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Introduced Version Senate Bill 596 History

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sb596 intr
Senate Bill No. 596

(By Senators Sprouse, Yoder, Facemyer, Guills, Minear and Lanham)

____________

[Introduced March 18, 2005; 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 §55-7D-1, §55-7D-2, §55-7D-3, §55-7D-4, §55-7D-5, §55-7D-6, §55-7D-7, §55-7D-8 and §55-7D-9, all relating to providing for certain judicial standards and procedures for personal injury and wrongful death claims arising out of asbestos or silica exposure; providing a short title; setting forth findings and purpose; setting forth definitions; setting forth legal standards and procedures for establishing physical impairment; prescribing statute of limitation standards; requesting the state Supreme Court of Appeals to permit consolidation of asbestos or silica claims for trial; and providing an effective date.

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 §55-7D-1, §55-7D-2, §55-7D-3, §55-7D-4,
§55-7D-5, §55-7D-6, §55-7D-7, §55-7D-8 and §55-7D-9, all to read as follows:
ARTICLE 7D. ASBESTOS AND SILICA COMPENSATION FAIRNESS ACT OF 2005.
§55-7D-1. Short title.
This article may be cited as the "Asbestos and Silica Compensation Fairness Act of 2005."
§55-7D-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, fireproofing and other purposes;
(2) Millions of American workers and others were exposed to asbestos, especially during and after World War II and prior to the promulgation of regulations by the Occupational Safety and Health Administration in the early 1970's;
(3) 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 and Health Administration, past exposures will 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, 5, 479 S.E.2d 300, 303 (1996);
(7) Asbestos personal injury litigation can impose a severe burden on litigants and taxpayers alike;
(8) Reasonable medical criteria is necessary to expedite the resolution of claims brought by those sick claimants and to 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 as the earth's crust is over ninety percent silica, and crystalline silica dust is the primary component of sand, quartz and granite;
(11) Silica-related illness, including silicosis, can occur when an individual inhales respirable silica particles;
(12) 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; therefore, it is necessary to address silica-related litigation to avoid an asbestos-like litigation crisis.
(13) Concerns about statutes of limitations can force claimants who have been exposed to asbestos or silica but who have no current injury to bring premature lawsuits in order to protect against losing their rights to future compensation should they become impaired;
(14) The public interest requires giving priority to the claims of exposed individuals who are sick in order to help preserve, now and for the future, defendants' ability to compensate people who develop cancer and other serious asbestos and silica related injuries and to safeguard the jobs, benefits and savings of workers in West Virginia and the well-being of the West Virginia economy.
(b) It is the purpose of this article to:
(1) Give priority to asbestos and silica claimants who can demonstrate actual physical impairment caused by exposure to asbestos or silica;
(2) Fully preserve the rights of claimants who were exposed to asbestos or silica to pursue compensation should they become impaired in the future as a result of such exposure;
(3) Enhance the ability of the judicial systems to supervise and control asbestos and silica litigation; and
(4) Conserve the scarce resources of the defendants to allow compensation of cancer victims and others who are physically impaired by exposure to asbestos or silica while securing the right to similar compensation for those who may suffer physical impairment in the future.
§55-7D-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" includes 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. "Asbestos claim" includes a claim made by or on behalf of any person has been exposed to asbestos, or any representative, spouse, parent, child or other relative of that person, including loss of consortium or wrongful death. 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.
(11) The term "civil action" means all suits or claims of a civil nature in 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, or a proceeding for benefits under any Veterans' Benefits Program.
(12) 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.
(13) The term "exposure years" means:
(A) Each single year of exposure prior to 1972 will be counted as one year;
(B) Each single year of exposure from 1972 through 1979 will be counted as one-half year;
(C) Exposure after 1979 will not be counted, except that each year from 1972 forward for which the plaintiff can establish exposure exceeding the OSHA limit for eight-hour time-weighted average airborne concentration for a substantial portion of the year will count as one year.
