Introduced Version
Senate Bill 543 History
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Senate Bill No. 543
(By Senator Sprouse)
____________
[Introduced February 9, 2006; referred to the Committee
on the Judiciary.]
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A BILL to amend the Code of West Virginia, 1931, as amended, by
adding thereto a new article, designated §55-7E-1, §55-7E-2,
§55-7E-3, §55-7E-4,
§55-7E-5, §55-7E-6, §55-7E-7, §55-7E-8 and
§55-7E-9, all relating to providing for certain judicial
standards and procedures for personal injury and wrongful
death claims arising out of asbestos or silica exposure;
providing a short title; setting forth findings and purpose;
setting forth definitions; setting forth legal standards and
procedures for establishing physical impairment; prescribing
statute of limitation standards; requesting the state Supreme
Court of Appeals to permit consolidation of asbestos or silica
claims for trial; and providing an effective date.
Be it enacted by the Legislature of West Virginia:
That the Code of West Virginia, 1931, as amended, be amended
by adding thereto a new article, designated §55-7E-1, §55-7E-2, §55-7E-3, §55-7E-4,
§55-7E-5, §55-7E-6, §55-7E-7, §55-7E-8 and
§55-7E-9, all
to read as follows:
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, fireproofing and other purposes;
(2) Millions of American workers and others were exposed to
asbestos, especially during and after World War II and prior to the
promulgation of regulations by the Occupational Safety and Health
Administration in the early 1970's;
(3) Exposure to asbestos has been associated with various
types of cancer, including mesothelioma and lung cancer, as well as
such nonmalignant conditions as asbestosis, pleural plaques and
diffuse pleural thickening;
(4) The diseases caused by asbestos often have extensive
latency periods;
(5) Although the use of asbestos has dramatically declined
since the 1970's and workplace exposures have been regulated since
1971 by the Occupational Safety and Health Administration, past
exposures will continue to result in significant claims of death and disability as a result of such exposure;
(6) West Virginia courts are "deluged with asbestos lawsuits."
State ex rel. Allman v. MacQueen, 209 W. Va. 726, 731, 551 S.E.2d
369, 374 (2001). The Supreme Court of Appeals of West Virginia has
recognized that asbestos cases "present a complex pattern of legal,
social, and political issues that threaten to cripple the common
law system of adjudication, if for no other reason than by the
sheer volume of cases" State ex rel. Appalachian Power Co. v.
MacQueen, 198 W. Va. 1, 5, 479 S.E.2d 300, 303 (1996);
(7) Asbestos personal injury litigation can impose a severe
burden on litigants and taxpayers alike;
(8) Reasonable medical criteria is necessary to expedite the
resolution of claims brought by those sick claimants and to ensure
that resources are available for those who are currently suffering
from asbestos-related illnesses and for those who may become sick
in the future;
(9) The cost of compensating exposed individuals who are not
sick jeopardizes the ability of defendants to compensate people
with cancer and other serious asbestos-related diseases, now and in
the future; threatens the savings, retirement benefits and jobs of
the state's current and retired employees; and adversely affects
the communities in which these defendants operate;
(10) Silica is a naturally occurring mineral as the earth's
crust is over ninety percent silica, and crystalline silica dust is the primary component of sand, quartz and granite;
(11) Silica-related illness, including silicosis, can occur
when an individual inhales respirable silica particles;
(12) Silica claims, like asbestos claims, often arise when an
individual is identified as having markings on his or her lungs
that are possibly "consistent with" silica exposure, but the
individual has no functional or physical impairment from any
silica-related disease; therefore, it is necessary to address
silica-related litigation to avoid an asbestos-like litigation
crisis.
(13) Concerns about statutes of limitations can force
claimants who have been exposed to asbestos or silica but who have
no current injury to bring premature lawsuits in order to protect
against losing their rights to future compensation should they
become impaired;
(14) The public interest requires giving priority to the
claims of exposed individuals who are sick in order to help
preserve, now and for the future, defendants' ability to compensate
people who develop cancer and other serious asbestos and silica
related injuries and to safeguard the jobs, benefits and savings of
workers in West Virginia and the well-being of the West Virginia
economy.
