TABLE OF CONTENTS:
Title I: Asbestos Resolution Corporation
Title II: Medical Eligibility Determinations
Title III: Alternative Dispute Resolution
Title IV: Civil Actions
Title V: Rules Applicable to Arbitrations and Civil Actions
Title VI: Funding
Title VII: Applicability; Pending Civil Actions
Title VIII: Miscellaneous Provisions
Fairness in Asbestos Compensation Act of 1999 - Title I: Asbestos Resolution Corporation - Establishes the Asbestos Resolution Corporation which shall: (1) have exclusive authority to adopt rules for cost recovery, physician qualifications, alternative dispute resolution, exceptional medical cases, and disease eligibility; and (2) appoint a Medical Advisory Board.
Title II: Medical Eligibility Determinations - Sets forth claimant medical eligibility determination criteria for: (1) nonmalignant conditions; (2) mesothelioma; (3) lung cancer; and (4) other cancer.
(Sec. 205) Sets forth procedures for Corporation determination of a claimant's certificate of medical eligibility.
(Sec. 206) Directs the Corporation to establish one or more exceptional medical claims panels. Sets forth application and acceptance provisions.
(Sec. 207) Provides for: (1) confidentiality; and (2) U.S. district court review of Corporation determinations of eligibility.
Title III: Alternative Dispute Resolution - Directs the Board to establish procedural rules for an alternative dispute resolution process.
Sets forth provisions regarding: (1) motions officers; (2) respondent notification; (3) additional respondents; (4) grace period; (5) mediation and arbitration; and (6) subpoena powers.
Title IV: Civil Actions - Prohibits: (1) a civil asbestos action unless the plaintiff has obtained a certificate of medical eligibility and release from mediation; and (2) a class action or other collective action without the consent of each defendant.
(Sec. 404) Requires a penalty for a final offer made by a respondent in mediation if such offer is below a certain amount assigned by the jury or fact-finder.
Title V: Rules Applicable to Arbitrations and Civil Actions - Sets forth arbitration and civil action rules with respect to: (1) issues to be decided; (2) relief; (3) timeliness defenses; (4) attorney's fees; and (5) nonpreclusion of nonmalignant claims upon subsequent malignancy claims.
Title VI : Funding - Directs the Corporation to estimate its annual medical review and administrative and overhead costs and allocate proportionate cost shares among the previous year's respondents. Provides monetary penalties for noncooperation with the Corporation.
(Sec. 602) Provides for mediation and arbitration costs to be charged on a per capita basis to participating respondents.
(Sec. 603) Directs the Corporation to establish procedures for informal resolution of cost assessment disputes. Provides for U.S. district court review of cost assessment disputes.
(Sec. 606) Establishes the Asbestos Resolution Corporation Trust Fund and transfers to it amounts received under this title and other amounts. Authorizes obligation of Fund amounts consistent with this Act, to remain available without fiscal year limitation.
Title VII: Applicability; Pending Civil Actions - Makes this Act applicable to any civil asbestos action that has not resulted in a final, nonappealable judgment, with specified conditions applicable to pending civil actions.
Title VIII: Miscellaneous Provisions - Defines specified terms.
(Sec. 803) Makes this Act inapplicable to existing asbestos trusts, with an elective trust exception.
(Sec. 804) States that nothing in this Act shall prohibit a claimant from entering into a settlement agreement concerning a claim covered under this Act.
[Congressional Bills 106th Congress]
[From the U.S. Government Publishing Office]
[S. 758 Introduced in Senate (IS)]
106th CONGRESS
1st Session
S. 758
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 SENATE OF THE UNITED STATES
March 25, 1999
Mr. Ashcroft (for himself, Mr. Hatch, Mr. Dodd, Mr. Sessions, Mr.
Lieberman, Mr. Grassley, Mr. Torricelli, Mr. Smith of New Hampshire,
and Mr. Schumer) introduced the following bill; which was read twice
and 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 ``Fairness in
Asbestos Compensation Act of 1999''.
(b) Table of Contents.--The table of contents for this Act is as
follows:
Sec. 1. Short title; table of contents.
Sec. 2. Findings.
Sec. 3. Definitions.
TITLE I--ASBESTOS RESOLUTION CORPORATION
Sec. 101. Establishment.
Sec. 102. Powers of the Corporation.
Sec. 103. Board of Directors.
Sec. 104. Officers.
Sec. 105. Medical Advisory Board.
Sec. 106. Avoidance of conflict of interest.
Sec. 107. Annual reports.
TITLE II--MEDICAL ELIGIBILITY DETERMINATIONS
Sec. 201. Medical criteria--nonmalignant conditions.
Sec. 202. Medical criteria--mesothelioma.
Sec. 203. Medical criteria--lung cancer.
Sec. 204. Medical criteria--other cancer.
Sec. 205. Procedure for certificate of eligibility.
Sec. 206. Exceptional medical claims.
Sec. 207. Confidentiality.
Sec. 208. Judicial review.
TITLE III--ALTERNATIVE DISPUTE RESOLUTION
Sec. 301. Rules of procedure.
Sec. 302. Motions officers.
Sec. 303. Notice to respondents.
Sec. 304. Additional respondents.
Sec. 305. Grace period.
Sec. 306. Mediation.
Sec. 307. Arbitration.
Sec. 308. Subpoena powers of motions officers and arbitrators.
TITLE IV--CIVIL ACTIONS
Sec. 401. Prerequisites for civil action.
Sec. 402. Individual trials.
Sec. 403. Certificate of medical eligibility presumed correct.
Sec. 404. Penalty for inadequate offer in mediation.
TITLE V--RULES APPLICABLE TO ARBITRATIONS AND CIVIL ACTIONS
Sec. 501. Elements of proof; relief.
Sec. 502. Timeliness defenses abolished.
Sec. 503. Attorneys' fees.
Sec. 504. Certain prior litigation defenses abolished.
TITLE VI--FUNDING
Sec. 601. Costs of medical review and overhead and administration.
Sec. 602. Cost of mediation and arbitration.
Sec. 603. Informal dispute resolution.
Sec. 604. Judicial review; enforcement.
Sec. 605. Penalties.
Sec. 606. Asbestos Resolution Corporation Trust Fund.
TITLE VII--APPLICABILITY; PENDING CIVIL ACTIONS
Sec. 701. Applicability.
Sec. 702. Pending civil actions.
TITLE VIII--MISCELLANEOUS PROVISIONS
Sec. 801. Applicability of other Federal laws.
Sec. 802. Obligations of the Corporation not obligations of the United
States.
Sec. 803. Application to existing asbestos trusts.
Sec. 804. Settlements unaffected.
Sec. 805. Severability.
SEC. 2. FINDINGS.
Congress finds the following:
(1) Asbestos personal injury litigation is unfair and
inefficient, and imposes a crushing burden on litigants and
taxpayers alike.
(2) Asbestos litigation has already led to the bankruptcy
of more than 15 companies, representing the great majority of
the former asbestos industry.
(3) The extraordinary volume of asbestos litigation is
straining Federal and State courts at enormous taxpayer
expense, with more than 150,000 such lawsuits currently pending
in the tort system and tens of thousands of new cases filed
every year.
(4) Asbestos litigation has resulted in arbitrary verdicts,
with individuals receiving widely varying recoveries despite
similar medical conditions.
(5) Asbestos litigation is a mature tort. The legal,
medical, and scientific issues have been repeatedly tried and
retried in the courts for many years.
(6) Currently, statutes of limitations can force claimants
to bring premature lawsuits in order to avoid losing their
claim for compensation. Moreover, in order to obtain
compensation for nonmalignant disease, claimants often must
give up their right to obtain compensation later on, if they
develop an asbestos-related cancer.
(7) Litigation has not been able to provide compensation to
claimants swiftly. On the contrary, according to the Ad Hoc
Committee on Asbestos Litigation of the United States Judicial
Conference, the volume and complexity of asbestos cases have
resulted in the violation of a basic tenet of American justice;
which is the speedy and inexpensive resolution of cases.
(8) Litigation has also proved to be an extraordinarily
costly means of resolving claims of asbestos-related disease.
Less than 50 percent of the total cost of asbestos litigation
actually goes to compensate claimants, while the remainder is
eaten up in attorneys' fees and other litigation costs.
(9) In many courts, the vast majority of pending asbestos
claims are filed by individuals who suffer no present asbestos-
related impairment. These claims divert the resources of
defendants from compensating individuals who are suffering from
serious asbestos-related disease.
(10) Punitive damages also divert the resources of
defendants from compensating impaired claimants. Moreover,
punitive damages give a few claimants huge windfalls in
addition to compensatory damages.
(11) In an effort to cope with the overwhelming tide of
asbestos cases, a few courts have resorted to mass consolidated
trials and other aggregative methods of dealing with asbestos
claims. Unfortunately, mass consolidations only serve to
magnify the irrationality of a litigation system that awards
massive amounts to the unimpaired, while threatening the
ability of seriously ill people to obtain compensation in the
future.
SEC. 3. DEFINITIONS.
In this Act:
(1) Alternative dispute resolution process.--The term
``alternative dispute resolution process'' means the mediation
and voluntary arbitration process established under title III
of this Act.
(2) Asbestos.--The term ``asbestos'' means any number of
naturally occurring silicates with the common properties of
great resistance to destruction by physical or chemical means
and a fibrous configuration, including asbestiform varieties of
chrysotile, crocidolite, amosite, anthophyllite, tremolite, or
actinolite.
(3) 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.
(4) 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 under
the bankruptcy laws of the United States or rule 23 of the
Federal Rules of Civil Procedure.
(5) Basilar crackles.--The term ``basilar crackles'',
sometimes referred to as ``rales'', means those sounds
described in American Thoracic Society, ``The Diagnosis of
Nonmalignant Diseases Related to Asbestos'', 134 American
Review of Respiratory Disease, 363, 366 (1986).
(6) Board.--The term ``Board'' means the Board of Directors
of the Asbestos Resolution Corporation.
(7) Board-certified internist.--The term ``board-certified
internist'' means a physician who is currently certified by the
American Board of Internal Medicine in internal medicine.
(8) Board-certified oncologist.--The term ``board-certified
oncologist'' means a physician who is currently certified by
the American Board of Internal Medicine in the subspecialty of
medical oncology.
(9) Board-certified pathologist.--The term ``board-
certified pathologist'' means a physician who currently holds
primary certification in anatomic pathology, or combined
anatomic and clinical pathology, from the American Board of
Pathology.
(10) Board-certified pulmonary specialist.--The term
``board-certified pulmonary specialist'' means a physician who
is currently certified by the American Board of Internal
Medicine in the subspecialty of pulmonary disease.
(11) Board-certified radiologist.--The term ``board-
certified radiologist'' means a physician who is currently
certified by the American Board of Radiology.
