sb706 intr

Senate Bill No. 706
(By Senators McCabe and Foster)
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[Introduced March 21, 2005; referred to the Committee
on the Judiciary; and then to the Committee on Finance.]
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A BILL to amend and reenact §23-4-2 of the Code of West Virginia, 1931, as amended; to amend said code by adding thereto three new sections, designated §55-7-23, §55-7-24 and §55-7-25; and to amend said code 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 defining "deliberate intention"; prohibiting an employee from recovering for an injury that was self-inflicted; establishing the Asbestos and Silica Compensation Fairness Act of 2005; 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 §23-4-2 of the Code of West Virginia, 1931, as amended; be amended and reenacted; that said code be amended by adding thereto three new sections, designated §55-7-23, §55-7-24 and §55-7-25; and that said code 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:
CHAPTER 23. WORKERS' COMPENSATION.

ARTICLE 4. DISABILITY AND DEATH BENEFITS.

§23-4-2. Disbursement where injury is self-inflicted or intentionally caused by employer; legislative declarations and findings; "deliberate intention" defined.

(a) Notwithstanding anything contained in this chapter, no employee or dependent of any employee is entitled to receive any sum from the Workers' Compensation Fund, from a self-insured employer, or otherwise under the provisions of this chapter, on account of any personal injury to or death to any employee caused by a self-inflicted injury or the intoxication of the employee. Upon the occurrence of an injury which the employee asserts, or which reasonably appears to have, occurred in the course of and resulting from the employee's employment, the employer may require the employee to undergo a blood test for the purpose of determining the existence or nonexistence of evidence of intoxication pursuant to rules for the administration of the test promulgated by the Board of Managers: Provided, That the employer must have a reasonable and good faith objective suspicion of the employee's intoxication and may only test for the purpose of determinating whether the person is intoxicated.
(b) For the purpose of this chapter, the Commission may cooperate with the office of miners' health, safety and training and the State Division of Labor in promoting general safety programs and in formulating rules to govern hazardous employments.
(c) If injury or death result to any employee from the deliberate intention of his or her employer to produce the injury or death, the employee, the widow, widower, child or dependent of the employee has the privilege to take under this chapter and has a cause of action against the employer, as if this chapter had not been enacted, for any excess of damages over the amount received or receivable under this chapter.
(d) (1) It is declared that enactment of this chapter and the establishment of the Workers' Compensation System in this chapter was and is intended to remove from the common law tort system all disputes between or among employers and employees regarding the compensation to be received for injury or death to an employee except as expressly provided in this chapter and to establish a system which compensates even though the injury or death of an employee may be caused by his or her own fault or the fault of a coemployee; that the immunity established in sections six and six-a, article two of this chapter is an essential aspect of this Workers' Compensation System; that the intent of the Legislature in providing immunity from common lawsuit was and is to protect those immunized from litigation outside the Workers' Compensation System except as expressly provided in this chapter; that, in enacting the immunity provisions of this chapter, the Legislature intended to create a legislative standard for loss of that immunity of more narrow application and containing more specific mandatory elements than the common law tort system concept and standard of willful, wanton and reckless misconduct; and that it was and is the legislative intent to promote prompt judicial resolution of the question of whether a suit prosecuted under the asserted authority of this section is or is not prohibited by the immunity granted under this chapter.
(2) The immunity from suit provided under this section and under section six-a, article two of this chapter may be lost only if the employer or person against whom liability is asserted acted with "deliberate intention". This requirement may be satisfied only if:
(i) It is proved that the employer or person against whom liability is asserted acted with a consciously, subjectively and deliberately formed intention to produce the specific result of injury or death to an employee. This standard requires a showing of an actual, specific intent and may not be satisfied by allegation or proof of: (A) Conduct which produces a result that was not specifically intended; (B) conduct which constitutes negligence, no matter how gross or aggravated; or (C) willful, wanton or reckless misconduct; or