(b) It is the purpose of this article to:
(1) Give priority to asbestos and silica claimants who can demonstrate actual physical impairment caused by exposure to
asbestos or silica;
(2) Fully preserve the rights of claimants who were exposed to
asbestos or silica to pursue compensation should they become
impaired in the future as a result of such exposure;
(3) Enhance the ability of the judicial systems to supervise
and control asbestos and silica litigation; and
(4) Conserve the scarce resources of the defendants to allow
compensation of cancer victims and others who are physically
impaired by exposure to asbestos or silica while securing the right
to similar compensation for those who may suffer physical
impairment in the future.
§55-7E-3. Definitions.
In this article:
(1) The term "AMA Guides to the Evaluation of Permanent
Impairment" means the American Medical Association's Guides to the
Evaluation of Permanent Impairment (Fifth Edition 2000) as may be
modified from time to time by the American Medical Association.
(2) The term "asbestos" 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 1972 through 1979 will be counted as one-half year;
(C) Exposure after 1979 will not be counted, except that each
year from 1972 forward for which the plaintiff can establish
exposure exceeding the OSHA limit for eight-hour time-weighted
average airborne concentration for a substantial portion of the
year will count as one year.
(14) The term "FEV1" means forced expiratory volume in the
first second, which is the maximal volume of air expelled in one
second during performance of simple spirometric tests.
(15) The term "FVC" means forced vital capacity which is the
maximal volume of air expired with maximum effort from a position
of full inspiration.
(16) The term "ILO Scale" means the system for the
classification of chest X rays set forth in the International
Labour Office's Guidelines for the Use of ILO International
Classification of Radiographs of Pneumoconiosis (1980) as amended
from time to time by the International Labour Office.
(17) The term "lung cancer" means a malignant tumor in which
the primary site of origin of the cancer is inside of the lungs,
but such term does not include an asbestos claim based upon
mesothelioma.
(18) The term "mesothelioma" means a malignant tumor with a
primary site of origin in the pleura or the peritoneum, which has
been diagnosed by a board-certified pathologist, using standardized and accepted criteria of microscopic morphology and/or
appropriate staining techniques.
(19) The term "nonmalignant condition" means any condition
that is caused or may be caused by asbestos other than a diagnosed
cancer.
(20) The term "nonsmoker" means the exposed person has not
smoked cigarettes or used any other tobacco products within the
last fifteen years.
(21) The term "pathological evidence of asbestosis" means a
statement by a board-certified pathologist that more than one
representative section of lung tissue uninvolved with any other
disease process demonstrates a pattern of peribronchiolar or
parenchymal scarring in the presence of characteristic asbestos
bodies and that there is no other more likely explanation for the
presence of the fibrosis.
(22) The term "physical impairment" means:
(A) A nonmalignant asbestos claim that meets the requirements
specified in subsection (b), section four of this article;
(B) An asbestos related lung cancer claims that meets the
requirements specified in subsection (c), section four of this
article
;
(C) An asbestos related other cancer claim that meets the
requirements specified in subsection (d), section four of this
article
;
(D) A silicosis claim that meets the requirements specified in
subsection (f), section four of this article
;
(E) Other silica claims that meet the requirements specified
in subsection (g), section four of this article
;
(23) The term "predicted lower limit of normal" for any test
means the fifth percentile of healthy populations based on age,
height, and gender, as referenced in the AMA Guides to the
Evaluation of Permanent Impairment.
(24) The term "qualified physician" means a medical doctor,
who:
(A) Is a currently board-certified internist, oncologist,
pathologist, pulmonary specialist, radiologist, or specialist in
occupational and environmental medicine;
(B) Has conducted a physical examination of the exposed
person;
(C) Is actually treating or has treated the exposed person,
and has or had a doctor-patient relationship with such person;
(D) Is currently licensed to practice and actively practices
in the state where the plaintiff resides or in West Virginia; and
(E) Receives or received payment for the treatment of the
exposed person from that person's health maintenance organization,
other medical provider, from the exposed person, or from a member
of the exposed person's family.
