Establishes within OAC: (1) an Asbestos Compensation Fund to make payments to claimants under this Act; and (2) an Office of Administrative Law Judges for expedited administrative adjudication of asbestos claims..
Requires the OAC to implement a legal assistance program to provide legal representation to claimants.
Prescribes guidelines governing: (1) medical eligibility; (2) damages; (3) come back rights; (4) class actions; (5) core claims; (6) eligible medical categories; (7) fiscal and financial management of the Asbestos Compensation Fund; and (8) transitional civil actions.
[Congressional Bills 108th Congress]
[From the U.S. Government Publishing Office]
[H.R. 1114 Introduced in House (IH)]
108th CONGRESS
1st Session
H. R. 1114
To establish legal standards and procedures for the fair, prompt,
inexpensive, and efficient resolution of personal injury claims arising
out of asbestos exposure, and for other purposes.
_______________________________________________________________________
IN THE HOUSE OF REPRESENTATIVES
March 6, 2003
Mr. Kirk (for himself, Mr. Hyde, Mrs. Johnson of Connecticut, Mr.
Portman, Mr. Shays, Mr. Burr, Mr. Mica, Mr. McCotter, Mr. Gillmor, Mr.
Shimkus, Mr. Tiberi, Ms. Ginny Brown-Waite of Florida, Ms. Ros-
Lehtinen, Mr. Foley, Mr. Baker, Mr. Kennedy of Rhode Island, Mr.
Doolittle, Mr. Castle, and Mr. McCrery) introduced the following bill;
which was referred to the Committee on the Judiciary
_______________________________________________________________________
A BILL
To establish legal standards and procedures for the fair, prompt,
inexpensive, and efficient resolution of personal injury claims arising
out of asbestos exposure, 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 Act of 2003''.
(b) Table of Contents.--The table of contents of this Act is as
follows:
Sec. 1. Short title; table of contents.
TITLE I--ESTABLISHMENT AND PROCEDURE
Sec. 101. Establishment of the Office of Asbestos Compensation.
Sec. 102. Medical eligibility review.
Sec. 103. Election of administrative process; settlement offers.
Sec. 104. Claimant's choice of forum.
Sec. 105. Administrative adjudication.
Sec. 106. Appeals; judicial review.
Sec. 107. Gathering and maintenance of information.
Sec. 108. Legal assistance program.
Sec. 109. Time limits for dispositions.
TITLE II--LAW APPLICABLE TO ASBESTOS ADJUDICATIONS
Sec. 201. Medical eligibility.
Sec. 202. Damages.
Sec. 203. Statute of limitations or repose.
Sec. 204. Come back rights.
Sec. 205. Class actions, aggregations of claims and venue.
Sec. 206. Joint and several liability.
Sec. 207. Core claims.
Sec. 208. Special rules applicable to section 105 adjudications.
Sec. 209. Special rules applicable to the trustee.
TITLE III--ELIGIBLE MEDICAL CATEGORIES
Sec. 301. Eligible medical categories.
Sec. 302. Asbestos-related non-malignant conditions with impairment.
Sec. 303. Asbestos-related mesothelioma.
Sec. 304. Asbestos-related lung cancer.
Sec. 305. Asbestos-related other cancer.
Sec. 306. Medical testing reimbursement.
TITLE IV--FUNDING
Sec. 401. Assessment and enforcement.
Sec. 402. Fiscal and financial management of the asbestos compensation
fund.
Sec. 403. Authorization for appropriations and offsetting collections.
TITLE V--TRANSITION
Sec. 501. Applicability; transitional civil actions.
TITLE VI--DEFINITIONS
Sec. 601. Definitions.
TITLE VII--MISCELLANEOUS PROVISIONS
Sec. 701. Relationship to other laws.
Sec. 702. Annual reports.
Sec. 703. Enforcement.
Sec. 704. Qualifying National Settlement Plan.
Sec. 705. Severability.
Sec. 706. Settlements.
TITLE I--ESTABLISHMENT AND PROCEDURE
SEC. 101. ESTABLISHMENT OF THE OFFICE OF ASBESTOS COMPENSATION.
(a) Establishment of Program; Administrator.--There is established
in the Department of Justice the Office of Asbestos Compensation (OAC)
to be headed by an Administrator. The Administrator shall be appointed
by the President by and with the advice and consent of the Senate. The
Administrator shall serve for a term of 10 years, and may be removed by
the Attorney General only for good cause. The Administrator shall have
authority to promulgate all procedural and substantive rules necessary
to administer this Act. All claims and other filings under this Act
shall be lodged with the office designated by the Administrator.
(b) Exclusive Jurisdiction.--Except as otherwise provided in this
Act, the OAC shall have exclusive jurisdiction over proceedings to
determine if a claimant is entitled to compensation for an asbestos
claim and the amount of such compensation. The foregoing shall not
apply to any claim brought under any workers' compensation law or
veterans' benefits program.
(c) Medical Director.--The Administrator shall appoint the Medical
Director and may remove the Medical Director for good cause. The
Medical Director shall, under the supervision of the Administrator,
manage the medical review process under section 102 and shall have the
authority to appoint or to contract for the services of claims
examiners, physicians, and such other personnel as may be necessary or
appropriate for the efficient conduct of the medical review process and
to create the exceptional medical claims panel.
(d) Asbestos Compensation Fund.--There is established in the OAC an
Asbestos Compensation Fund for the purpose of providing payments to
claimants under this Act. The Administrator shall appoint the Trustee
of the Asbestos Compensation Fund and may remove the Trustee for good
cause.
(e) Office of Administrative Law Judges.--There is established in
the OAC an Office of Administrative Law Judges for the purpose of
providing expedited administrative adjudication of asbestos claims
pursuant to section 105. The Administrator shall have authority to
appoint Administrative Law Judges on a temporary or emergency basis and
to remove such judges for good cause.
(f) Medical Advisory Committee.--The Administrator shall appoint a
Medical Advisory Committee which shall periodically evaluate this Act's
medical review process and medical eligibility criteria. The
Administrator shall set a term of appointment for members of the
Medical Advisory Committee. The Committee shall make appropriate
recommendations as and when it deems appropriate and shall submit an
annual report to the Administrator and the Congress.
