H. B. 2762
(By Delegates Craig, Lane, Michael, Kominar,
Long, Stemple, Tabb, Armstead, Pino, Morgan and Azinger)
[Introduced January 9, 2008; 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; and providing for fair and efficient
judicial consideration of personal injury and wrongful death
arising out of asbestos or silica exposure and to ensure
individuals who suffer impairment now or in the future for
illnesses caused by exposure to asbestos or silica receive
compensation for their injuries.
Be it enacted by the Legislature of West Virginia:
That the Code of West Virginia, 1931, as amended, be amended
by adding thereto a new article, designated §55-7E-1, §55-7E-2,
§55-7E-3, §55-7E-4, §55-7E-5, §55-7E-6, §55-7E-7, §55-7E-8 §55-7E-9
and §55-7E-10, all to read as follows:
ARTICLE 7E. ASBESTOS AND SILICA COMPENSATION FAIRNESS ACT OF
2007.
§55-7E-1. Short title.
This article may be cited as the "Asbestos and Silica
Compensation Fairness Act of 2007."
§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 at the same
time preventing scarce judicial and litigant resources from being
misdirected by the premature claims of individuals who have been
exposed to asbestos or silica but have no functional or physical
impairment from asbestos-related or silica-related disease. To
that end, this article:
(a) Adopts medically accepted standards for differentiating
between individuals with nonmalignant asbestos-related or
silica-related disease causing functional impairment and
individuals with no functional impairment or whose impairment is
caused solely by some other cause, such as asthma, emphysema, or
smoking;
(b) Requires that physical impairment be an essential element
of an asbestos claim and silica claim;
(c) Provides a method to obtain the dismissal of lawsuits in which the exposed person has no functional impairment, while at the
same time protecting a person's right to bring suit on discovering
an asbestos-related or silica-related impairment or injury; and
(d) Creates an extended period before limitations begin to run
in which to bring claims for nonmalignant injuries caused by
inhalation or ingestion of asbestos or by the inhalation of silica
to preserve the right of those who have been exposed to asbestos
or silica but are not yet impaired to bring a claim later in the
event that they develop an asbestos-related or silica-related
disease or injury.
§55-7E-3. Definitions.
In this article:
(1) The term "AMA Guides to the Evaluation of Permanent
Impairment" means the American Medical Association's Guides to the
Evaluation of Permanent Impairment (Fifth Edition 2000) as may be
modified from time to time by the American Medical Association.
(2) The term "asbestos" means chrysotile, amosite,
crocidolite, tremolite asbestos, anthophyllite asbestos, actinolite
asbestos and any of these minerals that have been chemically
treated or altered, including, but not limited to, all minerals
defined as 'asbestos' in 29 CFR 1910 as amended from time to time.
(3) The term "asbestos claim" means any claim for damages,
losses or other civil or equitable relief arising out of, based on,
or related in any way to the health effects of exposure to asbestos, including any claim for current or future medical
monitoring and/or surveillance, indemnification and contribution.
"Asbestos claim" includes a claim made by or on behalf of any
person who has been exposed to asbestos, or any representative,
spouse, parent, child or other relative of that person, including
loss of consortium, wrongful death, mental or emotional injury,
risk of disease, other injury, or personal injury. The term does
not include claims for benefits under a workers' compensation law
or veterans' benefits program, or claims brought by any person as
a subrogee by virtue of the payment of benefits under a workers'
compensation law.
(4) The term "asbestosis" means bilateral diffuse interstitial
fibrosis of the lungs caused by inhalation of asbestos fibers.
(5) The term "board-certified in internal medicine" means a
physician who is certified by the American Board of Internal
Medicine or the American Osteopathic Board of Internal Medicine.
(6) The term "board-certified in occupational medicine" means
a physician who is certified in the subspecialty of occupational
medicine by the American Board of Preventive Medicine or the
American Osteopathic Board of Preventive Medicine.
(7) The term "board-certified in oncology" means a physician
who is certified in the subspecialty of medical oncology by the
American Board of Internal Medicine or the American Osteopathic
Board of Internal Medicine.
(8) The term "board-certified in pathology" means a physician
who holds primary certification in anatomic pathology or clinical
pathology from the American Board of Pathology or the American
Osteopathic Board of Internal Medicine and whose professional
practice:
(A) Is principally in the field of pathology; and
(B) Involves regular evaluation of pathology materials
obtained from surgical or postmortem specimens.
(9) The term "board-certified in pulmonary medicine" means a
physician who is certified in the subspecialty of pulmonary
medicine by the American Board of Internal Medicine or the American
Osteopathic Board of Internal Medicine.
