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Introduced Version Senate Bill 474 History

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sb474 intr
Senate Bill No. 474

(By Senators Foster, Minear, Sprouse, Guills, Sharpe, Barnes, McKenzie, Boley, McCabe, Edgell, Prezioso, Caruth, Fanning, Lanham, Jenkins, Helmick, Bailey, Weeks, Facemyer, Love, Deem and Dempsey)

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[Introduced February 2, 2006; referred to the Committee

on the Judiciary.]

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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 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 to ensure individuals who suffer impairment now or in the future for illnesses caused by exposure to asbestos or silica receive 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 2006.

§55-7E-1. Short title.
This article may be cited as the "Asbestos and Silica Compensation Fairness Act of 2006."
§55-7E-2. Findings and purpose.
(a) The West Virginia Legislature finds that:
(1) Asbestos is a mineral that was widely used prior to the mid 1970's for insulation, fire-proofing and other purposes;
(2) Millions of American workers and others were exposed to asbestos, especially during and after World War II and prior to the advent of regulation by the Occupational Safety and Health Administration in the early 1970's;
(3) Long-term exposure to asbestos has been associated with various types of cancer, including mesothelioma and lung cancer, as well as such nonmalignant conditions as asbestosis, pleural plaques, and diffuse pleural thickening;
(4) The diseases caused by asbestos often have extensive latency periods;
(5) Although the use of asbestos has dramatically declined since the 1970's and workplace exposures have been regulated since 1971 by the Occupational Safety & Health Administration, past exposures may continue to result in significant claims of death and disability as a result of such exposure;
(6) West Virginia courts are "deluged with asbestos lawsuits." State ex rel. Allman v. MacQueen, 209 W. Va. 726, 731, 551 S.E.2d 369, 374 (2001). The Supreme Court of Appeals of West Virginia has recognized that asbestos cases "present a complex pattern of legal, social, and political issues that threaten to cripple the common law system of adjudication, if for no other reason than by the sheer volume of cases." State ex rel. Appalachian Power Co. v. MacQueen, 198 W. Va. 1, 479 S.E.2d 300 (1996);
(7) Asbestos personal injury litigation can be unfair and inefficient, imposing a severe burden on litigants and taxpayers alike;
(8) Reasonable medical criteria are a necessary response to the asbestos litigation crisis in this state. Medical criteria will expedite the resolution of claims brought by those sick claimants and will ensure that resources are available for those who are currently suffering from asbestos-related illnesses and for those who may become sick in the future;
(9) The cost of compensating exposed individuals who are not sick jeopardizes the ability of defendants to compensate people with cancer and other serious asbestos-related diseases, now and in the future; threatens the savings, retirement benefits, and jobs of the state's current and retired employees; and adversely affects the communities in which these defendants operate;
(10) Silica is a naturally occurring mineral. The Earth's crust is over twelve percent silica, and crystalline silica is the major component of sand, quartz, and granite;
(11) Silica-related illness, including silicosis, may occur after the prolonged inhalation of respirable silica. To be inhaled, the silica particles must be sufficiently small to be respirable. To be respirable, the silica particles must be smaller than 10 microns in diameter. These tiny particles are created when sand and other silica containing materials are used in a variety of industrial processes;
(12) Silica sand is the primary raw material for the production of glass, including container glass (bottles and jars), flat glass (windows) and other forms of glass. Silica sand is used to make foundry molds and cores. Industrial minerals that contain silica are the essential raw materials for the manufacture of ceramics, which include industrial ceramics, sanitary ware (bathrooms) and tableware (plates and cups). Crushed stone and sand and gravel (aggregates), most of which contain crystalline silica, are the primary raw materials in concrete and asphalt; these materials are used in the construction of roads, sidewalks, building foundations and many other things. Sandstone and granite, both of which contain silica, are used as building materials.
(13) The primary adverse health effect associated with silica is silicosis. Silicosis is a lung disease characterized by fibrosis, or scarring, and is caused by prolonged overexposure to respirable silica through inhalation. Additionally, silica inhaled from occupational sources was classified as a lung carcinogen in one thousand nine hundred ninety-six.