SEC. 102. MEDICAL ELIGIBILITY REVIEW.
(a) Determination of Eligibility.--All claims when filed shall be
immediately referred to the Medical Director. The Medical Director
shall determine whether the claimant meets the requirements for medical
eligibility in section 301 or the requirements for medical testing
reimbursement in section 306.
(b) Information for Medical Review.--The Administrator shall issue
rules for the expeditious conduct of the medical review process. Such
rules at a minimum shall provide for the following:
(1) Submission of the following information where relevant
and feasible: smoking history; occupational history;
description of the circumstances, intensity, time, and duration
of exposure; medical test results necessary for a decision as
to whether an exposed person meets the requirements for one or
more medically eligible categories under sections 301, 302,
303, 304, 305, or 306, including all of the supporting data for
any pulmonary function tests on which the claimant relies
(including all flow volume loops, spirographs, and any other
tracings for any test that is performed). The claimant shall
also provide such medical releases as the Administrator may
require allowing the OAC to obtain any and all medical
information relevant to the determination of medical
eligibility.
(2) The Medical Director may require additional non-
invasive medical tests at the expense of the OAC if necessary
for a determination of medical eligibility.
(c) Procedures.--Upon receipt of a complete medical application,
the Medical Director shall send notice to the claimant confirming the
OAC's receipt of the claim. The Medical Director shall make an initial
decision within 30 days of such receipt. If the application is
initially denied, the claimant shall be so notified and, at the
claimant's request, the application shall be immediately referred to--
(1) a review panel of 2 qualified physicians, with a third
qualified physician available to resolve any disagreement
between the initial 2 qualified physicians; or
(2) an exceptional medical claims panel.
The Medical Director shall be bound by a panel's decision. The rules
shall also provide for the prioritization of claims, including enhanced
priority for claimants who have mesothelioma, and set a time limit for
a determination by the review panel.
(d) Exceptional Medical Claims.--The rules of the medical review
process shall provide the claimant with an opportunity to apply to an
exceptional medical claims panel for a determination of whether the
exposed person meets the requirements under section 301(b) for an
exceptional medical claim for any category. This opportunity shall be
provided both at the initial filing of a claim and after a claim has
been denied under this subsection. The exceptional medical claims panel
shall decide whether the claimant qualifies as an exceptional medical
claim within 30 days of receipt of the claim. This time limit may be
extended by the Administrator only for good cause. The Medical Director
shall be bound by the decision of the exceptional medical claims panel.
The Medical Director shall issue a final denial, along with a brief
statement of reasons, if the claimant is found ineligible following an
opportunity to submit the claim to a medical review panel and an
exceptional medical claims panel.
(e) Monitoring Accuracy of Determinations.--The Medical Director
shall establish audit and personnel review procedures for evaluating
the accuracy of medical eligibility determinations, including both
erroneous approvals and erroneous denials.
(f) Opt-Out.--After receiving a certificate of eligibility, a
claimant may opt out of settlement proceedings provided for under
sections 103 and 104 and elect to file suit in any State or Federal
court of competent jurisdiction.
SEC. 103. ELECTION OF ADMINISTRATIVE PROCESS; SETTLEMENT OFFERS.
(a) Naming and Notification of Defendants.--Medically eligible
claimants, other than those who elect to file suit in court under
section 102(f), shall name defendants. Defendants shall receive notice
from the Administrator.
(1) Identification of defendants associated with work
sites.--At the claimant's request, the Administrator will
provide information concerning person who may have provided
asbestos or asbestos-containing products or materials to work
sites named by the claimant and when such asbestos or asbestos-
containing products or materials may have been provided as well
as the time such products or materials were located at the
named work sites. The Administrator may implement this
paragraph through rulemaking.
(2) Verified particularized statement.--Within such time
after receiving a certificate of medical eligibility as may be
provided by rule, a claimant shall provide, with respect to
each person that the claimant alleges is responsible for the
injury claimed, a verified particularized statement of the
basis for the allegation that the person is or may be
responsible for the injury. The particularized statement shall
include such information as the Administrator may require for
the purpose of providing the defendant with a reasonable basis
for making an offer of settlement. The claimant may incorporate
by reference any information required by this paragraph that
may already have been submitted to the OAC.
(3) Notice.--Upon finding that the claimant's
particularized statement meets the requirements of paragraph
(2), the Administrator shall provide notice to each named
defendant. The defendant shall at the same time be furnished
with a copy of all particularized statements submitted by the
claimant under paragraph (2) and, subject to reasonable rules
protecting the confidentiality of information provided by the
claimant, a copy of all information submitted by the claimant,
records and other information obtained by the Medical Director
relating to the claim and the results of any medical tests
administered at the direction of the Medical Director. Any
defendant may provide any information relevant to the amount of
any recommended settlement under subsection (b), including
information regarding product identification, exposure, and
damages.
(4) Third-party practice.--Defendants may assert third-
party claims in accordance with rules adopted by the
Administrator. Third-party claimants shall provide a verified
particularized statement, meeting the requirements of paragraph
(2), substantiating the allegation that the third-party
defendant may be liable to the third-party plaintiff, wholly or
in part, for the claimant's injury. For good cause shown and
subject to reasonable limitations, an Administrative Law Judge
may allow discovery for the purpose of obtaining information
necessary to allow the claimant or any third-party plaintiff to
provide a particularized statement under paragraph (2) or this
paragraph.
(b) Settlement Offers; Offer of Compensation by the Trustee.--
(1) Mandatory offer from defendants.--Within 21 days
following the naming of all defendants, each defendant shall
provide to the claimant in writing a good faith settlement
offer, and shall provide a copy to the Trustee.
(2) Mandatory offer from asbestos compensation fund.--
Within 10 days of receiving all of the defendants' offers, the
Trustee shall make an offer of compensation to the claimant,
based on a compensation grid which shall be established and
regularly revised by rule.
SEC. 104. CLAIMANT'S CHOICE OF FORUM.
(a) In General.--The claimant shall notify each defendant and the
Trustee whether the claimant accepts or rejects the defendant's
settlement offer under section 103(b)(1). If the claimant accepts any
such offer, or any other settlement offer, the Trustee's offer of
compensation shall be automatically reduced by the amount of such
settlements.