(10) The term "certified B-reader" means an individual
qualified as a "final" or "B-reader" under 42 CFR 37.51(b) as
amended, and whose certification was current at the time of any
reading required by the act.
(11) The term "civil action" means all suits or claims of a
civil nature in a state or federal court, whether cognizable as
cases at law or in equity or in admiralty. The term does not
include an action relating to any workers' compensation law, a
proceeding for benefits under any veterans' benefits program; a
civil action alleging any claim or demand made against a trust
established pursuant to 11 U.S.C. Section 524(9); a civil action
alleging any claim or demand made against a trust established pursuant to a plan of reorganization confirmed under Chapter 11 of
the United States Bankruptcy Code, 11 U.S.C. Chapter 11.
(12) The term "bilateral diffuse pleural thickening" means
radiological evidence of thickening of the visceral pleura
extending up both lateral chest walls in the presence of, and in
continuity with, an obliterated costophrenic angle.
(13) The term "exposed person" means any person whose exposure
to asbestos, asbestos-containing products, silica or
silica-containing products serves as the basis for a claim.
(14) The term "FEV1" means forced expiratory volume in the
first second, which is the maximal volume of air expelled in one
second during performance of simple spirometric tests.
(15) The term "FVC" means forced vital capacity which is the
maximal volume of air expired with maximum effort from a position
of full inspiration.
(16) The term "ILO Scale" means the system for the
classification of chest X rays set forth in the International
Labour Office's Guidelines for the Use of ILO International
Classification of Radiographs of Pneumoconioses (2000) as amended
from time to time by the International Labour Office.
(17) The term "lower limit of normal" means the fifth
percentile of healthy populations based on age, height and gender,
as referenced in the American Medical Association's Guides to the
Evaluation of Permanent Impairment, Fifth Edition, as amended from time to time by the American Medical Association.
(18) The term "lung cancer" means a malignant tumor in which
the primary site of origin of the cancer is inside of the lungs,
but such term does not include an asbestos claim based upon
mesothelioma.
(19) The term "mesothelioma" means a malignant tumor with a
primary site of origin in the pleura or the peritoneum, which has
been diagnosed by a board-certified pathologist, using standardized
and accepted criteria of microscopic morphology and/or appropriate
staining techniques.
(20) The term "nonmalignant condition" means any condition
that is caused or may be caused by asbestos other than a diagnosed
cancer.
(21) The term "nonsmoker" means the exposed person has not
smoked cigarettes or used any other tobacco products within the
last 15 years.
(22) The term "pathological evidence of asbestosis" means a
statement by a board-certified pathologist that more than one
representative section of lung tissue uninvolved with any other
disease process demonstrates a pattern of peribronchiolar or
parenchymal scarring in the presence of characteristic asbestos
bodies and that there is no other more likely explanation for the
presence of the fibrosis.
(23) The term "physical impairment" means:
(A) A nonmalignant asbestos claim that meets the requirements
specified in section four-b of this article;
(B) An asbestos related lung cancer claim that meets the
requirements specified in section four-c of this article;
(C) An asbestos related other cancer claim that meets the
requirements specified in section four-d of this article;
(D) A silicosis claim that meets the requirements specified in
section four-f of this article;
(E) Other silica claims that meet the requirements specified
in section four-g of this article;
(24) The term "plethysmography" means a test for determining
lung volume, also known as "body plethysmography" in which the
subject of the test is enclosed in a chamber that is equipped to
measure pressure flow or volume changes.
(25) The term "predicted lower limit of normal" for any test
means the fifth percentile of healthy populations based on age,
height and gender, as referenced in the AMA Guides to the
Evaluation of Permanent Impairment, Fifth Edition, as amended from
time to time by the American Medical Association.
