Asbestos Compensation Fairness Act of 2005 - Requires as an essential element of a nonmalignant asbestos or silica claim that there be physical impairment to which asbestos or silica exposure was a substantial contributing factor.
Sets forth evidentiary requirements for a prima facie showing of: (1) physical impairment for nonmalignant asbestos or silica claims; (2) asbestos- or silica-related lung cancer; (3) asbestos-related other cancer; and (4) asbestos claims based upon mesothelioma.
Requires evidence relating to physical impairment to comply with the AMA Guides to the Evaluation of Permanent Impairment. States that presentation of prima facie evidence meeting the foregoing requirements (excluding evidentiary requirements for mesothelioma) shall not: (1) result in a presumption of impairment at trial; (2) be conclusive as to any defendant's liability; and (3) be admissible at trial.
Addresses claim consolidation, Federal jurisdiction and venue, preliminary proceedings, and the plaintiff's burden of proof.
Delineates the statute of limitations for asbestos- and silica-related claims. States that an asbestos or silica claim arising out of a nonmalignant condition shall be a distinct cause of action from such a claim relating to the same exposed person arising out of asbestos- or silica-related cancer. Prohibits damage awards for fear or risk of cancer in civil actiosn premised on asbestos or silica claims.
Specifies the scope of liability and damages for civil actions under this Act, providing that: (1) a defendant shall be liable only for that portion of a judgment for which the defendant is responsible; and (2) no punitive damages may be awarded. Establishes a cap for damages relating to noneconomic losses. Requires plaintiffs to disclose collateral source payments based upon the same claim at the time of filing suit. Reduces the amount of an award otherwise available by the amount of such collateral compensation.
Sets forth liability rules applicable to product sellers, renters, lessors, and premises owners.
Makes this Act applicable to any civil action asserting an asbestos or silica claim in which final judgment has not been entered as of the date of enactment.
[Congressional Bills 109th Congress]
[From the U.S. Government Publishing Office]
[H.R. 1957 Introduced in House (IH)]
109th CONGRESS
1st Session
H. R. 1957
To provide for the fair and efficient judicial consideration of
personal injury and wrongful death claims arising out of asbestos or
silica exposure, to ensure that individuals who suffer impairment, now
or in the future, from illnesses caused by exposure to asbestos or
silica receive compensation for their injuries, and for other purposes.
_______________________________________________________________________
IN THE HOUSE OF REPRESENTATIVES
April 28, 2005
Mr. Cannon (for himself, Mr. Pence, Mr. Flake, Mr. Bishop of Utah, Mr.
Hensarling, Mr. McHenry, Mr. King of Iowa, Mr. Bartlett of Maryland,
Mr. Feeney, Mrs. Myrick, Mr. Herger, Mrs. Cubin, Mr. Bachus, Mr.
Gohmert, Mr. Sam Johnson of Texas, Mr. Pitts, Mr. Kirk, Mr. Keller, Mr.
Chabot, Mr. Sessions, Mr. Linder, Mr. Hostettler, Mr. Tom Davis of
Virginia, Mr. Carter, Mr. Burgess, Mr. Pearce, Ms. Hart, Mr. Smith of
Texas, Mr. Souder, Mr. Otter, Mr. Schwarz of Michigan, Mr. Weldon of
Florida, Mr. Goodlatte, Mrs. Blackburn, Mr. Cole of Oklahoma, Mr.
English of Pennsylvania, Mr. Simmons, Mr. Tiberi, Mr. Baker, Mr.
Manzullo, and Mr. Conaway) introduced the following bill; which was
referred to the Committee on the Judiciary
_______________________________________________________________________
A BILL
To provide for the fair and efficient judicial consideration of
personal injury and wrongful death claims arising out of asbestos or
silica exposure, to ensure that individuals who suffer impairment, now
or in the future, from illnesses caused by exposure to asbestos or
silica receive compensation for their injuries, and for other purposes.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE; TABLE OF CONTENTS.
(a) Short Title.--This Act may be cited as the ``Asbestos
Compensation Fairness Act of 2005''.
(b) Table of Contents.--
Sec. 1. Short title; table of contents.
Sec. 2. Findings and purposes.
Sec. 3. Physical impairment.
Sec. 4. Procedures.
Sec. 5. Statute of limitations; two-disease rule.
Sec. 6. Scope of liability; damages.
Sec. 7. Liability rules applicable to product sellers, renters,
lessors, and premises owners.
Sec. 8. Definitions.
Sec. 9. Miscellaneous provisions.
Sec. 10. Effective date.
SEC. 2. FINDINGS AND PURPOSES.
(a) Findings.--The Congress finds that--
(1) asbestos is a mineral that was widely used prior to the
1980s for insulation, fireproofing, and other purposes;
(2) millions of American workers and others were exposed to
asbestos, especially during and after World War II and prior to
the advent of regulation by the Occupational Safety and Health
Administration in the early 1970s;
(3) long-term exposure to asbestos has been associated with
various types of cancer, including mesothelioma and lung
cancer, as well as such nonmalignant conditions as asbestosis,
pleural plaques, and diffuse pleural thickening;
(4) the diseases caused by asbestos often have long latency
periods;
(5) although the use of asbestos has dramatically declined
since 1980 and workplace exposures have been regulated since
1971 by the Occupational Safety & Health Administration, past
exposures will continue to result in significant claims of
death and disability as a result of such exposure;
(6) exposure to asbestos has created a flood of litigation
in State and Federal courts that the United States Supreme
Court has characterized as ``an elephantine mass'' of cases
that ``defies customary judicial administration and calls for
national legislation,'' Ortiz v. Fibreboard Corporation, 119 S.