(b) Notice.--The claimant shall notify the Trustee and any
defendant within 60 days whether the claimant accepts or rejects an
offer that has been provided pursuant to section 103(b)(1) or
103(b)(2).
(c) Orphan Shares.--The Trustee shall not make an offer to the
claimant under section 103(b) if no solvent defendant has been named.
(d) Acceptance.--If the claimant accepts the Trustee's offer of
compensation, the Trustee shall assume the claim. The Trustee may
accept any defendant's settlement offer under section 103(b)(1) or may
prosecute the claim against any defendant as provided in section 105,
or may prosecute the claim in any State or Federal court.
(e) Rejection.--If the claimant rejects any defendant's settlement
offer and also rejects the Trustee's offer of compensation, the
claimant may elect an administrative adjudication under section 105 or
opt out of further administrative proceedings and file suit in a State
or Federal court.
SEC. 105. ADMINISTRATIVE ADJUDICATION.
If a claimant elects adjudication under this section, the OAC shall
assign an Administrative Law Judge to conduct a hearing on the record
and to determine whether compensation is to be provided and the amount
of such compensation. The Administrative Law Judge shall adhere to the
law applicable to asbestos adjudications as contained in sections 201
through 210. The Administrative Law Judge shall issue a decision,
containing findings of fact and conclusions of law, as expeditiously as
possible, but not later than 90 days after the case is assigned.
SEC. 106. APPEALS; JUDICIAL REVIEW.
Any person aggrieved by a final decision of the Administrator under
section 105 or a final denial by the Medical Director under section
102, may seek review of that decision or denial in the United States
Court of Federal Claims, which shall uphold the decision or denial if
it is supported by substantial evidence and is not contrary to law. A
decision by the Medical Director that a claimant has an eligible
medical condition is not a final decision under this section. Decisions
of the United States Court of Federal Claims are appealable, without
regard to the amount in controversy or the citizenship of the parties,
to a United States Court of Appeals for a judicial circuit.
SEC. 107. GATHERING AND MAINTENANCE OF INFORMATION.
(a) Product Identification.--The OAC shall collect and regularly
update information regarding product identification and shall make such
information publicly available. The data base maintained by the OAC
under this section is for information purposes only, and the presence
of information in that database shall not lead to any presumption.
(b) Settlements, Judgments, and Awards.--The OAC shall collect data
on settlements, judgments, and awards in connection with asbestos
claims and shall make such data publicly available. The OAC may require
this data to be reported in such form as it may prescribe.
(c) Subpoena Power.--The OAC may compel, by subpoena or other
appropriate process, information from any person regarding past
settlements or product identification for purposes of developing and
maintaining a compensation grid under section 103(b)(2) and maintaining
a database for purposes of naming defendants under section 103(a)(1).
In addition, the subpoena power under this subsection may be used by
the OAC in order to secure financial information from any defendant.
(d) Confidentiality.--Any information or documentary material
concerning settlements which is specific to a company, law firm, or
plaintiff that is provided to the OAC pursuant to subsection (b) or
(c), whether by subpoena or otherwise, shall be exempt from disclosure
under section 552 of title 5, United States Code, and the disclosure of
such information by the OAC or any person is prohibited.
SEC. 108. LEGAL ASSISTANCE PROGRAM.
(a) In General.--The OAC shall implement a legal assistance program
for the purpose of providing legal representation to claimants. The OAC
shall maintain a roster of qualified counsel who agree to provide
services to claimants under rules, practices, and procedures
established by the Administrator.
(b) Free Choice of Counsel.--Claimants shall not be required to use
counsel provided or recommended by the OAC, but shall retain their
right to be assisted by counsel of their choice.
(c) Legal Assistance.--The OAC shall adopt rules concerning the
reasonableness of fees, and all legal representation of persons
asserting asbestos claims shall comply with such rules.
SEC. 109. TIME LIMITS FOR DISPOSITIONS.
(a) In General.--If the Medical Director fails to meet the time
limits for an initial decision provided under this Act with respect to
more than 30 percent of claims, then the Administrator shall take such
action as may be necessary, including increasing staff and
administrative assessments under section 401, to ensure compliance with
such time limit with regard to at least 70 percent of claims.
(b) No Offer.--If the Trustee fails to make an offer within 120
days after the Administrator's receipt of a complete application under
section 102 with respect to more than 30 percent of claims, then the
Administrator shall take such action as may be necessary, including
increasing staff and administrative assessments under section 401, to
ensure compliance with such time limit with regard to at least 70
percent of claims.
(c) Duties.--The duties established by subsections (a) and (b)
shall be non-discretionary and enforceable by an order of mandamus from
any judge of the United States Court of Federal Claims.
(d) Exceptions.--The Administrator may by rule establish exceptions
to the time limits in this section. Such rules shall take into
consideration the complexity of the case, the extent to which delays
are attributable to the fault or neglect of the claimant or the
claimant's attorney and other factors that are beyond the control of
the OAC.
TITLE II--LAW APPLICABLE TO ASBESTOS ADJUDICATIONS
SEC. 201. MEDICAL ELIGIBILITY.
A claimant may recover compensation for damages caused by an
eligible medical condition only if the claimant presents a certificate
of medical eligibility establishing its existence. A certificate of
medical eligibility shall be conclusive unless rebutted by clear and
convincing evidence. However, a certificate of medical eligibility
shall not be conclusive as to allegations regarding exposure to
asbestos or when medical eligibility is established pursuant to section
304(b).
SEC. 202. DAMAGES.
A claimant who establishes an eligible medical condition shall be
entitled to compensatory damages to the extent provided by applicable
law, including damages for emotional distress, pain and suffering, and
medical monitoring where authorized. Such damages shall not include
punitive damages or damages solely for enhanced risk of a future
condition, except as provided in section 208(d).
SEC. 203. STATUTE OF LIMITATIONS OR REPOSE.
No defense to an asbestos claim based on a statute of limitations
or statute of repose, laches, or any other defense based on the
timeliness of the claim shall be recognized or allowed, unless such
claim was untimely as of the date of enactment of this Act. No claim
shall be deemed to have accrued until and unless the claimant's
condition would have qualified as an eligible medical condition under
section 302, 303, 304, or 305.