(25) The term "radiological evidence of asbestosis" means a quality 1 chest X ray under the ILO system of classification (in a
death case where no pathology is available, the necessary
radiologic findings may be made with a quality 2 film if a quality
1 film is not available) showing small, irregular opacities (s, t,
u) graded by a certified B-reader as at least 1/1 on the ILO scale.
(26) The term "radiological evidence of diffuse pleural
thickening" means a quality 1 chest X ray under the ILO system of
classification (in a death case where no pathology is available,
the necessary radiologic findings may be made with a quality 2 film
if a quality 1 film is not available) showing bilateral pleural
thickening of at least B2 on the ILO scale and blunting of at least
one costophrenic angle.
(27) The term "silica" means a respirable crystalline form of
silicon dioxide, including, but not limited to, alpha, quartz,
cristobalite, and trydmite.
(28) The term "silica claim" means any claim for damages,
losses, or other civil or equitable relief arising out of, based
on, or related in any way to the health effects of exposure to
silica, including any claim for current or future medical
monitoring and/or surveillance. "Silica claim" includes a claim
made by or on behalf of any person who has been exposed to silica,
or any representative, spouse, parent, child, or other relative of
that person, for injury, including loss of consortium or wrongful
death. The term does not include claims for benefits under a workers' compensation law or veterans' benefits program, or claims
brought by any person as a subrogee by virtue of the payment of
benefits under a workers' compensation law.
(29) The term "silicosis" means nodular interstitial fibrosis
of the lungs caused by inhalation of silica.
(30) The term "smoker" means a person who has smoked
cigarettes or used other tobacco products which were smoked within
the last fifteen years.
(31) The term "substantial contributing factor" means:
(A) Exposure to asbestos or silica is the predominate cause of
the physical impairment alleged in the claim;
(B) The exposure to asbestos or silica took place on a regular
basis over an extended period of time and in close proximity to the
exposed person; and
(C) A qualified physician has determined with a reasonable
degree of medical certainty that the physical impairment of the
exposed person would not have occurred but for the asbestos or
silica exposures.
(32) The term "Veterans' Benefits Program" means any program
for benefits in connection with military service administered by
the Veterans' Administration under title 38, United States Code.
(33) The term "Workers' Compensation Law" means West Virginia
Code §23-1-1 et seq., as amended, or any program administered by
another state or the United States to provide benefits, funded by a responsible employer or its insurance carrier, for occupational
diseases or injuries or for disability or death caused by
occupational diseases or injuries. The term includes the Longshore
and Harbor Workers' Compensation Act (33 U.S.C. 901-944, 948-950),
and chapter 81 of title 5, United States Code (known as the Federal
Employees Compensation Act), but does not include the Act of April
22, 1908 (45 U.S.C. 51 et seq.) (popularly referred to as the
"Federal Employers' Liability Act.")
§55-7E-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, is an essential
element of an asbestos or silica claim.
(b) Prima facie evidence of physical impairment for
nonmalignant asbestos claims. -- No person may bring or maintain a
civil action alleging a nonmalignant asbestos claim in the absence
of a prima facie showing of physical impairment as a result of a
medical condition to which exposure to asbestos was a substantial
contributing factor. Such a prima facie showing shall include all
of the following minimum requirements:
(1) Evidence verifying that a qualified physician has taken a
detailed occupational and exposure history of the exposed person
or, if such person is deceased, from a person who is knowledgeable
about the exposures that form the basis of the nonmalignant asbestos claim, including:
(A) Identification of all of the exposed person's principal
places of employment and exposures to airborne contaminants; and
(B) Whether each place of employment involved exposures to
airborne contaminants (including, but not limited to, asbestos
fibers or other disease causing dusts) that can cause pulmonary
impairment and the nature, duration and level of any such exposure.