(26) The term "qualified physician" means a medical or
osteopathic doctor, who:
(A) Is a currently board-certified internist, oncologist,
pathologist, pulmonary specialist, radiologist or specialist in
occupational and environmental medicine as such may be appropriate to the actual diagnosis specialty in question;
(B) Has personally conducted a physical examination of the
exposed person and took, or at his or her supervision, direction
and control had taken a detailed occupational, exposure, medical,
smoking and social history from the exposed person, or if deceased,
from the person most knowledgeable about such histories and
information that forms the basis of the silica or asbestos claim;
(C) Is actually treating or has treated the exposed person,
and has or had a doctor-patient relationship with such person;
(D) Spends no more than ten percent of his or her professional
practice time in providing consulting or expert services in
connection with actual or potential civil actions, and whose
medical group, professional corporation, clinic or other affiliated
group earns not more than twenty percent of their revenues from
providing such services;
(E) Is currently licensed to practice and actively practices
in the state where the plaintiff resides or in West Virginia;
(F) Receives or received payment for the treatment of the
exposed person from that person's health maintenance organization,
other medical provider, from the exposed person or from a member
of the exposed person's family; and
(G) As the basis for his or her diagnosis, has not relied, in
whole or in part, on any of the following: (1) The reports or
opinions of any doctor, clinic, laboratory or testing company that performed an examination, test or screening of the claimant's
medical condition in violation of any law, regulation, licensing
requirement or medical code of practice of any state in which the
examination, test or screening was conducted; (2) the reports or
opinions of any doctor, clinic, laboratory, or testing company that
performed an examination, test or screening of the claimant's
medical condition that was conducted without clearly establishing
a doctor-patient relationship with the claimant or medical
personnel involved in the examination, test or screening process,
or; (3) the reports or opinions of any doctor, clinic, laboratory
or testing company that performed an examination, test or screening
of the claimant's medical condition that required the claimant to
agree to retain the legal services of the law firm sponsoring the
examination, testing or screening.
(27) The term "radiological evidence of asbestosis" means a
quality 1 chest X ray under the ILO System of classification (in
a death case where no pathology is available, the necessary
radiological findings may be made with a quality 2 film) showing
small, irregular opacities (s, t, or u) graded by a certified
B-reader as at least 1/1 on the ILO scale.
(28) The term "radiological evidence of diffuse pleural
thickening" means a quality 1 chest X ray under the ILO System of
classification (in a death case where no pathology is available,
the necessary radiological findings may be made with a quality 2 film) showing bilateral pleural thickening of at least B2 on the
ILO scale and blunting of at least one costophrenic angle as
classified by a certified B-reader.
(29) The term "silica" means a respirable crystalline form of
silicon dioxide, including, but not limited to, quartz,
cristobalite and trydmite.
(30) The term "silica claim" means any claim for damages,
losses, or other civil or equitable relief arising out of, based
on, or related in any way to the health effects of exposure to
silica, including any claim for current or future medical
monitoring and/or surveillance, indemnification or contribution.
"Silica claim" includes a claim made by or on behalf of any person
who has been exposed to silica, or any representative, spouse,
parent, child or other relative of that person, for injury,
including loss of consortium, wrongful death, mental or emotional
injury, risk of disease or other injury, or personal injury. The
term does not include claims for benefits under a workers'
compensation law or veterans' benefits program, or claims brought
by any person as a subrogee by virtue of the payment of benefits
under a workers' compensation law.
(31) The term "silicosis" means: (A) Chronic simple
silicosis, which is a nodular fibrosis of the lungs caused by
inhalation of silica; (B) complicated silicosis (also known as
progressive massive fibrosis); (C) accelerated silicosis; and/or (D) acute silicosis.
(32) The term "smoker" means a person who has smoked
cigarettes or used other tobacco products within the last fifteen
years.
(33) The term "substantial contributing factor" means:
(A) Exposure to asbestos or silica is the predominate cause of
the physical impairment alleged in the claim; and
(B) A qualified physician has determined with a reasonable
degree of medical certainly that the physical impairment of the
exposed person would not have occurred but for the asbestos or
silica exposures.
(34) The term "substantial occupational exposure to asbestos"
means employment for a cumulative period of at least five years in
an industry and an occupation in which, for a substantial portion
of a normal work year for that occupation, the exposed person did
any of the following: (1) Handled raw asbestos fibers; (2)
fabricated asbestos containing products so that the person was
exposed to raw asbestos products in the fabrication process; (3)
altered, repaired or otherwise worked with an asbestos-containing
product in a manner that exposed the person on a regular basis to
asbestos fibers; or (4) worked in close proximity to other workers
engaged in any of the activities described herein in a manner that
exposed the person on a regular basis to asbestos fibers.
(35) The term "substantial occupational exposure to silica" means employment for a cumulative period of at least five years in
an industry and an occupation in which, for a substantial portion
of a normal work year for that occupation, the exposed person did
any of the following:
(A) Handled silica;
(B) Fabricated silica-containing products so that the person
was exposed to silica in the fabrication process;
(C) Altered, repaired, or otherwise worked with a
silica-containing product in a manner that exposed the person on
a regular basis to silica; or
(D) Worked in close proximity to other workers engaged in any
of the activities described in 32 (A), (B) or (C) of this section
in a manner that exposed the person on a regular basis to silica.