(12) Bylaws.--The term ``bylaws'' means the code or codes
of rules adopted for the regulation or management of the
affairs of the Corporation. Bylaws shall be consistent with the
requirements of this Act and, to the extent consistent with
this Act, with the requirements of the District of Columbia
Nonprofit Corporation Act (D.C. Code section 29-501 et seq.).
(13) Cancer.--The term ``cancer'' means any of the various
malignant neoplasms marked by the proliferation of anaplastic
cells that tend to invade surrounding tissue and metastasize to
new body sites and the pathological condition characterized by
such growths.
(14) Certificate of medical eligibility.--The term
``certificate of medical eligibility'' means a certificate
issued by the Corporation to a claimant under this Act
certifying that an exposed person meets the requirements of 1
or more eligible medical categories (or qualifies as an
exceptional medical claim with respect to an eligible medical
category).
(15) Certified b-reader.--The term ``certified B-reader''
means an individual qualified as a ``final'' or ``B-reader''
under section 37.51(b) of title 42, Code of Federal Regulations
(and any subsequent revisions thereof) whose certification is
current.
(16) Chest x-rays.--The term ``chest x-rays'' means chest
radiographs taken in 4 views (posterior-anterior, lateral, and
left and right obliques) and graded quality 1 for reading
according to the criteria established by the ILO (except that,
in situations where 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
shall be acceptable).
(17) Civil action.--The term ``civil action'' means any
action, lawsuit, or proceeding in any Federal, State, or tribal
court, but does not include--
(A) a criminal action; or
(B) an action relating to Federal or State worker's
compensation laws.
(18) Claimant.--The term ``claimant'' means any exposed
person or the legal representative of that exposed person, and
any parent, child, or other relative of an exposed person, or
the legal representative of that exposed person, who applies to
the Corporation for a certificate of medical eligibility or
who invokes the alternative dispute resolution services offered by the
Corporation.
(19) Clinical evidence of asbestosis.--The term ``clinical
evidence of asbestosis'' means a diagnosis of pulmonary
asbestosis by a board-certified internist or board-certified
pulmonary specialist based on the following minimum objective
criteria:
(A) Chest x-rays which, in the opinion of a
certified B-reader, show small irregular opacities of
ILO grade 1/0 and pulmonary function testing and
physical examination that show either--
(i) FVC<80percent of predicted value with
FEV<INF>1</INF>/FVC<gr-thn-eq>75 percent
(actual value); or
(ii) TLC<80 percent of predicted value,
with either DLCO<ls-thn-eq>76 percent 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 lung
disease.
(B) Chest x-rays which, in the opinion of a
certified B-reader, show small irregular opacities of
ILO grade 1/1 or greater; and pulmonary function
testing that shows either--
(i) FVC<80 percent of predicted value with
FEV<INF>1</INF>/FVC<gr-thn-eq>72 percent
(actual value) or, if the individual tested is
at least 68 years old at the time of the
testing, with FEV<INF>1</INF>/FVC<gr-thn-eq>65
percent (actual value); or
(ii) TLC<80 percent of predicted value.
(20) Compensatory damages.--The term ``compensatory
damages'' means damages awarded for economic and noneconomic
loss.
(21) Corporation.--The term ``Corporation'' means the
Asbestos Resolution Corporation established in section 101.
(22) Defendant.--The term ``defendant'' means any party in
a civil action that is alleged to be legally responsible for
the claimant's injury.
(23) DLCO.--The term ``DLCO'' means 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.
(24) Economic loss.--The term ``economic loss'' means any
pecuniary loss resulting from harm (including the loss of
earnings or other benefits related to employment, medical
expense loss, replacement service loss, loss due to death,
burial costs, and loss of business or employment opportunities)
to the extent that recovery for such loss is allowed under
applicable law.
(25) Eligible medical category.--The term ``eligible
medical category'' means mesothelioma, lung cancer, other
cancer, and nonmalignant conditions.
(26) Evidence of bilateral pleural thickening with
impairment.--The term ``evidence of bilateral pleural
thickening with impairment'' means a diagnosis of bilateral
pleural thickening with impairment by a board-certified
internist or board-certified pulmonary specialist based on the
following minimum objective criteria:
(A) Chest x-rays which, in the opinion of a
certified B-reader, show bilateral pleural thickening
of ILO Grade B2, and which includes blunting of at
least 1 costophrenic angle and is not explained by any
other condition in the subject's history; and pulmonary
function testing that shows--
(i) if TLC is available, TLC<75 percent of
predicted value; or
(ii) if TLC is not available, VC or FVC<75
percent of predicted value with
FEV<INF>1</INF>/FVC<gr-thn-eq>75 percent
(actual value); and in either case
(iii) a statement by the board-certified
internist or board-certified pulmonary
specialist that the asbestos-related changes
are a substantial contributing factor in
causing the pulmonary function changes.
(B) Chest x-rays which, in the opinion of a
certified B-reader, show bilateral pleural thickening
of ILO grade C2 or greater, and which includes the
blunting of at least 1 costophrenic angle and is not
explained by any other condition in the subject's
history; and pulmonary function testing that shows--
(i) FVC<80 percent of predicted value with
FEV<INF>1</INF>/FVC<gr-thn-eq>75 percent
(actual value), or, if the individual tested is
at least 68 years old at the time of the
testing, with FEV<INF>1</INF>/FVC<gr-thn-eq>65
percent (actual value); or
(ii) TLC<80 percent of predicted value; and
in either case
(iii) a statement by the board-certified
internist or board-certified pulmonary
specialist that the asbestos-related changes
are a substantial contributing factor in
causing the pulmonary function changes.
(27) Exceptional medical claim.--The term ``exceptional
medical claim'' means a claim identified as such under the
procedures in section 206.
(28) 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.
(29) FEV<INF>1</INF>.--The term ``FEV<INF>1</INF>'' means
forced expiratory volume (1 second), which is the maximal
volume of air expelled in 1 second during performance of the
spirometric test for forced vital capacity (FVC).
FEV<INF>1</INF> shall be measured using standard spirometric
methods.
(30) Final certificate of eligibility.--The term ``final
certificate of eligibility'' means a certificate of eligibility
that is not subject to further review or modification by the
Corporation, whether on reconsideration under section 205 by action of
an exceptional medical claims panel under section 206.
(31) 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. FVC shall
be measured using standard spirometric methods.
(32) Good faith offer or good faith demand.--The terms
``good faith offer'' or ``good faith demand'' means a
settlement offer or demand which reflects an evaluation of
relevant factors of traditional tort principles of damages.
(33) Grace period.--The term ``grace period'' means the
period allowed for voluntary settlements in section 305.
(34) ILO.--The term ``ILO'' means the International Labour
Office.
(35) ILO grade.--The term ``ILO grade'' means the
radiological ratings for the presence of lung changes by chest
x-rays as established from time to time by the ILO.
(36) Latency period.--The term ``latency period'' means the
period from the date of the exposed person's first significant
exposure to asbestos or an asbestos-containing product to the
date of manifestation of the condition claimed.
(37) 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 competent practicing physician.
(38) Medical advisory board.--The term ``Medical Advisory
Board'' means the board established under section 105 to
provide medical advice to the board of directors of the
Corporation.
(39) Mesothelioma.--The term ``mesothelioma'' means a
malignant tumor of the mesothelial tissue.
(40) Motions officer.--The term ``motions officer'' means
an official of the Corporation responsible for resolving
procedural and discovery disputes during the alternative
dispute resolution process in the absence of an arbitrator.
Motions officers shall be members in good standing of the bar
of a State.
(41) Noneconomic loss.--The term ``noneconomic loss'' means
subjective, nonmonetary loss resulting from harm, including
pain, suffering, inconvenience, mental suffering, emotional
distress, loss of society and companionship, loss of
consortium, injury to reputation, and humiliation.
(42) OSHA.--The term ``OSHA'' means the Occupational Safety
and Health Administration of the Department of Labor.
(43) Occupational history.--The term ``occupational
history'' means a listing of all employment positions,
providing for the dates and place of employment, the employer,
and a description of job responsibilities and activities.
(44) Operational date.--The term ``operational date'' means
the date on which the Board certifies that the Corporation is
operational.
(45) Pathological evidence of asbestosis.--The term
``pathological evidence of asbestosis'' means diagnosis of
pulmonary asbestosis by a board-certified pathologist based on
a finding that more than 1 representative section of lung
tissue otherwise uninvolved with any other process (such as
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.
(46) Person.--The term ``person'' means an individual,
trust, firm, corporation, association, partnership, joint
venture, the United States, and any State or political
subdivisions thereof. The term does not include an asbestos
trust in existence as of the date of enactment unless the trust
elects to be covered by this Act under section 803.
(47) Practicing physician.--The term ``practicing
physician'' means a medical doctor currently licensed to
practice medicine in any State who has not, within the 5-year
period before the date of enactment of the Act, spent more than
\1/2\ of that individual's professional time, or derived more
than \1/2\ of that individual's professional income, either
annually or in total, either reviewing or testifying in any
forum on medical-legal issues related to asbestos.
(48) Predicted value.--
(A) In general.--The term ``predicted value'' for
spirometry and lung volumes shall be the relevant value
published by Morris, Clinical Pulmonary Function
Testing, 2d Edition, Intermountain Thoracic Society
(1984). ``Predicted Value'' for diffusing capacity
shall be the relevant value published by Miller, et
al., ``Single Breath Diffusing Capacity in a
Representative Sample of the Population of Michigan, a
Large Industrial State'', 127 American Review of
Respiratory Disease, 270-77 (1983).
(B) Corrections.--Predicted value in all pulmonary
function tests shall be corrected for race, ethnic
origin, and other relevant factors.
(49) Pulmonary function testing.--
(A) In general.--The term ``pulmonary function
testing'' means spirometry, lung volume, and diffusing
capacity (``DLCO'') testing.
(B) Methods.--
(i) Spirometry.--All spirometry shall use
standard spirometric methods.
(ii) Pulmonary function testing other than
spirometry.--Pulmonary function testing other
than spirometry shall use methods, quality
criteria, and standards approved by the Board,
upon the recommendation of the Medical Advisory
Board. Such methods, quality criteria, and
standards shall be generally recognized by
authoritative professional bodies as
appropriate, giving due consideration to the
reliability where obstructive lung disease may
be present.
(C) Backup data.--For purposes of submitting
results of pulmonary function testing to the
Corporation under this Act, all backup data for those
results (including flow volume loops, spirographs, and
other tracings), necessary to ensure compliance with
the methods, quality criteria, and standards approved
by the Board shall be submitted to the Corporation.
(50) Punitive damages.--The term ``punitive damages'' means
damages that are awarded against any person and that are--
(A) designated as punitive or exemplary damages
under applicable law; or
(B) primarily designed to punish or deter such
person, or any other person, from engaging in similar
behavior in the future.