Ct. 2295, 2302 (1999);
(7) asbestos personal injury litigation can be unfair and
inefficient, imposing a severe burden on litigants and
taxpayers alike;
(8) the extraordinary volume of nonmalignant asbestos cases
continues to strain State and Federal courts, with a
significant number of new cases filed each year;
(9) asbestos personal injury litigation has already
contributed to the bankruptcy of more than 70 companies,
including nearly all manufacturers of asbestos textile and
insulation products, and the rate of asbestos-driven
bankruptcies is accelerating;
(10) the vast majority of asbestos claims are filed by
individuals who allege they have been exposed to asbestos and
who may have some physical sign of exposure, but who suffer no
present asbestos-related impairment;
(11) the cost of compensating exposed individuals who are
not sick jeopardizes the ability of defendants to compensate
people with cancer and other serious asbestos-related diseases,
now and in the future; threatens the savings, retirement
benefits, and jobs of defendants' current and retired
employees; adversely affects the communities in which these
defendants operate; and impairs the national economy and
interstate commerce;
(12) the several thousand asbestos-related cancer cases
that are filed each year are manageable by the courts and the
litigants;
(13) silica is a naturally occurring mineral with the
Earth's crust consisting of over 90 percent silica, and
crystalline silica dust is the primary component of sand,
quartz, and granite;
(14) silicosis was recognized as an occupational disease
many years ago, and by the 1930s, the Federal Government
launched a silica awareness campaign, which led to greater
protection for workers exposed to silica resulting in a
predictable number of silica claims;
(15) in recent years, however, the number of new lawsuits
alleging silica disease being filed each year began to rise
precipitously;
(16) like asbestos claims, silica claims often arise when
an exposed person is identified as having markings on his or
her lungs that are possibly consistent with silica exposure,
but the exposed person has no functional or physical impairment
from silica;
(17) therefore, it is necessary to address silica
litigation to avoid an asbestos-like litigation crisis;
(18) concerns about statutes of limitations can force
claimants who have been exposed to asbestos or silica, but who
have no current injury, to bring premature lawsuits in order to
protect against losing their rights to future compensation
should they become impaired;
(19) consolidations, joinder, and similar procedures, to
which some courts have resorted in order to deal with the mass
of asbestos and silica cases, can undermine the appropriate
functioning of the judicial process and encourage the filing of
thousands of cases by exposed individuals who are not yet sick
and who may never become sick;
(20) similarly, the availability of sympathetic forums in
States with no connection to the plaintiff or to the exposures
that form the basis of the lawsuit has encouraged the filing of
thousands of cases on behalf of exposed individuals who are not
yet sick and may never become sick;
(21) excessive, unpredictable, and often arbitrary damage
awards and unfair allocations of liability jeopardize the
financial well-being of many individuals, businesses, and
entire industries, particularly the Nation's small businesses;
(22) punitive damage awards unfairly divert the resources
of defendants from compensating genuinely impaired claimants
and, given the lengthy history of asbestos and silica
litigation and the regulatory restrictions on the use of
asbestos-containing products in the workplace, the legal
justification for such awards--punishment and deterrence--is
either inapplicable or inappropriate; and
(23) the public interest and the interest of interstate
commerce requires deferring the claims of exposed individuals
who are not sick in order to preserve, now and for the future,
defendants' ability to compensate people who develop cancer and
other serious asbestos, or related, injuries and to safeguard
the jobs, benefits, and savings of American workers and the
well-being of the national economy.
(b) Purposes.--It is the purpose of this Act to--
(1) give priority to those asbestos or silica claimants who
can demonstrate actual physical harm or illness caused by
exposure to asbestos or silica;
(2) fully preserve the rights of claimants who were exposed
to asbestos or silica to pursue compensation should they become
impaired in the future as a result of such exposure;
(3) enhance the ability of the State and Federal judicial
systems to supervise and control asbestos and silica litigation
and asbestos-related bankruptcy proceedings; and
(4) conserve the scarce resources of the defendants, and
marshal assets in bankruptcy, to allow compensation of cancer
victims and others who are physically impaired by exposure to
asbestos or silica while securing the right to similar
compensation for those who may suffer physical impairment in
the future.
SEC. 3. PHYSICAL IMPAIRMENT.
(a) Impairment Essential Element of Claim.--Physical impairment of
the exposed person, to which asbestos or silica exposure was a
substantial contributing factor, shall be an essential element of an
asbestos or silica claim.