(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 (1980) as amended from time to time by the International Labour Office.
(17) 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.
(18) 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.
(19) The term "nonmalignant condition" means any condition that is caused or may be caused by asbestos other than a diagnosed cancer.
(20) The term "nonsmoker" means the exposed person has not smoked cigarettes or used any other tobacco products within the last fifteen years.
(21) 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.
(22) The term "physical impairment" means:
(A) A nonmalignant asbestos claim that meets the requirements specified in section of 4(b) of this article;
(B) An asbestos related lung cancer claims that meets the requirements specified in section 4(c) of this article
;
(C) An asbestos related other cancer claim that meets the requirements specified in section 4(d) of this article
;
(D) A silicosis claim that meets the requirements specified in section 4(f) of this article
;
(E) Other silica claims that meet the requirements specified in section 4(g) of this article
;
(23) 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.
(24) The term "qualified physician" means a medical doctor, who:
(A) Is a currently Board-certified internist, oncologist, pathologist, pulmonary specialist, radiologist, or specialist in occupational and environmental medicine;
(B) Has conducted a physical examination of the exposed person;
(C) Is actually treating or has treated the exposed person, and has or had a doctor-patient relationship with such person;
(D) Is currently licensed to practice and actively practices in the state where the plaintiff resides or in West Virginia; and
(E) 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.
(25) 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 radiologic findings may be made with a quality 2 film if a quality 1 film is not available) showing small, irregular opacities (s, t, u) graded by a certified B-reader as at least 1/1 on the ILO scale.
(26) 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 radiologic findings may be made with a quality 2 film if a quality 1 film is not available) showing bilateral pleural thickening of at least B2 on the ILO scale and blunting of at least one costophrenic angle.
(27) The term "silica" means a respirable crystalline form of silicon dioxide, including, but not limited to, alpha, quartz, cristobalite, and trydmite.
(28) 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. "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 or wrongful death. 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.
(29) The term "silicosis" means nodular interstitial fibrosis of the lungs caused by inhalation of silica.
(30) The term "smoker" means a person who has smoked cigarettes or used other tobacco products which were smoked within the last fifteen years.
(31) The term "substantial contributing factor" means:
(A) Exposure to asbestos or silica is the predominate cause of the physical impairment alleged in the claim;
(B) The exposure to asbestos or silica took place on a regular basis over an extended period of time and in close proximity to the exposed person; and
(C) A qualified physician has determined with a reasonable degree of medical certainty that the physical impairment of the exposed person would not have occurred but for the asbestos or silica exposures.
(32) The term "Veterans' Benefits Program" means any program for benefits in connection with military service administered by the Veterans' Administration under title 38, United States Code.
(33) The term "Workers' Compensation Law" means West Virginia code §23-1-1 et seq., 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. 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.")
§55-7D-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, is an essential element of an asbestos or silica claim.
(b) Prima facie evidence of physical impairment for nonmalignant asbestos claims. -- No person may bring or maintain a civil action alleging a nonmalignant asbestos claim in the absence of a prima facie showing of physical impairment as a result of a medical condition to which exposure to asbestos was a substantial contributing factor. Such a prima facie showing shall include all of the following minimum requirements:
(1) Evidence verifying that a qualified physician has taken a detailed occupational and exposure history of the exposed person or, if such person is deceased, from a person who is knowledgeable about the exposures that form the basis of the nonmalignant asbestos 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, asbestos fibers or other disease causing dusts) that can cause pulmonary impairment and the nature, duration and level of any such exposure.
(2) Evidence verifying that a qualified physician has taken 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.
(3) Evidence sufficient to demonstrate that at least ten years have elapsed between the date of first exposure to asbestos and the date of diagnosis.
(4) A determination by a qualified physician, on the basis of a medical examination and pulmonary function testing, that the exposed person has a permanent respiratory impairment rating of at least Class 2 as defined by and evaluated pursuant to the AMA Guides to the Evaluation of Permanent Impairment.