(ii) The trier of fact determines, either through specific findings of fact made by the court in a trial without a jury, or through special interrogatories to the jury in a jury trial, that all of the following facts are proven:
(A) That a specific unsafe working condition existed in the workplace which presented a high degree of risk and a strong probability of serious injury or death;
(B) That the employer, prior to the injury, had actual knowledge of ~~a subjective realization and an appreciation of~~ the existence of the specific unsafe working condition and of the high degree of risk and the strong probability of serious injury or death presented by the specific unsafe working condition;
(C) That the specific unsafe working condition was a violation of a state or federal safety statute, rule or regulation, ~~whether cited or not, or of a commonly accepted and well-known safety standard within the industry or business of the employer,~~ which statute, rule, or regulation ~~or standard~~ was specifically applicable to the particular work and working condition involved, as contrasted with a statute, rule, or regulation ~~or standard~~ generally requiring safe workplaces, equipment or working conditions;
(D) That notwithstanding the existence of the facts set forth in subparagraphs (A) through (C), inclusive, of this paragraph, the employer nevertheless intentionally and by an overt act thereafter exposed an employee to the specific unsafe working condition intentionally; and
(E) That the employee exposed suffered serious compensable injury or compensable death as a direct and proximate result of the specific unsafe working condition, and in the case of an injury, the injury was allocated a permanent disability award of at least thirty percent. The statute of limitations begins to run upon issuance of the permanent award.
(iii) In cases alleging liability under the provisions of paragraph (ii) of this subdivision:
(A) No punitive or exemplary damages shall be awarded to the employee or other plaintiff;
(B) The negligence or fault of the employee who suffered serious injury or death is a defense and shall be apportioned and compared with the fault, if any, of the employer, as determined in paragraph (ii) and the negligence or fault of any other parties whose conduct contributed to the serious injury or death, and responsibility for damages shall be allocated according to the law governing comparative fault. The full amount of any offset to which the employer is entitled under subsection (c) shall be subtracted from whatever amount of damages is determined to be the employer's responsibility.
~~(B)~~ (C) Notwithstanding any other provision of law or rule to the contrary, and consistent with the legislative findings of intent to promote prompt judicial resolution of issues of immunity from litigation under this chapter, the court shall dismiss the action upon motion for summary judgment if it finds, pursuant to Rule 56 of the Rules of Civil Procedure that one or more of the facts required to be proved by clear and convincing evidence under the provisions of subparagraphs (A) through (E), inclusive, paragraph (ii) of this subdivision do not exist, and the court shall dismiss the action upon a timely motion for a directed verdict against the plaintiff if after considering all the evidence and every inference legitimately and reasonably raised thereby most favorably to the plaintiff, the court determines that there is not sufficient evidence to find each and every one of the facts required to be proven by the provisions of subparagraphs (A) through (E), inclusive, paragraph (ii) of this subdivision; and
~~(C)~~ (D) The provisions of this paragraph and of each subparagraph thereof are severable from the provisions of each other subparagraph, subsection, section, article or chapter of this code so that if any provision of a subparagraph of this paragraph is held void, the remaining provisions of this ~~act~~ article and this code remain valid.
(e) The reenactment of this section in the regular session of the Legislature during the year one thousand nine hundred eighty-three does not in any way affect the right of any person to bring an action with respect to or upon any cause of action which arose or accrued prior to the effective date of the reenactment.
(f) All causes of actions brought pursuant to section two, article four of this chapter, including each one of the five elements set forth in paragraph (d)(2)(ii), must be proven to a clear and convincing evidentiary standard.
CHAPTER 55. ACTIONS, SUITS AND ARBITRATION;
JUDICIAL SALE.
ARTICLE 7. ACTIONS FOR INJURIES.
§55-7-23. Reduction in economic damages for economic losses for payments from collateral sources for the same injury.

