr. Baker, Mr. 
  Manzullo, and Mr. Conaway) 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 or 
silica exposure, to ensure that individuals who suffer impairment, now 
  or in the future, from illnesses caused by exposure to asbestos or 
silica 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 
Compensation Fairness Act of 2005''.
    (b) Table of Contents.--

Sec. 1. Short title; table of contents.
Sec. 2. Findings and purposes.
Sec. 3. Physical impairment.
Sec. 4. Procedures.
Sec. 5. Statute of limitations; two-disease rule.
Sec. 6. Scope of liability; damages.
Sec. 7. Liability rules applicable to product sellers, renters, 
                            lessors, and premises owners.
Sec. 8. Definitions.
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, fireproofing, and other purposes;
            (2) millions of American workers and others were exposed to 
        asbestos, especially during and after World War II and prior to 
        the advent of regulation by the Occupational Safety and Health 
        Administration in the early 1970s;
            (3) long-term exposure to asbestos has been associated with 
        various types of cancer, including mesothelioma and lung 
        cancer, as well as such nonmalignant conditions as asbestosis, 
        pleural plaques, and diffuse pleural thickening;
            (4) the diseases caused by asbestos often have long latency 
        periods;
            (5) although the use of asbestos has dramatically declined 
        since 1980 and workplace exposures have been regulated since 
        1971 by the Occupational Safety & Health Administration, past 
        exposures will continue to result in significant claims of 
        death and disability as a result of such exposure;
            (6) exposure to asbestos has created a flood of litigation 
        in State and Federal 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) asbestos personal injury litigation can be unfair and 
        inefficient, imposing a severe burden on litigants and 
        taxpayers alike;
            (8) the extraordinary volume of nonmalignant asbestos cases 
        continues to strain State and Federal courts, with a 
        significant number of new cases filed each year;
            (9) asbestos personal injury litigation has already 
        contributed to the bankruptcy of more than 70 companies, 
        including nearly all manufacturers of asbestos textile and 
        insulation products, and the rate of asbestos-driven 
        bankruptcies is accelerating;
            (10) the vast majority of asbestos claims are filed by 
        individuals who allege they have been exposed to asbestos and 
        who may have some physical sign of exposure, but who suffer no 
        present asbestos-related impairment;
            (11) the cost of compensating exposed individuals who are 
        not sick jeopardizes the ability of defendants to compensate 
        people with cancer and other serious asbestos-related diseases, 
        now and in the future; threatens the savings, retirement 
        benefits, and jobs of defendants' current and retired 
        employees; adversely affects the communities in which these 
        defendants operate; and impairs the national economy and 
        interstate commerce;
            (12) the several thousand asbestos-related cancer cases 
        that are filed each year are manageable by the courts and the 
        litigants;
            (13) silica is a naturally occurring mineral with the 
        Earth's crust consisting of over 90 percent silica, and 
        crystalline silica dust is the primary component of sand, 
        quartz, and granite;
            (14) silicosis was recognized as an occupational disease 
        many years ago, and by the 1930s, the Federal Government 
        launched a silica awareness campaign, which led to greater 
        protection for workers exposed to silica resulting in a 
        predictable number of silica claims;
            (15) in recent years, however, the number of new lawsuits 
        alleging silica disease being filed each year began to rise 
        precipitously;
            (16) like asbestos claims, silica claims often arise when 
        an exposed person is identified as having markings on his or 
        her lungs that are possibly consistent with silica exposure, 
        but the exposed person has no functional or physical impairment 
        from silica;
            (17) therefore, it is necessary to address silica 
        litigation to avoid an asbestos-like litigation crisis;
            (18) concerns about statutes of limitations can force 
        claimants who have been exposed to asbestos or silica, 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;
            (19) consolidations, joinder, and similar procedures, to 
        which some courts have resorted in order to deal with the mass 
        of asbestos and silica 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;
            (20) 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;
            (21) excessive, unpredictable, and often arbitrary damage 
        awards and unfair allocations of liability jeopardize the 
        financial well-being of many individuals, businesses, and 
        entire industries, particularly the Nation's small businesses;
            (22) punitive damage awards unfairly divert the resources 
        of defendants from compensating genuinely impaired claimants 
        and, given the lengthy history of asbestos and silica 
        litigation and the regulatory restrictions on the use of 
        asbestos-containing products in the workplace, the legal 
        justification for such awards--punishment and deterrence--is 
        either inapplicable or inappropriate; and
            (23) the public interest and the interest of interstate 
        commerce requires deferring the claims of exposed individuals 
        who are not sick in order to preserve, now and for the future, 
        defendants' ability to compensate people who develop cancer and 
        other serious asbestos, or related, injuries and to 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 or silica claimants who 
        can demonstrate actual physical harm or illness caused by 
        exposure to asbestos or silica;
            (2) fully preserve the rights of claimants who were exposed 
        to asbestos or silica to pursue compensation should they become 
        impaired in the future as a result of such exposure;
            (3) enhance the ability of the State and Federal judicial 
        systems to supervise and control asbestos and silica 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 impaired by exposure to 
        asbestos or silica while securing the right to similar 
        compensation for those who may suffer physical impairment in 
        the future.