(51) Respondent.--
(A) In general.--The term ``respondent'' means any
person who is or may be responsible for a claimant's
asbestos-related condition and who is so notified by
the Corporation under section 303 or 304.
(B) Exclusion.--The term does not include 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 803.
(52) Standard spirometric methods.--
(A) In general.--The term ``standard spirometric
methods'' means spirometric methods and equipment that
substantially conform to American Thoracic Society
standards for technical quality and instrumentation, as
set forth in section 718.103 of title 20, Code of
Federal Regulations, and appendix B thereto or in
guidelines established by the American Thoracic
Society, as set forth in ``Standardization of
Spirometry--1994 Update'', 152 American Review of
Respiratory Disease 1107-36 (1995) and any revisions
thereof.
(B) Testing.--For the purposes of testing with
standard spirometric methods under this Act, each
subject shall be required to be tested with and without
inhaled bronchodilators, with best values taken.
(C) Backup data.--For purposes of submitting
results of testing with standard spirometric methods to
the Corporation under this Act, all backup data for
those results (including flow volume loops,
spirographs, and other tracings), necessary to ensure
that the quality criteria and standards under
subparagraphs (A) and (B) have been satisfied shall be
submitted to the Corporation.
(53) 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.
(54) TLC.--The term ``TLC'' means total lung capacity,
which is the volume of air in the lung after maximal
inspiration.
(55) Workers' compensation law.--
(A) In general.--The term ``workers compensation
law'' means a law concerning 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.
(B) Scope.--The term includes the Longshore and
Harbor Workers' Compensation Act (33 U.S.C. 901 through
944, and 948 through 950), but does not include the
Federal Employers' Liability Act (45 U.S.C. 51 et
seq.).
TITLE I--ASBESTOS RESOLUTION CORPORATION
SEC. 101. ESTABLISHMENT.
There is established a corporation, to be known as the ``Asbestos
Resolution Corporation''.
SEC. 102. POWERS OF THE CORPORATION.
The Corporation shall have the power to--
(1) hire or appoint employees and to retain the services of
other entities to provide such employees;
(2) contract for services, including the services of
practicing physicians and other medical professionals, hearing
examiners, mediators, arbitrators, financial experts or
consultants, accountants, and attorneys;
(3) receive voluntary contributions of funds, goods, and
services in order to carry out its purposes;
(4) appoint 1 or more exceptional medical claims panels, as
described in section 206(a);
(5) adopt rules, policies, and procedures governing
recovery of costs from and allocation of costs to defendants
and respondents;
(6) adopt rules, policies, and procedures for the fair and
efficient conduct of medical review and alternative dispute
resolution;
(7) conduct audits of information submitted to it,
including inspection of laboratories performing medical tests
and verification of quality assurance and quality control
procedures; and
(8) sue and be sued in its corporate name.
SEC. 103. BOARD OF DIRECTORS.
(a) Membership.--
(1) In general.--The Corporation shall be managed by a
Board of Directors consisting of 7 members appointed by the
President, by and with the advice and consent of the Senate.
(2) Chairperson.--The President shall designate the
chairperson of the Board.
(3) Limitation.--Not more than 4 directors may be members
of the same political party.
(4) Membership requirement.--The directors shall be
distinguished private citizens of the United States.
(5) Nominations.--The President shall submit 7 nominations
under this section to the Senate not later than 4 months after
the date of the enactment of this Act.
(b) Terms.--
(1) In general.--Each director shall be appointed for a
term of 6 years beginning on the date of expiration of the term
of the predecessor of that director, except that, of the
directors first appointed--
(A) 3 shall be appointed for a term of 3 years,
(B) 3 shall be appointed for a term of 6 years, and
(C) the chairperson shall be appointed for a term
of 6 years.
(2) Period of terms.--The terms of office of the directors
first appointed shall begin on the date of enactment. A
director may continue to serve until his successor has been
appointed and confirmed.
(c) Vacancy.--A vacancy on the Board shall be filled in the same
manner as the original appointment. A director appointed to fill a
vacancy occurring before the expiration of the term for which the
predecessor of that director was appointed shall be appointed for the
remainder of that term. A vacancy shall not affect the power of the
Board.
(d) Removal.--Directors may be removed for cause by the President.
(e) Compensation; Expenses.--
(1) The compensation of directors other than the
chairperson shall not exceed $50,000 per year, and the
compensation of the chairperson shall not exceed $75,000 per
year.
(2) Directors may be reimbursed for reasonable travel and
other expenses incurred in connection with their services to
the Corporation under policies adopted by the Board.
(f) Personal Liability of Directors.--A director shall not be
personally liable for any act or omission within the scope of the
director's service as a member of the Board. The liability of a
director shall not be limited as provided in this subsection if the
director engaged in willful misconduct or a knowing violation of the
criminal law.
(g) Audit Committee.--The Board shall establish an Audit Committee,
which shall conduct an annual audit of the finances of the Corporation
and provide an annual report to the Board regarding the financial
condition of the Corporation.
(h) Exclusive Authority.--The Board shall have the exclusive
authority to--
(1) adopt rules, consistent with this Act, regarding the
assessment and recovery of costs, the qualifications of
practicing physicians, the organization and operation of the
Medical Advisory Board, and the conduct of the alternative
dispute resolution process;
(2) adopt guidelines, upon the recommendation of the
Medical Advisory Board, for implementing the provisions of this
Act regarding exceptional medical cases;
(3) recommend the inclusion of new diseases in the eligible
medical category known as ``other cancer'' if the Board finds,
upon the recommendation of the Medical Advisory Board and at a
meeting expressly called for that purpose, that there is a
medical consensus that the disease is caused by exposure to
asbestos; and
(4) adopt and amend bylaws.
SEC. 104. OFFICERS.
The Corporation shall have a chief executive officer and such other
officers as may be named and appointed by the Board at rates of
compensation and terms of service fixed by the Board. Officers of the
Corporation may not simultaneously serve on the Board.
SEC. 105. MEDICAL ADVISORY BOARD.
(a) In General.--The Board shall appoint a Medical Advisory Board
to provide advice on medical matters, including--
(1) retention, supervision, and removal of practicing
physicians; establishment of guidelines regarding exceptional
medical claims;
(2) the appropriateness of adding new diseases to the
``other cancer'' eligible medical category designated as
``other cancer''; and
(3) such other medical matters as may be referred to the
Medical Advisory Board by the Board.
(b) Composition; Rules and Policies.--
(1) Number of members.--The Medical Advisory Board shall
have no fewer than 5 or more than 9 members.
(2) Qualifications.--Members of the Medical Advisory Board
shall be practicing physicians with a demonstrated expertise in
asbestos-related conditions. The Medical Advisory Board shall
include at least 1 of each of the following:
(A) A board-certified pulmonary specialist.
(B) A board-certified radiologist.
(C) A board-certified oncologist.
(D) A board-certified pathologist.
(3) Rules and policies.--The Board shall adopt such rules
and policies regarding the composition and operation of the
Medical Advisory Board as may be necessary for its efficient
operation, including rules governing--
(A) the appointment and removal of members;
(B) terms of office;
(C) the filling of vacancies;
(D) notice and conduct of meetings (including
quorum requirements); and
(E) compensation.
(c) Applicability of Federal Advisory Committee Act.--The Medical
Advisory Board shall be subject to the Federal Advisory Committee Act
(5 U.S.C. App.).
SEC. 106. AVOIDANCE OF CONFLICT OF INTEREST.
(a) In General.--No director, officer, member of the Medical
Advisory Board, employee, contract employee, contractor, or consultant
to the Corporation may represent any person in any manner in any
proceeding before the Corporation.
(b) Policies and Procedures.--In addition, the Board shall adopt
policies and procedures to guard against both actual and apparent
conflicts of interest.
SEC. 107. ANNUAL REPORTS.
The Corporation shall submit an annual report to the President and
the Committee on the Judiciary of the Senate and the Committee on the
Judiciary of the House of Representatives with respect to the
operations, activities, and financial condition of the Corporation on
or before December 31 of each year.
TITLE II--MEDICAL ELIGIBILITY DETERMINATIONS
SEC. 201. MEDICAL CRITERIA--NONMALIGNANT CONDITIONS.
In order to meet the requirements for the nonmalignant conditions
eligible medical category, a claimant shall be required to submit
medical information or testimonial information sufficient to
demonstrate--
(1) a latency period of at least 12 years; and
(2)(A) clinical evidence of asbestosis;
(B) pathological evidence of asbestosis; or
(C) evidence of bilateral pleural thickening with
impairment.
SEC. 202. MEDICAL CRITERIA--MESOTHELIOMA.
In order to meet the requirements for the mesothelioma eligible
medical category, a claimant shall be required to submit--
(1) a diagnosis of malignant mesothelioma with a primary
site in the pleura or peritoneum, that--
(A) is derived from appropriate tissue, and
verified using standardized and accepted criteria of
microscopic morphology or a variety of appropriate
staining techniques; and
(B) is made by either--
(i) 2 board-certified pathologists; and
(ii) 1 board-certified pathologist who is,
at the time that the diagnosis is verified, a
member of the United States-Canadian
Mesothelioma Reference Panel; and
(2) medical information or testimonial information
sufficient to demonstrate a latency period of at least 10
years.
SEC. 203. MEDICAL CRITERIA--LUNG CANCER.
(a) In General.--In order to meet the requirements for the lung
cancer eligible medical category, a claimant shall be required to
submit--
(1) a diagnosis by a board-certified pathologist, board-
certified pulmonary specialist, or board-certified oncologist
of primary lung carcinoma;
(2) medical information or testimonial information
sufficient to demonstrate a latency period of at least 12
years; and
(3) either--
(A) evidence of a nonmalignant condition sufficient
to meet the requirements of section 201; or
(B) chest x-rays that, in the opinion of a
certified B-reader, demonstrate both asbestos-related
bilateral pleural plaques or asbestos-related bilateral
pleural thickening and evidence of 15 years of exposure
to asbestos, to be calculated as specified in
subsection (b), in accordance with paragraphs (1)
through (4) of that subsection.
(b) Calculations.--The calculations made under subsection (a) shall
be based on the following:
(1) Each year that an exposed person's primary occupation,
during a substantial portion of a normal work year for that
occupation, involved working in areas immediately proximate to
where asbestos-containing products were being installed,
repaired, or removed under circumstances that involved regular
airborne emissions of visible asbestos dust, shall count as 1
year.
(2) Each year that an exposed person's primary occupation,
during a substantial portion of a normal work year for that
occupation, involved the direct installation, repair, or
removal of asbestos-containing products, shall count as 2
years.
(3) Each year that an exposed person's primary occupation,
during a substantial portion of a normal work year for that
occupation, involved 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 4
years.
