H. B. 2634
(By Delegates Craig, Michael, Tabb,
Armstead and Azinger)
[Introduced February 18, 2009; referred to the
Committee on the Judiciary.]
A BILL to amend the Code of West Virginia, 1931, as amended, by
adding thereto a new article, designated §55-7E-1, §55-7E-2,
§55-7E-3, §55-7E-4, §55-7E-5, §55-7E-6, §55-7E-7, §55-7E-8,
§55-7E-9 and §55-7E-10, all relating to limitations for
certain asbestos claims; judicial actions involving silica and
asbestos exposure; providing for fair and efficient judicial
consideration of personal injury and wrongful death arising
out of asbestos or silica exposure and ensuring individuals
who suffer impairment now or in the future for illnesses
caused by exposure to asbestos or silica receiving
compensation for their injuries.
Be it enacted by the Legislature of West Virginia:
That the Code of West Virginia, 1931, as amended, be amended
by adding thereto a new article, designated §55-7E-1, §55-7E-2,
§55-7E-3, §55-7E-4, §55-7E-5, §55-7E-6, §55-7E-7, §55-7E-8,
§55-7E-9 and §55-7E-10, all to read as follows:
ARTICLE 7E. ASBESTOS AND SILICA COMPENSATION FAIRNESS ACT OF
2009.
§55-7E-1. Short title.
This article may be cited as the "Asbestos and Silica
Compensation Fairness Act of 2009."
§55-7E-2. Purpose.
It is the purpose of this article to protect the rights of
people with asbestos-related and silica-related impairments and
injuries to pursue claims for compensation in a fair and efficient
manner through the West Virginia Court System, while preventing
misdirected scarce judicial and litigant resources by premature
individual claims of asbestos or silica exposure but have no
functional or physical impairment from asbestos-related or silica-
related disease, by:
(a) Adopting medically accepted standards for differentiating
between nonmalignant asbestos-related or silica-related disease
causing functional impairment and no functional impairment, or
impairment caused solely by some other cause, such as asthma,
emphysema, or smoking;
(b) Requiring physical impairment as an essential element of
an asbestos claim or a silica claim;
(c) Providing the dismissal of lawsuits in which the exposed
person has no functional impairment, while protecting a person's
right to bring suit on an asbestos-related or silica-related functional impairment or injury; and
(d) Creating an extended period before limitations begin to
run to bring claims for nonmalignant injuries caused by inhalation
or ingestion of asbestos or inhalation of silica, to preserving the
right of those who have been exposed to asbestos or silica but not
yet impaired to bring a claim later if they develop an asbestos-
related or silica-related disease or injury.
§55-7E-3. Definitions.
In this article:
(1) "AMA Guides to the Evaluation of Permanent Impairment"
means the American Medical Association's Guides to the Evaluation
of Permanent Impairment (Fifth Edition 2000) and its revisions by
the American Medical Association.
(2) "Asbestos" means chrysotile, amosite, crocidolite,
tremolite asbestos, anthophyllite asbestos, actinolite asbestos and
any of these minerals that have been chemically treated or altered,
including, but not limited to, all minerals defined as 'asbestos'
in 29 CFR 1910 as amended on the effective date of this article.
(3) "Asbestos claim" means any claim for damages, losses, or
other civil or otherwise equitable action relating in any way to
exposure to asbestos, including any claim for current or future
medical monitoring and/or surveillance, indemnification and
contribution. "Asbestos claim" includes a claim made by or on
behalf of any person exposed to asbestos, or any representative, spouse, parent, child or other relative of that person, including
loss of consortium, wrongful death, mental or emotional injury,
risk of disease, other injury, or personal injury. The term does
not include workers' compensation claims or veterans' benefits
program, or claims brought by a subrogee by payment of workers'
compensation benefits.
(4) "Asbestosis" means bilateral diffuse interstitial fibrosis
of the lungs caused by inhalation of asbestos fibers.
(5) "Board-certified in internal medicine" means a physician
certified by the American Board of Internal Medicine or American
Osteopathic Board of Internal Medicine.
(6) "Board-certified in occupational medicine" means a
physician certified in occupational medicine by the American Board
of Preventive Medicine or American Osteopathic Board of Preventive
Medicine.
(7) "Board-certified in oncology" means a physician certified
in medical oncology by the American Board of Internal Medicine or
American Osteopathic Board of Internal Medicine.
(8) "Board-certified in pathology" means a physician who holds
primary certification in anatomic pathology or clinical pathology
from the American Board of Pathology or American Osteopathic Board
of Internal Medicine and whose professional practice is primarily
in pathology, involving regular evaluation of pathology materials
obtained from surgical or postmortem specimens.
(9) "Board-certified in pulmonary medicine" means a physician
certified in pulmonary medicine by the American Board of Internal
Medicine or American Osteopathic Board of Internal Medicine.