SEC. 3. PHYSICAL IMPAIRMENT.

    (a) Impairment Essential Element of Claim.--Physical impairment of 
the exposed person, to which asbestos or silica exposure was a 
substantial contributing factor, shall be an essential element of an 
asbestos or silica claim.
    (b) Prima Facie Evidence of Physical Impairment for Nonmalignant 
Asbestos Claims.--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. Such 
a prima facie showing shall include all of the following minimum 
requirements:
            (1) Evidence verifying that a qualified physician has taken 
        a detailed occupational and exposure history of the exposed 
        person or, if such person is deceased, from the person who is 
        the most knowledgeable about the exposures that form the basis 
        of the nonmalignant asbestos claim, including--
                    (A) all of the exposed person's principal places of 
                employment and exposures to airborne contaminants; and
                    (B) whether each place of employment involved 
                exposures to airborne contaminants (including but not 
                limited to asbestos fibers or other disease causing 
                dusts) that can cause pulmonary impairment and the 
                nature, duration, and level of any such exposure.
            (2) Evidence verifying that a qualified physician has taken 
        detailed medical and smoking history, including a thorough 
        review of the exposed person's past and present medical 
        problems, and their most probable cause.
            (3) 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 pursuant 
        to the AMA Guides to the Evaluation of Permanent Impairment.
            (4) A diagnosis by a qualified physician of asbestosis or 
        diffuse pleural thickening, based at a minimum on radiological 
        or pathological evidence of asbestosis or radiological evidence 
        of diffuse pleural thickening.
            (5) 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--
                    (A) total lung capacity, by plethysmography or 
                timed gas dilution, below the predicted lower limit of 
                normal; or
                    (B) forced vital capacity below the lower limit of 
                normal and a ratio of FEV1 to FVC that is equal to or 
                greater than the predicted lower limit of normal; and
                    (C) a chest x-ray showing small, irregular 
                opacities (s,t,u) graded by a certified B-reader at 
                least 2/1 on the ILO scale.
    (c) Prima Facie Evidence of Asbestos-Related Lung Cancer.--No 
person shall bring or maintain a civil action alleging an asbestos 
claim which is based upon lung cancer, in the absence of a prima facie 
showing which shall include the following minimum requirements:
            (1) Diagnosis by a Board-certified pathologist, pulmonary 
        specialist, or oncologist of a primary lung cancer and that 
        exposure to asbestos was a substantial contributing factor to 
        the lung cancer.
            (2) Evidence sufficient to demonstrate that at least 10 
        years have elapsed between the date of first exposure to 
        asbestos and the date of diagnosis of the lung cancer.
            (3) Depending on whether the exposed person has a history 
        of smoking, the requirements of either (A) or (B) below--
                    (A) in the case of an exposed person who is a 
                nonsmoker, either--
                            (i) radiological or pathological evidence 
                        of asbestosis or radiological evidence of 
                        diffuse pleural thickening; or
                            (ii) either--
                                    (I) evidence of the exposed 
                                person's substantial occupational 
                                exposure to asbestos; or
                                    (II) evidence of the exposed 
                                person's exposure to asbestos at least 
                                equal to 25 fiber per cc years as 
                                determined to a reasonable degree of 
                                scientific probability by a 
                                scientifically valid retrospective 
                                exposure reconstruction conducted by a 
                                certified industrial hygienist or 
                                certified safety professional based 
                                upon all reasonably available 
                                quantitative air monitoring data and 
                                all other reasonably available 
                                information about the exposed person's 
                                occupational history and history of 
                                exposure to asbestos; or
                    (B) in the case of an exposed person who is a 
                smoker, the criteria contained in both (A)(i) and 
                (A)(ii) must be met.
