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Introduced Version House Bill 2686 History

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H. B. 2686

 

(By Delegates Craig, Michael and Azinger)

[Introduced January 20, 2011; referred to the

Committee on the Judiciary.]

 

 

 

 

A BILL to amend the Code of West Virginia, 1931, as amended, by adding thereto a new article, designated §55-7E-1, §55-7E-2, §55-7E-3, §55-7E-4, §55-7E-5, §55-7E-6, §55-7E-7, §55-7E-8, §55-7E-9 and §55-7E-10, all relating to creating the "Asbestos and Silica Compensation Fairness Act of 2011;" providing limitations for certain asbestos claims; judicial actions involving silica and asbestos exposure; and providing for fair and efficient judicial consideration of personal injury and wrongful death arising out of asbestos or silica exposure and ensuring individuals who suffer impairment now or in the future for illnesses caused by exposure to asbestos or silica receiving compensation for their injuries.

Be it enacted by the Legislature of West Virginia:

    That the Code of West Virginia, 1931, as amended, be amended by adding thereto a new article, designated §55-7E-1, §55-7E-2, §55-7E-3, §55-7E-4, §55-7E-5, §55-7E-6, §55-7E-7, §55-7E-8, §55-7E-9 and §55-7E-10, all to read as follows:

ARTICLE 7E. ASBESTOS AND SILICA COMPENSATION FAIRNESS ACT OF 2011.

§55-7E-1. Short title.

    This article may be cited as the "Asbestos and Silica Compensation Fairness Act of 2011."

§55-7E-2. Purpose.

    It is the purpose of this article to protect the rights of people with asbestos-related and silica-related impairments and injuries to pursue claims for compensation in a fair and efficient manner through the West Virginia Court System, while preventing misdirected scarce judicial and litigant resources by premature individual claims of asbestos or silica exposure but have no functional or physical impairment from asbestos-related or silica-related disease, by:

    (a) Adopting medically accepted standards for differentiating between nonmalignant asbestos-related or silica-related disease causing functional impairment and no functional impairment, or impairment caused solely by some other cause, such as asthma, emphysema, or smoking;

    (b) Requiring physical impairment as an essential element of an asbestos claim or a silica claim;

    (c) Providing the dismissal of lawsuits in which the exposed person has no functional impairment, while protecting a person’s right to bring suit on an asbestos-related or silica-related functional impairment or injury; and

    (d) Creating an extended period before limitations begin to run to bring claims for nonmalignant injuries caused by inhalation or ingestion of asbestos or inhalation of silica, to preserving the right of those who have been exposed to asbestos or silica but not yet impaired to bring a claim later if they develop an asbestos-related or silica-related disease or injury.

§55-7E-3. Definitions.

    In this article:

    (1) "AMA Guides to the Evaluation of Permanent Impairment" means the American Medical Association's Guides to the Evaluation of Permanent Impairment (Fifth Edition 2000) and its revisions by the American Medical Association.

    (2) "Asbestos" means chrysotile, amosite, crocidolite, tremolite asbestos, anthophyllite asbestos, actinolite asbestos and any of these minerals that have been chemically treated or altered, including, but not limited to, all minerals defined as ‘asbestos’ in 29 CFR 1910 as amended on the effective date of this article.

    (3) "Asbestos claim" means any claim for damages, losses, or other civil or otherwise equitable action relating in any way to exposure to asbestos, including any claim for current or future medical monitoring and/or surveillance, indemnification and contribution. "Asbestos claim" includes a claim made by or on behalf of any person exposed to asbestos, or any representative, spouse, parent, child or other relative of that person, including loss of consortium, wrongful death, mental or emotional injury, risk of disease, other injury, or personal injury. The term does not include workers' compensation claims or veterans' benefits program, or claims brought by a subrogee by payment of workers' compensation benefits.

    (4) "Asbestosis" means bilateral diffuse interstitial fibrosis of the lungs caused by inhalation of asbestos fibers.

    (5) "Board-certified in internal medicine" means a physician certified by the American Board of Internal Medicine or American Osteopathic Board of Internal Medicine.

    (6) "Board-certified in occupational medicine" means a physician certified in occupational medicine by the American Board of Preventive Medicine or American Osteopathic Board of Preventive Medicine.

    (7) "Board-certified in oncology" means a physician certified in medical oncology by the American Board of Internal Medicine or American Osteopathic Board of Internal Medicine.

    (8) "Board-certified in pathology" means a physician who holds primary certification in anatomic pathology or clinical pathology from the American Board of Pathology or American Osteopathic Board of Internal Medicine and whose professional practice is primarily in pathology, involving regular evaluation of pathology materials obtained from surgical or postmortem specimens.