(10) "Certified B-reader" means an individual qualified as a
"final" or "B-reader" under 42 CFR 37.51(b) as amended on the
effective date of this article, and whose certification was current
at the time of any reading required by the article.
(11) "Civil actions" means all suits or claims of a civil
nature in state or federal court, whether cognizable as cases at
law or in equity or in admiralty. The term does not include:
(A) Actions relating to any workers' compensation law;
(B) Proceedings for benefits under any veterans' benefits
program;
(C) Actions alleging any claim or demand made against a trust
established pursuant to 11 U.S.C. Section 524(9);
(D) Actions alleging any claim or demand made against a trust
established pursuant to a plan of reorganization confirmed under
Chapter 11 of the United States Bankruptcy Code, 11 U.S.C. Chapter
11.
(12) "Bilateral diffuse pleural thickening" means radiological
evidence of thickening of the visceral pleura extending up both
lateral chest walls in the presence of, and continuity with, an
obliterated costophrenic angle.
(13) "Exposed person" means any person whose exposure to asbestos, asbestos-containing products, silica or silica-containing
products is the basis for a claim.
(14) "FEV1" means forced expiratory volume in the first
second, the maximal volume of air expelled in one second during
performance of simple spirometric tests.
(15) "FVC" means forced vital capacity, the maximal volume of
air expired with maximum effort from a position of full
inspiration.
(16) "ILO Scale" means the classification of chest X rays in
the International Labour Office's Guidelines for the Use of ILO
International Classification of Radiographs of Pneumoconioses
(2000) as amended from time to time by the International Labour
Office.
(17) "Lower limit of normal" means the fifth percentile of
healthy populations based on age, height and gender, referenced in
the American Medical Association's Guides to the Evaluation of
Permanent Impairment, Fifth Edition, as amended by the American
Medical Association.
(18) "Lung cancer" means a malignant tumor whose primary site
of origin is inside the lungs. The term does not include an
asbestos claim based upon mesothelioma.
(19) "Mesothelioma" means a malignant tumor with a primary
site of origin in the pleura or peritoneum, and diagnosed by a
board-certified pathologist using standardized and accepted criteria of microscopic morphology and/or appropriate staining
techniques.
(20) "Nonmalignant condition" means any condition caused or
may be caused by asbestos other than a diagnosed cancer.
(21) "Nonsmoker" means the exposed person has not smoked
cigarettes or used any other tobacco products within the last
fifteen years.
(22) "Pathological evidence of asbestosis" means a statement
by a board-certified pathologist that more than one representative
section of lung tissue uninvolved with any other disease process
demonstrates a pattern of peribronchiolar or parenchymal scarring
in the presence of characteristic asbestos bodies with no other
more likely explanation for the presence of the fibrosis.
(23) "Physical impairment" means:
(A) A nonmalignant asbestos claim meeting the requirements in
section four-b of this article;
(B) An asbestos related lung cancer claim meeting the
requirements in section four-c of this article;
(C) An asbestos related other cancer claim that meeting the
requirements in section four-d of this article;
(D) A silicosis claim meeting the requirements in section
four-f of this article;
(E) Other silica claims meeting the requirements in section
four-g of this article;
(24) "Plethysmography" means a test for determining lung
volume, also known as "body plethysmography," in which the subject
is enclosed in a chamber equipped to measure pressure flow or
volume changes.
(25) "Predicted lower limit of normal" for any test means the
fifth percentile of healthy populations based on age, height and
gender, referenced in the AMA Guides to the Evaluation of Permanent
Impairment, Fifth Edition, as amended by the American Medical
Association.
(26) "Qualified physician" means a medical or osteopathic
doctor, who:
(A) Is a currently board-certified internist, oncologist,
pathologist, pulmonary specialist, radiologist or specialist in
occupational and environmental medicine as appropriate to the
actual diagnosis in question;
(B) Has personally, or at his or her supervision, direction
and control, conducted a physical examination of the exposed person
and took a detailed occupational, exposure, medical, smoking and
social history from the exposed person, or if deceased, the person
most knowledgeable about such history that forms the basis of the
silica or asbestos claim;
(C) Is actually treating or has treated the exposed person,
and has or had a doctor-patient relationship with such person;
(D) Spends no more than ten percent of his or her professional practice time providing expert services in connection with actual
or potential civil actions, and whose medical group, professional
corporation, clinic or other affiliated group earns not more than
twenty percent of their revenues from their expert services;
(E) Is currently licensed to practice and actively practices
in the state where the plaintiff resides or in West Virginia;
(F) Receives or received payment for the treatment of the
exposed person from that person's health maintenance organization,
other medical provider, the exposed person or a member of the
exposed person's family; and
(G) As the basis for his or her diagnosis, has not relied, in
whole or in part, on any of the following: (i) The opinions of any
doctor, clinic, laboratory or testing company that performed an
examination, test or screening of the claimant's medical condition
in violation of any law, regulation, licensing requirement or
medical code of practice of any state the examination, test or
screening was conducted; (ii) the reports or opinions of any
doctor, clinic, laboratory, or testing company that performed an
examination, test or screening of the claimant's medical condition
without clearly establishing a doctor-patient relationship with the
claimant in the examination, test or screening process, or; (iii)
the reports or opinions of any doctor, clinic, laboratory or
testing company that performed an examination, test or screening
of the claimant's medical condition that required the claimant to agree to retain a law firm who sponsored the examination, testing
or screening.