    (d) Prima Facie Evidence of Asbestos-Related Other Cancer.--No 
person shall bring or maintain a civil action alleging an asbestos 
claim which is based upon cancer of the colon, rectum, larynx, pharynx, 
esophagus, or stomach, in the absence of a prima facie showing which 
shall include the following minimum requirements:
            (1) A diagnosis by a Board-certified pathologist, Board-
        certified pulmonary specialist, or Board-certified oncologist 
        (as appropriate for the type of cancer claimed) of primary 
        cancer of the colon, rectum, larynx, pharynx, esophagus, or 
        stomach, and that exposure to asbestos was a substantial 
        contributing factor to the condition.
            (2) Evidence sufficient to demonstrate that at least 10 
        years have elapsed between the date of first exposure to 
        asbestos and the date of diagnosis of the cancer.
            (3) The requirements of (A) and (B) below--
                    (A) radiological or pathological evidence of 
                asbestosis or radiological evidence of diffuse pleural 
                thickening; and
                    (B) either of the following:
                            (i) Evidence of the exposed person's 
                        substantial occupational exposure to asbestos.
                            (ii) Evidence of the exposed person's 
                        exposure to asbestos at least equal to 25 fiber 
                        per cc years as determined to a reasonable 
                        degree of scientific probability by a 
                        scientifically valid retrospective exposure 
                        reconstruction conducted by a certified 
                        industrial hygienist or certified safety 
                        professional based upon all reasonably 
                        available quantitative air monitoring data and 
                        all other reasonably available information 
                        about the exposed person's occupational history 
                        and history of exposure to asbestos.
    (e) Prima Facie Requirement for Mesothelioma.--No person shall 
bring or maintain a civil action alleging an asbestos claim based upon 
mesothelioma, in the absence of a prima facie showing which shall 
include a diagnosis of malignant mesothelioma disease on the basis of 
findings by a qualified physician and credible evidence of identifiable 
exposure to asbestos resulting from--
            (1) occupational exposure to asbestos;
            (2) exposure to asbestos fibers brought into the home of 
        the claimant by a worker occupationally exposed to asbestos; or
            (3) exposure to asbestos fibers resulting from living or 
        working in the proximate vicinity of a factory, shipyard, 
        building demolition site, or other operation that regularly 
        released asbestos fibers into the air due to operations 
        involving asbestos at that site.
    (f) Prima Facie Evidence of Physical Impairment for Nonmalignant 
Silica Claims.--No person shall bring or maintain a civil action 
alleging a nonmalignant silica claim in the absence of a prima facie 
showing of physical impairment as a result of a medical condition to 
which exposure to silica was a substantial contributing factor. Such a 
prima facie showing shall include all of the following minimum 
requirements:
            (1) Evidence verifying that a qualified physician has taken 
        a detailed occupational and exposure history of the exposed 
        person or, if such person is deceased, from the person who is 
        the most knowledgeable about the exposures that form the basis 
        of the nonmalignant silica claim, including--
                    (A) all of the exposed person's principal places of 
                employment and exposures to airborne contaminants; and
                    (B) whether each place of employment involved 
                exposures to airborne contaminants (including but not 
                limited to silica or other disease causing dusts) that 
                can cause pulmonary impairment and the nature, 
                duration, and level of any such exposure.
            (2) Evidence verifying that a qualified physician has taken 
        detailed medical and smoking history, including a thorough 
        review of the exposed person's past and present medical 
        problems, and their most probable cause.
            (3) A determination by a qualified physician, on the basis 
        of a medical examination and pulmonary function testing, that 
        the exposed person has both--
                    (A) a permanent respiratory impairment rating of at 
                least Class 2 as defined by and evaluated pursuant to 
                the AMA Guides to the Evaluation of Permanent 
                Impairment; and
                    (B) silicosis based at a minimum on radiological or 
                pathological evidence of silicosis.
    (g) Prima Facie Evidence of Silica-Related Lung Cancer.--No person 
shall bring or maintain a civil action alleging an asbestos claim which 
is based upon lung cancer, in the absence of a prima facie showing 
which shall include the following minimum requirements:
            (1) Diagnosis by a Board-certified pathologist, pulmonary 
        specialist, or oncologist of a primary lung cancer and that 
        exposure to silica was a substantially contributing factor to 
        the condition.
            (2) Evidence sufficient to demonstrate that at least 10 
        years have elapsed from the date of the exposed person's first 
        exposure to silica until the date of diagnosis of the exposed 
        person's primary lung cancer.
