Requires civil actions involving an asbestos claim to include the filing of a doctor-signed narrative medical report and diagnosis which: (1) delineates an employment and exposure history; (2) delineates a medical and smoking history; (3) certifies that 15 years have elapsed from first exposure to diagnosis; (4) certifies a certain level of opacity or pleural thickening on a chest x-ray or pathological evidence of a certain grade of asbestosis; (5) certifies a certain level of asbestos-related pulmonary impairment; and (6) contains other reports and statements as required.
Sets forth required technical standards as well as rules governing consolidation, venue, removal, and the statute of limitations.
[Congressional Bills 108th Congress]
[From the U.S. Government Publishing Office]
[H.R. 1737 Introduced in House (IH)]
108th CONGRESS
1st Session
H. R. 1737
To provide for the fair and efficient judicial consideration of
personal injury and wrongful death claims arising out of asbestos
exposure, to ensure that individuals who suffer harm, now or in the
future, from illnesses caused by exposure to asbestos receive
compensation for their injuries, and for other purposes.
_______________________________________________________________________
IN THE HOUSE OF REPRESENTATIVES
April 10, 2003
Mr. Dooley of California (for himself, Mr. Moran of Virginia, Mr. Smith
of Washington, Mr. Larson of Connecticut, Mr. Davis of Alabama, Mr.
Larsen of Washington, and Mr. Stenholm) introduced the following bill;
which was referred to the Committee on the Judiciary
_______________________________________________________________________
A BILL
To provide for the fair and efficient judicial consideration of
personal injury and wrongful death claims arising out of asbestos
exposure, to ensure that individuals who suffer harm, now or in the
future, from illnesses caused by exposure to asbestos receive
compensation for their injuries, and for other purposes.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE; TABLE OF CONTENTS.
(a) Short Title.--This Act may be cited as the ``Asbestos Victims'
Compensation Act of 2003''.
(b) Table of Contents.--The table of contents for this Act is as
follows:
Sec. 1. Short title; table of contents.
Sec. 2. Findings and purposes.
Sec. 3. Definitions.
Sec. 4. Physical impairment.
Sec. 5. Consolidation.
Sec. 6. Venue.
Sec. 7. Removal.
Sec. 8. Limitations; two-disease rule; general releases.
Sec. 9. Miscellaneous provisions.
Sec. 10. Effective date.
SEC. 2. FINDINGS AND PURPOSES.
(a) Findings.--The Congress finds that--
(1) asbestos is a mineral that was widely used prior to the
1980s for insulation, fire-proofing, and other purposes;
(2) millions of American workers and others were
significantly exposed to asbestos, especially during and after
the Second World War and prior to the advent of regulation by
the Occupational Safety and Health Administration in the early
1970s;
(3) exposure to asbestos has been associated with various
types of cancer, including mesothelioma and lung cancer, as
well as such noncancerous conditions as asbestosis, pleural
plaques, and diffuse pleural thickening;
(4) the diseases caused by asbestos have latency periods of
up to 40 years or more;
(5) although the use of asbestos has dramatically declined
since 1980 and workplace exposures have been regulated since
1971 by the Occupational Safety and Health Administration, past
exposures will continue to result in significant death and
disability from mesothelioma and other cancers well into the
21st Century;
(6) exposure to asbestos has led to the filing of at least
600,000 asbestos claims in State and Federal courts, with
50,000 to 100,000 new cases filed each year, and, if nothing is
done to control the litigation, as many as 2,000,000 additional
claims may be filed before the litigation runs its course;
(7) asbestos personal injury litigation can be unfair and
inefficient, imposing a severe burden on courts, litigants and
taxpayers alike;
(8) asbestos personal injury litigation has already
contributed to the bankruptcy of more than 60 companies,
including nearly all manufacturers of asbestos textile and
insulation products, and the rate of asbestos-driven
bankruptcies is accelerating;
(9) the vast majority of asbestos claims are filed by
individuals who have been exposed to asbestos and who may have
some physical sign of exposure, but who suffer no present
asbestos-related impairment;
(10) the cost of compensating exposed individuals who are
not sick--
(A) jeopardizes the ability of defendants to
compensate people with cancer and other serious
asbestos-related diseases, now and in the future;
(B) threatens the savings, retirement benefits, and
jobs of these defendants' current and retired
employees;
(C) adversely affects the communities in which
these defendants operate; and
(D) impairs the national economy and interstate
commerce;
(11) the several thousand asbestos-related cancer cases
that are filed each year would be manageable by the courts and
the litigants but for the volume of noncancer claims brought by
those who suffer no present asbestos-related impairment;
(12) concerns about statutes of limitations can force
claimants who have been exposed to asbestos but who have no
current injury to bring premature lawsuits in order to protect
against losing their rights to future compensation should they
become impaired;
(13) consolidation, joinder, and similar procedures, to
which some courts have resorted to deal with the mass of
asbestos cases, can undermine the appropriate functioning of
the judicial process and encourage the filing of thousands of
cases by exposed individuals who are not yet sick and who may
never become sick;
(14) similarly, the availability of sympathetic forums in
States with no connection to the plaintiff or to the exposures
that form the basis of the lawsuit has encouraged the filing of
thousands of cases on behalf of exposed individuals who are not
yet sick and may never become sick; and
(15) the United States Supreme Court has characterized
asbestos cases as ``an elephantine mass'' that ``defies
customary judicial administration and calls for national
legislation'', Ortiz v. Fibreboard Corporation, 119 S. Ct.