(b) Prima Facie Evidence of Physical Impairment for Nonmalignant
Asbestos Claims.--No person shall bring or maintain a civil action
alleging a nonmalignant asbestos claim in the absence of a prima facie
showing of physical impairment as a result of a medical condition to
which exposure to asbestos was a substantial contributing factor. Such
a prima facie showing shall include all of the following minimum
requirements:
(1) Evidence verifying that a qualified physician has taken
a detailed occupational and exposure history of the exposed
person or, if such person is deceased, from the person who is
the most knowledgeable about the exposures that form the basis
of the nonmalignant asbestos claim, including--
(A) all of the exposed person's principal places of
employment and exposures to airborne contaminants; and
(B) whether each place of employment involved
exposures to airborne contaminants (including but not
limited to asbestos fibers or other disease causing
dusts) that can cause pulmonary impairment and the
nature, duration, and level of any such exposure.
(2) Evidence verifying that a qualified physician has taken
detailed medical and smoking history, including a thorough
review of the exposed person's past and present medical
problems, and their most probable cause.
(3) A determination by a qualified physician, on the basis
of a medical examination and pulmonary function testing, that
the exposed person has a permanent respiratory impairment
rating of at least Class 2 as defined by and evaluated pursuant
to the AMA Guides to the Evaluation of Permanent Impairment.
(4) A diagnosis by a qualified physician of asbestosis or
diffuse pleural thickening, based at a minimum on radiological
or pathological evidence of asbestosis or radiological evidence
of diffuse pleural thickening.
(5) A determination by a qualified physician that
asbestosis or diffuse pleural thickening (rather than solely
chronic obstructive pulmonary disease) is a substantial
contributing factor to the exposed person's physical
impairment, based at a minimum on a determination that the
exposed person has--
(A) total lung capacity, by plethysmography or
timed gas dilution, below the predicted lower limit of
normal; or
(B) forced vital capacity below the lower limit of
normal and a ratio of FEV1 to FVC that is equal to or
greater than the predicted lower limit of normal; and
(C) a chest x-ray showing small, irregular
opacities (s,t,u) graded by a certified B-reader at
least 2/1 on the ILO scale.
(c) Prima Facie Evidence of Asbestos-Related Lung Cancer.--No
person shall bring or maintain a civil action alleging an asbestos
claim which is based upon lung cancer, in the absence of a prima facie
showing which shall include the following minimum requirements:
(1) Diagnosis by a Board-certified pathologist, pulmonary
specialist, or oncologist of a primary lung cancer and that
exposure to asbestos was a substantial contributing factor to
the lung cancer.
(2) Evidence sufficient to demonstrate that at least 10
years have elapsed between the date of first exposure to
asbestos and the date of diagnosis of the lung cancer.
(3) Depending on whether the exposed person has a history
of smoking, the requirements of either (A) or (B) below--
(A) in the case of an exposed person who is a
nonsmoker, either--
(i) radiological or pathological evidence
of asbestosis or radiological evidence of
diffuse pleural thickening; or
(ii) either--
(I) evidence of the exposed
person's substantial occupational
exposure to asbestos; or
(II) evidence of the exposed
person's exposure to asbestos at least
equal to 25 fiber per cc years as
determined to a reasonable degree of
scientific probability by a
scientifically valid retrospective
exposure reconstruction conducted by a
certified industrial hygienist or
certified safety professional based
upon all reasonably available
quantitative air monitoring data and
all other reasonably available
information about the exposed person's
occupational history and history of
exposure to asbestos; or
(B) in the case of an exposed person who is a
smoker, the criteria contained in both (A)(i) and
(A)(ii) must be met.
(d) Prima Facie Evidence of Asbestos-Related Other Cancer.--No
person shall bring or maintain a civil action alleging an asbestos
claim which is based upon cancer of the colon, rectum, larynx, pharynx,
esophagus, or stomach, in the absence of a prima facie showing which
shall include the following minimum requirements:
(1) A diagnosis by a Board-certified pathologist, Board-
certified pulmonary specialist, or Board-certified oncologist
(as appropriate for the type of cancer claimed) of primary
cancer of the colon, rectum, larynx, pharynx, esophagus, or
stomach, and that exposure to asbestos was a substantial
contributing factor to the condition.
(2) Evidence sufficient to demonstrate that at least 10
years have elapsed between the date of first exposure to
asbestos and the date of diagnosis of the cancer.
(3) The requirements of (A) and (B) below--
(A) radiological or pathological evidence of
asbestosis or radiological evidence of diffuse pleural
thickening; and
(B) either of the following:
(i) Evidence of the exposed person's
substantial occupational exposure to asbestos.
(ii) Evidence of the exposed person's
exposure to asbestos at least equal to 25 fiber
per cc years as determined to a reasonable
degree of scientific probability by a
scientifically valid retrospective exposure
reconstruction conducted by a certified
industrial hygienist or certified safety
professional based upon all reasonably
available quantitative air monitoring data and
all other reasonably available information
about the exposed person's occupational history
and history of exposure to asbestos.
(e) Prima Facie Requirement for Mesothelioma.--No person shall
bring or maintain a civil action alleging an asbestos claim based upon
mesothelioma, in the absence of a prima facie showing which shall
include a diagnosis of malignant mesothelioma disease on the basis of
findings by a qualified physician and credible evidence of identifiable
exposure to asbestos resulting from--
(1) occupational exposure to asbestos;
(2) exposure to asbestos fibers brought into the home of
the claimant by a worker occupationally exposed to asbestos; or
(3) exposure to asbestos fibers resulting from living or
working in the proximate vicinity of a factory, shipyard,
building demolition site, or other operation that regularly
released asbestos fibers into the air due to operations
involving asbestos at that site.