(27) "Radiological evidence of asbestosis" means a quality 1
chest X ray under the ILO System of classification (in a death case
where no pathology is available, the necessary radiological
findings may be made with a quality 2 film) showing small,
irregular opacities (s, t, or u) graded by a certified B-reader as
at least 1/1 on the ILO scale.
(28) "Radiological evidence of diffuse pleural thickening"
means a quality 1 chest X ray under the ILO System of
classification (in a death case where no pathology is available,
the necessary radiological findings may be made with a quality 2
film) showing bilateral pleural thickening of at least B2 on the
ILO scale and blunting of at least one costophrenic angle as
classified by a certified B-reader.
(29) "Silica" means a respirable crystalline form of silicon
dioxide, including, but not limited to, quartz, cristobalite and
trydmite.
(30) "Silica claim" means any claim for damages, losses, or
other civil or otherwise equitable relief related in any way to the
health effects of exposure to silica, including any claim for
current or future medical monitoring and/or surveillance,
indemnification or contribution. "Silica claim" includes a claim
made by or on behalf of any person who has been exposed to silica, or any representative, spouse, parent, child or other relative of
that person, for injury, including loss of consortium, wrongful
death, mental or emotional injury, risk of disease or other injury,
or personal injury. This does not include claims for benefits
under workers' compensation or veterans' benefits program, or
claims brought by any person as subrogee by payment of benefits
under workers' compensation.
(31) "Silicosis" means:
(A) Chronic simple silicosis, which is a nodular fibrosis of
the lungs caused by inhalation of silica;
(B) Complicated silicosis (also known as progressive massive
fibrosis);
(C) Accelerated silicosis; and/or
(D) Acute silicosis.
(32) "Smoker" means a person who has smoked cigarettes or used
other tobacco products within the last fifteen years.
(33) The term "substantial contributing factor" means:
(A) Exposure to asbestos or silica is the predominate cause of
the physical impairment alleged in the claim; and
(B) A qualified physician has determined with a reasonable
degree of medical certainly the exposed person's physical
impairment would not have occurred but for the asbestos or silica
exposures.
(34) "Substantial occupational exposure to asbestos" means employment for a cumulative period of at least five years in an
industry and occupation in which the exposed person did any of the
following for a substantial portion of a normal work year:
(A) Handled raw asbestos fibers;
(B) Fabricated asbestos containing products and exposed to raw
asbestos products in the fabrication process;
(C) Altered, repaired or otherwise worked with an asbestos-
containing product that exposed the person on a regular basis to
asbestos fibers; or
(D) Worked in close proximity to other workers engaged in any
of the activities in this article in a manner that exposed the
person on a regular basis to asbestos fibers.
(35) "Substantial occupational exposure to silica" means
employment for a cumulative period of at least five years in an
industry and occupation the exposed person did any of the following
for a substantial portion of a normal work year:
(A) Handled silica;
(B) Fabricated silica-containing products and was exposed to
silica in the fabrication process;
(C) Altered, repaired, or otherwise worked with a
silica-containing product and exposed the person on a regular basis
to silica; or
(D) Worked in close proximity to other workers engaged in any
of the activities described in (A), (B) or (C) of this subsection that exposed the person on a regular basis to silica.
(36) "Total lung capacity" means the volume of gas contained
in the lungs at the end of a maximal inspiration.
(37) "Veterans benefit program" means any program for benefits
in connection with military service administered by the Veterans'
Administration under title 38, United States Code.
(38) "Workers' compensation law" means §23-1-1 et seq., of
this code as amended, or any program administered by another state
or the United States to provide benefits, funded by a responsible
employer or its insurance carrier, for occupational diseases or
injuries or for disability or death caused by occupational diseases
or injuries. This term does not include any cause of action
pending or instituted pursuant to section two, article four,
chapter twenty-three of this code. The term includes the Longshore
and Harbor Workers' Compensation Act (33 U.S.C. 901-944, 948-950),
and Chapter 81 of Title 5, United States Code (known as the Federal
Employees Compensation Act), but does not include the act of April
22, 1908 (45 U.S.C. 51 et seq.) (popularly referred to as the
"Federal Employers Liability Act").