(14) The number of silica lawsuits filed each year was relatively predictable through two thousand one. After two thousand one, the number of new lawsuits alleging silica-related disease being filed each year has risen precipitously. For example, one of America's largest suppliers of industrial sand had more than 15,000 new claims filed in the first six months of two thousand three, which is three times the number of claims it had in all of two thousand two and more than ten times the number of claims it had in all of two thousand one.
(15) Silica claims, like asbestos claims, often arise when an individual is identified as having markings on his or her lungs that are possibly "consistent with" silica exposure, but the individual has no functional or physical impairment from any silica-related disease. It is, therefore, appropriate to address silica-related litigation to avoid an asbestos-like litigation crisis;
(16) Concerns about statutes of limitations can force claimants who have been exposed to asbestos or silica but who have no current injury to bring premature lawsuits in order to protect against losing their rights to assert a claim in the future or, to pursue compensation should they become impaired;
(17) The public interest requires deferring the claims of exposed individuals who are not sick or impaired in order to help preserve, now and for the future, defendants' ability to compensate people who are impaired and to safeguard the jobs, benefits and savings of workers in West Virginia and the well-being of the West Virginia economy.
(b) 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 at the same time preventing scarce judicial and litigant resources from being misdirected by the premature claims of individuals who have been exposed to asbestos or silica but have no functional or physical impairment from asbestos-related or silica-related disease. To that end, this article:
(1) Adopts medically accepted standards for differentiating between individuals with nonmalignant asbestos-related or silica-related disease causing functional impairment and individuals with no functional impairment or whose impairment is caused solely by some other cause, such as asthma, emphysema, or smoking;
(2) Requires that physical impairment be an essential element of an asbestos claim and silica claim;
(3) Provides a method to obtain the dismissal of lawsuits in which the exposed person has no functional impairment, while at the same time protecting a person's right to bring suit on discovering an asbestos-related or silica-related impairment or injury; and
(4) Creates an extended period before limitations begin to run in which to bring claims for nonmalignant injuries caused by inhalation or ingestion of asbestos or by the inhalation of silica to preserve the right of those who have been exposed to asbestos or silica but are not yet impaired to bring a claim later in the event that they develop an asbestos-related or silica-related disease or injury.
§55-7E-3. Definitions.
In this article:
(1) The term "AMA Guides to the Evaluation of Permanent Impairment" means the American Medical Association's Guides to the Evaluation of Permanent Impairment (Fifth Edition 2000) as may be modified from time to time by the American Medical Association.
(2) The term "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 from time to time.
(3) The term "asbestos claim" means any claim for damages, losses or other civil or equitable relief arising out of, based on, or related in any way to the health effects of 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 who has been 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 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) The term "asbestosis" means bilateral diffuse interstitial fibrosis of the lungs caused by inhalation of asbestos fibers.
(5) The term "board-certified in internal medicine" means a physician who is certified by the American Board of Internal Medicine or the American Osteopathic Board of Internal Medicine.
(6) The term "board-certified in occupational medicine" means a physician who is certified in the subspecialty of occupational medicine by the American Board of Preventive Medicine or the American Osteopathic Board of Preventive Medicine.
(7) The term "board-certified in oncology" means a physician who is certified in the subspecialty of medical oncology by the American Board of Internal Medicine or the American Osteopathic Board of Internal Medicine.
(8) The term "board-certified in pathology" means a physician who holds primary certification in anatomic pathology or clinical pathology from the American Board of Pathology or the American Osteopathic Board of Internal Medicine and whose professional practice:
(A) Is principally in the field of pathology; and
(B) Involves regular evaluation of pathology materials obtained from surgical or postmortem specimens.
(9) The term "board-certified in pulmonary medicine" means a physician who is certified in the subspecialty of pulmonary medicine by the American Board of Internal Medicine or the American Osteopathic Board of Internal Medicine.
(10) The term "certified B-reader" means an individual qualified as a "final" or "B-reader" under 42 CFR 37.51(b) as amended, and whose certification was current at the time of any reading required by the act.