    (9) "Board-certified in pulmonary medicine" means a physician certified in pulmonary medicine by the American Board of Internal Medicine or American Osteopathic Board of Internal Medicine.

    (10) “Certified B-reader" means an individual qualified as a "final" or "B-reader" under 42 CFR 37.51(b) as amended on the effective date of this article, and whose certification was current at the time of any reading required by the article.

    (11) “Civil actions" means all suits or claims of a civil nature in state or federal court, whether cognizable as cases at law or in equity or in admiralty. The term does not include:

    (A) Actions relating to any workers' compensation law;

    (B) Proceedings for benefits under any veterans' benefits program;

    (C) Actions alleging any claim or demand made against a trust established pursuant to 11 U.S.C. Section 524(9);

    (D) Actions alleging any claim or demand made against a trust established pursuant to a plan of reorganization confirmed under Chapter 11 of the United States Bankruptcy Code, 11 U.S.C. Chapter 11.

    (12) “Bilateral diffuse pleural thickening” means radiological evidence of thickening of the visceral pleura extending up both lateral chest walls in the presence of, and continuity with, an obliterated costophrenic angle.

    (13) "Exposed person" means any person whose exposure to asbestos, asbestos-containing products, silica or silica-containing products is the basis for a claim.

    (14) "FEV1" means forced expiratory volume in the first second, the maximal volume of air expelled in one second during performance of simple spirometric tests.

    (15) "FVC" means forced vital capacity, the maximal volume of air expired with maximum effort from a position of full inspiration.

    (16) "ILO Scale" means the classification of chest X rays in the International Labour Office's Guidelines for the Use of ILO International Classification of Radiographs of Pneumoconioses (2000) as amended from time to time by the International Labour Office.

    (17) “Lower limit of normal” means the fifth percentile of healthy populations based on age, height and gender, referenced in the American Medical Association’s Guides to the Evaluation of Permanent Impairment, Fifth Edition, as amended by the American Medical Association.

    (18) “Lung cancer" means a malignant tumor whose primary site of origin is inside the lungs. The term does not include an asbestos claim based upon mesothelioma.

    (19) "Mesothelioma" means a malignant tumor with a primary site of origin in the pleura or peritoneum, and diagnosed by a board-certified pathologist using standardized and accepted criteria of microscopic morphology and/or appropriate staining techniques.

    (20) "Nonmalignant condition" means any condition caused or may be caused by asbestos other than a diagnosed cancer.

    (21) "Nonsmoker" means the exposed person has not smoked cigarettes or used any other tobacco products within the last fifteen years.

    (22) "Pathological evidence of asbestosis" means a statement by a board-certified pathologist that more than one representative section of lung tissue uninvolved with any other disease process demonstrates a pattern of peribronchiolar or parenchymal scarring in the presence of characteristic asbestos bodies with no other more likely explanation for the presence of the fibrosis.

    (23) "Physical impairment" means:

    (A) A nonmalignant asbestos claim meeting the requirements in section four-b of this article;

    (B) An asbestos related lung cancer claim meeting the requirements in section four-c of this article;

    (C) An asbestos related other cancer claim that meeting the requirements in section four-d of this article;

    (D) A silicosis claim meeting the requirements in section four-f of this article;

    (E) Other silica claims meeting the requirements in section four-g of this article;

    (24) “Plethysmography” means a test for determining lung volume, also known as “body plethysmography,” in which the subject is enclosed in a chamber equipped to measure pressure flow or volume changes.

    (25) "Predicted lower limit of normal" for any test means the fifth percentile of healthy populations based on age, height and gender, referenced in the AMA Guides to the Evaluation of Permanent Impairment, Fifth Edition, as amended by the American Medical Association.

    (26) "Qualified physician" means a medical or osteopathic doctor, who:

    (A) Is a currently board-certified internist, oncologist, pathologist, pulmonary specialist, radiologist or specialist in occupational and environmental medicine as appropriate to the actual diagnosis in question;

    (B) Has personally, or at his or her supervision, direction and control, conducted a physical examination of the exposed person and took a detailed occupational, exposure, medical, smoking and social history from the exposed person, or if deceased, the person most knowledgeable about such history that forms the basis of the silica or asbestos claim;

    (C) Is actually treating or has treated the exposed person, and has or had a doctor-patient relationship with such person;

    (D) Spends no more than ten percent of his or her professional practice time providing expert services in connection with actual or potential civil actions, and whose medical group, professional corporation, clinic or other affiliated group earns not more than twenty percent of their revenues from their expert services;

    (E) Is currently licensed to practice and actively practices in the state where the plaintiff resides or in West Virginia;