(f) Prima Facie Evidence of Physical Impairment for Nonmalignant
Silica Claims.--No person shall bring or maintain a civil action
alleging a nonmalignant silica claim in the absence of a prima facie
showing of physical impairment as a result of a medical condition to
which exposure to silica was a substantial contributing factor. Such a
prima facie showing shall include all of the following minimum
requirements:
(1) Evidence verifying that a qualified physician has taken
a detailed occupational and exposure history of the exposed
person or, if such person is deceased, from the person who is
the most knowledgeable about the exposures that form the basis
of the nonmalignant silica claim, including--
(A) all of the exposed person's principal places of
employment and exposures to airborne contaminants; and
(B) whether each place of employment involved
exposures to airborne contaminants (including but not
limited to silica or other disease causing dusts) that
can cause pulmonary impairment and the nature,
duration, and level of any such exposure.
(2) Evidence verifying that a qualified physician has taken
detailed medical and smoking history, including a thorough
review of the exposed person's past and present medical
problems, and their most probable cause.
(3) A determination by a qualified physician, on the basis
of a medical examination and pulmonary function testing, that
the exposed person has both--
(A) a permanent respiratory impairment rating of at
least Class 2 as defined by and evaluated pursuant to
the AMA Guides to the Evaluation of Permanent
Impairment; and
(B) silicosis based at a minimum on radiological or
pathological evidence of silicosis.
(g) Prima Facie Evidence of Silica-Related Lung Cancer.--No person
shall bring or maintain a civil action alleging an asbestos claim which
is based upon lung cancer, in the absence of a prima facie showing
which shall include the following minimum requirements:
(1) Diagnosis by a Board-certified pathologist, pulmonary
specialist, or oncologist of a primary lung cancer and that
exposure to silica was a substantially contributing factor to
the condition.
(2) Evidence sufficient to demonstrate that at least 10
years have elapsed from the date of the exposed person's first
exposure to silica until the date of diagnosis of the exposed
person's primary lung cancer.
(3) Depending on whether the exposed person has a history
of smoking, the requirements of either (A) or (B) below--
(A) in the case of an exposed person who is a
nonsmoker, either--
(i) radiological or pathological evidence
of silicosis; or
(ii) evidence of the exposed person's
substantial occupational exposure to silica; or
(B) in the case of an exposed person who is a
smoker, the criteria contained in both (A)(i) and
(A)(ii) must be met.
(h) Compliance With Technical Standards.--Evidence relating to
physical impairment under this section, including pulmonary function
testing and diffusing studies, shall comply with the technical
recommendations for examinations, testing procedures, quality
assurance/quality control, and equipment of the AMA Guides to the
Evaluation of Permanent Impairment. No adjustments with respect to
pulmonary function testing shall be made on the basis of race.
(i) No Presumption at Trial.--Presentation of prima facie evidence
meeting the requirements of subsection (b), (c), (d), (f), or (g) of
this section shall not--
(1) result in any presumption at trial that the exposed
person is impaired by an asbestos- or silica-related condition;
(2) be conclusive as to the liability of any defendant; and
(3) be admissible at trial.
SEC. 4. PROCEDURES.
(a) Consolidation.--A court may consolidate for trial any number
and type of asbestos or silica claims with consent of all the parties.
In the absence of such consent, the court may consolidate for trial
only asbestos or silica claims relating to the same exposed person and
members of his or her household.
(b) Federal Venue.--The Federal district courts shall have original
jurisdiction of any asbestos or silica claim. A civil action alleging
an asbestos or silica claim may only be brought in the Federal district
court of plaintiff's domicile or where all, or a substantial part,
including the most significant, exposure to asbestos or silica
occurred, that is a substantial contributing factor to the physical
impairment on which the claim is based.
(c) Preliminary Proceedings.--The plaintiff in any civil action
alleging an asbestos or silica claim shall file together with the
complaint or other initial pleading a written report and supporting
test results constituting prima facie evidence of the exposed person's
asbestos- or silica-related impairment meeting the requirements of
subsection (b), (c), (d), (f), or (g) of section 3. For any asbestos or
silica claim pending on the effective date of this Act, the plaintiff
shall file such a written report and supporting test results no later
than 60 days following the effective date, or if trial is scheduled
within 60 days of the effective date, no later than 30 days prior to
trial. The defendant shall be afforded a reasonable opportunity to
challenge the adequacy of the proffered prima facie evidence of
asbestos- or silica-related impairment. The plaintiff's claim shall be
dismissed without prejudice upon a finding of failure to make the
required prima facie showing.
(d) Burden of Proof.--The plaintiff in any civil action alleging an
asbestos or silica claim shall have the following burden of proof:
(1) The plaintiff must prove that the conduct of each
defendant was a substantial contributing factor of the exposed
person's asbestos- or silica-related impairment.
(2) The plaintiff must prove exposure to asbestos or silica
that was manufactured, supplied, installed, or used by each
defendant in the civil action and that the plaintiff's exposure
to each defendant's asbestos or silica was a substantial factor
in causing the asbestos- or silica-related impairment. In
determining whether exposure to a particular defendant's
asbestos or silica was a substantial contributing factor in
causing the asbestos- or silica-related impairment, the trier
of fact in the civil action shall consider, without limitation,
all of the following:
(A) The manner in which the plaintiff was exposed
to defendant's asbestos or silica.