(11) The term "civil action" means all suits or claims of a civil nature in a state or federal court, whether cognizable as cases at law or in equity or in admiralty. The term does not include an action relating to any workers' compensation law, a proceeding for benefits under any veterans' benefits program; a civil action alleging any claim or demand made against a trust established pursuant to 11 U.S.C. Section 524(9); a civil action 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) The term "bilateral diffuse pleural thickening" means radiological evidence of thickening of the visceral pleura extending up both lateral chest walls in the presence of, and in continuity with, an obliterated costophrenic angle.
(13) The term "exposed person" means any person whose exposure to asbestos, asbestos-containing products, silica or silica-containing products serves as the basis for a claim.
(14) The term "FEV1" means forced expiratory volume in the first second, which is the maximal volume of air expelled in one second during performance of simple spirometric tests.
(15) The term "FVC" means forced vital capacity which is the maximal volume of air expired with maximum effort from a position of full inspiration.
(16) The term "ILO Scale" means the system for the classification of chest X rays set forth in the International Labour Office's Guidelines for the Use of ILO International Classification of Radiographs of Pneumoconioses (2000) as amended from time to time by the International Labour Office.
(17) The term "lower limit of normal" means the fifth percentile of healthy populations based on age, height and gender, as referenced in the American Medical Association's Guides to the Evaluation of Permanent Impairment, Fifth Edition, as amended from time to time by the American Medical Association.
(18) The term "lung cancer" means a malignant tumor in which the primary site of origin of the cancer is inside of the lungs, but such term does not include an asbestos claim based upon mesothelioma.
(19) The term "mesothelioma" means a malignant tumor with a primary site of origin in the pleura or the peritoneum, which has been diagnosed by a board-certified pathologist, using standardized and accepted criteria of microscopic morphology and/or appropriate staining techniques.
(20) The term "nonmalignant condition" means any condition that is caused or may be caused by asbestos other than a diagnosed cancer.
(21) The term "nonsmoker" means the exposed person has not smoked cigarettes or used any other tobacco products within the last 15 years.
(22) The term "pathological evidence of asbestosis" means a statement by a board-certified pathologist that more than one representative section of lung tissue uninvolved with any other disease process demonstrates a pattern of peribronchiolar or parenchymal scarring in the presence of characteristic asbestos bodies and that there is no other more likely explanation for the presence of the fibrosis.
(23) The term "physical impairment" means:
(A) A nonmalignant asbestos claim that meets the requirements specified in section four-b of this article;
(B) An asbestos related lung cancer claim that meets the requirements specified in section four-c of this article;
(C) An asbestos related other cancer claim that meets the requirements specified in section four-d of this article;
(D) A silicosis claim that meets the requirements specified in section four-f of this article;
(E) Other silica claims that meet the requirements specified in section four-g of this article;
(24) The term "plethysmography" means a test for determining lung volume, also known as "body plethysmography" in which the subject of the test is enclosed in a chamber that is equipped to measure pressure flow or volume changes.
(25) The term "predicted lower limit of normal" for any test means the fifth percentile of healthy populations based on age, height and gender, as referenced in the AMA Guides to the Evaluation of Permanent Impairment, Fifth Edition, as amended from time to time by the American Medical Association.
(26) The term "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 such may be appropriate to the actual diagnosis specialty in question;
(B) Has personally conducted a physical examination of the exposed person and took, or at his or her supervision, direction and control had taken a detailed occupational, exposure, medical, smoking and social history from the exposed person, or if deceased, from the person most knowledgeable about such histories and information 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 in providing consulting or expert services in connection with actual or potential civil actions, and whose medical group, professional corporation, clinic or other affiliated group earns not more than twenty percent of their revenues from providing such services;
(E) Is currently licensed to practice and actively practices in the state where the plaintiff resides or 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, from the exposed person or from 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: (1) 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 in violation of any law, regulation, licensing requirement or medical code of practice of any state in which the examination, test or screening was conducted; (2) 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 was conducted without clearly establishing a doctor-patient relationship with the claimant or medical personnel involved in the examination, test or screening process, or; (3) 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 the legal services of the law firm sponsoring the examination, testing or screening.
(27) The term "radiological evidence of asbestosis" means a quality 1 chest X ray under the ILO System of classification (in a death case where no pathology is available, the necessary radiological findings may be made with a quality 2 film) showing small, irregular opacities (s, t, or u) graded by a certified B-reader as at least 1/1 on the ILO scale.
