109 HR 1957 IH: Asbestos Compensation Fairness Act of 2005 U.S. House of Representatives 2005-04-28 text/xml EN Pursuant to Title 17 Section 105 of the United States Code, this file is not subject to copyright protection and is in the public domain.

I 109th CONGRESS 1st Session H. R. 1957 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.

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

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.

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.

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.

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.

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.

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.

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).

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.

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.