§55-7E-4. Physical impairment.
(a) Impairment essential element of claim. -- An essential
element of an asbestos or silica claim is be asbestos or silica
exposure as a substantial contributing factor to the physical
impairment of the exposed person.
(b) Prima facie evidence of physical impairment for asbestos-
related nonmalignant disease claims. -- No person may bring or
maintain a civil action alleging an asbestos claim based upon
nonmalignant disease in the absence of a prima facie showing of
physical impairment that exposure to asbestos was a substantial
contributing factor. A prima facie showing shall include all the
following requirements:
(1) Evidence verifying a qualified physician has taken a
detailed occupational and exposure history of the exposed person
from the exposed person or, if such person is deceased, from a
person who is most knowledgeable about the exposure history of the
nonmalignant asbestos claim, including:
(A) Identification of all the exposed person's principal
places of employment and exposures to airborne contaminants; and
(B) Whether each principal place of employment involved
exposures to airborne contaminants (including asbestos fibers or
other disease causing dusts) that can cause pulmonary impairment
and/or cancer, and the nature, duration and level of exposure.
(2) Evidence verifying a qualified physician has taken a
detailed medical, social and smoking history, including a thorough
review of the exposed person's past and present medical problems
and their most probable cause.
(3) Evidence sufficient to demonstrate at least fifteen years
have elapsed between the first exposure to asbestos and the date of diagnosis.
(4) A diagnosis by a qualified physician after a personal
medical examination and pulmonary function testing of the exposed
person, that the exposed person has a permanent respiratory
impairment rating of at least Class 2 as defined by the AMA Guides
to the Evaluation of Permanent Impairment.
(5) A diagnosis report signed by a qualified physician that
the exposed person has asbestosis or evidence of diffuse bilateral
pleural thickening, based on the following radiological or
pathological evidence of asbestosis or radiological evidence of
diffuse pleural thickening;
(A) Radiological or pathological evidence of asbestosis
requires:
(i) A radiology report of a quality 1 chest X ray, except as
otherwise noted, read by a certified B-reader according to the ILO
classification system as showing primarily bilateral small
irregular opacities (shapes, s, t, or u) with a profusion
classification of 1/1 or higher, or
(ii) A pathology report of asbestosis graded 1(B) or higher
under the criteria in "Asbestos-Associated Disease," Special issue
Archives of Pathology and Laboratory Medicine, Volume 10C, Number
11, Appendix 3 (October 8, 1982), as amended from time to time.
(B) Radiological evidence of diffuse pleural thickening
requires a radiology report of a quality 1 chest X ray, except as otherwise noted, read by a certified B-reader according to the ILO
classification system as showing evidence of thickening of the
visceral pleura extending up the lateral chest walls graded B2 or
higher in the presence of, and in continuity with, an obliterated
costophrenic angle.
(6) A qualified physician determining that asbestosis or
diffuse bilateral pleural thickening (rather than chronic
obstructive pulmonary disease) is a substantial contributing factor
to the exposed person's physical impairment, as the exposed person
has:
(A) Total lung capacity, by plethysmography or timed gas
dilution, below the predicted lower limit of normal; and
(B) Forced vital capacity below the lower limit of normal and
a ratio of FEV1 to FVC (actual values) that is equal to or greater
than the predicted lower limit of normal; or
(C) In lieu of 6(A) and 6(B), a radiology report of a quality
1 chest X ray read by a certified B-reader according to the ILO
classification system showing bilateral small irregular opacities
(shape s, t, or u) with a profusion classification of 2/1 or higher
in conjunction with the conclusion of a qualified physician that
the exposed person's medical findings verified by the physician
were not more probably the result of a condition other than
asbestos exposure as revealed by the exposed person's employment,
social and medical history.
(7) A medical opinion by a qualified physician that the
exposed person's medical findings and impairment were not more
probably the result of causes other than the asbestos exposure
revealed by the exposed person's employment and medical history.
An opinion which states the medical findings and impairment are
"consistent with" or "compatible with" exposure to asbestos does
not meet the requirements of this subsection.
(8) Verifies that the exposed person has pulmonary impairment
as related to asbestos as demonstrated by pulmonary function
testing performed using equipment, methods of calibration and
techniques that meet:
(A) The criteria incorporated in the AMA's Guides to the
Evaluation of Permanent Impairment, Fifth Edition, as amended from
time to time; and
(B) The interpretative standards of the American Thoracic
Society, "Lung Function Testing: Selection of Reference Values and
Interpretive Strategies" as amended from time to time."