    (F) Receives or received payment for the treatment of the exposed person from that person's health maintenance organization, other medical provider, the exposed person or a member of the exposed person's family; and

    (G) As the basis for his or her diagnosis, has not relied, in whole or in part, on any of the following: (i) The opinions of any doctor, clinic, laboratory or testing company that performed an examination, test or screening of the claimant’s medical condition in violation of any law, regulation, licensing requirement or medical code of practice of any state the examination, test or screening was conducted; (ii) the reports or opinions of any doctor, clinic, laboratory, or testing company that performed an examination, test or screening of the claimant’s medical condition without clearly establishing a doctor-patient relationship with the claimant in the examination, test or screening process, or; (iii) the reports or opinions of any doctor, clinic, laboratory or testing company that performed an examination, test or screening of the claimant’s medical condition that required the claimant to agree to retain a law firm who sponsored the examination, testing or screening.

    (27) "Radiological evidence of asbestosis" means a quality 1 chest X ray under the ILO System of classification (in a death case where no pathology is available, the necessary radiological findings may be made with a quality 2 film) showing small, irregular opacities (s, t, or u) graded by a certified B-reader as at least 1/1 on the ILO scale.

    (28) "Radiological evidence of diffuse pleural thickening" means a quality 1 chest X ray under the ILO System of classification (in a death case where no pathology is available, the necessary radiological findings may be made with a quality 2 film) showing bilateral pleural thickening of at least B2 on the ILO scale and blunting of at least one costophrenic angle as classified by a certified B-reader.

    (29) "Silica" means a respirable crystalline form of silicon dioxide, including, but not limited to, quartz, cristobalite and trydmite.

    (30) "Silica claim" means any claim for damages, losses, or other civil or otherwise equitable relief related in any way to the health effects of exposure to silica, including any claim for current or future medical monitoring and/or surveillance, indemnification or contribution. "Silica claim" includes a claim made by or on behalf of any person who has been exposed to silica, or any representative, spouse, parent, child or other relative of that person, for injury, including loss of consortium, wrongful death, mental or emotional injury, risk of disease or other injury, or personal injury. This does not include claims for benefits under workers' compensation or veterans' benefits program, or claims brought by any person as subrogee by payment of benefits under workers' compensation.

    (31) "Silicosis" means:

    (A) Chronic simple silicosis, which is a nodular fibrosis of the lungs caused by inhalation of silica;

    (B) Complicated silicosis (also known as progressive massive fibrosis);

    (C) Accelerated silicosis; and/or

    (D) Acute silicosis.

    (32) "Smoker" means a person who has smoked cigarettes or used other tobacco products within the last fifteen years.

    (33) The term "substantial contributing factor" means:

    (A) Exposure to asbestos or silica is the predominate cause of the physical impairment alleged in the claim; and

    (B) A qualified physician has determined with a reasonable degree of medical certainly the exposed person’s physical impairment would not have occurred but for the asbestos or silica exposures.

    (34) “Substantial occupational exposure to asbestos” means employment for a cumulative period of at least five years in an industry and occupation in which the exposed person did any of the following for a substantial portion of a normal work year:

    (A) Handled raw asbestos fibers;

    (B) Fabricated asbestos containing products and exposed to raw asbestos products in the fabrication process;

    (C) Altered, repaired or otherwise worked with an asbestos-containing product that exposed the person on a regular basis to asbestos fibers; or

    (D) Worked in close proximity to other workers engaged in any of the activities in this article in a manner that exposed the person on a regular basis to asbestos fibers.

    (35) “Substantial occupational exposure to silica” means employment for a cumulative period of at least five years in an industry and occupation the exposed person did any of the following for a substantial portion of a normal work year:

    (A) Handled silica;

    (B) Fabricated silica-containing products and was exposed to silica in the fabrication process;

    (C) Altered, repaired, or otherwise worked with a silica-containing product and exposed the person on a regular basis to silica; or

    (D) Worked in close proximity to other workers engaged in any of the activities described in (A), (B) or (C) of this subsection that exposed the person on a regular basis to silica.

    (36) “Total lung capacity” means the volume of gas contained in the lungs at the end of a maximal inspiration.

    (37) "Veterans benefit program” means any program for benefits in connection with military service administered by the Veterans' Administration under title 38, United States Code.

    (38) "Workers' compensation law" means §23-1-1 et seq., of this code as amended, or any program administered by another 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. This term does not include any cause of action pending or instituted pursuant to section two, article four, chapter twenty-three of this code. 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”).

§55-7E-4. Physical impairment.

    (a) Impairment essential element of claim. -- An essential element of an asbestos or silica claim is to be asbestos or silica exposure as a substantial contributing factor to the physical impairment of the exposed person.