SEC. 204. COME BACK RIGHTS.
Notwithstanding any other provision of law, a judgment or
settlement of an asbestos claim for a non-malignant disease shall not
preclude a subsequent claim with respect to the same exposed person for
an eligible medical condition pursuant to section 301(b), 303, 304, or
305.
SEC. 205. CLASS ACTIONS, AGGREGATIONS OF CLAIMS AND VENUE.
(a) Consolidations.--No joinder of parties, aggregation of claims,
consolidation of actions, extrapolation, or other device to determine
multiple asbestos claims on a collective basis shall be permitted
without the consent of all parties, except as provided in subsection
(b) or unless the court, pursuant to an exercise of judicial authority
to promote the just and efficient conduct of asbestos civil actions,
orders such procedures, including the transfer for consolidation, to
determine multiple asbestos claims on a collective basis.
(b) Class Action Suits.--In any civil action asserting an asbestos
claim, a class action may be allowed without the consent of all parties
if the requirements of Rule 23, Federal Rules of Civil Procedure are
satisfied.
(c) Venue.--At the election of the claimant, an asbestos claim may
be filed in any jurisdiction where the claimant is alleging that the
claimant was exposed to asbestos or where the claimant is currently
domiciled.
(d) Removal.--Any party in a civil action that involves a violation
of subsection (a), (b) or (c) of this section may remove such action to
an appropriate district court of the United States. The district courts
of the United States shall have jurisdiction of all civil actions
removed pursuant to this section without regard to diversity of
citizenship or amount in controversy.
(e) Administrative Proceedings.--In any proceeding under section
105, the Administrative Law Judge may order adjudication of claims on a
collective basis.
SEC. 206. JOINT AND SEVERAL LIABILITY.
This Act shall not be construed to limit joint and several
liability under applicable Federal or State law. In any core claim that
is successfully asserted against a defendant, such defendant shall be
held jointly and severally liable for full compensatory damages to the
claimant notwithstanding any contrary provision of law.
SEC. 207. CORE CLAIMS.
In any core claim, the issues to be decided shall be limited to--
(1) whether the exposed person with respect to whom a claim
is made has or had an eligible medical condition;
(2) whether the exposure of the exposed person to the
product of the defendant was a substantial contributing factor
in causing that eligible medical condition; and
(3) the amount of compensation to be provided.
SEC. 208. SPECIAL RULES APPLICABLE TO SECTION 105 ADJUDICATIONS.
(a) Applicable Law.--Unless otherwise provided in this Act, in
claims based on State law, the Administrative Law Judge shall, with
respect to each defendant, apply the substantive law of the State which
has the most significant relationship to the exposure and the parties.
(b) Full Compensatory Damages in Wrongful Death Cases.--
Notwithstanding any contrary provision of State law, full compensatory
damages, including damages for non-economic loss, shall be awarded in
wrongful death claims involving mesothelima. In all other cases,
damages for non-economic loss may be awarded to the extent that they
are available pursuant to applicable law.
(c) Penalty for Inadequate Offer.--In any proceeding against a
defendant by a claimant under section 105, and in any proceeding by the
Trustee, if the final offer made by any defendant is less than the
share of the total liability awarded against that defendant, a penalty
shall be added to the award equal to 100 percent of the difference
between the defendant's settlement offer under section 103(b) and the
lesser of--
(1) the defendant's share of the offer made by the Trustee
under section 103(b); or
(2) the defendant's share of the award made under section
105.
(d) Punitive Damages.--Punitive damages may be awarded against a
defendant if the claimant establishes by clear and convincing evidence
that the conduct carried out by the defendant with a conscious,
flagrant indifference to the rights or safety of others was the
proximate cause of the harm that is the subject of the asbestos claim.
Punitive damages may not exceed 3 times the amount of the award
pursuant to a section 105 adjudication plus any penalties added to that
award pursuant to subsection (c).
SEC. 209. SPECIAL RULES APPLICABLE TO THE TRUSTEE.
In an action by the Trustee as assignee of the claimant, the award
under section 104(d) shall include compensatory damages for the
claimant's injury and all punitive damages under section 208(d), any
penalties for inadequate offers by defendants, and the Trustee's costs
in establishing the claim, including reasonable attorneys' fees and
expenses and an allowance for interest on the amount paid by the Fund
to the claimant under section 104. Interest shall be calculated from
the time of such payments, and in accordance with Title IV. All
economic and non-economic damages recovered by the Fund in excess of
200 percent of the amount paid to the claimant pursuant to section 104
and all punitive damages under section 208(d) shall be paid to the
settling claimant. The fact that the claimant has accepted an offer of
compensation by the Trustee, and the amount and terms of such offer,
shall not be admissible in any adjudication of a claim brought by the
Trustee against any defendant.
TITLE III--ELIGIBLE MEDICAL CATEGORIES
SEC. 301. ELIGIBLE MEDICAL CATEGORIES.
(a) In General.--The eligible medical categories under this Act are
asbestos-related non-malignant conditions with impairment, asbestos-
related mesothelioma, asbestos-related lung cancer, and asbestos-
related other cancer.
(b) Establishing Existence.--A claimant may establish the existence
of an eligible medical condition either by demonstrating that the
exposed person meets the standard criteria provided in sections 302,
303, 304, and 305 or by demonstrating to an exceptional medical claims
panel, through reliable evidence, that the exposed person has an
asbestos-related impairment that is substantially comparable to the
condition of an exposed person who would satisfy the requirements of a
given medical category. The Administrator, after consultation with the
Medical Advisory Committee, may adopt rules consistent with this
section to assure consistency and efficiency in the designation of
claims as exceptional medical claims.
SEC. 302. ASBESTOS-RELATED NON-MALIGNANT CONDITIONS WITH IMPAIRMENT.
(a) In General.--The standard criteria for asbestos-related non-
malignant conditions with impairment shall include--
(1) clinical evidence of asbestosis,
(2) pathological evidence of asbestosis, or
(3) evidence of bilateral pleural thickening with
impairment.