            (3) Depending on whether the exposed person has a history 
        of smoking, the requirements of either (A) or (B) below--
                    (A) in the case of an exposed person who is a 
                nonsmoker, either--
                            (i) radiological or pathological evidence 
                        of silicosis; or
                            (ii) evidence of the exposed person's 
                        substantial occupational exposure to silica; or
                    (B) in the case of an exposed person who is a 
                smoker, the criteria contained in both (A)(i) and 
                (A)(ii) must be met.
    (h) Compliance With Technical Standards.--Evidence relating to 
physical impairment under this section, including pulmonary function 
testing and diffusing studies, shall comply with the technical 
recommendations for examinations, testing procedures, quality 
assurance/quality control, and equipment of the AMA Guides to the 
Evaluation of Permanent Impairment. No adjustments with respect to 
pulmonary function testing shall be made on the basis of race.
    (i) No Presumption at Trial.--Presentation of prima facie evidence 
meeting the requirements of subsection (b), (c), (d), (f), or (g) of 
this section shall not--
            (1) result in any presumption at trial that the exposed 
        person is impaired by an asbestos- or silica-related condition;
            (2) be conclusive as to the liability of any defendant; and
            (3) be admissible at trial.

SEC. 4. PROCEDURES.

    (a) Consolidation.--A court may consolidate for trial any number 
and type of asbestos or silica claims with consent of all the parties. 
In the absence of such consent, the court may consolidate for trial 
only asbestos or silica claims relating to the same exposed person and 
members of his or her household.
    (b) Federal Venue.--The Federal district courts shall have original 
jurisdiction of any asbestos or silica claim. A civil action alleging 
an asbestos or silica claim may only be brought in the Federal district 
court of plaintiff's domicile or where all, or a substantial part, 
including the most significant, exposure to asbestos or silica 
occurred, that is a substantial contributing factor to the physical 
impairment on which the claim is based.
    (c) Preliminary Proceedings.--The plaintiff in any civil action 
alleging an asbestos or silica claim shall file together with the 
complaint or other initial pleading a written report and supporting 
test results constituting prima facie evidence of the exposed person's 
asbestos- or silica-related impairment meeting the requirements of 
subsection (b), (c), (d), (f), or (g) of section 3. For any asbestos or 
silica claim pending on the effective date of this Act, the plaintiff 
shall file such a written report and supporting test results no later 
than 60 days following the effective date, or if trial is scheduled 
within 60 days of the effective date, no later than 30 days prior to 
trial. The defendant shall be afforded a reasonable opportunity to 
challenge the adequacy of the proffered prima facie evidence of 
asbestos- or silica-related impairment. The plaintiff's claim shall be 
dismissed without prejudice upon a finding of failure to make the 
required prima facie showing.
    (d) Burden of Proof.--The plaintiff in any civil action alleging an 
asbestos or silica claim shall have the following burden of proof:
            (1) The plaintiff must prove that the conduct of each 
        defendant was a substantial contributing factor of the exposed 
        person's asbestos- or silica-related impairment.
            (2) The plaintiff must prove exposure to asbestos or silica 
        that was manufactured, supplied, installed, or used by each 
        defendant in the civil action and that the plaintiff's exposure 
        to each defendant's asbestos or silica was a substantial factor 
        in causing the asbestos- or silica-related impairment. In 
        determining whether exposure to a particular defendant's 
        asbestos or silica was a substantial contributing factor in 
        causing the asbestos- or silica-related impairment, the trier 
        of fact in the civil action shall consider, without limitation, 
        all of the following:
                    (A) The manner in which the plaintiff was exposed 
                to defendant's asbestos or silica.
                    (B) The proximity of the defendant's asbestos or 
                silica to the plaintiff when the exposure to the 
                defendant's asbestos or silica occurred.
                    (C) The frequency and length of the plaintiff's 
                exposure to the defendant's asbestos or silica.
                    (D) Any factors that mitigated or enhanced the 
                plaintiff's exposure to asbestos or silica.

SEC. 5. STATUTE OF LIMITATIONS; TWO-DISEASE RULE.

    (a) Statute of Limitations.--Notwithstanding any other provision of 
law, with respect to any asbestos or silica claim not barred as of 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 he or she is 
physically impaired by an asbestos- or silica-related condition.
    (b) Two-Disease Rule.--An asbestos or silica claim arising out of a 
nonmalignant condition shall be a distinct cause of action from an 
asbestos or silica claim relating to the same exposed person arising 
out of asbestos- or silica-related cancer. No damages shall be awarded 
for fear or risk of cancer in any civil action asserting an asbestos or 
silica claim.