(36) The term "total lung capacity" means the volume of gas
contained in the lungs at the end of a maximal inspiration.
(37) The term "veterans benefit program" means any program for
benefits in connection with military service administered by the
Veterans' Administration under title 38, United States Code.
(38) The term "workers' compensation law" means §23-1-1 et
seq., of this code as amended, or any program administered by
another state or the United States to provide benefits, funded by
a responsible employer or its insurance carrier, for occupational
diseases or injuries or for disability or death caused by
occupational diseases or injuries:
Provided, That such term shall not mean nor shall it include any cause of action pending or
hereinafter instituted pursuant to section two, article four,
chapter twenty-three of this code. The term includes the Longshore
and Harbor Workers' Compensation Act (33 U.S.C. 901-944, 948-950),
and chapter 81 of title 5, United States Code (known as the Federal
Employees Compensation Act), but does not include the act of April
22, 1908 (45 U.S.C. 51 et seq.) (popularly referred to as the
"Federal Employers Liability Act").
§55-7E-4. Physical impairment.
(a)
Impairment essential element of claim.-- Physical
impairment of the exposed person, to which asbestos or silica
exposure was a substantial contributing factor, shall be an
essential element of an asbestos or silica claim.
(b)
Prima facie evidence of physical impairment for asbestos-
related nonmalignant disease claims.-- No person shall bring or
maintain a civil action alleging an asbestos claim which is based
upon nonmalignant disease in the absence of a prima facie showing
of physical impairment as a result of a medical condition to which
exposure to asbestos was a substantial contributing factor. Such
a prima facie showing shall include all of the following minimum
requirements:
(1) Evidence verifying that a qualified physician has taken a
detailed occupational and exposure history of the exposed person
from the exposed person or, if such person is deceased, from a person who is most knowledgeable about the exposures that form the
basis of the nonmalignant asbestos claim, including all of the
following:
(A) Identification of all of the exposed person's principal
places of employment and exposures to airborne contaminants; and
(B) Whether each place of employment involved exposures to
airborne contaminants (including, but not limited to, asbestos
fibers or other disease causing dusts) that can cause pulmonary
impairment and/or cancer and the nature, duration and level of any
such exposure.
(2) Evidence verifying that a qualified physician has taken a
detailed medical, social and smoking history, including a thorough
review of the exposed person's past and present medical problems
and their most probable cause.
(3) Evidence sufficient to demonstrate that at least fifteen
years have elapsed between the date of first exposure to asbestos
and the date of diagnosis.
(4) A diagnosis by a qualified physician, on the basis of a
personal medical examination and pulmonary function testing of the
exposed person, that the exposed person has a permanent respiratory
impairment rating of at least Class 2 as defined by and evaluated
pursuant to the AMA Guides to the Evaluation of Permanent
Impairment.
(5) A diagnosis report signed by a qualified physician that the exposed person has asbestosis or evidence of diffuse bilateral
pleural thickening, based at a minimum on the following
radiological or pathological evidence of asbestosis or radiological
evidence of diffuse pleural thickening;
(A) Radiological or pathological evidence of asbestosis
requires:
(i) A radiology report of a quality 1 chest X ray, except as
noted herein, that has been read by a certified B-reader according
to the ILO classification system as showing primarily bilateral
small irregular opacities (shapes, s, t, or u) with a profusion
classification of 1/1 or higher, or
(ii) A pathology report of asbestosis graded 1(B) or higher
under the criteria published in "Asbestos-Associated Disease,"
Special issue
Archives of Pathology and Laboratory Medicine, Volume
10C, Number 11, Appendix 3 (October 8, 1982), as amended from time
to time.
(B) Radiological evidence of diffuse pleural thickening
requires a radiology report of a quality 1 chest X ray, except as
noted herein, that has been read by a certified B-reader according
to the ILO classification system as showing evidence of thickening
of the visceral pleura extending up the lateral chest walls graded
B2 or higher in the presence of, and in continuity with, an
obliterated costophrenic angle.
(6) A determination by a qualified physician that asbestosis or diffuse bilateral pleural thickening (rather than chronic
obstructive pulmonary disease) is a substantial contributing factor
to the exposed person's physical impairment, based at a minimum on
a determination that the exposed person has:
(A) Total lung capacity, by plethysmography or timed gas
dilution, below the predicted lower limit of normal; and
(B) Forced vital capacity below the lower limit of normal and
a ratio of FEV1 to FVC (actual values) that is equal to or greater
than the predicted lower limit of normal; or
(C) In lieu of 6(A) and 6(B), a radiology report of a quality
1 chest X ray that has been read by a certified B-reader according
to the ILO classification system as showing bilateral small
irregular opacities (shape s, t, or u) with a profusion
classification of 2/1 or higher in conjunction with the conclusion
of a qualified physician that the exposed person's medical findings
and impairment as demonstrated to and verified by the physician
were not more probably the result of a condition other than
asbestos exposure as revealed by the exposed person's employment,
social and medical history.