(4)(A) Except as provided in subparagraph (B), for purposes
of calculating years of exposure under this subsection--
(i) each year of exposure before 1976 shall be
counted fully;
(ii) each year of exposure from 1976 through 1979
shall be counted \1/2\; and
(iii) exposures after 1979 shall not be counted.
(B)(i) For each year from 1972 through 1975, for which it
is demonstrated by a preponderance of the evidence that the
exposed person's exposure to asbestos in the occupation of that
person was, during a substantial portion of that work year, in
compliance with the OSHA 8-hour time-weighted average airborne
concentration for asbestos exposure at that time, that year
shall count \1/2\ for purposes of calculating the years of
exposure for purposes of this subsection.
(ii) For each year from 1976 through 1979 for which a
claimant demonstrates, by a preponderance of the evidence, that
the exposed person's exposure to asbestos in the occupation of
that person was, during a substantial portion of that work
year, in excess of the OSHA 8-hour time-weighted average
airborne concentration for asbestos exposure at that time, that
year shall count fully for purposes of calculating the years of
exposure for purposes of this subsection.
(iii) For each year after 1979 for which a claimant
demonstrates, by a preponderance of the evidence, that the
exposed person's exposure to asbestos in the occupation of that
person was, during a substantial portion of that work year, in
excess of the OSHA 8-hour time-weighted average airborne
concentration for asbestos exposure at that time, that year
shall count \1/2\ for purposes of calculating years of exposure
for purposes of this subsection.
SEC. 204. MEDICAL CRITERIA--OTHER CANCER.
In order to meet the requirements in the other cancer medical
eligible category, a claimant shall be required to submit--
(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 or rectum, larynx, esophagus, or stomach;
(2) medical or testimonial information sufficient to
demonstrate a latency period of at least 12 years; and
(3) evidence of a nonmalignant condition sufficient to meet
the requirements of section 201.
SEC. 205. PROCEDURE FOR CERTIFICATE OF ELIGIBILITY.
(a) Application.--A claimant may apply for a certificate of medical
eligibility by submitting to the Corporation such information as the
Corporation may require in a form designated by the Corporation, that
includes a statement that the claimant is not required to retain an
attorney in order to file and proceed with a claim and that includes
the following:
(1) Personal information.--The name, address, date of
birth, and death (if applicable), smoking history, occupational
history, and social security number of the exposed person, and
the relationship between the exposed person and the claimant if
the claimant is not the exposed person.
(2) Exposure information.--The years of the exposed
person's exposure to asbestos or asbestos-containing products;
identification of the types of asbestos or asbestos-containing
products to which the exposed person was exposed; description
of the circumstances, intensity, and duration of the exposure;
and identification of the worksites or other such locations
where such exposures occurred.
(3) Medical information.--
(A) In general.--The Corporation may require
following medical information:
(i) The eligible medical category or
categories for which the claimant is applying.
(ii) All medical diagnoses, reports and
records that relate to any claimed asbestos-
related condition.
(iii) Materials supporting those diagnoses,
reports and records that may be required by the
Corporation, but in any event including all of
the backup 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).
(iv) An identification of all medical
professionals and medical care facilities
involved in diagnosing, treating, testing,
counseling, or consulting with the exposed
person concerning any medical condition within
the 5-year period preceding the date on which
that information is submitted to the
Corporation.
(B) Additional information.--In addition to the
medical information under subparagraph (A), the
claimant shall also provide such medical releases as
the Corporation may require allowing the Corporation to
obtain any and all medical information relevant to the
determination of medical eligibility.
(4) Exceptional medical claims.--The claimant may concede
that the claim cannot meet the requirements of any eligible
medical category and state that the claimant intends to apply
to an exceptional medical claims panel for designation as an
exceptional medical claim. If the claimant makes such a
statement--
(A) the Corporation shall refer the claim to an
exceptional medical claim panel; and
(B) the application of the claimant shall be
reviewed under section 206.
(b) Notification of Acceptance for Processing.--
(1) In general.--The Corporation shall notify the claimant
not later than 30 days after receipt of the application that
the application either--
(A) is accepted for processing; or
(B) is materially incomplete and cannot be
processed until additional information is provided.
(2) Notice for materially incomplete applications.--Any
notice that an application is materially incomplete shall
describe the missing information.
(3) Requests for additional information.--The issuance of a
notice of acceptance shall not preclude the Corporation from
requesting additional information regarding a claim if the
Corporation subsequently concludes that such information is
necessary to make a decision on medical eligibility.
(c) Records From Third Persons.--The Corporation may at any time
seek to obtain medical, employment, or other relevant records
concerning an exposed person from persons other than the claimant. If
the corporation seeks such additional records, the Corporation shall--
(1) give notice to the claimant; and
(2) if the Corporation obtains those records, furnish
copies of all such records to the claimant, upon request and at
the expense of the claimant.
(d) Additional Medical Testing.--If the Corporation reasonably
believes that the Corporation cannot determine, on the basis of the
available medical information, whether an exposed person meets the
medical criteria for 1 of the eligible medical categories, the
Corporation, at its option and expense, may require the exposed person
to undergo appropriate, reasonable, and noninvasive medical examination
or testing (excluding any sort of computed tomography (CT) scan).
(e) Testimonial Information Under Oath.--All testimonial
information provided to the Corporation in connection with a claim,
other than information in any medical report or records, shall be
made--
(1) under oath;
(2) by sworn affidavit; or
(3) by written declaration subscribed to as true under
penalty of perjury.
(f) Determination of Medical Eligibility.--
(1) In general.--Subject to paragraph (2), as soon as
practicable and, but not later than 60 days after the issuance
of a notice of acceptance for processing, the Corporation shall
issue either--
(A) a certificate of medical eligibility stating
each eligible medical category for which the claimant
qualifies; or
(B) a finding of ineligibility.
(2) Extension.--The Corporation may extend the period of
time beyond the period specified in paragraph (1) if the
Corporation determines that extension to be necessary to secure
additional information that is essential to the determination
of medical eligibility.
(3) Statement in reason.--If the Corporation declines to
certify a claimant for any eligible medical category identified
by the claimant or makes a finding of ineligibility, the
certificate of eligibility or finding of ineligibility shall be
accompanied by a brief written statement of reasons.
(g) Reconsideration.--
(1) In general.--
(A) Reconsideration.--The claimant may seek
reconsideration of the Corporation's determination
under subsection (f) by submitting to the Corporation a
written request for reconsideration within 60 days
after the date of the Corporation's determination under
subsection (f).
(B) Extension.--The Corporation may extend the time
period for submitting a request for reconsideration
upon the claimant's request.
(C) Contents of request.--The request for
reconsideration shall--
(i) include a statement of the grounds for
reconsideration; and
(ii) be accompanied by any additional
evidence on which the claimant relies.
(2) Referral.--
(A) In general.--The Corporation shall refer a
request for reconsideration to a panel of 2 practicing
physicians with expertise in the medical issue or
issues raised by the claimant.
(B) Additional information.--The panel of
practicing physicians may request further information
from the applicant or from third parties, or may
require additional medical examination or testing, in
accordance with the provisions of subsections (c) and
(d).
(3) Operation of panel.--
(A) In general.--The panel of practicing physicians
shall consider the issues raised by the request for
reconsideration de novo on the basis of all of the
evidence before the Corporation.
(B) Decisions.--If the panel of practicing
physicians agrees on the disposition of the request for
reconsideration, the panel shall render a decision.
(C) Augmentation.--If the panel is not in
agreement, the Corporation shall appoint to the panel a
third practicing physician with expertise in the issues
raised by the claimant, and the panel of 3 practicing
physicians shall render a decision.
(4) Acceptance or denial of requests.--
(A) Acceptance.--If the panel approves the request
for reconsideration, wholly or in part, the Corporation
shall issue a certificate of medical eligibility for
the eligible medical categories for which the panel
finds that the claimant qualifies.
(B) Denial.--If the panel denies the request for
reconsideration, or if the certificate of eligibility
on reconsideration rejects eligibility for any eligible
medical category identified by the claimant claim made
by the claimant, the panel shall provide a brief
written statement of reasons.
(5) Action on request for reconsideration.--
(A) In general.--Subject to subparagraph (B), the
Corporation shall act upon a request for
reconsideration as soon as practicable but not later
than 30 days after receiving the request.
(B) Extensions.--The Corporation may extend the
period specified in subparagraph (A) if the Corporation
determines the extension to be necessary to secure
additional information that is essential to the
disposition of the request for reconsideration.
(h) Reapplication.--After making an application under this title, a
claimant may file a new application under this title at any time. Any
such new application filed within 1 year after the date on which the
Corporation issued a final finding of ineligibility shall identify the
previous application and any relevant changes in circumstances.
SEC. 206. EXCEPTIONAL MEDICAL CLAIMS.
(a) Exceptional Medical Claims Panel.--
(1) In general.--The Corporation shall establish 1 or more
exceptional medical claims panels. Each exceptional medical
claims panel shall be comprised of 5 practicing physicians,
including--
(A) 2 board-certified pulmonary specialists;
(B) 1 board-certified radiologist (who is either a
certified B-reader or a specialist in computed
tomography); and
(C) 2 board-certified pathologists.
(2) Determinations.--Each exceptional medical claims panel
shall determine whether claims referred to the panel meet the
requirements of this section for designation as exceptional
medical claims.
(b) Time To Apply.--
(1) In general.--Subject to paragraph (2), a claimant may
apply to the Corporation for designation of his claim as an
exceptional medical claim if the claimant--
(A) concedes (either before or after a
determination is made under section 205(f)) that the
claim does not meet the medical criteria in sections
201 through 204; or
(B) seeks designation of the claim as an
exceptional medical claim within 60 days after a
determination on reconsideration under section 205(g)
that the claim does not meet the medical criteria in
sections 201 through 204, wholly or in part.
(2) Prohibition.--The Corporation shall not accept any
application for designation as an exceptional medical claim, if
a claimant has--
(A) filed an action under section 208 for review of
the Corporation's determination on reconsideration; or
(B) commenced alternative dispute resolution
procedures under title III.
(c) Contents of Application.--
(1) In general.--The application for designation as an
exceptional medical claim shall include the information
required by the Corporation under section 205(a) and shall, in
addition, be supported, as appropriate for the eligible medical
category claimed, by the report of--
(A) a board-certified internist;
(B) a board-certified pulmonary specialist;
(C) a board-certified pathologist; or
(D) a board-certified oncologist.
(2) Report.--The report under paragraph (1) shall contain--
(A) a complete review of the exposed person's
medical history and current condition;
(B) such additional material by way of analysis and
documentation as shall be prescribed by the
Corporation; and
(C) a detailed explanation why the claim meets the
standard for acceptance as an exceptional medical claim
set forth in subsection (d).