(b) Obstructive Lung Disease.--A claimant shall not be disqualified
from compensation under this category solely because an exposed person
who otherwise meets the requirements for impairment has a reduced FEV1/
FVC ratio indicating obstructive lung disease. In that event, the
exceptional medical claims panel shall determine, giving due regard to
the evidence that any impairment is related to obstructive disease and
taking into consideration all available evidence, whether an asbestos-
related restrictive disease substantially contributes to the impairment
of the exposed person. Such a contribution shall be presumed if the
panel concludes, based upon the findings of a certified B-reader, that
the exposed person's chest x-ray is ILO Grade 2/1 or more.
SEC. 303. ASBESTOS-RELATED MESOTHELIOMA.
The standard criteria for asbestos-related mesothelioma shall
include a diagnosis by a qualified physician of a malignant
mesothelioma caused or contributed to by exposure to asbestos with a
primary site in the pleura, peritoneum, or like tissue, or reasonably
equivalent clinical diagnosis in the absence of adequate tissue for
pathological diagnosis.
SEC. 304. ASBESTOS-RELATED LUNG CANCER.
(a) In General.--The standard criteria for asbestos-related lung
cancer shall include--
(1) a diagnosis by a qualified physician of lung cancer
that the physician concludes was caused or contributed to by
exposure to asbestos;
(2) a latency period of at least 10 years; and
(3) either--
(A) evidence of asbestosis or bilateral pleural
thickening with impairment sufficient to meet the
requirements of section 302 or to qualify as an
exceptional medical claim under section 301(b); or
(B) chest x-rays which, in the opinion of a
certified B-reader, demonstrate asbestos-related
bilateral pleural plaques or thickening, and 7.5
equivalent-years of exposure to asbestos-containing
materials in employment regularly requiring work in the
immediate area of visible asbestos dust.
(b) History of Smoking.--If a finding of asbestos-related lung
cancer is made pursuant to paragraph (3)(B) and the exposed person has
a substantial history of smoking, which shall be defined by rule, the
claimant shall be medically eligible for compensation, but the finding
of asbestos-related lung cancer shall not be conclusive as to causation
for purposes of section 201.
SEC. 305. ASBESTOS-RELATED OTHER CANCER.
The standard criteria for asbestos-related other cancer shall
include a diagnosis by a qualified physician of a malignant primary
tumor of the larynx, oral-pharynx, gastro-intestinal tract, or stomach,
caused or contributed to by exposure to asbestos, together with
evidence of a condition sufficient to meet the requirements of section
302 or to qualify as an exceptional medical claim under section 301(b).
SEC. 306. MEDICAL TESTING REIMBURSEMENT.
(a) Level A.--A claimant with at least 4 equivalent-years of heavy
exposure to asbestos, whose chest x-ray shows either small irregular
opacities of ILO Grade 1/0 or bilateral pleural thickening of ILO Grade
B/2, shall be eligible for reimbursement of 100 percent of out-of-
pocket expenses for any medical testing required under section 102, up
to a ceiling of $1500. Level A claimants shall be eligible at 3 year
intervals for similar reimbursement of future medical testing expenses
for up to 2 additional occasions. Level A reimbursements shall be
treated as administrative expenses of the OAC and paid for by
defendants under section 401.
(b) Level B.--The Administrator shall, subject to the availability
of appropriated funds, reimburse up to 100 percent of the out-of-pocket
expenses for any medical testing required under section 102, up to a
ceiling established by rule, with the approval of the Trustee, for any
claimant with at least one equivalent-year of heavy exposure to
asbestos who meets the medical but not the exposure requirements of
Level A. Level B claimants may be eligible for similar reimbursement of
future medical testing expenses for up to 2 additional occasions at
least 3 years apart. The Administrator shall adjust periodically the
amount of the cash payment to reflect changes in medical costs. Level B
reimbursements shall be treated as administrative expenses of the OAC
and paid for by defendants under section 401.
(c) Certified Labs.--The Administrator is authorized to establish a
program for the certification of laboratories to provide medical
testing under this section.
(d) Exposure Verification.--The Administrator shall establish audit
and other procedures to provide reasonable assurance that statements
concerning exposure made by claimants seeking medical testing
reimbursement under this section are accurate.
TITLE IV--FUNDING
SEC. 401. ASSESSMENT AND ENFORCEMENT.
(a) Rules.--The Administrator shall adopt rules for calculating and
collecting from defendants all costs associated with the determination
of claims and payments to claimants.
(b) Trustee.--The Trustee shall have authority to bring an action
in the district courts of the United States to enforce any obligation
imposed on any person by this section and such courts shall have
exclusive jurisdiction of such actions without regard to the amount in
controversy or citizenship of the parties. The district court shall not
entertain any defense other than lack of jurisdiction in any action by
the Trustee under this subsection.
(c) Trustee Prevails.--In any action under subsection (b) in which
the Trustee prevails, the Trustee shall be entitled to costs, including
reasonable attorneys' fees, and interest on any unpaid amount.
(d) Judicial Review.--A defendant may challenge the legality or
amount of any assessment only by seeking judicial review in the United
States Court of Federal Claims after paying the disputed amount. If
successful, the defendant shall be awarded interest.
SEC. 402. FISCAL AND FINANCIAL MANAGEMENT OF THE ASBESTOS COMPENSATION
FUND.
(a) Applicability of Credit Reform Act Principles; Fiscal
Management Rules.--Except as provided in this section, the operations
of the Fund related to settlement payments under section 104, and
associated recoveries from defendants, shall be governed by the Federal
Credit Reform Act of 1990 (2 U.S.C. 661 et seq.), notwithstanding the
status of the Fund as a governmental entity. The Administrator shall
promulgate rules, approved by the Office of Management and Budget, for
the fiscal management of the Fund. Such rules and their application
shall not be subject to judicial review and shall, as regards payments
under section 104--
(1) provide all reasonable assurance that, over an
appropriate time period, the subsidy rate associated with the
net litigation risk of the Fund is zero;
(2) provide all reasonable assurance that, in any given
year, the subsidy rate associated with the net litigation risk
of the Fund is no more than 2 percent;
(3) provide for the allocation of receipts from defendants
to various Fund accounts, including the Fund's financing
account, program account, and an account for salaries and expenses
(which shall include litigation costs); and
(4) provide specific instructions for the Trustee to reduce
payments by the Fund when necessary to meet the solvency
requirements of this subsection.