(7) A medical opinion by a qualified physician that the
exposed person's medical findings and impairment were not more
probably the result of causes other than the asbestos exposure
revealed by the exposed person's employment and medical history.
An opinion which states that the medical findings and impairment are "consistent with" or "compatible with" exposure to asbestos
does not meet the requirements of this subsection.
(8) Verifies that the exposed person has pulmonary impairment
as related to asbestos as demonstrated by pulmonary function
testing performed using equipment, methods of calibration and
techniques that meet the criteria incorporated in the AMA's Guides
to the Evaluation of Permanent Impairment, Fifth Edition, as
amended from time to time and the interpretative standards of the
American Thoracic Society, "Lung Function Testing: Selection of
Reference Values and Interpretive Strategies" as amended from time
to time."
(9) Verifies that the doctor signing the detailed narrative
medical report and diagnosis has concluded that exposure to
asbestos was a substantial contributing factor to the exposed
person's medical condition and physical impairment and that they
were not more probably the result of other causes revealed by the
exposed person's employment, social, smoking and medical histories.
(10) Copies of the B-readings, the pulmonary function tests,
including production of the flow volume loops and all other
elements required to demonstrate compliance with the equipment,
quality, interpretation and reporting standards set forth herein,
and the diagnosing physician's detailed narrative shall be attached
to any complaint alleging a nonmalignant asbestos-related
condition. All such reports, as well as other evidence used to establish prima-facie evidence of impairment, must meet objective
standards and criteria of generally accepted medical standards and
must not be obtained through testing or examinations that violate
any applicable laws, regulations, licensing requirements or medical
code of practice. Failure to attach such reports will result in
the dismissal of the claim or action without prejudice, upon notice
of any party.
(c)
Prima facie evidence of physical impairment for asbestos-
related lung cancer claims.-- No person shall bring or maintain a
civil action alleging an asbestos claim which is based upon lung
cancer, in the absence of a prima-facie showing which shall include
all of the following minimum requirements:
(1) A signed verified diagnostic report by a qualified
physician who is board-certified in pathology, pulmonary medicine
or oncology stating a diagnosis of the exposed person of a primary
lung cancer and that exposure to asbestos was a substantial
contributing factor to the condition; provided, if the diagnosis
is by a qualified physician who is board-certified in pulmonary
medicine, there is also a pathological diagnosis of the primary
lung cancer on which such pathological diagnosis the pulmonary
physician relied;
(2) Evidence sufficient to demonstrate that at least fifteen
years have elapsed between the date of first exposure to asbestos
and the date of diagnosis of the lung cancer.
(3) Depending on whether the exposed person has a history of
smoking, the requirements of either (A) or (B) below:
(A) In the case of an exposed person who is a nonsmoker,
either:
(i) Radiological evidence of asbestosis or diffuse bilateral
pleural thickening from a qualified physician's diagnosis of
asbestosis based on a chest X ray graded by a certified B-reader
as at least 1/0 on the ILO scale; or pathological evidence of
asbestosis; or
(ii) Evidence of the exposed person's substantial occupational
exposure to asbestos.
(B) In the case of an exposed person who is a smoker, the
criteria contained in both subparagraphs (i) and (ii), paragraph
(A) must be met.
(C) If the exposed person is deceased, the qualified physician
may obtain the evidence required in subparagraph (ii), paragraph
(A), subdivisions (2) and (3), subsection (c) from the person most
knowledgeable about the alleged exposures that form the basis of
the asbestos claim.
(4) A conclusion by a qualified physician that the exposed
person's medical findings and impairment were not more probably the
result of causes other than the asbestos exposure revealed by the
exposed person's employment and medical history. A conclusion that
the medical findings and impairment are "consistent with" or "compatible with" exposure to asbestos does not meet the
requirements of this subsection.