(9) Verifies the doctor signing the detailed narrative medical
report and diagnosis concluded that exposure to asbestos was a
substantial contributing factor to the exposed person's medical
condition and physical impairment and they were not more probably
the result of other causes revealed by the exposed person's
employment, social, smoking and medical histories.
(10) Copies of the B-readings, the pulmonary function tests, including production of the flow volume loops and all other
elements required to demonstrate compliance with the equipment,
quality, interpretation and reporting standards set forth, and the
diagnosing physician's detailed narrative shall be attached to any
complaint alleging a nonmalignant asbestos-related condition. All
such reports, and other evidence used to establish prima-facie
evidence of impairment, must meet objective standards and criteria
of generally accepted medical standards and not obtained through
testing or examinations that violate applicable laws, regulations,
licensing requirements or medical code of practice. Failure to
attach such reports will result in the dismissal of the claim or
action without prejudice, upon notice of any party.
(c) Prima facie evidence of physical impairment for asbestos-
related lung cancer claims. -- No person 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 including all of
the following requirements:
(1) A signed verified diagnostic report by a qualified
physician board-certified in pathology, pulmonary medicine or
oncology, stating the exposed person is diagnosed with primary lung
cancer, exposure to asbestos was a substantial contributing factor
to the condition. If the diagnosis is by a qualified physician
board-certified in pulmonary medicine, there shall be a
pathological diagnosis of the primary lung cancer the pulmonary physician relied upon;
(2) Sufficient evidence that at least fifteen years have
elapsed between the first exposure to asbestos and the date of
diagnosis of the lung cancer.
(3) Depending on whether the exposed person has a history of
smoking, the requirements of either (A) or (B) below:
(A) In the case of an exposed person who is a nonsmoker,
either:
(i) Radiological evidence of asbestosis or diffuse bilateral
pleural thickening from a qualified physician's diagnosis of
asbestosis based on a chest X ray graded by a certified B-reader
as at least 1/0 on the ILO scale; or pathological evidence of
asbestosis; or
(ii) Evidence of the exposed person's substantial occupational
exposure to asbestos.
(B) In the case of an exposed person who is a smoker, the
criteria contained in both subparagraphs (i) and (ii), paragraph
(A) must be met.
(C) If the exposed person is deceased, the qualified physician
may obtain evidence required in subparagraph (ii), paragraph (A),
subdivisions (2) and (3), subsection (c) from the person most
knowledgeable about the alleged exposures that form the basis of
the asbestos claim.
(4) A qualified physician having concluded the exposed person's medical findings were not more probably the result of
causes other than asbestos exposure revealed by the exposed
person's employment and medical history. A conclusion that the
medical findings and impairment are "consistent with" or
"compatible with" exposure to asbestos does not meet the
requirements of this subsection.
(d) Prima facie evidence of asbestos-related other cancer
claims. -- No person may bring or maintain a civil action alleging
an asbestos claim based upon cancer of the colon, rectum, larynx,
pharynx, esophagus or stomach, in the absence of a prima facie
showing which shall include all the following:
(1) A diagnosis by a qualified physician board-certified in
pathology, oncology, gastroenterology or otolaryngology (as
appropriate for the type of cancer claimed) of primary cancer of
the colon, rectum, larynx, pharynx or esophagus, and exposure to
asbestos was a substantial contributing factor to the condition;
(2) Evidence to demonstrate at least fifteen years have
elapsed between the date of first exposure to asbestos and the date
of diagnosis of the cancer.
(3) The requirements of either (A) or (B) below:
(A) Radiological evidence of asbestosis from a qualified
physician's diagnosis of asbestosis based on a chest X ray graded
by a certified B-reader as at least 1/0 on the ILO scale or
pathological evidence of asbestosis;
(B) Evidence of the exposed person's substantial occupational
exposure to asbestos.
(4) A conclusion by a qualified physician that the exposed
person's medical findings and impairment were not more probably the
result of causes other than the asbestos exposure revealed by the
exposed person's employment and medical history. A conclusion that
the medical findings and impairment are "consistent with" or
"compatible with" exposure to asbestos does not meet the
requirements of this subsection.
(e) Prima facie evidence of physical impairment for asbestos-
related malignant mesothelioma claims. -- No person may bring or
maintain a civil action alleging an asbestos claim which is based
mesothelioma in the absence of a prima facie showing of physical
impairment as a result of a medical condition to which exposure to
asbestos was a substantial contributing factor. Such a prima facie
showing shall include all the following:
(1) A report by a qualified physician board-certified in
pathology, pulmonary medicine or oncology stating a diagnosis of
the exposed person of a malignant pleural, peritoneal or
pericardial mesothelioma and that exposure to asbestos was a
substantial contributing factor to the condition. If the diagnosis
is by a qualified physician board certified in pulmonary medicine,
there is also a pathological diagnosis of mesothelioma on which the
pathological diagnosis the pulmonary doctor relied.