    (b) Prima facie evidence of physical impairment for asbestos-related nonmalignant disease claims. -- A person may not bring or maintain a civil action alleging an asbestos claim based upon nonmalignant disease in the absence of a prima facie showing of physical impairment that exposure to asbestos was a substantial contributing factor. A prima facie showing shall include all the following requirements:

    (1) Evidence verifying a qualified physician has taken a detailed occupational and exposure history of the exposed person from the exposed person or, if that person is deceased, from a person who is most knowledgeable about the exposure history of the nonmalignant asbestos claim, including:

    (A) Identification of all the exposed person's principal places of employment and exposures to airborne contaminants; and

    (B) Whether each principal place of employment involved exposures to airborne contaminants (including asbestos fibers or other disease causing dusts) that can cause pulmonary impairment and/or cancer, and the nature, duration and level of exposure.

    (2) Evidence verifying a qualified physician has taken a detailed medical, social and smoking history, including a thorough review of the exposed person's past and present medical problems and their most probable cause.

    (3) Evidence sufficient to demonstrate at least fifteen years have elapsed between the first exposure to asbestos and the date of diagnosis.

    (4) A diagnosis by a qualified physician after a personal medical examination and pulmonary function testing of the exposed person, that the exposed person has a permanent respiratory impairment rating of at least Class 2 as defined by the AMA Guides to the Evaluation of Permanent Impairment.

    (5) A diagnosis report signed by a qualified physician that the exposed person has asbestosis or evidence of diffuse bilateral pleural thickening, based on the following radiological or pathological evidence of asbestosis or radiological evidence of diffuse pleural thickening;

    (A) Radiological or pathological evidence of asbestosis requires:

    (i) A radiology report of a quality 1 chest X ray, except as otherwise noted, read by a certified B-reader according to the ILO classification system as showing primarily bilateral small irregular opacities (shapes, s, t, or u) with a profusion classification of 1/1 or higher, or

    (ii) A pathology report of asbestosis graded 1(B) or higher under the criteria in “Asbestos-Associated Disease,” Special issue Archives of Pathology and Laboratory Medicine, Volume 10C, Number 11, Appendix 3 (October 8, 1982), as amended from time to time.

    (B) Radiological evidence of diffuse pleural thickening requires a radiology report of a quality 1 chest X ray, except as otherwise noted, read by a certified B-reader according to the ILO classification system as showing evidence of thickening of the visceral pleura extending up the lateral chest walls graded B2 or higher in the presence of, and in continuity with, an obliterated costophrenic angle.

    (6) A qualified physician determining that asbestosis or diffuse bilateral pleural thickening (rather than chronic obstructive pulmonary disease) is a substantial contributing factor to the exposed person's physical impairment, as the exposed person has:

    (A) Total lung capacity, by plethysmography or timed gas dilution, below the predicted lower limit of normal; and

    (B) Forced vital capacity below the lower limit of normal and a ratio of FEV1 to FVC (actual values) that is equal to or greater than the predicted lower limit of normal; or

    (C) In lieu of 6(A) and 6(B), a radiology report of a quality 1 chest X ray read by a certified B-reader according to the ILO classification system showing bilateral small irregular opacities (shape s, t, or u) with a profusion classification of 2/1 or higher in conjunction with the conclusion of a qualified physician that the exposed person’s medical findings verified by the physician were not more probably the result of a condition other than asbestos exposure as revealed by the exposed person’s employment, social and medical history.

    (7) A medical opinion by a qualified physician that the exposed person's medical findings and impairment were not more probably the result of causes other than the asbestos exposure revealed by the exposed person's employment and medical history. An opinion which states the medical findings and impairment are "consistent with" or "compatible with" exposure to asbestos does not meet the requirements of this subsection.

    (8) Verifies that the exposed person has pulmonary impairment as related to asbestos as demonstrated by pulmonary function testing performed using equipment, methods of calibration and techniques that meet:

    (A) The criteria incorporated in the AMA’s Guides to the Evaluation of Permanent Impairment, Fifth Edition, as amended from time to time; and

    (B) The interpretative standards of the American Thoracic Society, “Lung Function Testing: Selection of Reference Values and Interpretive Strategies” as amended from time to time.”

    (9) Verifies the doctor signing the detailed narrative medical report and diagnosis concluded that exposure to asbestos was a substantial contributing factor to the exposed person’s medical condition and physical impairment and they were not more probably the result of other causes revealed by the exposed person’s employment, social, smoking and medical histories.