(B) The proximity of the defendant's asbestos or
silica to the plaintiff when the exposure to the
defendant's asbestos or silica occurred.
(C) The frequency and length of the plaintiff's
exposure to the defendant's asbestos or silica.
(D) Any factors that mitigated or enhanced the
plaintiff's exposure to asbestos or silica.
SEC. 5. STATUTE OF LIMITATIONS; TWO-DISEASE RULE.
(a) Statute of Limitations.--Notwithstanding any other provision of
law, with respect to any asbestos or silica claim not barred as of the
effective date of this Act, the limitations period shall not begin to
run until the exposed person discovers, or through the exercise of
reasonable diligence should have discovered, that he or she is
physically impaired by an asbestos- or silica-related condition.
(b) Two-Disease Rule.--An asbestos or silica claim arising out of a
nonmalignant condition shall be a distinct cause of action from an
asbestos or silica claim relating to the same exposed person arising
out of asbestos- or silica-related cancer. No damages shall be awarded
for fear or risk of cancer in any civil action asserting an asbestos or
silica claim.
SEC. 6. SCOPE OF LIABILITY; DAMAGES.
(a) Proportional Liability.--A defendant against whom a final
judgment is entered in a civil action alleging an asbestos or silica
claim shall be liable only for that portion of the judgment that
corresponds to the percentage of responsibility of such defendant. For
the purposes of determining the percentage of responsibility of a
defendant, the trier of fact shall determine that percentage as a
percentage of the total fault of all persons (including the plaintiff
and those who have filed for bankruptcy protection) who are responsible
for the harm to the plaintiff, regardless of whether or not such person
is a party to the action. The court shall render a separate judgment
against each defendant in an amount determined pursuant to this
subsection.
(b) Noneconomic Loss.--In any civil action alleging an asbestos or
silica claim, the total amount of damages that may be awarded for
noneconomic loss shall not exceed $250,000, regardless of the number of
parties against whom the action is brought. However, in actions
involving an asbestos or silica claim based upon mesothelioma, the
total amount of damages that may be awarded for noneconomic loss shall
not exceed $500,000.
(c) Punitive Damages.--No punitive damages shall be awarded in any
civil action alleging an asbestos or silica claim.
(d) Collateral Source Payments.--At the time a complaint is filed
in a civil action alleging an asbestos or silica claim, the plaintiff
must file a written report with the court that discloses the total
amount of any collateral source payments received, including payments
which the plaintiff will receive in the future, as a result of
settlements or judgments based upon the same claim. For any asbestos or
silica claim pending on the date of enactment of this Act, the
plaintiff shall file such written report no later than 60 days after
the date of enactment, or if trial is scheduled within 60 days of
enactment, no later than 30 days prior to trial. Further, the plaintiff
shall be required to update this report on a regular basis during the
course of the proceeding until a final judgment is entered in the case.
The court shall ensure that the information contained in the initial
and updated reports is treated as privileged and confidential and that
the contents of the written reports shall not be disclosed to anyone
except the other parties to the action. The amount of an award
otherwise available to an asbestos or silica plaintiff shall be reduced
by the amount of collateral source compensation disclosed pursuant to
this section.
SEC. 7. LIABILITY RULES APPLICABLE TO PRODUCT SELLERS, RENTERS,
LESSORS, AND PREMISES OWNERS.
(a)(1) In General.--In any civil action alleging an asbestos or
silica claim, a product seller other than a manufacturer shall be
liable to a plaintiff only if the plaintiff establishes that--
(A)(i) the product that allegedly caused the harm that is
the subject of the complaint was sold, rented, or leased by the
product seller;
(ii) the product seller failed to exercise reasonable care
with respect to the product; and
(iii) the failure to exercise reasonable care was a
proximate cause of the harm to the exposed person;
(B)(i) the product seller made an express warranty
applicable to the product that allegedly caused the harm that
is the subject of the complaint, independent of any express
warranty made by the manufacturer as to the same product;
(ii) the product failed to conform to the warranty; and
(iii) the failure of the product to conform to the warranty
caused the harm to the exposed person; or
(C)(i) the product seller engaged in intentional
wrongdoing, as determined under applicable State law; and
(ii) the intentional wrongdoing caused the harm that is the
subject of the complaint.
(2) Reasonable Opportunity for Inspection.--For the purposes of
paragraph (1)(A)(i), a product seller shall not be considered to have
failed to exercise reasonable care with respect to a product based upon
an alleged failure to inspect the product, if--
(A) the failure occurred because there was no reasonable
opportunity to inspect the product; or
(B) the inspection, in the exercise of reasonable care,
would not have revealed the aspect of the product that
allegedly caused the exposed person's impairment.
(b) Rented or Leased Products.--In any civil action alleging an
asbestos or silica claim, a person engaged in the business of renting
or leasing a product shall not be liable for the tortious act of
another solely by reason of ownership of that product.