(d) Standard for Acceptance.--The exceptional medical claims panel
shall designate a claim as an exceptional medical claim only if the
claimant cannot satisfy the requirements for a given eligible medical
category for reasons beyond the control of the claimant, but
demonstrates, through clear and convincing evidence, that the exposed
person has an asbestos-related condition that is substantially
comparable to the condition of an exposed person who would satisfy the
requirements of a given eligible medical category.
(e) Further Testing.--The exceptional medical claims panel may
order additional appropriate, reasonable, and noninvasive testing or
examination of the exposed person (including computed tomography (CT)
scanning). Tests ordered by an exceptional medical claims panel shall
be made at the expense of the Corporation.
(f) Decision.--The decision of the exceptional medical claims panel
shall not be subject to further review within the Corporation. If the
exceptional medical claims panel decides that a claim should be
designated, wholly or in part, as an exceptional medical claim, the
Corporation shall issue a certificate of medical eligibility which
shall designate the claim as an exceptional medical claim and state the
eligible medical category or categories for which the claim qualifies
by virtue of that designation.
SEC. 207. CONFIDENTIALITY.
The Corporation shall observe the requirements of section 552a of
title 5, United States Code, with respect to information that it
receives regarding a claimant or exposed person. The production of that
information to respondents in accordance with section 303(c) shall be
deemed a routine use of the information within the meaning of section
552a(a)(7) of title 5, United States Code.
SEC. 208<plus-minus>. JUDICIAL REVIEW.
(a) In General.--
(1) Judicial review.--The district courts of the United
States shall have exclusive jurisdiction, without regard to the
amount in controversy or the citizenship of the parties, of any
action to review a determination of the Corporation--
(A) after a reconsideration by the Corporation
under section 205(g); or
(B) with respect to designation as an exceptional
medical claim under section 206.
(2) Exhaustion of remedies.--A determination under section
205(f) shall not be directly reviewable. Before any review by a
court of such a determination, a claimant shall be required to
exhaust each administrative remedy made available to that
claimant under section 205(g) or 206.
(b) Period for Commencing Action.--
(1) In general.--An action for review under this section
shall be commenced not later than 60 days after the later of,
as applicable--
(A) the determination on reconsideration made under
section 205(g) with respect to which review is sought;
or
(B) the determination that the claimant does not
qualify as an exceptional medical claim.
(2) Effect of certain pending applications.--No action for
review under this section may be commenced while an application
for designation as an exceptional medical claim is pending.
(3) Appeal of dual determinations.--If a claimant has
pursued a determination on reconsideration under section 205(g)
and a determination of an exceptional medical claim under
section 206, and has failed to receive a favorable
determination under either section, the claimant may appeal
both determinations.
(c) Grounds for Upholding Determination.--The court shall uphold
the determination of the Corporation if the determination is supported
by substantial evidence on the record as a whole and is not contrary to
law. Due account shall be taken of the rule of prejudicial error.
(d) Records.--In applying the standard set forth in subsection (c),
the record referred to in that subsection shall consist of--
(1) the information submitted to the Corporation or the
exceptional medical claims panel by the claimant;
(2) records and other information obtained by the
Corporation or exceptional medical claims panel relating to the
claim; and
(3) the results of any medical tests administered at the
direction of the Corporation or exceptional medical claims
panel.
TITLE III--ALTERNATIVE DISPUTE RESOLUTION
SEC. 301. RULES OF PROCEDURE.
(a) In General.--The Board shall establish rules of procedure for
the alternative dispute resolution process. Such rules of procedure
shall--
(1) be designed to ensure that claims will be resolved in a
prompt, efficient, fair, and inexpensive manner; and
(2) include--
(A) reasonable time limits and rules regarding the
time at which actions of the Corporation become final;
(B) procedures relating to the notification of
respondents, including reasonable and limited
discovery;
(C) procedures for the disclosure of information
necessary for settlement, including the timing of
disclosure and determination of the information that
must be disclosed;
(D) rules regarding protection of confidential
information;
(E) procedures for the selection of arbitrators;
(F) arbitration procedures designed to further the
objective of prompt, efficient, fair and inexpensive
dispute resolution including simplified pleadings,
reasonable limitations on discovery, resolution of
prehearing motions including motions for summary
disposition, appropriate, evidentiary rules, and
efficient conduct of hearings; and
(G) procedures for just and reasonable sanctions to
ensure compliance with the rules and orders of the
Corporation.
(b) Representation by Counsel.--Each party shall have the right to
be represented by counsel at all phases of the alternative dispute
resolution process under this section.
(c) Effect of Presenting Statements.--By presenting to the
Corporation any statement, motion, or other paper, counsel and the
party represented by that counsel shall be considered to warrant that
to the best of their knowledge, information, and belief, formed after
reasonable inquiry--
(1) the statement, motion, or other paper is not being
presented for any improper purpose;
(2) the claims, defenses, or other legal contentions in
that statement, motion, or other paper are warranted by
applicable law or by a nonfrivolous argument for the extension,
modification, or reversal of applicable law for the
establishment of new law;
(3) the allegations and other factual contentions have
evidentiary support; and
(4) the denials of factual contentions are warranted on the
evidence.
(d) Contract Service Providers.--The Corporation may contract with
providers of alternative dispute resolution services to provide
mediation or arbitration under this part. To the extent appropriate and
consistent with this Act, the Board may adopt the rules of procedure of
such contract service providers.
SEC. 302. MOTIONS OFFICERS.
(a) In General.--Upon the issuance of a certificate of eligibility,
the Corporation shall assign a motions officer to the claim of a
claimant.
(b) Authority of Motions Officer.--
(1) In general.--The motions officer shall have the
authority to determine all procedural issues in the alternative
dispute resolution process except such matters as may be within
the authority of a mediator or arbitrator assigned to the
claim.
(2) Authority.--Without limitation, the motions officer
may--
(A) determine whether notice shall be provided to
any respondent under section 303 or 304;
(B) issue subpoenas to parties and nonparties for
testimony and documents, in accordance with the terms
of section 308;
(C) enter scheduling orders and other orders to
control the progress of the proceedings;
(D) resolve discovery disputes; and
(E) exercise any other authority conferred by
procedural rules, policies, or procedures established
by the Corporation.
SEC. 303. NOTICE TO RESPONDENTS.
(a) In General.--
(1) In general.--Within such period of time after receiving
a final certificate of eligibility as the Corporation may
provide, a claimant shall provide to the Corporation--
(A) the name and address of each person that
claimant alleges is responsible for the asbestos-
related injury of the claimant; and
(B) for each such person, a verified particularized
statement in a form prescribed by the Corporation of
the basis for the allegation that that person is or may
be responsible for his injury.
(2) Contents of particularized statement.--A particularized
statement under paragraph (1)(B) shall include, as applicable--
(A) the dates of exposure for each relevant time
period;
(B) the worksite or other place of exposure;
(C) the nature and frequency of the exposure;
(D) if the exposure was occupational, the name of
the exposed person's employer and a description of the
exposed person's job and working conditions;
(E) each asbestos-containing product or material to
which the claimant was exposed at each place of
exposure; and
(F) any other information that the Corporation may
require by rule or otherwise in all or in particular
classes of cases.
(b) Notification.--
(1) In general.--After receiving particularized statements
submitted by a claimant under subsection (a), the Corporation
shall promptly notify--
(A) each person identified by the claimant under
that subsection; and
(B) each person for whom a complete particularized
statement has been submitted.
(2) Content.--The notification under paragraph (1) shall
inform the person that such person has been named as a
respondent.
(3) Copies of particularized statements.--At the same time
as the Corporation provides the notification under paragraph
(1), the Corporation shall provide to each respondent a copy of
all particularized statements submitted to the Corporation
under subsection (a).
(c) Information.--
(1) In general.--Except as provided in paragraph (2), the
Corporation shall provide to each respondent, on request and at
the respondent's expense, a copy of all information submitted
to the Corporation by the claimant, records and other
information obtained by the Corporation relating to the claim
and the results of any medical tests administered at the
Corporation's direction.
(2) Exception.--The Corporation shall not provide the
information described in this subsection to the Corporation
until the respondent has received a protective order, signed by
or on behalf of the respondent, in a form prescribed by the
Corporation, that preserves the confidentiality of medical,
employment, and other information that the Corporation
reasonably designates as confidential.
(d) Discovery.--
(1) In general.--For good cause shown and subject to
reasonable limitations, a motions officer may allow discovery
for the purpose of obtaining information necessary to allow the
claimant to provide a particularized statement under subsection
(a).
(2) Extensions.--The motions officer may grant reasonable
extensions of time for naming respondents in order to allow for
the completion of discovery under this subsection.
SEC. 304. ADDITIONAL RESPONDENTS.
(a) In General.--
(1) In general.--Any respondent notified under section 303
may, within such period of time as the Corporation may provide,
identify additional respondents and request the Corporation to
notify those additional respondents by providing to the
Corporation the particularized statement required under section
303(a) with respect to each such newly identified respondent.
(2) Acceptance of information.--For purposes of this
subsection, a respondent may accept as true any assertion made
by the claimant in a particularized statement submitted under
section 303(a), unless the respondent knows, or with reasonable
investigation should know, that that assertion is untrue.
(b) Provision of Information.--As soon as practicable after the
identification of additional persons under subsection (a), the
Corporation shall provide to each additional person identified under
that subsection--
(1) the particularized statement required under that
subsection; and
(2) the information provided to original respondents under
section 303 (b) and (c), subject to receiving the signed
protective order described in section 303(c).
(c) Rights of Additional Respondents.--Additional respondents
notified under this section shall have the same right to add further
additional respondents as is conferred upon originally named
respondents under subsection (a).
(d) Discovery.--
(1) In general.--For good cause shown and subject to
reasonable limitations, a motions officer may allow discovery
for the purpose of obtaining information necessary to allow a
respondent to provide the information required under subsection
(a).
(2) Extensions.--The motions officer may grant reasonable
extensions of time for naming additional respondents in order
to allow for the completion of discovery under this subsection.
(e) Notice of Expiration of Period for Adding Additional
Respondents.--The Corporation shall provide notice to all parties at
the time that period for adding additional respondents has expired. No
new party shall be added to the proceeding after the expiration of that
period, except on motion for good cause.
SEC. 305. GRACE PERIOD.
The Corporation shall establish a grace period of not to exceed 60
days after expiration of the period of time for adding additional
respondents referred to in section 304, during which the parties shall
be encouraged to reach voluntary settlements without the need for
mediation.
SEC. 306. MEDIATION.
(a) Appointment of Mediator.--Upon the expiration of a grace period
referred to in section 305, the Corporation shall appoint a mediator to
assist the parties who have not settled in the grace period in settling
the claim.
(b) Disclosure of Information Necessary for Settlement.--
(1) In general.--Within such period of time after
appointment of a mediator as the Corporation shall prescribe,
each party shall serve upon all other nonsettling parties a
statement of information required for settlement.