(b) Financing of the Fund, Settlement Payments to Claimants.--
(1) Credit reform principles.--The Fund is authorized to
receive from defendants, as offsetting receipts, any amounts
related to settlements or judgments, including damages,
interest, litigation costs, specific administrative costs that
may be required by the Administrator through rulemaking, and
interest costs incurred by the Fund in connection with payment
of settlement offers made under section 103. Amounts received
from defendants as interest shall be sufficient to pay interest
costs due to the United States Treasury from the financing
account, plus the subsidy costs of the program account,
provided that the latter amounts may not exceed 3 percent of
the amount of any settlement or award. Recoveries on a claim by
the Fund in excess of the settlement amount paid to the
claimant and other costs of the Fund which are not paid to the
claimant under section 209 shall be available to the program
account as a reduction to subsidy costs in the current or any
subsequent year.
(2) Authority.--The program account shall have permanent
indefinite authority, not subject to further appropriation, to
transfer funds to the finance account in accordance with
principles of the Credit Reform Act.
SEC. 403. AUTHORIZATION FOR APPROPRIATIONS AND OFFSETTING COLLECTIONS.
(a) In General.--There are authorized to be appropriated--
(1) to the OAC such sums as may be required to perform
responsibilities under this Act;
(2) to the United States Court of Federal Claims, such sums
as may be required to carry out its responsibilities under this
Act; and
(3) to the OAC an amount not to exceed $100 million, for a
one-time loan to the Fund in connection with startup expenses,
such loan to be repaid by the Fund with interest.
The total of appropriations provided under this subsection in the first
year after the date of enactment not exceed $250 million and in any
subsequent year not exceed $150 million.
(b) Offsetting Collections of Administrative Assessments.--The OAC
is authorized to receive and to expend in any year, as offsetting
collections, all administrative assessments or prepaid administrative
assessments and all costs and penalties paid to it.
TITLE V--TRANSITION
SEC. 501. APPLICABILITY; TRANSITIONAL CIVIL ACTIONS.
(a) In General.--This Act shall be effective upon its date of
enactment with respect to any civil action asserting an asbestos claim
in which trial has not commenced as of that date.
(b) Pending Claim.--A claimant with a pending civil claim on the
date of enactment shall not be required to obtain a certificate of
medical eligibility or otherwise exhaust the procedures set forth in
title I if trial commences within 6 months of the date of enactment of
this Act. This 6-month period may be extended by the Attorney General
for up to an additional 6 months if required for the orderly
implementation of this Act, and after reporting to the Congress the
reasons for any such extension.
(c) Right To Sue Letter.--If a claimant with--
(1) a pending civil action on the date of enactment of this
Act, and
(2) a scheduled trial date within one year after the date
of enactment of this Act--
does not receive an initial decision on medical eligibility within the
time period prescribed in section 102(c), the claimant may request a
right-to sue letter from the Administrator at any time prior to the
issuance of that initial decision. If the Attorney General determines
that the 6-month period in subsection (b) should be extended, the one-
year period in the preceding sentence shall be similarly extended. The
Administrator shall issue a right-to-sue letter or an initial decision
under section 102 within 10 days following the receipt of the
claimant's request. A claimant who receives a right-to-sue letter may
assert the claimant's asbestos claim in any competent forum
notwithstanding section 101(b).
(d) Claim in Another Forum.--Any claimant who asserts his claim in
a forum other than the OAC under subsections (b) or (c) must
demonstrate that the exposed person has qualified for medical
eligibility under section 301, 302, 303, 304, 305, or 306.
TITLE VI--DEFINITIONS
SEC. 601. DEFINITIONS.
In this Act:
(1) Asbestos claim.--The term ``asbestos claim'' means any
claim for damages or other relief, arising out of, based on, or
related to the health effects of exposure to asbestos,
including any claim for personal injury, death, mental or
emotional injury, risk of disease or other injury, or the costs
of medical monitoring or surveillance, and including any 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 any claim for
workers' compensation benefits, or any claim by an employer or
insurer for reimbursement from a third-party for benefits paid
under a workers' compensation plan, or any claim for benefits
under a veterans' benefits program.
(2) Asbestos trust.--The term ``asbestos trust'' means a
court-supervised trust established to resolve asbestos claims
arising directly or indirectly from exposure to asbestos or
asbestos-containing products, including a trust created
pursuant to the bankruptcy laws of the United States or Rule 23
of the Federal Rules of Civil Procedure.
(3) Certificate of medical eligibility.--The term
``certificate of medical eligibility'' means a certificate
issued to a claimant pursuant to this Act certifying that an
exposed person meets the requirements of one or more eligible
medical categories or qualifies as an exceptional medical
claim.
(4) Certified b-reader.--The term ``certified B-reader''
means an individual qualified as a ``final'' or ``B-reader''
under 42 C.F.R. 37.51(b) (1997) (and any subsequent revisions
thereof) whose certification is current.
(5) Chest x-rays.--The term ``chest x-rays'' means chest
radiographs taken in at least 2 views (Posterior-Anterior and
Lateral) and graded quality 1 for reading according to the
criteria established by the ILO. If the claimant is unable to
provide quality 1 chest x-rays because of death or because of
an inability to have new chest x-rays taken, chest x-rays
graded quality 2 will be acceptable.
(6) Civil action.--The term ``civil action'' means any
action, lawsuit, or proceeding in any State, Federal, or tribal
court, but does not include--
(A) a criminal action; or
(B) an action relating to State or Federal workers'
compensation laws, or a proceeding for benefits under
any veterans' benefits program.
(7) Claimant.--The term ``claimant'' means any exposed
person or the person's legal representative, and any relative
of an exposed person or their legal representative, who asserts
an asbestos claim.