    (10) Copies of the B-readings, the pulmonary function tests, including production of the flow volume loops and all other elements required to demonstrate compliance with the equipment, quality, interpretation and reporting standards set forth, and the diagnosing physician’s detailed narrative shall be attached to any complaint alleging a nonmalignant asbestos-related condition. All such reports, and other evidence used to establish prima-facie evidence of impairment, must meet objective standards and criteria of generally accepted medical standards and not obtained through testing or examinations that violate applicable laws, regulations, licensing requirements or medical code of practice. Failure to attach the reports will result in the dismissal of the claim or action without prejudice, upon notice of any party.

    (c) Prima facie evidence of physical impairment for asbestos- related lung cancer claims. -– A person may not bring or maintain a civil action alleging an asbestos claim which is based upon lung cancer, in the absence of a prima-facie showing including all of the following requirements:

    (1) A signed verified diagnostic report by a qualified physician board-certified in pathology, pulmonary medicine or oncology, stating the exposed person is diagnosed with primary lung cancer, exposure to asbestos was a substantial contributing factor to the condition. If the diagnosis is by a qualified physician board-certified in pulmonary medicine, there shall be a pathological diagnosis of the primary lung cancer the pulmonary physician relied upon;
    (2) Sufficient evidence that at least fifteen years have elapsed between the first exposure to asbestos and the date of diagnosis of the lung cancer.

    (3) Depending on whether the exposed person has a history of smoking, the requirements of either (A) or (B) below:

    (A) When the exposed person is a nonsmoker, either:

    (i) Radiological evidence of asbestosis or diffuse bilateral pleural thickening from a qualified physician’s diagnosis of asbestosis based on a chest X ray graded by a certified B-reader as at least 1/0 on the ILO scale; or pathological evidence of asbestosis; or

    (ii) Evidence of the exposed person’s substantial occupational exposure to asbestos.

    (B) When the exposed person is a smoker, the criteria contained in both subparagraphs (i) and (ii), paragraph (A) must be met.

    (C) If the exposed person is deceased, the qualified physician may obtain evidence required in subparagraph (ii), paragraph (A), subdivisions (2) and (3), subsection (c) from the person most knowledgeable about the alleged exposures that form the basis of the asbestos claim.

    (4) A qualified physician having concluded the exposed person's medical findings were not more probably the result of causes other than asbestos exposure revealed by the exposed person's employment and medical history. A conclusion that the medical findings and impairment are "consistent with" or "compatible with" exposure to asbestos does not meet the requirements of this subsection.

    (d) Prima facie evidence of asbestos-related other cancer claims. -- A person may not bring or maintain a civil action alleging an asbestos claim based upon cancer of the colon, rectum, larynx, pharynx, esophagus or stomach, in the absence of a prima facie showing which shall include all the following:

    (1) A diagnosis by a qualified physician board-certified in pathology, oncology, gastroenterology or otolaryngology (as appropriate for the type of cancer claimed) of primary cancer of the colon, rectum, larynx, pharynx or esophagus, and exposure to asbestos was a substantial contributing factor to the condition;

    (2) Evidence to demonstrate at least fifteen years have elapsed between the date of first exposure to asbestos and the date of diagnosis of the cancer.

    (3) The requirements of either (A) or (B) below:

    (A) Radiological evidence of asbestosis from a qualified physician’s diagnosis of asbestosis based on a chest X ray graded by a certified B-reader as at least 1/0 on the ILO scale or pathological evidence of asbestosis;

    (B) Evidence of the exposed person’s substantial occupational exposure to asbestos.

    (4) A conclusion by a qualified physician that the exposed person's medical findings and impairment were not more probably the result of causes other than the asbestos exposure revealed by the exposed person's employment and medical history. A conclusion that the medical findings and impairment are "consistent with" or "compatible with" exposure to asbestos does not meet the requirements of this subsection.

    (e) Prima facie evidence of physical impairment for asbestos- related malignant mesothelioma claims. -- A person may not bring or maintain a civil action alleging an asbestos claim which is based mesothelioma in the absence of a prima facie showing of physical impairment as a result of a medical condition to which exposure to asbestos was a substantial contributing factor. A prima facie showing shall include all the following:

    (1) A report by a qualified physician board-certified in pathology, pulmonary medicine or oncology stating a diagnosis of the exposed person of a malignant pleural, peritoneal or pericardial mesothelioma and that exposure to asbestos was a substantial contributing factor to the condition. If the diagnosis is by a qualified physician board certified in pulmonary medicine, there is also a pathological diagnosis of mesothelioma on which the pathological diagnosis the pulmonary doctor relied.