(2) Information included.--The information to be included
in a statement referred to in paragraph (1) shall be determined
by the Corporation to be reasonably necessary for the parties
to evaluate the claim.
(3) Incorporation by reference.--With respect to a
statement referred to in paragraph (1), information previously
provided to the Corporation by any party may be incorporated by
reference and need not be resubmitted.
(4) Rule of construction.--Nothing in this subsection shall
be construed to require the disclosure of any information
privileged under applicable law.
(c) Time Limits.--
(1) In general.--Except as provided in paragraph (2),
mediation conducted under this section shall be completed not
later than 60 days after the appointment of the mediator.
(2) Extension.--The time period specified in paragraph (1)
may be extended by the mediator if--
(A)(i) the claimant has failed to provide the
information required under subsection (b); and
(ii) that extension is necessary to allow for
simultaneous mediation of a group of claims, or for
other good cause; or
(B) for a period not to exceed 60 days, if in the
judgment of the mediator, the claimant's final demand
under subsection (e) is not made in good faith, on
consideration of the legal and factual basis of the
claim.
(d) Confidentiality.--All statements made by any party in mediation
shall be confidential and shall not be admissible in any trial or
arbitration except as allowed under rule 408 of the Federal Rules of
Evidence.
(e) Good Faith Offers and Demands.--
(1) Good faith offers.--On the date that is 15 days before
the close of the mediation period, the claimant shall provide
to each nonsettling respondent or jointly represented group of
respondents a final good faith demand of settlement.
(2) Good faith offers in reply.--On the date that is 10
days before the close of the mediation period, each respondent
or jointly represented group of respondents shall make a final
good faith offer in reply.
(3) Failure to make a settlement offer.--If a respondent or
jointly represented group of respondents fails to make a
settlement offer under this section, that respondent or group
of respondents shall be deemed to have made a settlement offer
of $0.
(4) Efforts of mediator.--During the 10-day period
preceding the close of the mediation period, or any extension
of that 10-day period, the mediator shall work with the parties
in a further effort to settle the claim.
(f) Release From Mediation.--
(1) In general.--At the close of the mediation period under
this section, the mediator shall issue to the claimant a
release from mediation.
(2) Effect of release.--After the issuance of a release
from mediation under paragraph (1), the claimant may commence a
civil action or may elect arbitration under section 307.
SEC. 307. ARBITRATION.
(a) Election To Arbitrate.--A claimant may elect arbitration under
this section by serving notice of such election within 30 days
following release from mediation on all respondents that have not
previously settled. All such respondents shall be parties to the
arbitration.
(b) Federal Arbitration Act.--All arbitrations under this section
shall be subject to the provisions of title 9, United States Code, that
are commonly referred to as the Federal Arbitration Act including
sections 1 through 6 and 8 through 16 of that title, except that, the
provisions of this Act and rules adopted by the Corporation under this
Act shall be effective notwithstanding any inconsistent provision of
title 9, United States Code.
(c) Arbitration by Special Agreement.--
(1) In general.--Nothing in this section shall be construed
as prohibiting consensual arbitration under a special agreement
entered into by the claimant and 1 or more of the respondents.
(2) Effect of special agreement.--With respect to the
parties to a special agreement under paragraph (1), the terms
of that agreement shall supersede any provision of this section
(other than subsection (h)) and any rule adopted under section
301.
(d) Statutory Arbitration.--In the absence of a special agreement
to arbitrate, arbitrations under this section shall be conducted under
rules adopted by the Corporation under section 301.
(e) Subpoena Powers of Arbitrators.--Arbitrators may issue
subpoenas to parties and nonparties for testimony and documents in
accordance with the terms of section 308.
(f) Law To Be Applied.--
(1) In general.--Subject to paragraph (2) and unless
otherwise provided in this Act, the arbitrator shall, with
respect to each respondent, apply the law, including the law
relating to choice of law, that would be applied by a court
designated by the claimant which would have jurisdiction over
that respondent.
(2) Exception.--If a respondent demonstrates to the
satisfaction of an arbitrator that the court designated by the
claimant would dismiss or transfer under forum non conveniens
or a similar doctrine, then the arbitrator shall apply the law
of the State that has the most significant relationship to the
occurrence and the parties.
(g) Presumption Applicable to Medical Determination.--
(1) Burden of proof--Except as provided in paragraph (2), a
finding of medical eligibility by the Corporation shall be
presumed to be correct unless rebutted by clear and convincing
evidence.
(2) Extent of exposure to asbestos.--With respect to the
issue of the extent of exposure to asbestos, the burden of
proof with respect to a finding of medical eligibility by the
Corporation shall be determined in accordance with applicable
State law.
(h) Awards.--The arbitrator shall issue awards with respect to each
respondent within time periods set by the Corporation. The awards shall
be accompanied by findings of fact and conclusions of law. Each
respondent shall be jointly and severally liable to the claimant to the
extent provided by applicable State law, as follows:
(1)(A) In any case in which joint and several liability
exists under applicable State law, the arbitrator shall
determine the total joint and several liability of all
respondents that have not been released by the claimant or
dismissed from the proceeding.
(B) In addition to making a determination under
subparagraph (A), the arbitrator shall determine the amount
allocable to each such respondent based on principles of
comparative fault or responsibility.
(C)(i) Subject to clause (ii), any respondent who has
obtained a release from the claimant before the issuance of the
arbitrator's award shall be fully protected from claims for
contribution or indemnity.
(ii) In any case in which a respondent obtains a release,
the award against the remaining respondents shall be reduced by
the greater of--
(I) consideration paid; or
(II) the amount stated in the release.
(iii) The total award, reduced by the aggregate amount of
reductions determined under clause (ii) for all respondents
receiving a release, shall be allocated among the remaining
respondents according to the arbitrator's allocation of
comparative shares of fault or responsibility.
(2) In any case in which joint and several liability has
been abolished under applicable State law, the arbitrator shall
determine in accordance with the law of that State the share of
several liability (referred to in this subsection as the
``several share'') of each respondent that has not been
released or dismissed from the proceeding.
(3) In any case in which joint and several liability has
been abolished under applicable State law with respect to only
a portion of damages, the arbitrator shall determine in
accordance with applicable State law--
(A) the several share of each respondent that has
not been released or dismissed from the proceeding; and
(B) the total amount of joint and several liability
of all such respondents.
(4) The allocation of the joint and several portion of the
award among the respondents, and the reduction of the total
award on account of settlements, shall be made in accordance
with subsection (h)(1), except that--
(A) only the joint and several portion of an award
may be reduced by amounts paid in settlement by
released persons; and
(B) only that portion of the amount paid by any
released person in settlement with respect to the joint
and several portion of damages shall be so applied to
reduce the award.
(i) Contribution Rights Retained by Respondents in ADR.--
(1) In general.--The entry of an arbitration award against
any respondent under this section shall give rise to a right of
contribution on the part of that respondent against any joint
tortfeasor whose liability is extinguished by the award without
the necessity that the award be enforced as a court judgment.
(2) Effect of settlement.--A settlement between a
respondent and a claimant under this section that extinguishes
in whole or in part the liability of a joint tortfeasor shall
not extinguish the settling respondent's right of contribution
against that joint tortfeasor.
(j) Penalty for Inadequate Offer in Mediation.--
(1) In general.--If the final offer made by a respondent or
jointly represented group of respondents under section 306(e)
is less than the amount specified in paragraph (2), the
arbitrator shall add a 10-percent penalty to the award against
that respondent or each member of the group of respondents.
(2) Amount.--The amount specified in this paragraph is,
with respect to a respondent or a jointly represented group of
respondents, an amount equal to 75 percent of the share of the
total liability (exclusive of prejudgment interest, if any)
awarded in arbitration against that respondent or that group of
respondents as a whole, the arbitrator shall add a 10-percent
penalty to the award against such respondent or each member of
such group of respondents.
(3) Exclusion.--A penalty added under paragraph (1) shall
not be counted in any determination of maximum allowable
attorneys' fees under section 503.
(k) Consolidations.--Claims with respect to multiple exposed
persons shall not be consolidated for hearing on the merits without the
consent of all parties.
SEC. 308. SUBPOENA POWERS OF MOTIONS OFFICERS AND ARBITRATORS.
(a) In General.--A motions officer or an arbitrator under this
title may summon in writing any person to attend before that officer or
arbitrator as a witness, or to appear for a deposition, and in a proper
case to bring with him or her any book, record, document, or paper
which may be deemed material as evidence in the case.
(b) Fees.--The fees for attendance under subsection (a) shall be
the same as the fees of witnesses before masters of the United States
courts.
(c) Summons.--
(1) In general.--A summons under this section shall--
(A) be issued in the name of the motions officer or
arbitrator;
(B) be signed by the motions officer or arbitrator;
(C) be directed to the person summoned; and
(D) be served in accordance with rule 45(b)(1) of
the Federal Rules of Civil Procedure.
(2) Effect of refusal or neglect.--If any person summoned
to testify or produce documents under paragraph (1) refuses or
neglects to obey that summons, upon petition, the United States
District Court for the District of Columbia or the district
court for the district in which the testimony is to be taken or
the document production is to take place may, in the same
manner provided by law for securing the attendance of witnesses
or for the punishment of witnesses for neglect or refusal to
attend in the courts of the United States--
(A) compel--
(i) the attendance of that person before
the motions officer or arbitrator;
(ii) the appearance of that person for a
deposition; or
(iii) the production of documents; or
(B) punish that person for contempt.
TITLE IV--CIVIL ACTIONS
SEC. 401. PREREQUISITES FOR CIVIL ACTION.
Subject to section 702, no civil action asserting any asbestos
claim may be filed or maintained unless the plaintiff has obtained a
certificate of medical eligibility and release from mediation.
SEC. 402. INDIVIDUAL TRIALS.
(a) In General.--No class action suit, 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 each defendant.
(b) Removal.--Any defendant in a civil action that involves a
violation of this section may remove such action to an appropriate
Federal district court.
(c) Jurisdiction.--The district courts of the United States shall
have jurisdiction of all civil actions removed under this section
without regard to diversity of citizenship or amount in controversy.
SEC. 403. CERTIFICATE OF MEDICAL ELIGIBILITY PRESUMED CORRECT.
(a) Burden of Proof--Except as provided in subsection (b), a
finding of medical eligibility by the Corporation shall be presumed to
be correct unless rebutted by clear and convincing evidence.
(b) Extent of Exposure to Asbestos.--With respect to the issue of
the extent of exposure to asbestos, the burden of proof with respect to
a finding of medical eligibility by the Corporation shall be determined
in accordance with applicable State law.
SEC. 404. PENALTY FOR INADEQUATE OFFER IN MEDIATION.
(a) In General.--If the final offer made by a respondent or jointly
represented group of respondents under section 306(e) is less than the
amount specified in paragraph (2), the court shall add a 10-percent
penalty to the award against that respondent or each member of the
group of respondents.