(8) Clinical evidence of asbestosis.--The term ``clinical
evidence of asbestosis'' means a diagnosis of pulmonary
asbestosis by a qualified physician based on the minimum
objective criteria of--
(A) chest x-rays for which a B-reader report is
furnished showing small irregular opacities of ILO
Grade 1/0 and pulmonary function testing and physical
examination that show either--
(i) FVC <80% of predicted value with FEV1/
FVC<gr-thn-eq> 75% (actual value); or
(ii) TLC <80% of predicted value, with
either DLCO<ls-thn-eq> 76% of predicted value
or bilateral basilar crackles, and also the
absence of any probable explanation for this
DLCO result or crackles finding other than the
presence of asbestos lung disease; or
(B) chest x-rays for which a B-reader report is
furnished showing small irregular opacities of ILO
Grade 1/1 or greater and pulmonary function testing
that shows either--
(i) FVC <80% of predicted value with FEV1/
FVC<gr-thn-eq> 72% (actual value) or, if the
individual tested is at least 68 years old at
the time of the testing, with FEV1/
FVC<gr-thn-eq> 65% (actual value); or
(ii) TLC <80% of predicted value.
(9) Compensatory Damages.--The term ``compensatory
damages'' means damages awarded for economic loss, such as
medical expenses, as well as non-economic loss. Non-economic
loss includes subjective, non-pecuniary loss, such as pain,
suffering, inconvenience, emotional distress, loss of society
and companionship, and loss of consortium.
(10) Core claim.--The term ``core claim'' means an asbestos
claim against a defendant who either--
(A) manufactured any asbestos-containing product
which released asbestos fibers to which the exposed
person was exposed, and paid out $50 million in respect
of such claims cumulatively over the 10 year period
preceding the filing of the claim; or
(B) was not a manufacturer but paid out $100
million in respect of such claims cumulatively over the
10 year period preceding the filing of the claim;
provided that the alleged liability is not based upon
the control or ownership of property.
(11) Defendant.--The term ``defendant'' means any person
who is or may be responsible for the asbestos-related condition
of the exposed person and who is so notified by the
Administrator pursuant to title I. The term does not include--
(A) an asbestos trust in existence as of the date
of enactment of this Act unless the trust elects to be
covered by this Act under section 701(b); or
(B) the United States Government or a State
government.
(12) DLCO.--The term ``DLCO'' means single-breath diffusing
capacity of the lung (carbon monoxide), which is a measure of
the volume of carbon monoxide transferred from the alveoli to
blood in the pulmonary capillaries for each unit of driving
pressure of the carbon monoxide.
(13) Equivalent-year.--The term ``equivalent-year'' means a
measure of exposure to asbestos adjusted to reflect varying
exposure levels typical of different occupations. Each year of
exposure in which an exposed person's primary occupation
involved the direct installation, repair, or removal of
asbestos-containing products, shall count as one year. Each
year of such occupational exposure in which the exposed
person's primary occupation involved either the direct
manufacture of asbestos-containing products using raw asbestos
fiber or the direct installation, repair, or removal of
asbestos-containing products in a shipyard during World War II,
shall count as 2 years. Each year of exposure in occupations
not described above shall count as one-half year.
(14) Evidence of bilateral pleural thickening with
impairment.--The term ``evidence of bilateral pleural
thickening with impairment'' means a diagnosis of bilateral
pleural thickening by a qualified physician based on the
minimum objective criteria of either--
(A) chest x-rays for which a B-reader report is
furnished showing bilateral pleural thickening of ILO
Grade B/2 with pulmonary function testing and physical
examination that show either--
(i) FVC <80% of predicted value with FEV1/
FVC<gr-thn-eq> 75% (actual value) or
(ii) TLC <80% of predicted value, with
either DLCO<ls-thn-eq> 76% of predicted value
or bilateral basilar crackles, and also the
absence of any probable explanation for this
DLCO result or crackles finding other than the
presence of asbestos lung disease; or
(B) chest x-rays for which a B-reader report is
furnished showing bilateral pleural thickening of ILO
Grade C/2 or greater; and pulmonary function testing
that shows either--
(i) FVC <80% of predicted value with FEV1/
FVC<gr-thn-eq> 72% (actual value) or, if the
individual tested is at least 68 years old at
the time of the testing, with FEV1/
FVC<gr-thn-eq> 65% (actual value); or
(ii) TLC <80% of predicted value.
(15) Exposed person.--The term ``exposed person'' means any
person who has been exposed in any State (or while working
aboard a United States vessel outside the United States) to
asbestos or to asbestos-containing products.
(16) FEV1.--The term ``FEV1'' means forced expiratory
volume (1 second), which is the maximal volume of air expelled
in one second during performance of the spirometric test for
forced vital capacity (FVC).
(17) Fund.--The term ``Fund'' means the Asbestos
Compensation Fund.
(18) FVC.--The term ``FVC'' means forced vital capacity,
which is the maximal volume of air expired with a maximally
forced effort from a position of maximal inspiration.
(19) ILO.--The term ``ILO'' means the International Labour
Organization.
(20) ILO grade.--The term ``ILO grade'' means the
radiological ratings for the presence of lung or pleural
changes by chest x-ray as established from time to time by the
ILO.
(21) Latency period.--The term ``latency period'' means the
period from the date of the exposed person's first exposure to
asbestos or an asbestos-containing product to the date of
manifestation of the condition claimed.
(22) Lung cancer.--The term ``lung cancer'' means a primary
malignant bronchogenic tumor, of any cell type, caused or
contributed to by exposure to asbestos.
(23) Manifestation.--The term ``manifestation'' means
either the date of the actual diagnosis of the condition
claimed, or the date upon which the clinical records and available
tests indicate that the condition could reasonably have been diagnosed
by a qualified physician.
(24) Net litigation risk.--The term ``net litigation risk''
means the risk to the Asbestos Compensation Fund that amounts
paid out to claimants, plus associated interest and litigation
expenses, will exceed amounts recovered from defendants,
expressed as a percentage of sums expended, and estimated for a
specific cohort of transactions. Losses on particular claims
are netted against excess recoveries on other claims.
(25) OAC.--The term ``OAC'' means the Office of Asbestos
Compensation.
(26) Occupational history.--The term ``occupational
history'' means a listing of all employment positions,
providing for the dates and location of employment, the
employer, and a description of job responsibilities and
activities.
(27) Party.--The term ``party'' does not include the United
States Government or a State government.