(2) Evidence that sets out details of the occupational
exposure and medical history includes:
(A) A thorough review of claimant's past and present medical
problems, and their most probable cause;
(B) Verification that at least fifteen years have elapsed
between the claimant's first exposure to asbestos and the time of
diagnosis; and
(C) To a reasonable degree of medical probability, exposure to
asbestos was a substantial contributing factor in causing the
diagnosed mesothelioma.
(3) Credible evidence of identifiable exposure to asbestos
resulting from:
(A) Occupational exposure to asbestos;
(B) Exposure to asbestos fibers brought into the home of
exposed person by a worker occupationally exposed to asbestos; or
(C) Exposure to asbestos fibers resulting from living or
working in the proximate vicinity of a factory, shipyard, building
demolition site or other operation that regularly released asbestos
fibers into the air due to operations involving asbestos at the
site.
(f) Prima facie evidence of physical impairment for silicosis
claims. -- 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. A prima
facie showing shall include all the following:
(1) Evidence verifying a qualified physician has taken a
detailed occupational and exposure history of the exposed person
from the exposed person or, if such person is deceased, from a
person who is most knowledgeable about the exposures that form the
basis of the silicosis claim, including all of the following:
(A) Identification of all of the exposed person's principal
places of employment and exposures to airborne contaminants; and
(B) Whether each place of employment involved exposures to
airborne contaminants (including, but not limited to, silica
particles or other disease causing dusts) that can cause pulmonary
impairment or cancer and the nature, duration and level of any such
exposure.
(2) Evidence verifying a qualified physician has taken
detailed medical, social and smoking history, including a thorough
review of the exposed person's past and present medical problems
and their most probable cause, and verifying a sufficient latency
period for the applicable stage of silicosis.
(3) A diagnosis by a qualified physician, on the basis of a
personal medical examination and pulmonary function testing of the
exposed person, that the exposed person has a permanent respiratory
impairment rating of at least Class 2 pursuant to the AMA Guides
to the Evaluation of Permanent Impairment.
(4) A verified diagnostic report signed by a qualified
physician that the exposed person has silicosis based on the
following radiological or pathological evidence of silicosis:
(A) A quality 1 chest X ray, except as otherwise noted, under
the ILO System of classification, with the X ray read by a
certified B-reader as showing, according to the ILO System of
classification, predominantly bilateral nodular opacities (p, q,
or r) occurring primarily in the upper lung fields, graded 1/1 or
higher; or
(B) A quality 1 chest X ray, except as noted herein, under the
ILO System of classification, with the X ray read by a certified
B-reader as showing, according to the ILO System of classification,
A, B or C sized opacities representing complicated silicosis (also
known as progressive massive fibrosis);
(C) A pathological demonstration of classic silicotic nodules
exceeding one centimeter in diameter as published in 112 Archive
of Pathology and Laboratory Medicine 7 (July 1988); or
(D) Acute silicosis.
(5) A conclusion by a qualified physician that the exposed
person's medical findings and impairment were not more probably the
result of causes other than silica exposure revealed by the exposed
person's employment and medical history. A conclusion that the
medical findings and impairment are "consistent with" or
"compatible with" exposure to silica does not meet the requirements of this subsection.
(g) Prima facie evidence of physical impairment for other
silica-related claims. -- No person may bring or maintain a civil
action alleging any silica claim other than provided in subsection
(f) above in the absence of a prima facie showing which shall
include the following:
(1) A report by a qualified physician board-certified in
pulmonary medicine, oncology or pathology, stating a diagnosis of
the exposed person of silica-related lung cancer, and to a
reasonable degree of medical probability, exposure to silica was
a substantial contributing factor to the diagnosed lung cancer.
If the diagnosis is by a qualified physician board-certified in
pulmonary medicine, there shall also be a diagnosis of lung cancer;
(2) Evidence verifying that a qualified physician has taken a
detailed occupational and exposure history of the exposed person
or, if 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) can cause pulmonary
impairment and the nature, duration and level of any such exposure.