    (2) Evidence that sets out details of the occupational exposure and medical history includes:

    (A) A thorough review of claimant’s past and present medical problems, and their most probable cause;

    (B) Verification that at least fifteen years have elapsed between the claimant’s first exposure to asbestos and the time of diagnosis; and

    (C) To a reasonable degree of medical probability, exposure to asbestos was a substantial contributing factor in causing the diagnosed mesothelioma.

    (3) Credible evidence of identifiable exposure to asbestos resulting from:

    (A) Occupational exposure to asbestos;

    (B) Exposure to asbestos fibers brought into the home of exposed person by a worker occupationally exposed to asbestos; or

    (C) Exposure to asbestos fibers resulting from living or working in the proximate vicinity of a factory, shipyard, building demolition site or other operation that regularly released asbestos fibers into the air due to operations involving asbestos at the site.

    (f) Prima facie evidence of physical impairment for silicosis claims. -- A person may not bring or maintain a civil action alleging a silicosis claim in the absence of a prima facie showing of physical impairment as a result of a medical condition to which exposure to silica was a substantial contributing factor. A prima facie showing shall include all the following:

    (1) Evidence verifying a qualified physician has taken a detailed occupational and exposure history of the exposed person from the exposed person or, if the person is deceased, from a person who is most knowledgeable about the exposures that form the basis of the silicosis claim, including all of the following:

    (A) Identification of all of the exposed person's principal places of employment and exposures to airborne contaminants; and

    (B) Whether each place of employment involved exposures to airborne contaminants (including, but not limited to, silica particles or other disease causing dusts) that can cause pulmonary impairment or cancer and the nature, duration and level of any such exposure.

    (2) Evidence verifying a qualified physician has taken detailed medical, social and smoking history, including a thorough review of the exposed person's past and present medical problems and their most probable cause, and verifying a sufficient latency period for the applicable stage of silicosis.

    (3) A diagnosis by a qualified physician, on the basis of a personal medical examination and pulmonary function testing of the exposed person, that the exposed person has a permanent respiratory impairment rating of at least Class 2 pursuant to the AMA Guides to the Evaluation of Permanent Impairment.

    (4) A verified diagnostic report signed by a qualified physician that the exposed person has silicosis based on the following radiological or pathological evidence of silicosis:

    (A) A quality 1 chest X ray, except as otherwise noted, under the ILO System of classification, with the X ray read by a certified B-reader as showing, according to the ILO System of classification, predominantly bilateral nodular opacities (p, q, or r) occurring primarily in the upper lung fields, graded 1/1 or higher; or

    (B) A quality 1 chest X ray, except as noted herein, under the ILO System of classification, with the X ray read by a certified B-reader as showing, according to the ILO System of classification, A, B or C sized opacities representing complicated silicosis (also known as progressive massive fibrosis);

    (C) A pathological demonstration of classic silicotic nodules exceeding one centimeter in diameter as published in 112 Archive of Pathology and Laboratory Medicine 7 (July 1988); or

    (D) Acute silicosis.

    (5) A conclusion by a qualified physician that the exposed person's medical findings and impairment were not more probably the result of causes other than silica exposure revealed by the exposed person's employment and medical history. A conclusion that the medical findings and impairment are "consistent with" or "compatible with" exposure to silica does not meet the requirements of this subsection.

    (g) Prima facie evidence of physical impairment for other silica-related claims. -- A person may not bring or maintain a civil action alleging any silica claim other than provided in subsection (f) above in the absence of a prima facie showing which shall include the following:

    (1) A report by a qualified physician board-certified in pulmonary medicine, oncology or pathology, stating a diagnosis of the exposed person of silica-related lung cancer, and to a reasonable degree of medical probability, exposure to silica was a substantial contributing factor to the diagnosed lung cancer. If the diagnosis is by a qualified physician board-certified in pulmonary medicine, there shall also be a diagnosis of lung cancer;

    (2) Evidence verifying that a qualified physician has taken a detailed occupational and exposure history of the exposed person or, if the person is deceased, from a person who is knowledgeable about the exposures that form the basis of the other silica-related claim, including:

    (A) Identification of all of the exposed person's principal places of employment and exposures to airborne contaminants; and

    (B) Whether each place of employment involved exposures to airborne contaminants (including, but not limited to, silica particles or other disease causing dusts) can cause pulmonary impairment and the nature, duration and level of any such exposure.