(c) Premises Owners.--In any civil action alleging an asbestos or
silica claim, a premises owner, or any entity performing any operations
on a premises, is not liable to a plaintiff for asbestos or silica
claims, unless that plaintiff's alleged exposure occurred while the
exposed person was at the premises.
SEC. 8. DEFINITIONS.
In this Act:
(1) AMA guides to the evaluation of permanent impairment.--
The term ``AMA Guides to the Evaluation of Permanent
Impairment'' means the American Medical Association's Guides to
the Evaluation of Permanent Impairment (Fifth Edition 2000) as
may be modified from time to time by the American Medical
Association.
(2) Asbestos.--The term ``asbestos'' includes all minerals
defined as ``asbestos'' in 29 CFR 1910 as amended from time to
time.
(3) Asbestos claim.--The term ``asbestos claim'' means any
claim for damages or other relief presented in a civil action
or bankruptcy proceeding, arising out of, based on, or related
to the health effects of exposure to asbestos, including loss
of consortium and any other derivative claim made by or on
behalf of any exposed person or any representative, spouse,
parent, child, or other relative of any exposed person. The
term does not include claims for benefits under a workers'
compensation law or veterans' benefits program, or claims
brought by any person as a subrogee by virtue of the payment of
benefits under a workers' compensation law.
(4) Asbestosis.--The term ``asbestosis'' means bilateral
diffuse interstitial fibrosis of the lungs caused by inhalation
of asbestos fibers.
(5) Bankruptcy proceeding.--The term ``bankruptcy
proceeding'' means a case brought under title 11, United States
Code, or any related proceeding as provided in section 157 of
title 28, United States Code.
(6) Board-certified in internal medicine.--The term
``Board-certified in internal medicine'' means a physician who
is certified by the American Board of Internal Medicine or the
American Osteopathic Board of Internal Medicine.
(7) Board-certified in occupational medicine.--The term
``Board-certified in occupational medicine'' means a physician
who is certified in the subspecialty of occupational medicine
by the American Board of Preventive Medicine or the American
Osteopathic Board of Preventive Medicine.
(8) Board-certified in oncology.--The term ``Board-
certified in oncology'' means a physician who is certified in
the subspecialty of medical oncology by the American Board of
Internal Medicine or the American Osteopathic Board of Internal
Medicine.
(9) Board-certified in pathology.--The term ``Board-
certified in pathology'' means a physician who holds primary
certification in anatomic pathology or clinical pathology from
the American Board of Pathology or the American Osteopathic
Board of Internal Medicine and whose professional practice--
(A) is principally in the field of pathology; and
(B) involves regular evaluation of pathology
materials obtained from surgical or postmortem
specimens.
(10) Board-certified in pulmonary medicine.--The term
``Board-certified in pulmonary medicine'' means a physician who
is certified in the subspecialty of pulmonary medicine by the
American Board of Internal Medicine or the American Osteopathic
Board of Internal Medicine.
(11) Certified b-reader.--The term ``certified B-reader''
means an individual qualified as a ``final'' or ``B-reader''
under 42 CFR 37.51(b) as amended.
(12) Civil action.--The term ``civil action'' means all
suits or claims of a civil nature in State or Federal court,
whether cognizable as cases at law or in equity or in
admiralty, including an asbestos or silica claim in a
bankruptcy proceeding. The term does not include an action
relating to any workers' compensation law, or a proceeding for
benefits under any veterans' benefits program.
(13) Economic loss.--The term ``economic loss'' means any
pecuniary loss resulting from physical impairment, including
the loss of earnings or other benefits related to employment,
medical expense loss, replacement services loss, loss due to
death, burial costs, and loss of business or employment
opportunities.
(14) Exposed person.--The term ``exposed person'' means any
person whose exposure to asbestos or silica or to asbestos- or
silica-containing products which is the basis for an asbestos
or silica claim.
(15) Exposure years.--The term ``exposure years'' means--
(A) each single year of exposure prior to 1972 will
be counted as one year;
(B) each single year of exposure from 1972 through
1979 will be counted as one-half year; and
(C) exposure after 1979 will not be counted, except
that each year from 1972 forward for which the
plaintiff can establish exposure exceeding the OSHA
limit for 8-hour time-weighted average airborne
concentration for a substantial portion of the year
will count as one year.
(16) FEV1.--The term ``FEV1'' means forced expiratory
volume in the first second, which is the maximal volume of air
expelled in one second during performance of simple spirometric
tests.
(17) FVC.--The term ``FVC'' means forced vital capacity
which is the maximal volume of air expired with maximum effort
from a position of full inspiration.
(18) ILO scale.--The term ``ILO Scale'' means the system
for the classification of chest x-rays set forth in the
International Labour Office's Guidelines for the Use of ILO
International Classification of Radiographs of Pneumoconioses
(2000) as amended from time to time by the International Labour
Office.
(19) Lung cancer.--The term ``lung cancer'' means a
malignant tumor located inside of the lungs, but such term does
not include an asbestos claim based upon mesothelioma.
(20) Mesothelioma.--The term ``mesothelioma'' means a
malignant tumor with a primary site in the pleura, the
peritoneum, or pericardium, which has been diagnosed by a
Board-certified pathologist, using standardized and accepted
criteria of microscopic morphology and/or appropriate staining
techniques.