(a) Definitions:

(1) "Collateral source" means a source of benefits or advantages for economic loss that the plaintiff has received from:
(A) Any federal or state act, public program or insurance which provides payments for medical expenses, disability benefits, including Workers' Compensation benefits, or other similar benefits. Benefits payable under the Social Security Act are not considered payments from collateral sources except for social security disability benefits directly attributable to the medical injury in question;
(B) Any contract or agreement of any group, organization, partnership or corporation to provide, pay for or reimburse the cost of medical, hospital, dental, nursing, rehabilitation, therapy or other health care services or provide similar benefits;
(C) Any group accident, sickness or income disability insurance, any casualty or property insurance (including automobile and homeowners' insurance) which provides medical benefits, income replacement of disability coverage, or any other similar insurance benefits, except life insurance, to the extent that someone other than the insured, including the insured's employer, has paid all or part of the premium or made an economic contribution on behalf of the plaintiff; or
(D) Any contractual or voluntary wage continuation plan provided by an employer or otherwise, or any other system intended to provide wages during a period of disability.
(2) "Economic damages" includes, but is not limited to, damages for medical care, rehabilitation services, lost earnings or other economic losses. It does not include damages for noneconomic losses.
(3) "Noneconomic loss" means losses, including, but not limited to, pain, suffering, mental anguish and grief.
(4) "Plaintiff" means an individual, or his or her representative, who brings a tort action of theory of liability.
(5) "Representative" means the spouse, parent, guardian, trustee, attorney or other legal agent of another.
(b) In any tort actions, regardless of the theory of liability under which they are commenced, other than actions subject to article seven-b of this chapter, arising after the effective date of this section, a defendant who has been found libel to the plaintiff for damages for economic damages may present to the court, after the trier of fact has rendered a verdict, but before entry of judgment, evidence of payments the plaintiff has received to the same injury from collateral sources.
(c) In any hearing pursuant to subsection (b) of this section, the defendant may present evidence of future payments from collateral sources if the court determines that: (1) There is a preexisting contractual or statutory obligation on the collateral source to pay the benefits; (2) the benefits, to a reasonable degree of certainty, will be paid to the plaintiff for expenses the trier of fact has determined the plaintiff will incur in the future; and (3) the account of the future expenses is readily reducible to a sum certain.
(d) In the hearing pursuant to subsection (b) of this section, the plaintiff may present evidence of the value of payments or contributions he or she has made to secure the right to the benefits paid by the collateral source.
(e) After hearing the evidence presented by the parties, the court shall make the following findings of fact:
(1) The total amount of damages for economic loss found by the trier of fact;
(2) The total amount of damages for each category of economic loss found by the trier of fact;
(3) The total amount of allowable collateral source payments received or to be received by the plaintiff for the damages which were the subject of the verdict in each category of economic loss; and
(4) The total amount of any premiums or contributions paid by the plaintiff in exchange for the collateral source payments in each category of economic loss found by the trier of fact.
(f) The court shall subtract the total premiums the plaintiff was found to have paid in each category of economic loss from the total collateral source benefits the plaintiff received with regard to that category of economic loss to arrive at the net amount of collateral source payments.
(g) The court shall then subtract the net amount of collateral source payments received or to be received by the plaintiff in each category of economic loss from the total amount of damages awarded the plaintiff by the trier of fact for that category of economic loss to arrive at the adjusted verdict.
(h) The court shall not reduce the verdict rendered by the trier of fact in any category of economic loss to reflect:
(1) Amounts paid to or on behalf of the plaintiff which the collateral source has a right to recover from the plaintiff through subrogation, lien or reimbursement;
(2) Amounts in excess of benefits actually paid or to be paid on behalf of the plaintiff by a collateral source in a category of economic loss;
(3) The proceeds of any individual disability or income replacement insurance paid for entirely by the plaintiff; and
(4) The assets of the plaintiff or the members of the plaintiff's immediate family.
(i) After determining the amount of the adjusted verdict, the court shall enter judgment.
§55-7-24. Damages for noneconomic loss.
(a) A plaintiff may recover damages for noneconomic loss only in the types of civil actions in which such damages were authorized at the time that this bill became a law;
(b) In civil actions based on physical injury, the plaintiff who experienced the physical injury on which the action is based and all plaintiffs who derive their claims from or through such plaintiff may recover damages for noneconomic loss in a total amount for all such plaintiffs not to exceed the greater of two hundred fifty thousand dollars or three times economic damages to a maximum of five hundred thousand dollars. However, in the event that the physical injury is permanent and severe physical deformity, loss of use of limb or loss of a major body organ system or permanent physical functional injury that permanently prevents the injured person from being able to independently care for himself or herself and perform life sustaining activities, then the plaintiff who experienced the physical injury and all other plaintiffs who derive their claims from or through such plaintiff may recover damages for noneconomic loss in a total amount for all such plaintiffs not to exceed the greater of one million dollars or the product of the amount calculated on an annual basis pursuant to article four, chapter twenty-three of this code, which represents the maximum average weekly wage, annualized, for a worker employed in this state times the number of years remaining in the plaintiff's expected life, regardless of the number of parties against who the action is brought or count have been brought or the number of claims asserted or actions brought or that could have been asserted or brought with respect to the injury.