(2) Evidence verifying that a qualified physician has taken a
detailed medical and smoking history, including a thorough review
of the exposed person's past and present medical problems and their
most probable cause.
(3) Evidence sufficient to demonstrate that at least ten years
have elapsed between the date of first exposure to asbestos and the
date of diagnosis.
(4) A determination by a qualified physician, on the basis of
a medical examination and pulmonary function testing, that the
exposed person has a permanent respiratory impairment rating of at
least Class 2 as defined by and evaluated pursuant to the AMA
Guides to the Evaluation of Permanent Impairment.
(5) A diagnosis by a qualified physician of asbestosis or
diffuse pleural thickening, based at a minimum on radiological or
pathological evidence of asbestosis or radiological evidence of
diffuse pleural thickening.
(6) A determination by a qualified physician that asbestosis or diffuse pleural thickening (rather than chronic obstructive
pulmonary disease) is a substantial contributing factor to the
exposed person's physical impairment, based at a minimum on a
determination that the exposed person has:
(A) Total lung capacity, by plethysmography or timed gas
dilution, below the predicted lower limit of normal;
(B) Forced vital capacity below the lower limit of normal and
a ratio of FEV1 to FVC that is equal to or greater than the
predicted lower limit of normal; or
(C) A chest X ray showing small, irregular opacities (s, t, u)
graded by a certified B-reader at least 2/1 on the ILO scale.
(7) A conclusion by a qualified physician that the exposed
person's medical findings and impairment were not more probably the
result of causes other than the asbestos exposure revealed by the
exposed person's employment and medical history. A conclusion
which states that the medical findings and impairment are
"consistent with" or "compatible with" exposure to asbestos does
not meet the requirements of this subsection.
(c) Prima facie evidence of physical impairment for
asbestos-related lung cancer claims. -- No person may bring or
maintain a civil action alleging an asbestos claim which is based
upon lung cancer, in the absence of a prima facie showing which
shall include all of the following minimum requirements:
(1) Diagnosis by a qualified physician who is board-certified in pathology, pulmonary medicine, or oncology of a primary lung
cancer and that exposure to asbestos was a substantial contributing
factor to the condition.
(2) Evidence sufficient to demonstrate that at least ten years
have elapsed between the date of first exposure to asbestos and the
date of diagnosis of the lung cancer.
(3) Depending on whether the exposed person has a history of
smoking, the requirements of either (A) or (B) below:
(A) In the case of an exposed person who is a nonsmoker,
either:
(i) Radiological or pathological evidence of asbestosis; or
(ii) Evidence of occupational exposure to asbestos for the
following minimum exposure periods in the specified occupations:
(I) Five exposure years for insulators, shipyard workers,
workers in manufacturing plants handling raw asbestos,
boilermakers, shipfitters, steamfitters, or other trades performing
similar functions;
(II) Ten exposure years for utility and power house workers,
secondary manufacturing workers, or other trades performing similar
functions; or
(III) Fifteen exposure years for general construction,
maintenance workers, chemical and refinery workers, marine engine
room personnel and other personnel on vessels, stationary engineers
and firemen, railroad engine repair workers, or other trades performing similar functions;
(B) In the case of an exposed person who is a smoker, the
criteria contained in both (A)(i) and (A)(ii) must be met.
(C) If the exposed person is deceased, the qualified physician
may obtain the evidence required in subsections (c)(2) and (c)(3)
(A)(ii) from the person most knowledgeable about the alleged
exposures that form the basis of the asbestos claim.
(4) A conclusion by a qualified physician that the exposed
person's medical findings and impairment were not more probably the
result of causes other than the asbestos exposure revealed by the
exposed person's employment and medical history. A conclusion that
the medical findings and impairment are "consistent with" or
"compatible with" exposure to asbestos does not meet the
requirements of this subsection.