SEC. 6. SCOPE OF LIABILITY; DAMAGES.

    (a) Proportional Liability.--A defendant against whom a final 
judgment is entered in a civil action alleging an asbestos or silica 
claim shall be liable only for that portion of the judgment that 
corresponds to the percentage of responsibility of such defendant. For 
the purposes of determining the percentage of responsibility of a 
defendant, the trier of fact shall determine that percentage as a 
percentage of the total fault of all persons (including the plaintiff 
and those who have filed for bankruptcy protection) who are responsible 
for the harm to the plaintiff, regardless of whether or not such person 
is a party to the action. The court shall render a separate judgment 
against each defendant in an amount determined pursuant to this 
subsection.
    (b) Noneconomic Loss.--In any civil action alleging an asbestos or 
silica claim, the total amount of damages that may be awarded for 
noneconomic loss shall not exceed $250,000, regardless of the number of 
parties against whom the action is brought. However, in actions 
involving an asbestos or silica claim based upon mesothelioma, the 
total amount of damages that may be awarded for noneconomic loss shall 
not exceed $500,000.
    (c) Punitive Damages.--No punitive damages shall be awarded in any 
civil action alleging an asbestos or silica claim.
    (d) Collateral Source Payments.--At the time a complaint is filed 
in a civil action alleging an asbestos or silica claim, the plaintiff 
must file a written report with the court that discloses the total 
amount of any collateral source payments received, including payments 
which the plaintiff will receive in the future, as a result of 
settlements or judgments based upon the same claim. For any asbestos or 
silica claim pending on the date of enactment of this Act, the 
plaintiff shall file such written report no later than 60 days after 
the date of enactment, or if trial is scheduled within 60 days of 
enactment, no later than 30 days prior to trial. Further, the plaintiff 
shall be required to update this report on a regular basis during the 
course of the proceeding until a final judgment is entered in the case. 
The court shall ensure that the information contained in the initial 
and updated reports is treated as privileged and confidential and that 
the contents of the written reports shall not be disclosed to anyone 
except the other parties to the action. The amount of an award 
otherwise available to an asbestos or silica plaintiff shall be reduced 
by the amount of collateral source compensation disclosed pursuant to 
this section.

SEC. 7. LIABILITY RULES APPLICABLE TO PRODUCT SELLERS, RENTERS, 
              LESSORS, AND PREMISES OWNERS.

    (a)(1) In General.--In any civil action alleging an asbestos or 
silica claim, a product seller other than a manufacturer shall be 
liable to a plaintiff only if the plaintiff establishes that--
            (A)(i) the product that allegedly caused the harm that is 
        the subject of the complaint was sold, rented, or leased by the 
        product seller;
            (ii) the product seller failed to exercise reasonable care 
        with respect to the product; and
            (iii) the failure to exercise reasonable care was a 
        proximate cause of the harm to the exposed person;
            (B)(i) the product seller made an express warranty 
        applicable to the product that allegedly caused the harm that 
        is the subject of the complaint, independent of any express 
        warranty made by the manufacturer as to the same product;
            (ii) the product failed to conform to the warranty; and
            (iii) the failure of the product to conform to the warranty 
        caused the harm to the exposed person; or
            (C)(i) the product seller engaged in intentional 
        wrongdoing, as determined under applicable State law; and
            (ii) the intentional wrongdoing caused the harm that is the 
        subject of the complaint.
    (2) Reasonable Opportunity for Inspection.--For the purposes of 
paragraph (1)(A)(i), a product seller shall not be considered to have 
failed to exercise reasonable care with respect to a product based upon 
an alleged failure to inspect the product, if--
            (A) the failure occurred because there was no reasonable 
        opportunity to inspect the product; or
            (B) the inspection, in the exercise of reasonable care, 
        would not have revealed the aspect of the product that 
        allegedly caused the exposed person's impairment.
    (b) Rented or Leased Products.--In any civil action alleging an 
asbestos or silica claim, a person engaged in the business of renting 
or leasing a product shall not be liable for the tortious act of 
another solely by reason of ownership of that product.
    (c) Premises Owners.--In any civil action alleging an asbestos or 
silica claim, a premises owner, or any entity performing any operations 
on a premises, is not liable to a plaintiff for asbestos or silica 
claims, unless that plaintiff's alleged exposure occurred while the 
exposed person was at the premises.