(c) In all actions other than those based on physical injury in which damages for noneconomic loss were authorized to be recovered at the time this bill became a law, the plaintiff who experienced the economic loss on which the action is based and all plaintiffs who derive their claims from or through such plaintiff may recover damages for noneconomic loss in a total amount for all such plaintiffs no greater than the award of damages for economic loss or one million dollars, whichever is less, regardless of the number of parties against whom the action is brought or could have been brought or the number of claims asserted or actions brought or that could have been asserted or brought with respect to the economic loss.
(d) As used in this section, "physical injury" means an actual injury to the body proximately caused by the act complained of and does not include physical symptoms of the mental anguish or emotional distress for which recovery is sought when such symptoms are caused by, rather than the cause of, the pain, distress, or other mental suffering.
(e) As used in this section, "damage" or "damages" means pain, suffering, inconvenience, physical impairment, disfigurement, mental anguish, emotional distress, loss of enjoyment of life, loss of society and companionship, loss of consortium, injury to reputation, humiliation, loss of earnings and earning capacity, loss of income, medical expenses and medical care, rehabilitation services, custodial care, wrongful death, burial costs, loss of use of property, costs of repair or replacement of property, costs of obtaining substitute domestic services, loss of employment, loss of business or employment opportunities, lost profits and other such losses to the extent that recovery for such is allowable under any present, applicable state law. It does not include punitive damages.
(f) "Economic loss" means objectively verifiable monetary losses, such as medical expenses, loss of earnings and earning capacity, cost of replacement services, loss of income stream due to death, burial costs, loss of business or employment opportunities, lost profits, and loss due to property destruction or damage, to the extent recovery for any such monetary loss is allowed under any present applicable state law.
(g) As used in this section, "noneconomic loss" means subjective, nonmonetary losses, such as pain, suffering, inconvenience, mental anguish, emotional distress, loss of enjoyment of life, loss of society and companionship, loss of consortium, injury to reputation, and humiliation, to the extent recovery for any such nonmonetary loss is allowed under any present, applicable state law.
(h) This section supersedes, invalidates, and repeals all other state laws which conflict with its provisions.
(i) This section applies to all causes of action arising on or after the effective date of its enactment.
(j) The provisions of this section and subparagraph thereof shall be severable from the provisions of each other subparagraph, paragraph, subdivision, subsection, section, article, or chapter of this code so that if any provision of this article be held void, the remaining provisions of this article and this code shall remain valid.
§55-7-25. Apportionment of damages.
(a) In any case of action involving the tortious conduct of more than one defendant, the trial court shall:
(1) Instruct the jury to determine, or, if there is no jury, find, the total amount of damages sustained by the claimant and the proportionate fault of each of the parties and nonparties to the action;
(2) Enter judgment against each defendant found to be liable on the basis of the rules of joint and several liability, except that if any defendant is fifty percent or less at fault then that defendant's liability shall be several, and not joint, and he or she shall be liable only for the damages attributable to him or her, except as otherwise provided in this section.
(b) Fault of nonparties.
(1) "Fault" means an act or omission of a person, which is a proximate cause of injury or death to another person or persons, damage to property, or economic injury, including, but not limited to, negligence, malpractice, medical professional liability, strict product liability, absolute liability, liability under section two, article four, chapter twenty-three of this code, or assumption of the risk.
(2) In assessing percentages of fault, the trier of fact shall consider the fault of all persons who contributed to the alleged damages regardless of whether such person was or could have been named as a party to the suit. Such fault shall include the fault imputed or attributed to a person by operation of law, if any. Fault of a nonparty may be considered if the plaintiff entered into a settlement agreement with the nonparty or if a defending party gives notice no later than sixty days before the date of trial that a nonparty was wholly or partially at fault. The notice shall be given by filing a pleading or discovery response in the action designating such nonparty and setting forth nonparty's name and last-known address, or the best identification of such nonparty which is possible under the circumstances, together with a brief statement of the basis for believing such nonparty to be at fault.
In all instances where a nonparty is assessed a percentage of fault, any recovery by a plaintiff shall be reduced in proportion to the percentage of fault chargeable to such nonparty. Where a plaintiff has settled with a party or nonparty before verdict, that plaintiff's recovery will be reduced by the amount of the settlement or in proportion to the percentage of fault assigned to the settling party or nonparty, whichever is greater. The plaintiff shall promptly and fully inform all other persons against whom liability is asserted of the terms of any such settlement.
(3) Nothing in this article is meant to eliminate or diminish any defenses or immunities which exist as of the effective date of this article, except as expressly noted herein.
(4) Assessments of percentages of fault for nonparties are used only as a vehicle for accurately determining the fault of named parties. Where fault is assessed against nonparties, findings of such fault shall not subject any nonparty to liability in that or any other action, or be introduced as evidence of liability or for any other purpose in any other action.