(d) Prima facie evidence of asbestos-related other cancer
claims.-- No person may bring or maintain a civil action alleging
an asbestos claim which is based upon cancer of the colon, rectum,
larynx, pharynx, esophagus, or stomach, in the absence of a prima
facie showing which shall include all of the following minimum
requirements:
(1) A diagnosis by a qualified physician who is
board-certified in pathology, pulmonary medicine or oncology (as
appropriate for the type of cancer claimed) of primary cancer of
the colon, rectum, larynx, pharynx, esophagus, or stomach, and that exposure to asbestos was a substantial contributing factor to the
condition.
(2) Evidence sufficient to demonstrate that at least ten years
have elapsed between the date of first exposure to asbestos and the
date of diagnosis of the cancer.
(3) The requirements of either (A) or (B) below:
(A) Radiological or pathological evidence of asbestosis;
(B) Evidence of occupational exposure to asbestos for the
following minimum exposure periods in the specified occupations:
(i) Five exposure years for insulators, shipyard workers,
workers in manufacturing plants handling raw asbestos,
boilermakers, shipfitters, steamfitters, or other trades performing
similar functions;
(ii) Ten exposure years for utility and power house workers,
secondary manufacturing workers, or other trades performing similar
functions; or
(iii) Fifteen exposure years for general construction,
maintenance workers, chemical and refinery workers, marine engine
room personnel and other personnel on vessels, stationary engineers
and firemen, railroad engine repair workers, or other trades
performing similar functions.
(C) If the exposed person is deceased, the qualified physician
may obtain the evidence required in subsection (d)(2) and (d)(3)(B)
from the person most knowledgeable about the alleged exposures that form the basis of the asbestos claim.
(4) A conclusion by a qualified physician that the exposed
person's medical findings and impairment were not more probably the
result of causes other than the asbestos exposure revealed by the
exposed person's employment and medical history. A conclusion that
the medical findings and impairment are "consistent with" or
"compatible with" exposure to asbestos does not meet the
requirements of this subsection.
(e) No prima facie requirement for mesothelioma.-- In a civil
action alleging an asbestos claim based upon mesothelioma, no prima
facie showing is required.
(f) Prima facie evidence of physical impairment for silicosis
claims.-- No person may bring or maintain a civil action alleging
a silicosis claim in the absence of a prima facie showing of
physical impairment as a result of a medical condition to which
exposure to silica was a substantial contributing factor. Such a
prima facie showing shall include all of the following minimum
requirements:
(1) Evidence verifying that a qualified physician has taken a
detailed occupational and exposure history of the exposed person
or, if such person is deceased, from a person who is knowledgeable
about the exposures that form the basis of the nonmalignant silica
claim, including:
(A) Identification of all of the exposed person's principal places of employment and exposures to airborne contaminants; and
(B) Whether each place of employment involved exposures to
airborne contaminants (including, but not limited to, silica
particles or other disease causing dusts) that can cause pulmonary
impairment and the nature, duration and level of any such exposure.
(2) Evidence verifying that a qualified physician has taken
detailed medical and smoking history, including a thorough review
of the exposed person's past and present medical problems and their
most probable cause, and verifying a sufficient latency period for
the applicable stage of silicosis.
(3) A determination by a qualified physician, on the basis of
a medical examination and pulmonary function testing, that the
exposed person has a permanent respiratory impairment rating of at
least Class II as defined by and evaluated pursuant to the AMA
Guides to the Evaluation of Permanent Impairment.
(4) A determination by a qualified physician that the exposed
person has:
(A) A quality 1 chest X ray under the ILO system of
classification (in a death case where no pathology is available,
the necessary radiologic findings may be made with a quality 2 film
if a quality 1 film is not available), and that the X ray has been
read by a certified B-reader as showing, according to the ILO
system of classification, bilateral nodular opacities (p, q, or r)
occurring primarily in the upper lung fields, graded 1/1 or higher; or
(B) Pathological demonstration of classic silicotic nodules
exceeding one centimeter in diameter as published in 112 Archive of
Pathology and Laboratory Medicine 7 (July, 1988);
(5) A conclusion by a qualified physician that the exposed
person's medical findings and impairment were not more probably the
result of causes other than silica exposure revealed by the exposed
person's employment and medical history. A conclusion that the
medical findings and impairment are "consistent with" or
"compatible with" exposure to silica does not meet the requirements
of this subsection.