(28) Pathological evidence of asbestosis.--The term
``pathological evidence of asbestosis'' means diagnosis of
pulmonary asbestosis by a qualified physician based on a
finding that more than one representative section of lung
tissue otherwise uninvolved with any other process (e.g.,
cancer or emphysema) demonstrates a pattern of peribronchiolar
or parenchymal scarring in the presence of characteristic
asbestos bodies, and also that there is no other more likely
explanation for the presence of the fibrosis.
(29) Person.--The term ``person'' means an individual,
trust, firm, corporation, association, partnership, or joint
venture. The term does not include--
(A) an asbestos trust in existence as of the date
of enactment of this Act unless the trust elects to be
covered by this Act under section 701(b); or
(B) the United States Government or any State
government.
(30) Physician.--The term ``physician'' means a medical
doctor or doctor of osteopathy currently licensed to practice
medicine in any State who has not, within the 5-year period
prior to the date of enactment of this Act, spent more than one
half of the doctor's professional time, or derived more than
one-half of the doctor's professional income, either annually
or in total, either reviewing or testifying in any forum on
medical-legal issues related to asbestos.
(31) Predicted value.--The term ``predicted value'' means a
published reference to the normal breathing capacity of healthy
populations based on age, height, and gender, as approved by
the Medical Director, pursuant to a rule, issued within 120
days of the date of enactment. For the purposes of this Act,
the use of any published, predicted values that are generally
accepted in the medical community shall be acceptable and such
values may not be adjusted for race.
(32) Pulmonary function testing.--The term ``pulmonary
function testing'' means tests for forced vital capacity, lung
volume, and diffusing studies using equipment, tests and
standards generally accepted in the medical community, as
approved by the Medical Director, pursuant to a rule, issued
within 120 days of enactment of this Act. Such pulmonary
function test shall not be adjusted for race.
(33) Punitive damages.--The term ``punitive damages'' means
damages, in addition to compensatory damages, awarded against
any person to punish past conduct or deter that person, or
others, from engaging in similar conduct in the future.
(34) Qualified physician.--The term ``qualified physician''
means, with respect to a diagnosis or other medical judgment or
procedure under this Act, an internist, pulmonary specialist,
pathologist, radiologist, oncologist, or specialist in
occupational medicine with an appropriate subspecialty, as
appropriate, who is certified by the relevant medical specialty
board.
(35) Qualifying national settlement plan.--The term
``Qualifying National Settlement Plan'' means a written
agreement or related series of written agreements with
claimants or with attorneys or law firms representing
claimants, pursuant to which a person who is or may be
responsible for such claims has resolved or agreed to resolve
at least 50 percent of the asbestos claims that were pending
against such person.
(36) 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.
(37) TLC.--The term ``TLC'' means total lung capacity,
which is the volume of air in the lung after maximal
inspiration.
(38) Trustee.--The term ``Trustee'' means the Trustee of
the Asbestos Compensation Fund.
(39) 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.
(40) 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), but does not
include the Employer's Liability Act, (45 U.S.C. chapter 2).
TITLE VII--MISCELLANEOUS PROVISIONS
SEC. 701. RELATIONSHIP TO OTHER LAWS.
(a) Applicability of Other Federal Laws.--The OAC may, with the
approval of the Director of the Office of Management and Budget, waive
the applicability in whole or in part of personnel and procurement laws
and regulations, provided that any such waiver must be specific, must
be subject to periodic review and evaluation, and must be reasonably
related to the goals of expeditious, professional, efficient, cost-
effective and fair resolution of asbestos claims.
(b) Application to Existing Asbestos Trusts.--
(1) In general.--This Act shall not apply to any asbestos
trust in existence as of the date of enactment of this Act,
except as provided in paragraph (2).
(2) Election.--An asbestos trust may elect to be subject to
this Act by providing written notice of such election to the
OAC, in which case the trust will have the same rights and
responsibilities under this Act as any person who is not a
trust. A valid election under this paragraph shall be
irrevocable.
(c) Settlements Preserved.--Nothing in this Act--
(1) invalidates any settlement of asbestos claims entered
into prior to the date of enactment of this Act; or
(2) revokes or negates any asbestos defendant's standing
offer to settle existing asbestos claims.
(d) Other Compensation.--This Act shall not be construed to affect
the scope or operation of any workers' compensation law or veterans'
disability benefit program, to affect the exclusive remedy provisions
of any such law, or to authorize any lawsuit which is barred by any
such provision of law.
(e) Successor Liability.--Nothing in this Act is intended to
displace otherwise applicable law governing any liability arising from
the defendants' status as transferee or successor with respect to a
change in ownership of corporate assets.
SEC. 702. ANNUAL REPORTS.
The Administrator shall submit an annual report to the President
and Congress.
SEC. 703. ENFORCEMENT.
The Administrator may enforce any obligation imposed on any person
by this Act in a district court of the United States, and such courts
shall have exclusive jurisdiction over such actions without regard to
the amount in controversy or citizenship of the parties. The
Administrator, if successful, shall be entitled to costs, including
attorney's fees.
SEC. 704. QUALIFYING NATIONAL SETTLEMENT PLAN.
Any defendant which is party to a Qualifying National Settlement
Plan may elect to defer the application of this Act (other than
sections 201 through 207 and section 501) to asbestos claims against
that defendant for a period not exceeding 7 years from a date relative
to the commencement of the Qualified National Settlement Plan. The
Administrator shall, by rule, adopt procedures for processing requests
for deferral under this section. If the request for deferral is
accepted, the deferred defendant and any asbestos claims or third party
asbestos claims against the deferred defendant shall not be subject to
the provisions of this Act (other than sections 201 through 207 and
section 501).
SEC. 705. SEVERABILITY.
If any provision of this Act or the application of such provision
to any person or circumstance is held invalid, it is the intent of
Congress that the remainder of this Act and application of such
provision to other persons or circumstances shall not be affected
thereby.
SEC. 706. SETTLEMENTS.
For a period of 7 years after the date of enactment of this Act, a
claimant or a defendant may specifically enforce, in any applicable
Federal or State court where the claimant is alleging that the claimant
was exposed to asbestos or where the claimant is currently domiciled,
any written settlement agreement which was agreed to by the claimant or
the claimant's attorney and the defendant before such date of
enactment.
<all>
Introduced in House
Introduced in House
Referred to the House Committee on the Judiciary.
Sponsor introductory remarks on measure. (CR H5459)
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