(d)
Prima facie evidence of asbestos-related other cancer
claims.-- No person shall bring or maintain a civil action alleging
an asbestos claim which is based upon cancer of the colon, rectum,
larynx, pharynx, esophagus or stomach, in the absence of a prima
facie showing which shall include all of the following minimum
requirements:
(1) A diagnosis by a qualified physician who is
board-certified in pathology, oncology, gastroenterology or
otolaryngology (as appropriate for the type of cancer claimed) of
primary cancer of the colon, rectum, larynx, pharynx or esophagus
and that exposure to asbestos was a substantial contributing factor
to the condition;
(2) Evidence sufficient to demonstrate that at least fifteen
years have elapsed between the date of first exposure to asbestos
and the date of diagnosis of the cancer.
(3) The requirements of either (A) or (B) below:
(A) Radiological evidence of asbestosis from a qualified
physician's diagnosis of asbestosis based on a chest X ray graded
by a certified B-reader as at least 1/0 on the ILO scale or
pathological evidence of asbestosis;
(B) Evidence of the exposed person's substantial occupational
exposure to asbestos.
(4) A conclusion by a qualified physician that the exposed
person's medical findings and impairment were not more probably the
result of causes other than the asbestos exposure revealed by the
exposed person's employment and medical history. A conclusion that
the medical findings and impairment are "consistent with" or
"compatible with" exposure to asbestos does not meet the
requirements of this subsection.
(e)
Prima facie evidence of physical impairment for asbestos-
related malignant mesothelioma claims.-- No person shall bring or
maintain a civil action alleging an asbestos claim which is based
mesothelioma in the absence of a prima facie showing of physical
impairment as a result of a medical condition to which exposure to
asbestos was a substantial contributing factor. Such a prima facie
showing shall include all of the following minimum requirements:
(1) A report by a qualified physician who is board-certified
in pathology, pulmonary medicine or oncology stating a diagnosis
of the exposed person of a malignant pleural, peritoneal or
pericardial mesothelioma and that exposure to asbestos was a
substantial contributing factor to the condition, provided, if the
diagnosis is by a qualified physician who is board certified in
pulmonary medicine, there is also a pathological diagnosis of
mesothelioma on which such pathological diagnosis the pulmonary
doctor relied.
(2) Evidence that sets out the details of the occupational exposure and medical history that includes a thorough review of
claimant's past and present medical problems, and their most
probable cause, and verifies that at least fifteen years have
elapsed between the claimant's first exposure to asbestos and the
time of diagnosis, and to a reasonable degree of medical
probability, exposure to asbestos was a substantial contributing
factor in causing the diagnosed mesothelioma.
(3) Credible evidence of identifiable exposure to asbestos
resulting from: (a) Occupational exposure to asbestos; (b)
exposure to asbestos fibers brought into the home of exposed person
by a worker occupationally exposed to asbestos; or (c) exposure to
asbestos fibers resulting from living or working in the proximate
vicinity of a factory, shipyard, building demolition site or other
operation that regularly released asbestos fibers into the air due
to operations involving asbestos at the site.
(f)
Prima facie evidence of physical impairment for silicosis
claims.-- No person shall bring or maintain a civil action alleging
a silicosis claim in the absence of a prima facie showing of
physical impairment as a result of a medical condition to which
exposure to silica was a substantial contributing factor. Such a
prima facie showing shall include all of the following minimum
requirements:
(1) Evidence verifying that a qualified physician has taken a
detailed occupational and exposure history of the exposed person from the exposed person or, if such person is deceased, from a
person who is most knowledgeable about the exposures that form the
basis of the silicosis claim, including all of the following:
(A) Identification of all of the exposed person's principal
places of employment and exposures to airborne contaminants; and
(B) Whether each place of employment involved exposures to
airborne contaminants (including, but not limited to, silica
particles or other disease causing dusts) that can cause pulmonary
impairment or cancer and the nature, duration and level of any such
exposure.
(2) Evidence verifying that a qualified physician has taken
detailed medical, social and smoking history, including a thorough
review of the exposed person's past and present medical problems
and their most probable cause, and verifying a sufficient latency
period for the applicable stage of silicosis.
(3) A diagnosis by a qualified physician, on the basis of a
personal medical examination and pulmonary function testing of the
exposed person, that the exposed person has a permanent respiratory
impairment rating of at least Class 2 as defined by and evaluated
pursuant to the AMA Guides to the Evaluation of Permanent
Impairment.
(4) A verified diagnostic report signed by a qualified
physician that the exposed person has silicosis based at a minimum
on the following radiological or pathological evidence of silicosis:
(A) A quality 1 chest X ray, except as noted herein, under the
ILO System of classification and that the X ray has been read by
a certified B-reader as showing, according to the ILO System of
classification, predominantly bilateral nodular opacities (p, q,
or r) occurring primarily in the upper lung fields, graded 1/1 or
higher; or
(B) A quality 1 chest X ray, except as noted herein, under the
ILO System of classification, and that the X ray has been read by
a certified B-reader as showing, according to the ILO System of
classification, A, B or C sized opacities representing complicated
silicosis (also known as progressive massive fibrosis);
(C) A pathological demonstration of classic silicotic nodules
exceeding one centimeter in diameter as published in 112
Archive
of Pathology and Laboratory Medicine 7 (July 1988); or
(D) Acute silicosis.