2295, 2302 (1999), and has reaffirmed its call for national
legislation in Norfolk & Western Railway. Co. v. Ayers, No. 01-
963 (decided March 10, 2003).
(b) Purposes.--The purposes of this Act are--
(1) to give priority to those asbestos claimants who can
demonstrate actual physical harm or illness caused by asbestos;
(2) to fully preserve the rights of claimants who were
exposed to asbestos to pursue compensation should they become
sick in the future;
(3) to enhance the ability of the State and Federal
judicial systems to supervise and control asbestos litigation
and asbestos-related bankruptcy proceedings; and
(4) to conserve the scarce resources of the defendants, and
marshal assets in bankruptcy, to allow compensation of cancer
victims and others who are physically harmed by exposure to
asbestos while securing the right to similar compensation for
those who may suffer cancer or other physical harm in the
future.
SEC. 3. DEFINITIONS.
In this Act:
(1) AMA guides to the evaluation of permanent impairment.--
The term ``AMA Guides to the Evaluation of Permanent
Impairment'' means the American Medical Association's Guides to
the Evaluation of Permanent Impairment (Fifth Edition 2000).
(2) Asbestos.--The term ``asbestos'' includes all minerals
defined as ``asbestos'' in 29 C.F.R. 1910 as amended from time
to time.
(3) Asbestos claim.--The term ``asbestos claim'' means any
claim for damages or other relief presented in a civil action
or bankruptcy proceeding, arising out of, based on, or related
to the health effects of exposure to asbestos, including loss
of consortium, wrongful death, and any derivative claim made by
or on behalf of any exposed person or any representative,
spouse, parent, child or other relative of any exposed person.
The term does not include claims for benefits under a workers'
compensation law or veterans' benefits program, or claims
brought by any person as a subrogee by virtue of the payment of
benefits under a workers' compensation law.
(4) Asbestosis.--The term ``asbestosis'' means bilateral
diffuse interstitial fibrosis of the lungs caused by inhalation
of asbestos fibers.
(5) Cancer claim.--The term ``cancer claim'' means an
asbestos claim that is based upon the exposed person's
diagnosed cancer.
(6) Certified b-reader.--The term ``certified B-reader''
means an individual qualified as a ``final'' or ``B-reader''
under 42 C.F.R. 37.51(b) as amended from time to time.
(7) Civil action.--The term ``civil action'' means all
suits of a civil nature in State or Federal court, whether
cognizable as cases at law or in equity or in admiralty, but
does not include an action relating to any workers'
compensation law, or a proceeding for benefits under any
veterans' benefits program.
(8) Exposed person.--The term ``exposed person'' means any
person whose exposure to asbestos or to asbestos-containing
products is the basis for an asbestos claim.
(9) FEV1.--The term ``FEV1'' means forced expiratory volume
in the first second, which is the maximal volume of air that
can be expired from a full inspiration in one second.
(10) FVC.--The term ``FVC'' means forced vital capacity,
which is the maximal volume of air expired with maximum effort
from a position of full inspiration.
(11) ILO scale.--The term ``ILO Scale'' means the system
for the classification of chest x-rays set forth in the
International Labour Office's Guidelines for the Use of ILO
International Classification of Radiographs of Pneumoconioses
(1980) as amended from time to time by the International Labour
Office.
(12) Nonmalignant claim.--The term ``nonmalignant claim''
means an asbestos claim that is based upon a condition of the
exposed person that is caused or may be caused by asbestos
other than a diagnosed cancer.
(13) Predicted lower limit of normal.--The term ``predicted
lower limit of normal'' for any test means the fifth percentile
of healthy populations based on age, height, and gender, based
on an appropriate reference population.
(14) Pulmonary function testing.--The term ``pulmonary
function testing'' means spirometry, lung volume tests,
diffusing capacity tests, and arterial gas tests.
(15) 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.