    (3) Evidence verifying that a qualified physician has taken a detailed medical and smoking history, including a thorough review of the exposed person's past and present medical problems and their most probable cause;

    (4) Verification that at least fifteen years have elapsed from the date of the exposed person’s first exposure to silica until the date of diagnosis of the exposed person’s primary lung cancer;

    (5) Evidence of the exposed person’s substantial occupational exposure to silica;

    (6) A determination by a qualified physician that the exposed person has:

    (A) A quality 1 chest X ray, except as noted herein, under the ILO System of classification, and the X ray has been read by a certified B-reader as showing, according to the ILO System of classification, predominantly bilateral nodular opacities (p, q, or r) occurring primarily in the upper lung fields, graded 1/1 or higher; or

    (B) A quality 1 chest X ray, except as noted herein, under the ILO System of classification, and the X ray has been read by a certified B-reader as showing, according to the ILO System of classification, A, B or C sized opacities representing complicated silicosis (also known as progressive massive fibrosis); or

    (C) Pathological demonstration of classic silicotic nodules exceeding one centimeter in diameter as published in 112 Archive of Pathology and Laboratory Medicine 7 (July 1988);

    (7) A conclusion by a qualified physician that the exposed person's medical findings and impairment were not more probably the result of causes other than silica exposure revealed by the exposed person's employment and medical history. A conclusion that the medical findings and impairment are "consistent with" or "compatible with" exposure to silica does not meet the requirements of this subsection.

    (h) Compliance with technical standards. -- Evidence relating to physical impairment under this section, including pulmonary function testing and diffusing studies, shall:

    (1) Comply with the technical recommendations for examinations, testing procedures, quality assurance, quality control and equipment of the AMA Guides to the Evaluation of Permanent Impairment, as set forth in 2d C.F.R. Pt, 404, Subpt. P. Appl., Part A, Sec. 3.00 E. and F. effective on the effective date of this article, and the interpretive standards, set forth in the official statement of the American Thoracic Society entitled "Lung Function Testing: Selection of Reference Values and Interpretive Strategies" as published in American Review of Respiratory Disease. 1991: 144:1202-1218;

    (2) Not be obtained through testing or examinations that violate any applicable law, regulation, licensing requirement or medical code of practice; and

    (3) Not be obtained under the condition that the exposed person retain legal services in exchange for the examination, test or screening.

    (i) No presumption at trial. -- Presentation of prima facie evidence meeting the requirements of subsection (b), (c), (d), (f) or (g) of this section may not:

    (1) Result in any presumption at trial that the exposed person is impaired by an asbestos or silica related condition;

    (2) Be conclusive as to the liability of any defendant;

    (3) Be admissible at trial;

    (4) Result in an instruction by the court to the jury with respect to the court’s decision as to the prima facie showing, and no counsel for any party, nor any witness shall inform the jury or potential jurors of any such showing, subject to appropriate sanctions.

§55-7E-5. Procedures.

(a) Preliminary proceedings. --

    (1) The plaintiff in any civil action alleging an asbestos or silica claim shall file, together with the complaint or other initial pleading, a written report and supporting test results constituting prima facie evidence of the exposed person's asbestos or silica related physical impairment meeting the requirements of subsection (b), (c), (d), (e), (f) or (g) of section four of this article, as appropriate. For any asbestos or silica claim pending on the effective date of this article, the plaintiff shall file a written report and supporting test results no later than sixty days following the effective date, or no later than thirty days prior to the commencement of trial, whichever is earlier, which period may be extended for good cause shown. The defendant shall be afforded a reasonable opportunity to challenge the adequacy of the proffered prima facie evidence of asbestos-related or silica-related impairment, provided that for any asbestos or silica claim pending on the effective date of this article, the defendant shall be afforded a reasonable opportunity to challenge the adequacy of the certificate prior to the commencement of the trial.

    (2) If the defendant elects to challenge the adequacy of the report as provided in subdivision (1) of this subsection, the court shall proceed to determine whether the report meets the minimum requirements of subdivision (b), (c), (d), (e), (f) or (g) of section four of this article, as appropriate. Upon a finding that the report is insufficient:

    (A) The court shall place the asbestos or silica claim pending on the effective date of this article on an inactive docket and maintain jurisdiction over the claim: Provided, That the death of exposed person shall be grounds to reinstate the claim to the active docket. Any plaintiff whose claim has been placed on an inactive docket under this subsection may move to reinstate the claim by filing a motion accompanied by a report meeting the requirements of subsection (b), (c), (d), (e), (f) or (g) of section four of this article, as appropriate; or

    (B) The court shall dismiss without prejudice an asbestos or silica claim filed on or after the effective date of this article. Any claimant whose claim is dismissed under this paragraph may refile the claim accompanied by a report meeting the requirements of subsection (b), (c), (d), (e), (f) or (g) of section four of this article, as appropriate. A claimant may voluntarily dismiss a presently pending case without prejudice if there is no evidence of impairment.