(5) A diagnosis by a qualified physician of asbestosis or diffuse pleural thickening, based at a minimum on radiological or pathological evidence of asbestosis or radiological evidence of diffuse pleural thickening.
(6) A determination by a qualified physician that asbestosis or diffuse 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;
(B) Forced vital capacity below the lower limit of normal and a ratio of FEV1 to FVC that is equal to or greater than the predicted lower limit of normal; or
(C) A chest X ray showing small, irregular opacities (s, t, u) graded by a certified B-reader at least 2/1 on the ILO scale.
(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 the asbestos exposure revealed by the exposed person's employment and medical history. A conclusion 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.
(c) Prima facie evidence of physical impairment for asbestos-related lung cancer claims. -- No person may 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) Diagnosis by a qualified physician who is Board-certified in pathology, pulmonary medicine, or oncology of a primary lung cancer and that exposure to asbestos was a substantial contributing factor to the condition.
(2) Evidence sufficient to demonstrate that at least ten years have elapsed between the date of first exposure to asbestos and the date of diagnosis of the lung cancer.
(3) Depending on whether the exposed person has a history of smoking, the requirements of either (A) or (B) below:
(A) In the case of an exposed person who is a nonsmoker, either-
(i) Radiological or pathological evidence of asbestosis; or (ii) Evidence of occupational exposure to asbestos for the following minimum exposure periods in the specified occupations:
(I) Five exposure years for insulators, shipyard workers, workers in manufacturing plants handling raw asbestos, boilermakers, shipfitters, steamfitters, or other trades performing similar functions;
(II) Ten exposure years for utility and power house workers, secondary manufacturing workers, or other trades performing similar functions; or
(III) Fifteen exposure years for general construction, maintenance workers, chemical and refinery workers, marine engine room personnel and other personnel on vessels, stationary engineers and firemen, railroad engine repair workers, or other trades performing similar functions;
(B) In the case of an exposed person who is a smoker, the criteria contained in both (A)(i) and (A)(ii) must be met.
(C) If the exposed person is deceased, the qualified physician may obtain the evidence required in subsections (c)(2) and (c)(3) (A)(ii) 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 may 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, pulmonary medicine or oncology (as appropriate for the type of cancer claimed) of primary cancer of the colon, rectum, larynx, pharynx, esophagus, or stomach, and that exposure to asbestos was a substantial contributing factor to the condition.
(2) Evidence sufficient to demonstrate that at least ten 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 or pathological evidence of asbestosis;
(B) Evidence of occupational exposure to asbestos for the following minimum exposure periods in the specified occupations:
(i) Five exposure years for insulators, shipyard workers, workers in manufacturing plants handling raw asbestos, boilermakers, shipfitters, steamfitters, or other trades performing similar functions;
(ii) Ten exposure years for utility and power house workers, secondary manufacturing workers, or other trades performing similar functions; or
(iii) Fifteen exposure years for general construction, maintenance workers, chemical and refinery workers, marine engine room personnel and other personnel on vessels, stationary engineers and firemen, railroad engine repair workers, or other trades performing similar functions.
(C) If the exposed person is deceased, the qualified physician may obtain the evidence required in subsection (d)(2) and (d)(3)(B) 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.
(e) No prima facie requirement for mesothelioma.-- In a civil action alleging an asbestos claim based upon mesothelioma, no prima facie showing is required.
(f) Prima facie evidence of physical impairment for silicosis claims.-- No person may 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 or, if such person is deceased, from a person who is knowledgeable about the exposures that form the basis of the nonmalignant silica 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.
(2) Evidence verifying that a qualified physician has taken detailed medical and smoking history, including a thorough review of the exposed person's past and present medical problems and their most probable cause, and verifying a sufficient latency period for the applicable stage of silicosis.
(3) A determination by a qualified physician, on the basis of a medical examination and pulmonary function testing, that the exposed person has a permanent respiratory impairment rating of at least Class II as defined by and evaluated pursuant to the AMA Guides to the Evaluation of Permanent Impairment.