(16) TLC.--The term ``TLC'' means total lung capacity,
which is the volume of air in the lungs after maximal
inspiration as measured by plethysmography or timed gas
dilution.
(17) Veterans' benefits program.--The term ``veterans'
benefits program'' means any program for benefits in connection
with military service administered by the Veterans'
Administration under title 38, United States Code.
(18) Workers' compensation law.--The term ``workers'
compensation law'' means a law respecting a program
administered by a State or the United States to provide
benefits, funded by a responsible employer or its insurance
carrier, for occupational diseases or injuries or for
disability or death caused by occupational diseases or
injuries. The term includes the Longshore and Harbor Workers'
Compensation Act (33 U.S.C. 901-944, 948-950), and chapter 81
of title 5, United States Code (known as the Federal Employees
Compensation Act), but does not include the Act of April 22,
1908 (45 U.S.C. 51 et seq.) (popularly referred to as the
``Federal Employers' Liability Act'').
SEC. 4. PHYSICAL IMPAIRMENT.
(a) Impairment Essential Element of Claim.--Physical impairment of
the exposed person, to which asbestos exposure was a substantial
contributing factor, shall be an essential element of an asbestos
claim. For purposes of this section, cancer shall satisfy the
requirement for physical impairment.
(b) Medical Report and Diagnosis: Filing.--The plaintiff in any
civil action involving an asbestos claim shall file, together with the
complaint or other initial pleading, a narrative medical report and
diagnosis, signed by a diagnosing doctor, that meets the requirements
of this section. In any civil action involving an asbestos claim that
is pending on the effective date of this Act, the plaintiff shall file
a narrative medical report and diagnosis within 60 days following such
effective date but in no event later that 30 days prior to trial. The
plaintiff's claim shall be dismissed without prejudice if a medical
report and diagnosis fail to substantially meet the requirements of
this section or are not timely filed.
(c) Medical Report and Diagnosis: Contents.--The medical report and
diagnosis filed under this section shall contain each of the following:
(1) An employment and exposure history, which shall include
all of the principal employments and exposures of the exposed
person to airborne contaminants and shall state whether each
such employment involved exposure to airborne contaminants
(including but not limited to asbestos) that can cause
pulmonary impairment, and the nature, duration, and level of
any such exposure. The employment and exposure history shall be
obtained from the exposed person or, if that person is deceased
or otherwise unable to provide the required information, from
the person or persons most knowledgeable about the exposed
person's employment or exposures. The diagnosing doctor shall
certify that the employment and exposure history was taken by
the diagnosing doctor, or a medical professional employed by
and under the direct supervision and control of the diagnosing
doctor.
(2) A detailed medical and smoking history, which shall
include a thorough review of the exposed person's past and
present medical conditions and their most probable cause and
full information regarding the exposed person's history of
smoking of tobacco products. The diagnosing doctor shall
certify that the medical and smoking history was taken by the
diagnosing doctor, or a medical professional employed by and
under the direct supervision and control of the diagnosing
doctor.
(3) Certification that, in the opinion of the diagnosing
doctor, at least 15 years have elapsed between the exposed
person's first exposure to asbestos and the time of diagnosis.
(4) Certification that--
(A) in the opinion of a certified B-reader, the
exposed person's chest x-ray shows either--
(i) bilateral small irregular opacities (s,
t, or u) graded 1/0 or higher on the ILO scale;
or
(ii) bilateral diffuse pleural thickening
graded b2 or higher on the ILO scale and
including blunting of at least one costophrenic
angle; or
(B) in the opinion of a board-certified
pathologist, the exposed person has pathological
evidence of asbestosis graded 1(B) or higher according
to criteria published in Asbestos-Associated Diseases,
Special Issue of the Archives of Pathology and
Laboratory Medicine, Volume 106, Number 11, Appendix 3
(October 8, 1982).
(5)(A) Certification that the exposed person has asbestos-
related pulmonary impairment as demonstrated by pulmonary
function testing that shows--
(i) FVC below the predicted lower limit of normal
and FEV1/FVC (using actual values) at or above the
predicted lower limit of normal; or
(ii) TLC below the predicted lower limit of normal.
(B) Notwithstanding subparagraph (A), where pulmonary
function test results do not meet the requirement of such
subparagraph, a claimant may submit an additional report, by a
board-certified pulmonologist, internist, or occupational
physician, that states that the doctor providing the report has
a doctor/patient relationship with the exposed person, that the
exposed person has a chest x-ray meeting the requirements of
this Act which in the opinion of a certified B-reader shows
bilateral small irregular opacities (s, t, or u) graded 2/1 or
higher on the ILO scale, and that the exposed person has
restrictive impairment from asbestosis. The additional report
shall set forth in detail the specific pulmonary function test
findings that the doctor relies upon to establish that the
claimant has restrictive impairment and shall include the
reports and readouts from all pulmonary function or other testing upon
which the report is based.