(3) Evidence verifying that a qualified physician has taken a
detailed medical and smoking history, including a thorough review
of the exposed person's past and present medical problems and their
most probable cause;
(4) Verification that at least fifteen years have elapsed from
the date of the exposed person's first exposure to silica until the
date of diagnosis of the exposed person's primary lung cancer;
(5) Evidence of the exposed person's substantial occupational
exposure to silica;
(6) A determination by a qualified physician that the exposed
person has:
(A) A quality 1 chest X ray, except as noted herein, under the
ILO System of classification, and the X ray has been read by a
certified B-reader as showing, according to the ILO System of
classification, predominantly bilateral nodular opacities (p, q,
or r) occurring primarily in the upper lung fields, graded 1/1 or
higher; or
(B) A quality 1 chest X ray, except as noted herein, under the
ILO System of classification, and the X ray has been read by a
certified B-reader as showing, according to the ILO System of
classification, A, B or C sized opacities representing complicated
silicosis (also known as progressive massive fibrosis); or
(C) Pathological demonstration of classic silicotic nodules
exceeding one centimeter in diameter as published in 112 Archive of Pathology and Laboratory Medicine 7 (July 1988);
(7) A conclusion by a qualified physician that the exposed
person's medical findings and impairment were not more probably the
result of causes other than silica exposure revealed by the exposed
person's employment and medical history. A conclusion that the
medical findings and impairment are "consistent with" or
"compatible with" exposure to silica does not meet the requirements
of this subsection.
(h) Compliance with technical standards. -- Evidence relating
to physical impairment under this section, including pulmonary
function testing and diffusing studies, shall:
(1) Comply with the technical recommendations for
examinations, testing procedures, quality assurance, quality
control and equipment of the AMA Guides to the Evaluation of
Permanent Impairment, as set forth in 2d C.F.R. Pt, 404, Subpt. P.
Appl., Part A, Sec. 3.00 E. and F. effective on the effective date
of this article, and the interpretive standards, set forth in the
official statement of the American Thoracic Society entitled "Lung
Function Testing: Selection of Reference Values and Interpretive
Strategies" as published in American Review of Respiratory Disease.
1991: 144:1202-1218;
(2) Not be obtained through testing or examinations that
violate any applicable law, regulation, licensing requirement or
medical code of practice; and
(3) Not be obtained under the condition that the exposed
person retain legal services in exchange for the examination, test
or screening.
(i) No presumption at trial. -- Presentation of prima facie
evidence meeting the requirements of subsection (b), (c), (d), (f)
or (g) of this section shall not:
(1) Result in any presumption at trial that the exposed person
is impaired by an asbestos or silica related condition;
(2) Be conclusive as to the liability of any defendant;
(3) Be admissible at trial;
(4) Result in an instruction by the court to the jury with
respect to the court's decision as to the prima facie showing, and
no counsel for any party, nor any witness shall inform the jury or
potential jurors of any such showing, subject to appropriate
sanctions.
§55-7E-5. Procedures.
(a)
Preliminary proceedings. --
(1) The plaintiff in any civil action alleging an asbestos or
silica claim shall file, together with the complaint or other
initial pleading, a written report and supporting test results
constituting prima facie evidence of the exposed person's asbestos
or silica related physical impairment meeting the requirements of
subsection (b), (c), (d), (e), (f) or (g) of section four of this
article, as appropriate. For any asbestos or silica claim pending on the effective date of this article, the plaintiff shall file
such a written report and supporting test results no later than
sixty days following the effective date, or no later than thirty
days prior to the commencement of trial, whichever is earlier,
which period may be extended for good cause shown. The defendant
shall be afforded a reasonable opportunity to challenge the
adequacy of the proffered prima facie evidence of asbestos-related
or silica-related impairment, provided that for any asbestos or
silica claim pending on the effective date of this article, the
defendant shall be afforded a reasonable opportunity to challenge
the adequacy of the certificate prior to the commencement of the
trial.
(2) If the defendant elects to challenge the adequacy of the
report as provided in subdivision (1) of this subsection, the court
shall proceed to determine whether the report meets the minimum
requirements of subdivision (b), (c), (d), (e), (f) or (g) of
section four of this article, as appropriate. Upon a finding that
the report is insufficient:
(A) The court shall place the asbestos or silica claim pending
on the effective date of this article on an inactive docket and
maintain jurisdiction over such claim: Provided, That the death
of exposed person shall be grounds to reinstate the claim to the
active docket. Any plaintiff whose claim has been placed on an
inactive docket under this subsection may move to reinstate the claim by filing a motion accompanied by a report meeting the
requirements of subsection (b), (c), (d), (e), (f) or (g) of
section four of this article, as appropriate; or
(B) The court shall dismiss without prejudice an asbestos or
silica claim filed on or after the effective date of this article.
Any claimant whose claim is dismissed under this paragraph may
refile the claim accompanied by a report meeting the requirements
of subsection (b), (c), (d), (e), (f) or (g) of section four of
this article, as appropriate. A claimant may voluntarily dismiss
a presently pending case without prejudice if there is no evidence
of impairment.