(g) Prima facie evidence of physical impairment for other
silica-related claims.-- No person may bring or maintain a civil
action alleging any silica claim other than as provided in
subsection (f) above in the absence of a prima facie showing which
shall include the following minimum requirements:
(1) A report by a qualified physician who is:
(A) Board-certified in pulmonary medicine, internal medicine,
oncology, or pathology stating a diagnosis of the exposed person of
silica-related lung cancer and stating that, to a reasonable degree
of medical probability, exposure to silica was a substantial
contributing factor to the diagnosed lung cancer; or
(B) Board-certified in pulmonary medicine, internal medicine
or pathology stating a diagnosis of the exposed person of silica-related progressive massive fibrosis or acute
silicoproteinosis, or silicosis complicated by documented
tuberculosis;
(2) Evidence verifying that a qualified physician has taken a
detailed occupational and exposure history of the exposed person
or, if such person is deceased, from a person who is knowledgeable
about the exposures that form the basis of the other silica-related
claim, including:
(A) Identification of all of the exposed person's principal
places of employment and exposures to airborne contaminants; and
(B) whether each place of employment involved exposures to airborne
contaminants (including, but not limited to, silica particles or
other disease causing dusts) that can cause pulmonary impairment
and the nature, duration and level of any such exposure.
(3) Evidence verifying that a qualified physician has taken
detailed medical and smoking history, including a thorough review
of the exposed person's past and present medical problems and their
most probable cause;
(4) A determination by a qualified physician that the exposed
person has:
(A) A quality 1 chest X ray under the ILO system of
classification (in a death case where no pathology is available,
the necessary radiologic findings may be made with a quality 2 film
if a quality 1 film is not available), and that the X ray has been read by a certified B-reader as showing, according to the ILO
system of classification, bilateral nodular opacities (p, q, or r)
occurring primarily in the upper lung fields, graded 1/1 or higher;
or
(B) Pathological demonstration of classic silicotic nodules
exceeding one centimeter in diameter as published in 112 Archive of
Pathology and Laboratory Medicine 7 (July, 1988);
(5) A conclusion by a qualified physician that the exposed
person's medical findings and impairment were not more probably the
result of causes other than silica exposure revealed by the exposed
person's employment and medical history. A conclusion that the
medical findings and impairment are "consistent with" or
"compatible with" exposure to silica does not meet the requirements
of this subsection.
(h) Compliance with technical standards.-- Evidence relating
to physical impairment under this section, including pulmonary
function testing and diffusing studies, shall:
(1) Comply with the technical recommendations for
examinations, testing procedures, quality assurance, quality
control, and equipment of the AMA Guides to the Evaluation of
Permanent Impairment, as set forth in 2d C.F.R. Pt, 404, Subpt. P.
Appl, Part A, Sec. 3.00 E. and F., and the interpretive standards,
set forth in the official statement of the American Thoracic
Society entitled "lung function testing: Selection of reference values and interpretive strategies" as published in American Review
of Respiratory Disease, 1991: 144:1202-1218;
(2) Not be obtained through testing or examinations that
volate any applicable law, regulation, licensing requirement or
medical code of practice; and
(3) Not be obtained under the condition that the exposed
person retain legal services in exchange for the examination, test
or screening.
(i) No presumption at trial.-- Presentation of prima facie
evidence meeting the requirements of subsection (b), (c), (d), (f)
or (g) of this section may not:
(1) Result in any presumption at trial that the exposed person
is impaired by an asbestos or silica related condition;
(2) Be conclusive as to the liability of any defendant; or
(3) Be admissible at trial.