SEC. 8. 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) as 
        may be modified from time to time by the American Medical 
        Association.
            (2) Asbestos.--The term ``asbestos'' includes all minerals 
        defined as ``asbestos'' in 29 CFR 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 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. 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) Bankruptcy proceeding.--The term ``bankruptcy 
        proceeding'' means a case brought under title 11, United States 
        Code, or any related proceeding as provided in section 157 of 
        title 28, United States Code.
            (6) Board-certified in internal medicine.--The term 
        ``Board-certified in internal medicine'' means a physician who 
        is certified by the American Board of Internal Medicine or the 
        American Osteopathic Board of Internal Medicine.
            (7) Board-certified in occupational medicine.--The term 
        ``Board-certified in occupational medicine'' means a physician 
        who is certified in the subspecialty of occupational medicine 
        by the American Board of Preventive Medicine or the American 
        Osteopathic Board of Preventive Medicine.
            (8) Board-certified in oncology.--The term ``Board-
        certified in oncology'' means a physician who is certified in 
        the subspecialty of medical oncology by the American Board of 
        Internal Medicine or the American Osteopathic Board of Internal 
        Medicine.
            (9) Board-certified in pathology.--The term ``Board-
        certified in pathology'' means a physician who holds primary 
        certification in anatomic pathology or clinical pathology from 
        the American Board of Pathology or the American Osteopathic 
        Board of Internal Medicine and whose professional practice--
                    (A) is principally in the field of pathology; and
                    (B) involves regular evaluation of pathology 
                materials obtained from surgical or postmortem 
                specimens.
            (10) Board-certified in pulmonary medicine.--The term 
        ``Board-certified in pulmonary medicine'' means a physician who 
        is certified in the subspecialty of pulmonary medicine by the 
        American Board of Internal Medicine or the American Osteopathic 
        Board of Internal Medicine.
            (11) Certified b-reader.--The term ``certified B-reader'' 
        means an individual qualified as a ``final'' or ``B-reader'' 
        under 42 CFR 37.51(b) as amended.
            (12) Civil action.--The term ``civil action'' means all 
        suits or claims of a civil nature in State or Federal court, 
        whether cognizable as cases at law or in equity or in 
        admiralty, including an asbestos or silica claim in a 
        bankruptcy proceeding. The term does not include an action 
        relating to any workers' compensation law, or a proceeding for 
        benefits under any veterans' benefits program.
            (13) Economic loss.--The term ``economic loss'' means any 
        pecuniary loss resulting from physical impairment, including 
        the loss of earnings or other benefits related to employment, 
        medical expense loss, replacement services loss, loss due to 
        death, burial costs, and loss of business or employment 
        opportunities.
            (14) Exposed person.--The term ``exposed person'' means any 
        person whose exposure to asbestos or silica or to asbestos- or 
        silica-containing products which is the basis for an asbestos 
        or silica claim.
            (15) Exposure years.--The term ``exposure years'' means--
                    (A) each single year of exposure prior to 1972 will 
                be counted as one year;
                    (B) each single year of exposure from 1972 through 
                1979 will be counted as one-half year; and
                    (C) exposure after 1979 will not be counted, except 
                that each year from 1972 forward for which the 
                plaintiff can establish exposure exceeding the OSHA 
                limit for 8-hour time-weighted average airborne 
                concentration for a substantial portion of the year 
                will count as one year.
            (16) FEV1.--The term ``FEV1'' means forced expiratory 
        volume in the first second, which is the maximal volume of air 
        expelled in one second during performance of simple spirometric 
        tests.
            (17) 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.
            (18) 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 
        (2000) as amended from time to time by the International Labour 
        Office.
            (19) Lung cancer.--The term ``lung cancer'' means a 
        malignant tumor located inside of the lungs, but such term does 
        not include an asbestos claim based upon mesothelioma.
            (20) Mesothelioma.--The term ``mesothelioma'' means a 
        malignant tumor with a primary site in the pleura, the 
        peritoneum, or pericardium, which has been diagnosed by a 
        Board-certified pathologist, using standardized and accepted 
        criteria of microscopic morphology and/or appropriate staining 
        techniques.
            (21) Noneconomic loss.--The term ``noneconomic loss'' means 
        subjective, nonmonetary loss resulting from physical 
        impairment, including pain, suffering, inconvenience, mental 
        anguish, emotional distress, disfigurement, loss of society and 
        companionship, loss of consortium, injury to reputation, or any 
        other nonpecuniary loss of any kind or nature.