(b) Amount.--The amount specified in this paragraph is, with
respect to a respondent or a jointly represented group of respondents,
an amount equal to 75 percent of the share of the total liability
(exclusive of prejudgment interest, if any) assigned by the jury or
other fact finder to that respondent or that group of respondents as a
whole, the arbitrator shall add a 10-percent penalty to the award
against such respondent or each member of such group of respondents.
(c) Exclusion.--A penalty added under paragraph (1) shall not be
counted in any determination of maximum allowable attorneys' fees under
section 503.
TITLE V--RULES APPLICABLE TO ARBITRATIONS AND CIVIL ACTIONS
SEC. 501. ELEMENTS OF PROOF; RELIEF.
Subject to section 702 and notwithstanding any other provision of
law, the following shall apply in all civil actions and arbitrations
involving an asbestos claim:
(1) Elements of proof.--A plaintiff or claimant shall be
entitled to recovery if and only if--
(A)(i) the plaintiff or claimant presents a
certificate of medical eligibility; and
(ii) the defendant or respondent fails to satisfy
the applicable burden of proof under section 403 to
rebut the finding of medical eligibility contained in
the certificate; and
(B) the plaintiff or claimant establishes that the
exposure of the exposed person to asbestos or an
asbestos-containing product of a defendant or
respondent was a substantial contributing factor in the
exposed person's condition, as set forth in the
certificate of medical eligibility.
(2) Issues to be decided.--
(A) In general.--Subject to subparagraph (B), the
only issues that may be decided in any civil action or
arbitration involving an asbestos claim are--
(i) whether the exposed person with respect
to whom a claim is made has or had an asbestos-
related disease or condition;
(ii) whether the exposure of the expose
person to asbestos or an asbestos-containing
product of a defendant or respondent was a
substantial contributing factor in causing that
asbestos-related disease or condition; and
(iii) the amount of compensatory damages,
if any to be awarded.
(B) Determination of compensatory damages.--In
addition to the issues referred to in subparagraph (A),
in any proceeding in which, under applicable law, the
share of compensatory damages allocable to a defendant
or respondent is relevant to an issue described in that
subparagraph, the share of compensatory damages of that
defendant or respondent shall be determined.
(C) Prohibition.--No evidence that is not relevant
to an issue referred to in subparagraph (A) or (B) may
be offered by a plaintiff or claimant against a
defendant or respondent in any civil action or
arbitration involving an asbestos claim.
(3) Emotional distress; medical monitoring.--No damages or
other relief shall be awarded in any civil action or
arbitration involving an asbestos claim for emotional distress
or any other form of mental or emotional harm, or for medical
monitoring or surveillance, based wholly or in part on exposure
to asbestos unless the requirements of paragraph (1) are met in
addition to any other requirement under applicable law for
recovery of damages or other relief for emotional distress or
medical monitoring or surveillance.
(4) Enhanced risk.--No damages or other relief shall be
awarded in any civil action or arbitration involving an
asbestos claim solely for increased risk of cancer or other
disease.
(5) Punitive damages.--No punitive damages shall be awarded
in any civil action or arbitration involving an asbestos claim.
SEC. 502. TIMELINESS DEFENSES ABOLISHED.
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 in any civil
action or arbitration unless that claim was untimely as of the date of
enactment of this Act.
SEC. 503. ATTORNEYS' FEES.
(a) In General.--Notwithstanding any other provision of law or any
contract, the aggregate amount of fees, including expenses and other
charges, of a claimant's attorneys in any proceeding covered under this
Act shall not exceed an amount equal to 25 percent of the amount of
compensation received by the claimant as a result of that proceeding.
(b) Rules of Procedure.--The Corporation shall establish rules of
procedure that require any attorney who represents a claimant in any
proceeding covered under this Act to submit an itemized statement of
expenses and fees to the Corporation before receiving any fee.
(c) Penalties.--Any attorney who charges, demands, receives, or
collects, for services rendered in connection with any proceeding under
this Act, an amount that exceeds the amount that is allowable under
this Act shall--
(1) be guilty of a misdemeanor; and
(2) upon conviction, be subject to a fine of not more than
$10,000, imprisonment for not more than 1 year, or both.
SEC. 504. CERTAIN PRIOR LITIGATION DEFENSES ABOLISHED.
(a) In General.--Notwithstanding any other provision of law, a
judgment or settlement of an asbestos claim for a nonmalignant
condition satisfying the requirements of section 201 shall not preclude
a subsequent claim with respect to the same exposed person for a
malignant condition satisfying the requirements of section 202, 203,
204, or 206, as applicable.
(b) Rule of Construction.--Subsection (a) shall not be construed to
invalidate any provision of a settlement agreement entered into before
the date of enactment.
TITLE VI--FUNDING
SEC. 601. COSTS OF MEDICAL REVIEW AND OVERHEAD AND ADMINISTRATION.
(a) Provisional Allocation.--
(1) Estimate of costs.--
(A) In general.--On or before August 1 of each
year, the Corporation shall estimate the costs of the
Corporation (exclusive of the cost of mediation and
arbitration that may be recovered under section 602)
for the following fiscal year (beginning on October 1
of that year).
(B) Allowances for contingencies; costs of medical
review, overhead, and administration.--In estimating
its costs under this section, the Corporation shall--
(i) make reasonable allowances for
contingencies; and
(ii) state separately those costs directly
related to--
(I) medical review; or
(II) general overhead and
administration of the Corporation.
(2) Allocation to respondents.--
(A) In general.--The Corporation shall
proportionally allocate the costs estimated under
paragraph (1) among all persons named as a respondent
during the 12-month period ending the preceding June 30
and shall notify each such person of the amount due
under that allocation.
(B) Determination of respondents.--In this section,
a person shall be considered named as a respondent if
notice was provided to that person under section 303 or
304.
(C) Determination of number of proceedings.--In
making an allocation under subparagraph (B), the
Corporation shall determine the following:
(i) For each individual respondent, the
total number of proceedings in which the
respondent has been named.
(ii) The total combined number of
proceedings for all respondents.
(D) Counting claims.--For purposes of a
determination under subparagraph (C) all claims,
including derivative claims, relating to 1 exposed
person shall be counted as 1 proceeding for each
respondent named in the proceeding.
(E) Determination of allocation.--In calculating an
allocation made in accordance with subparagraph (A),
the total number of proceedings for each respondent
shall be divided by the total combined number of
proceedings for all respondents to determine the
percentage of costs allocable to each individual
respondent.
(F) Prohibition.--The Corporation shall not
allocate any of the costs estimated under paragraph (1)
to any respondent whose allocable share of the costs,
in the absence of such exclusion, is less than a de
minimis percentage established by the Corporation. Any
such unallocated percentage shall be reallocated to the
remaining respondents based upon their original
allocation percentages.
(3) Payment of estimated share of costs.--Each respondent
shall pay to the Corporation the allocated share of the
respondent of the estimated costs of the Corporation not later
than 30 days after the date of notification of the allocated
share of the respondent.
(b) Final Allocation.--
(1) In general.--On or before November 30 of each year, the
Corporation shall determine the total costs of the Corporation
(exclusive of the cost of mediation and arbitration that may be
recovered from respondents under section 602) for the preceding
fiscal year ending September 30 and shall allocate those costs
proportionally, in the manner described in subsection (a)(2),
among persons who were named as respondents in that fiscal
year.
(2) Attribution of costs.--In making an allocation under
this subsection, the Corporation shall state separately those
costs directly attributable to--
(A) the medical review process; or
(B) general overhead and administration of the
Corporation.
(3) Payment of deficiencies.--If the amount allocated to
any person under this subsection is greater than the amount
deposited by such person under subsection (a)(2) with respect
to the preceding fiscal year, that person shall pay the
deficiency to the Corporation not later than 30 days after
receiving a notice of deficiency from the Corporation.
(4) Refunds.--If the amount allocated to any person under
this subsection is less than the amount deposited by such
person under subsection (a)(2) for the preceding fiscal year,
the Corporation shall promptly refund the difference to that
respondent.
(c) Transitional Provisions.--
(1) Startup funding.--
(A) In general.--Startup funding shall be provided
by voluntary contributions within 30 days after
appointment and confirmation of the first director of
the Board. Those contributions shall be provided by the
signatories to a startup funding agreement that all of
the defendants shall enter into before that date, in
accordance with, and contingent only on the terms and
conditions contained in that agreement.
(B) Refund of contributions.--Unless the
Corporation and the donor otherwise agree, the
Corporation shall refund contributions made under
subparagraph (A) following receipt of the funds
allocated under the initial determination of costs and
assessments to defendants provided in subsection
(c)(2).
(C) Startup costs defined.--For purposes of this
subsection, startup costs include all reasonable and
necessary expenses of the Corporation incurred before
the availability of transitional funding under
paragraph (2).
(2) Transitional funding.--
(A) Notice.--As soon as feasible after a majority
of the Board is appointed and confirmed, the Board
shall provide notice requesting the information listed
in subparagraph (B) to each defendant served in any
civil action involving an asbestos claim pending on the
date of enactment of this Act. The notice shall be the
best practicable notice under the circumstances,
including publication in the Federal Register and
individual notice to any defendant that can be
identified through reasonable effort.
(B) Information to be provided.--Within such time
as the Corporation may prescribe, but not less than 60
days after the date of publication in the Federal
Register, each person who, as of the date of enactment
of this Act, has been served as a defendant in at least
5,000 pending civil actions involving asbestos claims
shall provide to the Corporation a statement containing
the following information:
(i) The total number of civil actions in
which that person was named as a defendant.
(ii) With respect to each civil action
referred to in clause (i)--
(I) the name of the lead plaintiff;
(II) the name of the lead
defendant;
(III) the court in which the civil
action was pending; and
(IV) the docket number.
(C) Counting rules.--For purposes of subparagraph
(B):
(i) All asbestos claims relating to a
single exposed person, including derivative
claims, shall be treated as 1 civil action
regardless of the number of plaintiffs or
defendants named in the complaint.
(ii) In civil actions involving multiple
plaintiffs and defendants, each asbestos claim
shall be deemed to have been asserted against
each defendant unless the complaint states
otherwise.
(iii) Third-party defendants shall
calculate the number of civil actions involving
asbestos claims pending against them as if they
had been joined as a defendant by the original
plaintiff or plaintiffs.
(iv) Cross claims, deemed or otherwise,
shall not count as a separate civil action.
(D) Signature.--The statement of information
required under this paragraph shall be signed on behalf
of the defendant by a corporate officer or (in the case
of a defendant that is not a corporation) a senior
official comparable to a corporate officer, authorized
to bind such defendant, attesting under penalty of
perjury that the information contained therein is true
and complete to the best of his knowledge and belief
after reasonable investigation.