(21) Noneconomic loss.--The term ``noneconomic loss'' means
subjective, nonmonetary loss resulting from physical
impairment, including pain, suffering, inconvenience, mental
anguish, emotional distress, disfigurement, loss of society and
companionship, loss of consortium, injury to reputation, or any
other nonpecuniary loss of any kind or nature.
(22) Nonmalignant condition.--The term ``nonmalignant
condition'' means any condition that is caused or may be caused
by asbestos or silica other than a diagnosed cancer.
(23) Nonsmoker.--The term ``nonsmoker'' means the exposed
person has not smoked cigarettes or used any other tobacco
products within 15 years from the date the person was diagnosed
with an asbestos- or silica-related disease.
(24) Pathological evidence of asbestosis.--The term
``pathological evidence of asbestosis'' means a statement by a
Board-certified pathologist that more than one representative
section of lung tissue uninvolved with any other disease
process demonstrates a pattern of peribronchiolar or
parenchymal scarring in the presence of characteristic asbestos
bodies and that there is no other more likely explanation for
the presence of the fibrosis.
(25) Pathological evidence of silicosis.--The term
``pathological evidence of silicosis'' means a statement by a
Board-certified pathologist that more than one representative
section of lung tissue uninvolved with any other disease
process demonstrates a pattern of round silica nodules and
birefringent crystals or other demonstration of crystal
structures consistent with silica (well-organized concentric
whorls of collagen surrounded by inflammatory cells) in the
lung parenchyma and that there is no other more likely
explanation for the presence of the fibrosis.
(26) Predicted lower limit of normal.--The term ``predicted
lower limit of normal'' for any pulmonary function test means
the calculated standard convention lying at the fifth
percentile, below the upper 95 percent of the reference
population based on age, height, and gender, according to the
recommendations of the American Thoracic Society as referenced
in the AMA Guides to the Evaluation of Permanent Impairment
(5th Ed. 2000).
(27) Premises owner.--The term ``premises owner'' means a
person who owns, in whole or in part, leases, rents, maintains,
or controls privately owned lands, ways or waters, or any
buildings and structures on those lands, ways or waters, and
all privately owned and State-owned lands, ways, or waters
leased to a private person, firm, or organization, including
any buildings and structures on those lands, ways or waters.
(28) Pulmonary function test.--The term ``pulmonary
function test'' means spirometry, lung volume testing and
diffusion capacity testing (including appropriate measurements
and graphs) performed in accordance with the AMA Guides to the
Evaluation of Permanent Impairment (5th Ed. 2000), 20 CFR 404,
Subpart P, Appendix 1, Part (A), Sections 3.00 (E) and (F)
(2003) and the Official Statements of the American Thoracic
Society, ``Lung Function Testing: Selection of Reference Values
and Interpretative Strategies'', Am. Rev. Resp. Dis. 1991;
144:1202-1218; ``Standardization of Spirometry, 1994 Update'',
Am. J. Resp. Critical Care Med 1995; 152:1107-1136; and
``Single-breath Carbon Monoxide Diffusion Capacity (Transfer
Factor): Recommendations for A Standard Technique-1995
Update'', Am. J. Resp. Critical Care Med 1995; 152:2185-2198.
(29) Punitive damages.--The term ``punitive damages'' means
damages awarded against a defendant in order to punish or deter
such defendant or others from engaging in similar behavior in
the future.
(30) Qualified physician.--The term ``qualified physician''
means a medical doctor, who--
(A) is a Board-certified internist, oncologist,
pathologist, pulmonary specialist, radiologist, or
specialist in occupational and environmental medicine;
(B) has conducted a physical examination of the
exposed person;
(C) is actually treating or treated the exposed
person, and has or had a doctor-patient relationship
with such person at the time of the physical
examination;
(D) spends no more than 10 percent of his/her
professional practice time, or rendered more than 40
diagnoses, whichever quantity is smaller, in providing
consulting or expert services in connection with actual
or potential civil actions, and whose medical group,
professional corporation, clinic, or other affiliated
group earns not more than 20 percent of their revenues
from providing such services;
(E) is currently licensed to practice and actively
practices in the State where the plaintiff resides or
where the plaintiff's civil action was filed or was
licensed and practiced at the time of the physical
examination;
(F) receives or received payment for the treatment
of the exposed person from that person's health
maintenance organization or other medical provider, or
from the exposed person or from a member of the exposed
person's family; and
(G) a physician may not, as the basis for a
diagnosis, rely, in whole or in part, on any of--
(i) the reports or opinions of any doctor,
clinic, laboratory, or testing company that
performed an examination, test, or screening of
the exposed person's medical condition in
violation of any law, regulation, licensing
requirement, or medical code of practice of the
State in which the examination, test, or
screening was conducted;
(ii) the reports or opinions of any doctor,
clinic, laboratory, or testing company that
performed an examination, test, or screening of
the exposed person's medical condition that was
conducted without clearly establishing a
doctor-patient relationship with the exposed
person or medical person involved in the
examination, test, or screening process; or
(iii) the reports or opinions of any
doctor, clinic, laboratory, or testing company
that performed an examination, test, or
screening of the exposed person's medical
condition that required the exposed person to
agree to retain the legal service of the law
firm sponsoring the examination, test, or
screening.