            (22) Nonmalignant condition.--The term ``nonmalignant 
        condition'' means any condition that is caused or may be caused 
        by asbestos or silica other than a diagnosed cancer.
            (23) Nonsmoker.--The term ``nonsmoker'' means the exposed 
        person has not smoked cigarettes or used any other tobacco 
        products within 15 years from the date the person was diagnosed 
        with an asbestos- or silica-related disease.
            (24) Pathological evidence of asbestosis.--The term 
        ``pathological evidence of asbestosis'' means a statement by a 
        Board-certified pathologist that more than one 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 that there is no other more likely explanation for 
        the presence of the fibrosis.
            (25) Pathological evidence of silicosis.--The term 
        ``pathological evidence of silicosis'' means a statement by a 
        Board-certified pathologist that more than one representative 
        section of lung tissue uninvolved with any other disease 
        process demonstrates a pattern of round silica nodules and 
        birefringent crystals or other demonstration of crystal 
        structures consistent with silica (well-organized concentric 
        whorls of collagen surrounded by inflammatory cells) in the 
        lung parenchyma and that there is no other more likely 
        explanation for the presence of the fibrosis.
            (26) Predicted lower limit of normal.--The term ``predicted 
        lower limit of normal'' for any pulmonary function test means 
        the calculated standard convention lying at the fifth 
        percentile, below the upper 95 percent of the reference 
        population based on age, height, and gender, according to the 
        recommendations of the American Thoracic Society as referenced 
        in the AMA Guides to the Evaluation of Permanent Impairment 
        (5th Ed. 2000).
            (27) Premises owner.--The term ``premises owner'' means a 
        person who owns, in whole or in part, leases, rents, maintains, 
        or controls privately owned lands, ways or waters, or any 
        buildings and structures on those lands, ways or waters, and 
        all privately owned and State-owned lands, ways, or waters 
        leased to a private person, firm, or organization, including 
        any buildings and structures on those lands, ways or waters.
            (28) Pulmonary function test.--The term ``pulmonary 
        function test'' means spirometry, lung volume testing and 
        diffusion capacity testing (including appropriate measurements 
        and graphs) performed in accordance with the AMA Guides to the 
        Evaluation of Permanent Impairment (5th Ed. 2000), 20 CFR 404, 
        Subpart P, Appendix 1, Part (A), Sections 3.00 (E) and (F) 
        (2003) and the Official Statements of the American Thoracic 
        Society, ``Lung Function Testing: Selection of Reference Values 
        and Interpretative Strategies'', Am. Rev. Resp. Dis. 1991; 
        144:1202-1218; ``Standardization of Spirometry, 1994 Update'', 
        Am. J. Resp. Critical Care Med 1995; 152:1107-1136; and 
        ``Single-breath Carbon Monoxide Diffusion Capacity (Transfer 
        Factor): Recommendations for A Standard Technique-1995 
        Update'', Am. J. Resp. Critical Care Med 1995; 152:2185-2198.
            (29) Punitive damages.--The term ``punitive damages'' means 
        damages awarded against a defendant in order to punish or deter 
        such defendant or others from engaging in similar behavior in 
        the future.
            (30) Qualified physician.--The term ``qualified physician'' 
        means a medical doctor, who--
                    (A) is a Board-certified internist, oncologist, 
                pathologist, pulmonary specialist, radiologist, or 
                specialist in occupational and environmental medicine;
                    (B) has conducted a physical examination of the 
                exposed person;
                    (C) is actually treating or treated the exposed 
                person, and has or had a doctor-patient relationship 
                with such person at the time of the physical 
                examination;
                    (D) spends no more than 10 percent of his/her 
                professional practice time, or rendered more than 40 
                diagnoses, whichever quantity is smaller, in providing 
                consulting or expert services in connection with actual 
                or potential civil actions, and whose medical group, 
                professional corporation, clinic, or other affiliated 
                group earns not more than 20 percent of their revenues 
                from providing such services;
                    (E) is currently licensed to practice and actively 
                practices in the State where the plaintiff resides or 
                where the plaintiff's civil action was filed or was 
                licensed and practiced at the time of the physical 
                examination;
                    (F) receives or received payment for the treatment 
                of the exposed person from that person's health 
                maintenance organization or other medical provider, or 
                from the exposed person or from a member of the exposed 
                person's family; and
                    (G) a physician may not, as the basis for a 
                diagnosis, rely, in whole or in part, on any of--
                            (i) the reports or opinions of any doctor, 
                        clinic, laboratory, or testing company that 
                        performed an examination, test, or screening of 
                        the exposed person's medical condition in 
                        violation of any law, regulation, licensing 
                        requirement, or medical code of practice of the 
                        State in which the examination, test, or 
                        screening was conducted;
                            (ii) the reports or opinions of any doctor, 
                        clinic, laboratory, or testing company that 
                        performed an examination, test, or screening of 
                        the exposed person's medical condition that was 
                        conducted without clearly establishing a 
                        doctor-patient relationship with the exposed 
                        person or medical person involved in the 
                        examination, test, or screening process; or
                            (iii) the reports or opinions of any 
                        doctor, clinic, laboratory, or testing company 
                        that performed an examination, test, or 
                        screening of the exposed person's medical 
                        condition that required the exposed person to 
                        agree to retain the legal service of the law 
                        firm sponsoring the examination, test, or 
                        screening.