(5) A conclusion by a qualified physician that the exposed
person's medical findings and impairment were not more probably the
result of causes other than silica exposure revealed by the exposed
person's employment and medical history. A conclusion that the
medical findings and impairment are "consistent with" or
"compatible with" exposure to silica does not meet the requirements
of this subsection.
(g)
Prima facie evidence of physical impairment for other silica-related claims.-- No person shall bring or maintain a civil
action alleging any silica claim other than as provided in
subsection (f) above in the absence of a prima facie showing which
shall include the following minimum requirements:
(1) A report by a qualified physician who is board-certified
in pulmonary medicine, oncology or pathology stating a diagnosis
of the exposed person of silica-related lung cancer and stating
that, to a reasonable degree of medical probability, exposure to
silica was a substantial contributing factor to the diagnosed lung
cancer, provided, if the diagnosis is by a qualified physician who
is board-certified in pulmonary medicine, there shall also be a
diagnosis of lung cancer;
(2) Evidence verifying that a qualified physician, has taken
a detailed occupational and exposure history of the exposed person
or, if such person is deceased, from a person who is knowledgeable
about the exposures that form the basis of the other silica-related
claim, including:
(A) Identification of all of the exposed person's principal
places of employment and exposures to airborne contaminants; and
(B) Whether each place of employment involved exposures to
airborne contaminants (including, but not limited to, silica
particles or other disease causing dusts) that can cause pulmonary
impairment and the nature, duration and level of any such exposure.
(3) Evidence verifying that a qualified physician has taken detailed medical and smoking history, including a thorough review
of the exposed person's past and present medical problems and their
most probable cause;
(4) Verification that at least fifteen years have elapsed from
the date of the exposed person's first exposure to silica until the
date of diagnosis of the exposed person's primary lung cancer;
(5) Evidence of the exposed person's substantial occupational
exposure to silica;
(6) A determination by a qualified physician that the exposed
person has:
(A) A quality 1 chest X ray, except as noted herein, under the
ILO System of classification and that the X ray has been read by
a certified B-reader as showing, according to the ILO System of
classification, predominantly bilateral nodular opacities (p, q,
or r) occurring primarily in the upper lung fields, graded 1/1 or
higher; or
(B) A quality 1 chest X ray, except as noted herein, under the
ILO System of classification, and that the X ray has been read by
a certified B-reader as showing, according to the ILO System of
classification, A, B or C sized opacities representing complicated
silicosis (also known as progressive massive fibrosis); or
(C) Pathological demonstration of classic silicotic nodules
exceeding one centimeter in diameter as published in 112
Archive
of Pathology and Laboratory Medicine 7 (July 1988);
(7) A conclusion by a qualified physician that the exposed
person's medical findings and impairment were not more probably the
result of causes other than silica exposure revealed by the exposed
person's employment and medical history. A conclusion that the
medical findings and impairment are "consistent with" or
"compatible with" exposure to silica does not meet the requirements
of this subsection.
(h)
Compliance with technical standards.-- Evidence relating
to physical impairment under this section, including pulmonary
function testing and diffusing studies, shall:
(1) Comply with the technical recommendations for
examinations, testing procedures, quality assurance, quality
control and equipment of the AMA Guides to the Evaluation of
Permanent Impairment, as set forth in 2d C.F.R. Pt, 404, Subpt. P.
Appl., Part A, Sec. 3.00 E. and F., and the interpretive standards,
set forth in the official statement of the American Thoracic
Society entitled "lung function testing: Selection of reference
values and interpretive strategies" as published in American Review
of Respiratory Disease. 1991: 144:1202-1218;
(2) Not be obtained through testing or examinations that
violate any applicable law, regulation, licensing requirement or
medical code of practice; and
(3) Not be obtained under the condition that the exposed
person retain legal services in exchange for the examination, test or screening.
(i)
No presumption at trial.-- Presentation of prima facie
evidence meeting the requirements of subsection (b), (c), (d), (f)
or (g) of this section shall not:
(1) Result in any presumption at trial that the exposed person
is impaired by an asbestos or silica related condition;
(2) Be conclusive as to the liability of any defendant;
(3) Be admissible at trial;
(4) Result in an instruction by the court to the jury with
respect to the court's decision as to the prima facie showing, and
no counsel for any party, nor any witness shall inform the jury or
potential jurors of any such showing, subject to appropriate
sanctions.