(5) In all actions involving fault of more than one person, unless otherwise agreed by all parties to the action, the court shall instruct the jury to answer special interrogatories or, if there is no jury, shall make findings, indicating the percentage of the total fault that is allocated to each party and nonparty pursuant to the provisions of this article. For this purpose, the court may determine that two or more persons are to be treated as a single person.
(c) Plaintiff involved in felony criminal act.
In any civil action, a defendant is not liable for damages that the plaintiff suffers as a result of the negligence or gross negligence of a defendant while the plaintiff is attempting to commit, committing, or fleeing from the commission of a felony act.
(d) Nothing in this section shall be construed to affect, impair or abrogate any right of indemnity or contribution arising out of any contract or agreement or any right of indemnity otherwise provided by law.
(e) Nothing in this section creates or recognizes, either explicitly or impliedly any new or different cause of action not otherwise recognized by law.
(f) Nothing in this section shall be construed to affect, impair or abrogate the provisions of section seven, article twelve-a, chapter twenty-nine of this code or section nine, article seven-b, chapter fifty-five of this code.
(g) This section shall apply only to causes of action that accrue on or after the first day of July, two thousand five.
ARTICLE 7E. ASBESTOS AND SILICA COMPENSATION FAIRNESS ACT OF 2005.
§55-7E-1. Short title.
This article may be cited as the "Asbestos and Silica Compensation Fairness Act of 2005."
§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 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.726,731,551S.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.1,5,479S.E.2d300,303(1996);
(7) Asbestos personal injury litigation can impose a severe burden on litigants and taxpayers alike;
(8) Reasonable medical criteria are 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 possible "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 claims 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.
§55-7E-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 Education 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 who 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 one thousand-nine hundred seventy -two through one thousand nine hundred seventy-nine will be counted as one-half year;
(C) Exposure after one thousand nine hundred seventy-nine will not be counted, except that each year from one thousand nine hundred seventy-two forward for which the plaintiff can establish exposure exceeding the OSHA limit for 8-hour time-weighted average airborne concentration for a substantial portion of the wear 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 Labor Office's Guidelines for the Use Of ILO International Classification of Radiographs of Pneumoconiosis (1980) as amended from time to time by the International Labor 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 parenchyma 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 non-malignant asbestos claim that meets the requirements specified in the section of 4(b) of this Act;
(B) An asbestos-related lung cancer claims that meets the requirements specified in section 4(c) of this Act;
(C) An asbestos-related other cancer claim that meets the requirements specified in section 4(d) of this Act;
(D) A silicosis claim that meet the requirements specified in section 4(f) of this Act;
(E) Other silica claims that meet the requirements specified in section 4(g) of this Act;
(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 of 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 available) showing bilateral pleural thickening of at least B2 on the ILO scale and blunting of at least one costo phrenic 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 "smoker" means a person who has smoked cigarettes or used other tobacco products which are 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 W.Va. 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).
§55-7E-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 NONMALIGNANT ASBESTOS CLAIMS- No person shall 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 FEVj 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 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) 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:
(1) 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 subsection (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" 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, 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 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 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 2 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 one 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 two film if a quality one film is not available,) and that the X ray has been read by a certified board-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 seven (7) (July, one thousand nine hundred eighty-eight);
(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:
(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, Section 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 service 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; or
(3) Be admissible at trial.
§55-7E-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 subsections (b), (c), (d), (f) or (g) of 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) of section four of this article.
(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 four and the information required by subdivision (1), subsection five 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 produce(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; and
(vii) Any supporting documentation of the condition claimed to exist.
§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.
(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.
(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 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 fact, figures and witness" is likely to lead to jury confusion and an unfair trial. (Malcolm v. National Gypsum Co., 995 F2d 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 articles 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 define "deliberate intention"; prohibit an employee from recovering for an injury that was self inflicted; Asbestos and Silica Compensation Fairness Act of 2005, which provides 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.

Article 7E, chapter 55 is new; therefore, strike-throughs and underscoring have been omitted.

§55-7-23 §55-7-24 and §55-7-25 are new; therefore, strike-throughs and underscoring have been omitted.

Strike-throughs indicate language that would be stricken from the present law, and underscoring indicates new language that would be added.