(28) The term "radiological evidence of diffuse pleural thickening" means a quality 1 chest X ray under the ILO System of classification (in a death case where no pathology is available, the necessary radiological findings may be made with a quality 2 film) 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) The term "silica" means a respirable crystalline form of silicon dioxide, including, but not limited to, quartz, cristobalite and trydmite.
(30) The term "silica claim" means any claim for damages, losses, or other civil or equitable relief arising out of, based on, or 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. 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.
(31) The term "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) The term "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 that the physical impairment of the exposed person would not have occurred but for the asbestos or silica exposures.
(34) The term "substantial occupational exposure to asbestos" means employment for a cumulative period of at least five years in an industry and an occupation in which, for a substantial portion of a normal work year for that occupation, the exposed person did any of the following: (1) Handled raw asbestos fibers; (2) fabricated asbestos containing products so that the person was exposed to raw asbestos products in the fabrication process; (3) altered, repaired or otherwise worked with an asbestos-containing product in a manner that exposed the person on a regular basis to asbestos fibers; or (4) worked in close proximity to other workers engaged in any of the activities described herein in a manner that exposed the person on a regular basis to asbestos fibers.
(35) The term "substantial occupational exposure to silica" means employment for a cumulative period of at least five years in an industry and an occupation in which, for a substantial portion of a normal work year for that occupation, the exposed person did any of the following:
(A) Handled silica;
(B) Fabricated silica-containing products so that the person was exposed to silica in the fabrication process;
(C) Altered, repaired, or otherwise worked with a silica-containing product in a manner that 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 32 (A), (B) or (C) of this section in a manner that exposed the person on a regular basis to silica.
(36) The term "total lung capacity" means the volume of gas contained in the lungs at the end of a maximal inspiration.
(37) The term "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) The term "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: Provided, That such term shall not mean nor shall it include any cause of action pending or hereinafter 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.-- Physical impairment of the exposed person, to which asbestos or silica exposure was a substantial contributing factor, shall be an essential element of an asbestos or silica claim.
(b) Prima facie evidence of physical impairment for asbestos- related nonmalignant disease claims.-- No person shall bring or maintain a civil action alleging an asbestos claim which is based upon nonmalignant disease in the absence of a prima facie showing of physical impairment as a result of a medical condition to which exposure to asbestos was a substantial contributing factor. Such a prima facie showing shall include all of the following minimum requirements:
(1) Evidence verifying that a qualified physician has taken a detailed occupational and exposure history of the exposed person from the exposed person or, if such person is deceased, from a person who is most knowledgeable about the exposures that form the basis of the nonmalignant asbestos 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, asbestos fibers or other disease causing dusts) that can cause pulmonary impairment and/or cancer and the nature, duration and level of any such exposure.
(2) Evidence verifying that 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 that at least fifteen years have elapsed between the date of first exposure to asbestos and the date of diagnosis.
(4) 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 as defined by and evaluated pursuant to 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 at a minimum 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 noted herein, that has been 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 published 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 noted herein, that has been 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 determination by a qualified physician 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, based at a minimum on a determination that the exposed person has:
(A) Total lung capacity, by plethysmography or timed gas dilution, below the predicted lower limit of normal; 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 that has been read by a certified B-reader according to the ILO classification system as 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 and impairment as demonstrated to and 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 that 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 the criteria incorporated in the AMA's Guides to the Evaluation of Permanent Impairment, Fifth Edition, as amended from time to time and 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 that the doctor signing the detailed narrative medical report and diagnosis has concluded that exposure to asbestos was a substantial contributing factor to the exposed person's medical condition and physical impairment and that 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 herein, and the diagnosing physician's detailed narrative shall be attached to any complaint alleging a nonmalignant asbestos-related condition. All such reports, as well as other evidence used to establish prima-facie evidence of impairment, must meet objective standards and criteria of generally accepted medical standards and must not be obtained through testing or examinations that violate any applicable laws, regulations, licensing requirements or medical code of practice. Failure to attach such 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.-- No person shall bring or maintain a civil action alleging an asbestos claim which is based upon lung cancer, in the absence of a prima-facie showing which shall include all of the following minimum requirements:
(1) A signed verified diagnostic report by a qualified physician who is board-certified in pathology, pulmonary medicine or oncology stating a diagnosis of the exposed person of a primary lung cancer and that exposure to asbestos was a substantial contributing factor to the condition; provided, if the diagnosis is by a qualified physician who is board-certified in pulmonary medicine, there is also a pathological diagnosis of the primary lung cancer on which such pathological diagnosis the pulmonary physician relied; (2) Evidence sufficient to demonstrate that at least fifteen years have elapsed between the date of first exposure to asbestos and the date of diagnosis of the lung cancer.