(E) Allocation and payment.--
(i) In general.--The Corporation shall--
(I) proportionally allocate the
estimated costs of the Corporation for
a transitional period to include the
first 2 fiscal years after the date of
enactment of this Act, in substantially
the same manner as the allocation
described in subsection (a)(2), to the
defendants identified in this
paragraph; and
(II) notify each such defendant of
its proportionate share of such
estimated transitional costs.
(ii) Payment.--Not later than 45 days after
the date on which a defendant receives a notice
made under clause (i)(II), that defendant shall
pay its share of the estimated transitional
costs to the Corporation.
(3) Reconciliation.--
(A) In general.--On or before November 30 following
the end of the transitional period, the Corporation
shall--
(i) determine the total costs of the
Corporation (exclusive of the cost of mediation
and arbitration that may be recovered from
respondents under section 602) for the
transitional period, including start-up costs;
and
(ii) proportionally allocate those costs,
in substantially the same manner as the
allocation described in subsection (a)(2),
among defendants who were named as respondents
during that transitional period.
(B) Statement of costs.--In making an allocation
under this subsection, the Corporation shall state
separately those costs directly attributable to--
(i) the medical review process; or
(ii) general overhead and administration of
the Corporation.
(C) Payment of deficiencies.--If the amount
allocated to any respondent under this subsection is
greater than the amount deposited by such respondent
under paragraph (2), that respondent shall pay the
deficiency to the Corporation within 30 days after
receiving a notice of deficiency from the Corporation.
(D) Refunds.--If the amount allocated to any
respondent under this subsection is less than the
amount deposited by such respondent under paragraph
(2), the difference shall be refunded promptly.
SEC. 602. COST OF MEDIATION AND ARBITRATION.
(a) Mediation.--The cost of mediation shall be charged, on a per
capita basis, to each respondent who participated in the mediation,
wholly or in part.
(b) Arbitration.--In the absence of an agreement among the parties
to the contrary, the cost of arbitration shall be charged, on a per
capita basis, to each respondent who participated in the arbitration,
wholly or in part, except that, the Corporation may by rule provide for
a reduction in the costs charged to respondents who settle or are
dismissed from arbitration before the commencement of the hearing.
SEC. 603. INFORMAL DISPUTE RESOLUTION.
(a) Procedures.--The Corporation shall establish expeditious
procedures for the informal resolution of disputes regarding the
assessment of costs under this title. The Corporation may, in its sole
discretion, postpone the obligation to pay the disputed assessment,
wholly or in part, during the pendency of informal dispute resolution
procedures.
(b) Voluntary Procedures.--The Corporation may agree to participate
in voluntary alternative dispute resolution procedures, including
mediation and arbitration, to resolve disputes regarding assessments.
SEC. 604. JUDICIAL REVIEW; ENFORCEMENT.
(a) Jurisdiction.--
(1) In general.--The district courts of the United States
shall have exclusive jurisdiction, without regard to the amount
in controversy or citizenship of the parties, to review any
assessment of costs made by the Corporation under this title.
(2) Treatment of challenged assessment.--The reviewing
court shall uphold a challenged assessment unless that court
determines that that assessment is arbitrary and capricious or
otherwise not in accordance with law.
(3) Procedures.--No action under this subsection may be
commenced or maintained by any person unless that person first
has--
(A) exhausted the informal dispute resolution
procedures provided under section 603; and
(B) paid to the Corporation the entire amount
assessed to that person by the Corporation, including
the amount in dispute.
(b) Authority of Corporation.--
(1) In general.--The Corporation shall have the authority
to bring an action in a district court of the United States to
enforce any obligation imposed on any person by this title.
(2) Jurisdiction.--In an action brought under paragraph
(1), the district court of the United States shall have
exclusive jurisdiction of such action without regard to the
amount in controversy or citizenship of the parties.
(3) Defenses.--The court shall not entertain any defense
other than lack of jurisdiction in any action by the
Corporation to recover assessments due under this title unless
the assessment is fully paid, with interest. If the assessment
is fully paid, with interest, the court shall uphold the
Corporation's determination that a determination is not
arbitrary and capricious or otherwise contrary to law.
(4) Payment of costs.--In any action under this subsection
in which the Corporation prevails, the Corporation shall be
entitled to costs, including reasonable attorneys' fees, and
interest on any unpaid funds. Interest under this subsection
shall be equal to the rate applicable to underpaid taxes under
section 6621 of the Internal Revenue Code of 1986.
SEC. 605. PENALTIES.
If any person who is required by section 601 to provide information
to the Corporation willfully fails to provide that information within
the period of time specified by the Corporation, that person shall
forfeit to the Corporation an amount equal to $50,000. That forfeiture
shall be payable to the Corporation, and shall be recoverable in a
civil suit in the name of the Corporation brought under section 604(b).
SEC. 606. ASBESTOS RESOLUTION CORPORATION TRUST FUND.
(a) Establishment.--There is established in the Treasury of the
United States a trust fund, to be known as the Asbestos Resolution
Corporation Trust Fund (in this section referred to as the ``Trust
Fund''), consisting of such amounts as are transferred to the Trust
Fund under subsection (b) and any interest earned on investment of
amounts in the Trust Fund under subsection (c)(2).
(b) Transfer of Amounts Equivalent to Certain Tariffs.--The
Corporation shall transfer to the Secretary of the Treasury for deposit
in the Trust Fund any--
(1) amounts paid to the Corporation under sections 601 and
602;
(2) amounts received by the Corporation as voluntary
donations;
(3) interest earned on deposits made by the Corporation;
(4) amounts received by the Corporation as judgments, costs
(including reasonable attorneys' fees) and interest under
section 604 or any other applicable provision of law; and
(5) penalties paid to the Corporation under section 605.
(c) Investment of Trust Fund.--
(1) In general.--It shall be the duty of the Secretary of
the Treasury to invest such portion of the Trust Fund as is
not, in the Secretary's judgment, required to meet current
withdrawals. Such investments may be made only in interest-
bearing obligations of the United States or in obligations
guaranteed as to both principal and interest by the United
States.
(2) Sale of obligations.--Any obligation acquired by the
Trust Fund (except special obligations issued exclusively to
the Trust Fund) may be sold by the Secretary of the Treasury at
the market price, and such special obligations may be redeemed
at par plus accrued interest.
(3) Credits to trust fund.--The interest on, and the
proceeds from the sale or redemption of, any obligations held
in the Trust Fund shall be credited to and form a part of the
Trust Fund.
(d) Obligations From Trust Fund.--The Corporation may obligate such
sums as are available in the Trust Fund (including any amounts not
obligated in previous fiscal years) in a manner consistent with this
Act. Amounts in the Trust Fund shall be available for obligation
without fiscal year limitation.
TITLE VII--APPLICABILITY; PENDING CIVIL ACTIONS
SEC. 701. APPLICABILITY.
Subject to section 702, beginning on the date of enactment of this
Act, this Act shall apply to any civil action asserting an asbestos
claim that has not resulted in a final, nonappealable judgment.
SEC. 702. PENDING CIVIL ACTIONS.
(a) In General.--
(1) Certificates of medical eligibility.--A certificate of
medical eligibility shall not be required in any civil action
asserting an asbestos claim if--
(A) that action was pending on the date of
enactment of this Act; and
(B) a trial commences before the operational date.
No release from mediation shall be required in any civil action
asserting an asbestos claim if the action was pending on the
date of enactment, whether or not trial commences before the
operational date.
(b) Elections.--Before the operational date, a plaintiff in a civil
action asserting an asbestos claim that is pending on the date of
enactment may elect to submit that claim to the Corporation for a
determination of medical eligibility. Any such election shall be
irrevocable.
(c) Burden of Proof.--Notwithstanding any other provision of law,
the plaintiff in any civil action asserting an asbestos claim who has
not obtained a certificate of medical eligibility shall have the burden
of establishing the existence of an asbestos-related condition that
meets the criteria for an eligible medical category under sections 201
through 204.
TITLE VIII--MISCELLANEOUS PROVISIONS
SEC. 801. APPLICABILITY OF OTHER FEDERAL LAWS.
(a) In General--Nothing in this Act shall be construed to make any
director, officer, or employee of the Corporation, an officer or
employee of the Federal Government for purposes of title 5, United
States Code. Neither the Corporation nor any director, officer, or
employee of the Corporation shall be subject to section 1341(a) of
title 31, United States Code.
(b) Applicability of Certain Administrative Provisions.--To the
extent consistent with the provisions of this Act, the Corporation
shall be subject to the requirements of sections 552a, 553, 555, and
706 of title 5, United States Code, as though the Corporation were an
agency, as such term is defined under section 551(1) of such title.
(c) Disclosure of Information.--In order to preserve the integrity
of the settlement process in the resolution of asbestos claims, the
Corporation shall exempt from disclosure under section 552(b)(3) of
title 5, United States Code, with respect to information or documents
that contain the results of settlements or settlement averages,
individual party or attorney names, medical records, and related data
collected for the purpose of resolving individual claims.
(d) Exemptions.--The Corporation shall be exempt from the
requirements of the following provisions of law:
(1) Sections 504 and 552b of title 5, United States Code.
(2) Chapter 51 of title 5, United States Code.
(3) Chapter 53 of title 5, United States Code.
(4) The Ethics in Government Act (5 U.S.C. App.).
(5) Sections 2412 and 2672 of title 28, United States Code.
(6) Title III of the Federal Property and Administrative
Services Act of 1949 (41 U.S.C. 251 et seq.).
(7) Chapter 35 of title 44, United States Code.
SEC. 802. OBLIGATIONS OF THE CORPORATION NOT OBLIGATIONS OF THE UNITED
STATES.
Obligations or liabilities of the Corporation shall not be
obligations or liabilities of the United States. No action may be
maintained against the United States to enforce any obligation or
liability of the Corporation.
SEC. 803. APPLICATION TO EXISTING ASBESTOS TRUSTS.
(a) 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 subsection (b).
(b) Election.--An asbestos trust may elect to be subject to the Act
by providing written notice of such election to the Corporation, in
which case the trust will have the same rights and responsibilities
under the Act as any person who is not a trust. A valid election under
this subsection shall be irrevocable.
SEC. 804. SETTLEMENTS UNAFFECTED.
Nothing in this Act shall prohibit any claimant, plaintiff,
respondent, or defendant from entering into a settlement agreement or
any other agreement concerning a claim covered, in whole or in part,
under this Act.
SEC. 805. 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.
<all>
Introduced in Senate
Sponsor introductory remarks on measure. (CR S3509-3510)
Read twice and referred to the Committee on Judiciary.
Committee on the Judiciary Subcommittee on Administrative Oversight and the Courts. Hearings held. With printed Hearing: S.Hrg. 106-931.
Sponsor introductory remarks on measure. (CR S2097-2098)
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