(4) A determination by a qualified physician that the exposed person has:
(A) A quality 1 chest X ray under the ILO System of classification (in a death case where no pathology is available, the necessary radiologic findings may be made with a quality 2 film if a quality 1 film is not available), and that the X ray has been read by a certified B-reader as showing, according to the ILO System of classification, bilateral nodular opacities (p, q, or r) occurring primarily in the upper lung fields, graded 1/1 or higher; or
(B) Pathological demonstration of classic silicotic nodules exceeding one centimeter in diameter as published in 112 Archive of Pathology and Laboratory Medicine 7 (July, 1988);
(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 may 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:
(A) Board-certified in pulmonary medicine, internal 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; or
(B) Board-certified in pulmonary medicine, internal medicine or pathology stating a diagnosis of the exposed person of silica-related progressive massive fibrosis or acute silicoproteinosis, or silicosis complicated by documented tuberculosis;
(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) A determination by a qualified physician that the exposed person has:
(A) A quality 1 chest X ray under the ILO System of classification (in a death case where no pathology is available, the necessary radiologic findings may be made with a quality 2 film if a quality 1 film is not available), and that the X ray has been read by a certified B-reader as showing, according to the ILO System of classification, bilateral nodular opacities (p, q, or r) occurring primarily in the upper lung fields, graded 1/1 or higher; or
(B) Pathological demonstration of classic silicotic nodules exceeding one centimeter in diameter as published in 112 Archive of Pathology and Laboratory Medicine 7 (July, 1988);
(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.
(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 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; or
(3) Be admissible at trial.
§55-7D-5. Procedures.
(a) Preliminary proceedings.-- The plaintiff in any civil action alleging an asbestos or silica claim shall file together with the complaint or other initial pleading a written report and supporting test results constituting prima facie evidence of the exposed person's asbestos or silica related physical impairment meeting the requirements of subsection (b), (c), (d), (f) or (g), section four
of this article. 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. The defendant shall be afforded a reasonable opportunity to challenge the adequacy of the proffered prima facie evidence of asbestos-related impairment. Upon a finding that the written report and test results fail to make the required prima facie showing, the court shall place the claim on an inactive docket and maintain jurisdiction over those claims. 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 written report and supporting test results meeting the requirements of subsections (b), (c), (d), (f) and (g), section four of this article.
(b) General rules applicable to new filings.--
All asbestos claims and silica claims filed in this state on or after the effective date of this Act 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:
(1) The claimant's name, address, date of birth, social security number, and marital status;
(2) 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;
(3) The specific location of each alleged exposure;
(4) 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;
(5) The occupation and name of the employer of the exposed person at the time of each alleged exposure;
(6) The specific condition related to asbestos or silica claimed to exist; and
(7) Any supporting documentation of the condition claimed to exist.
§55-7D-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.
(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 may be awarded for fear or risk of cancer in any civil action asserting an asbestos or silica claim.
(c) General releases from liability prohibited.-- No settlement of a nonmalignant asbestos or silica claim concluded after the date of enactment may require, as a condition of settlement, release of any future claim for asbestos or silica related cancer.
§55-7D-7. Consolidation.
(a) The Legislature of West Virginia 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 are not. Plaintiffs' attorneys will often refuse to settle serious claims unless their other claims inventories 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.
(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.
§55-7D-8. Effective date.
This article shall 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.
§55-7D-9. 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 provide for certain judicial standards and procedures for personal injury and wrongful death claims arising out of asbestos or silica exposure. Towards this end the bill: (1) Provides a short title; (2) sets forth findings and purpose; (3) sets forth definitions; (4) sets forth legal standards and procedures for establishing physical impairment; (5) prescribes statute of limitation standards; and (6) requests the State Supreme Court to permit consolidation of asbestos or silica claims for trial
.

This article is new; therefore, strike-throughs and underscoring have been omitted.
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