(6) A statement that the diagnosing doctor has concluded
the exposed person's respiratory impairment is not more
probably the result of causes other than exposure to
asbestosis.
(7) Copies of the B-reader's report and the results of
pulmonary function tests (including printouts of flow volume
loops and all other elements necessary to demonstrate
compliance with the technical standards required by this
section).
(d) Compliance With Technical Standards.--The technical standards
required by this section are as follows:
(1) Chest x-rays shall be administered in accordance with
all applicable State and Federal regulatory requirements and
shall be quality 1 unless the exposed person is deceased and
tissue is unavailable for pathological analysis, in which case
the chest x-ray may be quality 2.
(2) Pulmonary function testing shall be performed using
equipment, methods of calibration, and technique that meet the
criteria incorporated in the AMA Guides to the Evaluation of
Permanent Impairment and reported as set forth in 20 C.F.R.
404, Subpt. P, App.1, Part (A) section 3.00 (E) and (F), and
the interpretative standards set forth in the Official
Statement of the American Thoracic Society titled ``Lung
Function Testing: Selection of Reference Values and
Interpretative Strategies'' as published in the American Review
of Respiratory Diseases 1991: 144: 1202-1218. No adjustments
with respect to the interpretation of pulmonary function
testing shall be made on the basis of race.
(e) No Presumption at Trial.--Submission of a medical report and
diagnosis meeting the requirements of this section shall not result in
any presumption at trial that the exposed person is impaired by an
asbestos-related condition, and evidence that such a report was
submitted shall not be admissible at trial.
(f) Applicability.--This section shall govern the substantive rule
of decision, regardless of forum.
SEC. 5. CONSOLIDATION.
Unless all parties otherwise consent, a court may not consolidate
for trial--
(1) asbestos claims relating to more than 20 different
exposed persons; and
(2) a nonmalignant claim relating to one exposed person
with a cancer claim relating to another exposed person.
SEC. 6. VENUE.
A civil action asserting a nonmalignant claim may only be brought
in the State of plaintiff's domicile or a State in which there occurred
exposure to asbestos that is a substantial contributing factor to the
physical impairment on which the claim is based. This section does not
affect venue for civil actions asserting a cancer claim, which shall be
governed by otherwise applicable State or Federal law.
SEC. 7. REMOVAL.
(a) In General.--Any party in a civil action involving an asbestos
claim may remove such action to a district court of the United States
in accordance with chapter 89 of title 28, United States Code. A civil
action may be removed to the district court of the United States in
accordance with this subsection by any defendant without the consent of
all defendants.
(b) Remand.--The district court shall remand any civil action
removed solely under subsection (a) if it finds that the plaintiffs
substantially met the requirements of section 4.
SEC. 8. LIMITATIONS; TWO-DISEASE RULE; GENERAL RELEASES.
(a) Statute of Limitations.--Notwithstanding any other provision of
law, with respect to any nonmalignant asbestos claim not barred as of
the effective date of this Act, the limitations period on an asbestos
claim shall not commence as a result of a purported diagnosis or
finding of a nonmalignant condition related to asbestos that does not
meet the substantive criteria in section 4.
(b) Two-Disease Rule.--An asbestos claim arising out of a
nonmalignant condition shall be a distinct cause of action from an
asbestos claim relating to the same exposed person arising out of
asbestos-related cancer. No damages shall be awarded for fear or risk
of cancer in any civil action asserting only a nonmalignant asbestos
claim.
(c) General Releases From Liability Prohibited.--No settlement of a
nonmalignant asbestos claim concluded after the effective date of this
Act shall require, as a condition of settlement, release of any future
claim for asbestos-related cancer.
SEC. 9. MISCELLANEOUS PROVISIONS.
(a) Construction With Other Laws.--This Act shall not be construed
to affect the scope or operation of any workers' compensation law or
veterans' benefit program, to affect the exclusive remedy or
subrogation provisions of any such law, or to authorize any lawsuit
which is barred by any such provision of law.
(b) Constitutional Authority.--The constitutional authority for
this Act is contained in Article I, section 8, clause 3 of the
Constitution of the United States and in Article III, section 1 of the
Constitution of the United States.
SEC. 10. EFFECTIVE DATE.
This Act shall be effective on the date of the enactment of this
Act and shall apply to any civil action asserting an asbestos claim in
which trial has not commenced as of such date.
<all>
Introduced in House
Introduced in House
Referred to the House Committee on the Judiciary.
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