(3) Depending on whether the exposed person has a history of smoking, the requirements of either (A) or (B) below:
(A) In the case of an exposed person who is a nonsmoker, either:
(i) Radiological 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) In the case of an exposed person who 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 the 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 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.
(d) Prima facie evidence of asbestos-related other cancer claims.-- No person shall bring or maintain a civil action alleging an asbestos claim which is based upon cancer of the colon, rectum, larynx, pharynx, esophagus or stomach, in the absence of a prima facie showing which shall include all of the following minimum requirements:
(1) A diagnosis by a qualified physician who is 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 that exposure to asbestos was a substantial contributing factor to the condition;
(2) Evidence sufficient to demonstrate that 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.-- No person shall 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. Such a prima facie showing shall include all of the following minimum requirements:
(1) A report by a qualified physician who is 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, provided, if the diagnosis is by a qualified physician who is board certified in pulmonary medicine, there is also a pathological diagnosis of mesothelioma on which such pathological diagnosis the pulmonary doctor relied.
(2) Evidence that sets out the details of the occupational exposure and medical history that includes a thorough review of claimant's past and present medical problems, and their most probable cause, and verifies that at least fifteen years have elapsed between the claimant's first exposure to asbestos and the time of diagnosis, and 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.-- No person shall 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. Such a prima facie showing shall include all of the following minimum requirements:
(1) Evidence verifying that a qualified physician has taken a detailed occupational and exposure history of the exposed person from the exposed person or, if such 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 that 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 as defined by and evaluated 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 at a minimum on the following radiological or pathological evidence of silicosis:
(A) A quality 1 chest X ray, except as noted herein, under the ILO System of classification and that 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 that 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);
(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.-- No person shall bring or maintain a civil action alleging any silica claim other than as provided in subsection (f) above in the absence of a prima facie showing which shall include the following minimum requirements:
(1) A report by a qualified physician who is board-certified in pulmonary medicine, oncology or pathology stating a diagnosis of the exposed person of silica-related lung cancer and stating that, to a reasonable degree of medical probability, exposure to silica was a substantial contributing factor to the diagnosed lung cancer, provided, if the diagnosis is by a qualified physician who is 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 such 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) that can cause pulmonary impairment and the nature, duration and level of any such exposure.
(3) Evidence verifying that a qualified physician has taken detailed medical and smoking history, including a thorough review of the exposed person's past and present medical problems and their most probable cause;
(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 that 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 that 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., 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 shall not:
(1) Result in any presumption at trial that the exposed person is impaired by an asbestos or silica related condition;
(2) Be conclusive as to the liability of any defendant;
(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 such 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:
(i) 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 such 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
(ii) The court shall dismiss without prejudice an asbestos or silica claim that was 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:
(i) The claimant's name, address, date of birth, social security number and marital status;
(ii) 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;
(iii) The specific location of each alleged exposure;
(iv) 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;
(v) The occupation and name of the employer of the exposed person at the time of each alleged exposure;
(vi) The specific condition related to asbestos or silica claimed to exist;
(vii) Any supporting documentation of the condition claimed to exist; and
(viii) All asbestos and silica claims along with the sworn information must be individually filed in separate civil actions except that 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, no claim on behalf of a group shall be joined and filed in a single action.
(2) No discovery shall be conducted until such time as the court enters an order determining that 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 shall 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. No damages shall 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.-- No settlement of a nonmalignant asbestos or silica claim concluded after the date of enactment shall 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 that 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 that 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 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.

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 section is new; therefore strike-throughs and underscoring have been omitted.


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