    (b) General rules applicable to new filings. --

    (1) All asbestos claims and silica claims filed in this state on or after the effective date of this article shall include (in addition to the written report described in subsection (4) and the information required by subsection 5(a) herein) a sworn information form containing the following information:

    (A) The claimant's name, address, date of birth, social security number and marital status;

    (B) If the claimant alleges exposure to asbestos or silica through the testimony of another person or other than by direct or bystander exposure to a product(s), the name, address, date of birth, social security number, marital status, for each person by which the claimant alleges exposure (hereinafter the "index person") and the claimant's relationship to each person;

    (C) The specific location of each alleged exposure;

    (D) The beginning and ending dates of each alleged exposure as to each asbestos product or silica product for each location at which exposure allegedly took place for the plaintiff and each index person;

    (E) The occupation and name of the employer of the exposed person at the time of each alleged exposure;

    (F) The specific condition related to asbestos or silica claimed to exist;

    (G) Any supporting documentation of the condition claimed to exist; and

    (H) All asbestos and silica claims along with the sworn information must be individually filed in separate civil actions, except claims relating to the exposure to asbestos or silica for the same exposed person whose alleged injury is the basis of the civil action may be joined in a single action. Otherwise, a claim on behalf of a group may not be joined and filed in a single action.

    (2) Discovery may not be conducted until the court enters an order determining the claimant has established a prima facie case of physical impairment; except for discovery that relates to the establishment or challenge of the prima facie evidence or by the order of the court for good cause shown.

§55-7E-6. Statute of limitations; two-disease rule.

    (a) Statute of limitations. -- Notwithstanding any other provision of law, with respect to any asbestos or silica claim not time-barred as of the effective date of this article, the limitations period do not begin to run until the exposed person discovers, or through the exercise of reasonable diligence should have discovered, a physical impairment (as defined by this article) caused by exposure to asbestos or silica. A claim based on a nonmalignant condition that is filed before the cause of action for a bodily injury pursuant to that section arises is preserved for purposes of the period of limitations.

    (b) Two-disease rule. -- An asbestos or silica claim arising out of a nonmalignant condition shall be a distinct cause of action from an asbestos or silica claim relating to the same exposed person arising out of asbestos or silica related cancer. Damages may not be awarded for fear or risk of cancer in any civil action asserting an asbestos or silica claim for an alleged nonmalignant condition.

    (c) General releases from liability prohibited. -- Settlement of a nonmalignant asbestos or silica claim concluded after the date of enactment may not require, as a condition of settlement, release of any future claim for asbestos or silica related cancer.

§55-7E-7. Consolidation.

    (a) The Legislature finds defendants are often forced to settle unmeritorious claims because they know that they will face trial where the claim of one plaintiff who is truly sick is bundled (or consolidated) with numerous claims from plaintiffs who may not be sick. Plaintiffs' attorneys will often refuse to settle serious claims unless their inventory of unimpaired claimants are also settled. Federal courts have noted when the claims of numerous plaintiffs with dissimilar alleged injuries and factual situations are tried together, "the maelstrom of facts, figures and witnesses" is likely to lead to jury confusion and an unfair trial. (Malcolm v. National Gypsum Co., 995 F.2d 346, 352 (2d Cir. 1993))

    (b) The Legislature of West Virginia acknowledges the Supreme Court's authority in prescribing rules governing practice and procedure in the courts of this state, as provided by Section 3, Article VIII of the West Virginia Constitution.

    (c) The Legislature of West Virginia hereby requests the Supreme Court to adopt rules to specify procedures for consolidation of asbestos or silica claims, brought pursuant to the provisions of this article.

    (d) With respect to procedures for consolidation of asbestos or silica claims, the Legislature of West Virginia hereby requests the Supreme Court to adopt a rule that permits consolidation of asbestos or silica claims for trial only with the consent of all parties, or permits a court to consolidate for trial only those asbestos or silica claims that relate to the same exposed person and members of the exposed person's household.

§55-7E-8. Effective date.

    This article shall be effective on the date of the enactment of this article and apply to any civil action asserting an asbestos or silica claim in which trial has not commenced as of the date of the enactment of this article.

§55-7E-9. Severability.

    If any provision of this article is held invalid, such invalidity shall not affect the other provisions or applications of this article, and to this end, any such provision is deemed severable.

§55-7E-10. Miscellaneous provisions.

    Construction with other laws. --

    This article may 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.

 

    NOTE: The purpose of this bill is to limit certain asbestos claims, provide for the fair and efficient judicial consideration of personal injury and wrongful death claims arising out of asbestos or silica exposure, to ensure that individuals who suffer impairment, now or in the future, from illnesses caused by exposure to asbestos or silica, receive compensation for their injuries, and for other purposes.

 

    This article is new; therefore, it has been completely underscored.

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