            (31) Radiological evidence of asbestosis.--The term 
        ``radiological evidence of asbestosis'' means a quality 1 chest 
        x-ray under the ILO system of classification (in a death case 
        where no pathology is available, the necessary radiological 
        findings may be made with a quality 2 film, if a quality 1 film 
        is not available) showing small, irregular opacities (s,t,u) 
        graded by a certified B-reader as at least 1/1 on the ILO 
        scale.
            (32) Radiological evidence of diffuse pleural thickening.--
        The term ``radiological evidence of diffuse pleural 
        thickening'' means a quality 1 chest x-ray under the ILO system 
        of classification (in a death case where no pathology is 
        available, the necessary radiological findings may be made with 
        a quality 2 film, if a quality 1 film is not available) showing 
        bilateral pleural thickening of at least B2 on the ILO scale 
        and blunting of at least one costophrenic angle.
            (33) Radiological evidence of silicosis.--The term 
        ``radiological evidence of silicosis'' means a chest x-ray 
        showing bilateral rounded or irregular opacities (p, q, or r) 
        in the upper lung fields graded by a certified B-reader as at 
        least 1/1 on the ILO scale.
            (34) Silica.--The terms ``silica'' means a respirable 
        crystalline form of silicon dioxide, including, but not limited 
        to, alpha, quartz, cristobalite, and trydmite.
            (35) Silica claim.--The term ``silica 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 silica, 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. 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.
            (36) Silicosis.--The term ``silicosis'' means nodular 
        interstitial fibrosis of the lungs caused by inhalation of 
        silica.
            (37) Smoker.--The term ``smoker'' means a person who has 
        smoked cigarettes or used other tobacco products within 15 
        years from the date the person was diagnosed with an asbestos, 
        silica, or mixed-dust related disease.
            (38) 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.
            (39) Substantial contributing factor.--The term 
        ``substantial contributing factor'' means--
                    (A) exposure to asbestos or silica is the 
                predominate cause of the physical impairment alleged in 
                the asbestos or silica claim;
                    (B) the exposure to asbestos or silica took place 
                on a regular basis over an extended period of time and 
                in close proximity to the exposed person; and
                    (C) a qualified physician has determined with a 
                reasonable degree of medical certainty that the 
                physical impairment of the exposed person would not 
                have occurred but for the asbestos or silica exposures.
            (40) Substantial occupational exposure to asbestos.--The 
        term ``substantial occupational exposure to asbestos'' means 
        employment for a cumulative period of at least ten years in an 
        industry and an occupation in which, for a substantial portion 
        of a normal work year for that occupation, the exposed person 
        did any of the following:
                    (A) Handled raw asbestos fibers.
                    (B) Fabricated asbestos-containing products so that 
                the person was exposed to raw asbestos fibers in the 
                fabrication process.
                    (C) Altered, repaired, or otherwise worked with an 
                asbestos-containing product in a manner that exposed 
                the person on a regular basis to asbestos fibers.
                    (D) Worked in close proximity to other workers 
                engaged in any of the activities described herein in a 
                manner that exposed the person on a regular basis to 
                asbestos fibers.
            (41) Total lung capacity.--The term ``total lung capacity'' 
        means the volume of air in the lungs after a maximal 
        inspiration as measured by either plethysmography or time gas 
        dilution techniques.
            (42) 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.
            (43) 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. 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 apply to any civil action asserting an asbestos or silica claim 
in which final judgment has not been entered as of the date of the 
enactment of this Act.
                                 <all>