(31) Radiological evidence of asbestosis.--The term
``radiological evidence of asbestosis'' means a quality 1 chest
x-ray under the ILO system of classification (in a death case
where no pathology is available, the necessary radiological
findings may be made with a quality 2 film, if a quality 1 film
is not available) showing small, irregular opacities (s,t,u)
graded by a certified B-reader as at least 1/1 on the ILO
scale.
(32) Radiological evidence of diffuse pleural thickening.--
The term ``radiological evidence of diffuse pleural
thickening'' means a quality 1 chest x-ray under the ILO system
of classification (in a death case where no pathology is
available, the necessary radiological findings may be made with
a quality 2 film, if a quality 1 film is not available) showing
bilateral pleural thickening of at least B2 on the ILO scale
and blunting of at least one costophrenic angle.
(33) Radiological evidence of silicosis.--The term
``radiological evidence of silicosis'' means a chest x-ray
showing bilateral rounded or irregular opacities (p, q, or r)
in the upper lung fields graded by a certified B-reader as at
least 1/1 on the ILO scale.
(34) Silica.--The terms ``silica'' means a respirable
crystalline form of silicon dioxide, including, but not limited
to, alpha, quartz, cristobalite, and trydmite.
(35) Silica claim.--The term ``silica claim'' means any
claim for damages or other relief presented in a civil action
or bankruptcy proceeding, arising out of, based on, or related
to the health effects of exposure to silica, including loss of
consortium and any other derivative claim made by or on behalf
of any exposed person or any representative, spouse, parent,
child, or other relative of any exposed person. The term does
not include claims for benefits under a workers' compensation
law or veterans' benefits program, or claims brought by any
person as a subrogee by virtue of the payment of benefits under
a workers' compensation law.
(36) Silicosis.--The term ``silicosis'' means nodular
interstitial fibrosis of the lungs caused by inhalation of
silica.
(37) Smoker.--The term ``smoker'' means a person who has
smoked cigarettes or used other tobacco products within 15
years from the date the person was diagnosed with an asbestos,
silica, or mixed-dust related disease.
(38) State.--The term ``State'' means any State of the
United States, the District of Columbia, Commonwealth of Puerto
Rico, the Northern Mariana Islands, the Virgin Islands, Guam,
American Samoa, and any other territory or possession of the
United States or any political subdivision of any of the
foregoing.
(39) Substantial contributing factor.--The term
``substantial contributing factor'' means--
(A) exposure to asbestos or silica is the
predominate cause of the physical impairment alleged in
the asbestos or silica claim;
(B) the exposure to asbestos or silica took place
on a regular basis over an extended period of time and
in close proximity to the exposed person; and
(C) a qualified physician has determined with a
reasonable degree of medical certainty that the
physical impairment of the exposed person would not
have occurred but for the asbestos or silica exposures.
(40) Substantial occupational exposure to asbestos.--The
term ``substantial occupational exposure to asbestos'' means
employment for a cumulative period of at least ten years in an
industry and an occupation in which, for a substantial portion
of a normal work year for that occupation, the exposed person
did any of the following:
(A) Handled raw asbestos fibers.
(B) Fabricated asbestos-containing products so that
the person was exposed to raw asbestos fibers in the
fabrication process.
(C) Altered, repaired, or otherwise worked with an
asbestos-containing product in a manner that exposed
the person on a regular basis to asbestos fibers.
(D) Worked in close proximity to other workers
engaged in any of the activities described herein in a
manner that exposed the person on a regular basis to
asbestos fibers.
(41) Total lung capacity.--The term ``total lung capacity''
means the volume of air in the lungs after a maximal
inspiration as measured by either plethysmography or time gas
dilution techniques.
(42) Veterans' benefits program.--The term ``veterans'
benefits program'' means any program for benefits in connection
with military service administered by the Veterans'
Administration under title 38, United States Code.
(43) Workers' compensation law.--The term ``workers'
compensation law'' means a law respecting a program
administered by a State or the United States to provide
benefits, funded by a responsible employer or its insurance
carrier, for occupational diseases or injuries or for
disability or death caused by occupational diseases or
injuries. The term includes the Longshore and Harbor Workers'
Compensation Act (33 U.S.C. 901-944, 948-950), and chapter 81
of title 5, United States Code (known as the Federal Employees
Compensation Act), but does not include the Act of April 22,
1908 (45 U.S.C. 51 et seq.) (popularly referred to as the
``Federal Employers' Liability Act'').
SEC. 9. MISCELLANEOUS PROVISIONS.
(a) Construction With Other Laws.--This Act shall not be construed
to affect the scope or operation of any workers' compensation law or
veterans' benefit program, to affect the exclusive remedy or
subrogation provisions of any such law, or to authorize any lawsuit
which is barred by any such provision of law.
(b) Constitutional Authority.--The Constitutional authority for
this Act is contained in article I, section 8, clause 3 of the
Constitution of the United States and in article III, section 1 of the
Constitution of the United States.
SEC. 10. EFFECTIVE DATE.
This Act shall be effective on the date of the enactment of this
Act and apply to any civil action asserting an asbestos or silica claim
in which final judgment has not been entered as of the date of the
enactment of this Act.
<all>
Introduced in House
Introduced in House
Referred to the House Committee on the Judiciary.
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