§55-7E-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 subsection (b), (c), (d), (f) or (g),
section four
of this article. For any asbestos or silica claim
pending on the effective date of this article, the plaintiff shall file such a written report and supporting test results no later
than sixty days following the effective date, or no later than
thirty days prior to the commencement of trial. The defendant
shall be afforded a reasonable opportunity to challenge the
adequacy of the proffered prima facie evidence of asbestos-related
impairment. Upon a finding that the written report and test
results fail to make the required prima facie showing, the court
shall place the claim on an inactive docket and maintain
jurisdiction over those claims. Any plaintiff whose claim has been
placed on an inactive docket under this subsection may move to
reinstate the claim by filing a motion accompanied by a written
report and supporting test results meeting the requirements of
subsections (b), (c), (d), (f) and (g), section four of this
article.
(b) General rules applicable to new filings.--
All asbestos claims and silica claims filed in this state on
or after the effective date of this article shall include (in
addition to the written report described in subsection (4) and the
information required by subsection (a), section five herein a sworn
information form containing the following information:
(1) The claimant's name, address, date of birth, social
security number, and marital status;
(2) If the claimant alleges exposure to asbestos or silica
through the testimony of another person or other than by direct or bystander exposure to a product(s), the name, address, date of
birth, social security number, marital status, for each person by
which the claimant alleges exposure (hereinafter the "index
person") and the claimant's relationship to each person;
(3) The specific location of each alleged exposure;
(4) The beginning and ending dates of each alleged exposure as
to each asbestos product or silica product for each location at
which exposure allegedly took place for the plaintiff and each
index person;
(5) The occupation and name of the employer of the exposed
person at the time of each alleged exposure;
(6) The specific condition related to asbestos or silica
claimed to exist; and
(7) Any supporting documentation of the condition claimed to
exist.
§55-7E-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 may be awarded for fear or risk of cancer in any civil
action asserting an asbestos or silica claim.
(c) General releases from liability prohibited.-- No
settlement of a nonmalignant asbestos or silica claim concluded
after the date of enactment may require, as a condition of
settlement, release of any future claim for asbestos or silica
related cancer.
§55-7E-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 facts, figures, and witnesses" is likely to lead to jury
confusion and an unfair trial.
(b) The Legislature of West Virginia acknowledges the Supreme
Court's authority in prescribing rules governing practice and procedure in the courts of this state, as provided by Section 3,
Article VIII of the West Virginia Constitution.
(c) The Legislature of West Virginia hereby requests the
Supreme Court to adopt rules to specify procedures for
consolidation of asbestos or silica claims, brought pursuant to the
provisions of this article.
(d) With respect to procedures for consolidation of asbestos
or silica claims, the Legislature of West Virginia hereby requests
the Supreme Court to adopt a rule that permits consolidation of
asbestos or silica claims for trial only with the consent of all
parties, or permits a court to consolidate for trial only those
asbestos or silica claims that relate to the same exposed person
and members of the exposed person's household.
§55-7E-8. Effective date.
This article shall apply to any civil action asserting an
asbestos or silica claim in which trial has not commenced as of the
date of the enactment of this article.
§55-7E-9. Construction with other laws.
This article shall not be construed to affect the scope or
operation of any workers' compensation law or veterans' benefit
program, to affect the exclusive remedy or subrogation provisions
of any such law, or to authorize any lawsuit which is barred by any
such provision of law.
NOTE: The purpose of this bill is to provide for certain
judicial standards and procedures for personal injury and wrongful
death claims arising out of asbestos or silica exposure. Towards
this end the bill: (1) Provides a short title; (2) sets forth
findings and purpose; (3) sets forth definitions; (4) sets forth
legal standards and procedures for establishing physical
impairment; (5) prescribes statute of limitation standards; and (6)
requests the State Supreme Court to permit consolidation of
asbestos or silica claims for trial
.
This article is new; therefore, strike-throughs and
underscoring have been omitted.