(b) General rules applicable to new filings. --
(1) All asbestos claims and silica claims filed in this state
on or after the effective date of this article shall include (in
addition to the written report described in subsection (4) and the
information required by subsection 5(a) herein) a sworn information
form containing the following information:
(A) The claimant's name, address, date of birth, social
security number and marital status;
(B) If the claimant alleges exposure to asbestos or silica
through the testimony of another person or other than by direct or
bystander exposure to a product(s), the name, address, date of
birth, social security number, marital status, for each person by
which the claimant alleges exposure (hereinafter the "index person") and the claimant's relationship to each person;
(C) The specific location of each alleged exposure;
(D) The beginning and ending dates of each alleged exposure as
to each asbestos product or silica product for each location at
which exposure allegedly took place for the plaintiff and each
index person;
(E) The occupation and name of the employer of the exposed
person at the time of each alleged exposure;
(F) The specific condition related to asbestos or silica
claimed to exist;
(G) Any supporting documentation of the condition claimed to
exist; and
(H) All asbestos and silica claims along with the sworn
information must be individually filed in separate civil actions,
except claims relating to the exposure to asbestos or silica for
the same exposed person whose alleged injury is the basis of the
civil action may be joined in a single action. Otherwise, no claim
on behalf of a group shall be joined and filed in a single action.
(2) No discovery may be conducted until the court enters an
order determining the claimant has established a prima facie case
of physical impairment; except for discovery that relates to the
establishment or challenge of the prima facie evidence or by the
order of the court for good cause shown.
§55-7E-6. Statute of limitations; two-disease rule.
(a) Statute of limitations. -- Notwithstanding any other
provision of law, with respect to any asbestos or silica claim not
time-barred as of the effective date of this article, the
limitations period do not begin to run until the exposed person
discovers, or through the exercise of reasonable diligence should
have discovered, a physical impairment (as defined by this article)
caused by exposure to asbestos or silica. A claim based on a
nonmalignant condition that is filed before the cause of action for
a bodily injury pursuant to that section arises is preserved for
purposes of the period of limitations.
(b) Two-disease rule. -- An asbestos or silica claim arising
out of a nonmalignant condition shall be a distinct cause of action
from an asbestos or silica claim relating to the same exposed
person arising out of asbestos or silica related cancer. No
damages shall be awarded for fear or risk of cancer in any civil
action asserting an asbestos or silica claim for an alleged
nonmalignant condition.
(c) General releases from liability prohibited. -- No
settlement of a nonmalignant asbestos or silica claim concluded
after the date of enactment may require, as a condition of
settlement, release of any future claim for asbestos or silica
related cancer.
§55-7E-7. Consolidation.
(a) The Legislature finds defendants are often forced to settle unmeritorious claims because they know that they will face
trial where the claim of one plaintiff who is truly sick is bundled
(or consolidated) with numerous claims from plaintiffs who may not
be sick. Plaintiffs' attorneys will often refuse to settle serious
claims unless their inventory of unimpaired claimants are also
settled. Federal courts have noted when the claims of numerous
plaintiffs with dissimilar alleged injuries and factual situations
are tried together, "the maelstrom of facts, figures and witnesses"
is likely to lead to jury confusion and an unfair trial. (Malcolm
v. National Gypsum Co., 995 F.2d 346, 352 (2d Cir. 1993))
(b) The Legislature of West Virginia acknowledges the Supreme
Court's authority in prescribing rules governing practice and
procedure in the courts of this state, as provided by Section 3,
Article VIII of the West Virginia Constitution.
(c) The Legislature of West Virginia hereby requests the
Supreme Court to adopt rules to specify procedures for
consolidation of asbestos or silica claims, brought pursuant to the
provisions of this article.
(d) With respect to procedures for consolidation of asbestos
or silica claims, the Legislature of West Virginia hereby requests
the Supreme Court to adopt a rule that permits consolidation of
asbestos or silica claims for trial only with the consent of all
parties, or permits a court to consolidate for trial only those
asbestos or silica claims that relate to the same exposed person and members of the exposed person's household.
§55-7E-8. Effective date.
This article shall be effective on the date of the enactment
of this article and apply to any civil action asserting an asbestos
or silica claim in which trial has not commenced as of the date of
the enactment of this article.
§55-7E-9. Severability.
If any provision of this article is held invalid, such
invalidity shall not affect the other provisions or applications
of this article, and to this end, any such provision is deemed
severable.
§55-7E-10. Miscellaneous provisions.
Construction with other laws. --
This article may not be construed to affect the scope or
operation of any workers' compensation law or veterans' benefit
program, to affect the exclusive remedy or subrogation provisions
of any such law, or to authorize any lawsuit which is barred by any
such provision of law.
NOTE: The purpose of this bill is to limit certain asbestos
claims, provide for the fair and efficient judicial consideration
of personal injury and wrongful death claims arising out of
asbestos or silica exposure, to ensure that individuals who suffer
impairment, now or in the future, from illnesses caused by exposure
to asbestos or silica, receive compensation for their injuries, and
for other purposes.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would be added.