§55-7E-5. Procedures.
(a) Preliminary proceedings.--
(1) The plaintiff in any civil action alleging an asbestos or
silica claim shall file together with the complaint or other
initial pleading a written report and supporting test results
constituting prima facie evidence of the exposed person's asbestos
or silica related physical impairment meeting the requirements of
subsection (b), (c), (d), (e), (f) or (g) of section four of this
article, as appropriate. For any asbestos or silica claim pending
on the effective date of this article, the plaintiff shall file
such a written report and supporting test results no later than sixty days following the effective date, or no later than thirty
days prior to the commencement of trial, whichever is earlier,
which period may be extended for good cause shown. The defendant
shall be afforded a reasonable opportunity to challenge the
adequacy of the proffered prima facie evidence of asbestos-related
or silica-related impairment, provided that for any asbestos or
silica claim pending on the effective date of this article, the
defendant shall be afforded a reasonable opportunity to challenge
the adequacy of the certificate prior to the commencement of the
trial.
(2) If the defendant elects to challenge the adequacy of the
report as provided in subdivision (1) of this subsection, the court
shall proceed to determine whether the report meets the minimum
requirements of subdivision (b), (c), (d), (e), (f) or (g) of
section four of this article, as appropriate. Upon a finding that
the report is insufficient:
(i) The court shall place the asbestos or silica claim pending
on the effective date of this article on an inactive docket and
maintain jurisdiction over such claim:
Provided, That the death
of exposed person shall be grounds to reinstate the claim to the
active docket. Any plaintiff whose claim has been placed on an
inactive docket under this subsection may move to reinstate the
claim by filing a motion accompanied by a report meeting the
requirements of subsection (b), (c), (d), (e), (f) or (g) of section four of this article, as appropriate; or
(ii) The court shall dismiss without prejudice an asbestos or
silica claim that was filed on or after the effective date of this
article. Any claimant whose claim is dismissed under this paragraph
may refile the claim accompanied by a report meeting the
requirements of subsection (b), (c), (d), (e), (f) or (g) of
section four of this article, as appropriate. A claimant may
voluntarily dismiss a presently pending case without prejudice if
there is no evidence of impairment.
(b)
General rules applicable to new filings.--
(1) All asbestos claims and silica claims filed in this state
on or after the effective date of this article shall include (in
addition to the written report described in subsection (4) and the
information required by subsection 5(a) herein) a sworn information
form containing the following information:
(i) The claimant's name, address, date of birth, social
security number and marital status;
(ii) If the claimant alleges exposure to asbestos or silica
through the testimony of another person or other than by direct or
bystander exposure to a product(s), the name, address, date of
birth, social security number, marital status, for each person by
which the claimant alleges exposure (hereinafter the "index
person") and the claimant's relationship to each person;
(iii) The specific location of each alleged exposure;
(iv) The beginning and ending dates of each alleged exposure
as to each asbestos product or silica product for each location at
which exposure allegedly took place for the plaintiff and each
index person;
(v) The occupation and name of the employer of the exposed
person at the time of each alleged exposure;
(vi) The specific condition related to asbestos or silica
claimed to exist;
(vii) Any supporting documentation of the condition claimed to
exist; and
(viii) All asbestos and silica claims along with the sworn
information must be individually filed in separate civil actions
except that claims relating to the exposure to asbestos or silica
for the same exposed person whose alleged injury is the basis of
the civil action may be joined in a single action. Otherwise, no
claim on behalf of a group shall be joined and filed in a single
action.
(2) No discovery shall be conducted until such time as the
court enters an order determining that the claimant has established
a prima facie case of physical impairment; except for discovery
that relates to the establishment or challenge of the prima facie
evidence or by the order of the court for good cause shown.
§55-7E-6. Statute of limitations; two-disease rule.
(a)
Statute of limitations.-- Notwithstanding any other provision of law, with respect to any asbestos or silica claim not
time-barred as of the effective date of this article, the
limitations period shall not begin to run until the exposed person
discovers, or through the exercise of reasonable diligence should
have discovered, a physical impairment (as defined by this article)
caused by exposure to asbestos or silica. A claim based on a
nonmalignant condition that is filed before the cause of action for
a bodily injury pursuant to that section arises is preserved for
purposes of the period of limitations.
(b)
Two-disease rule.-- An asbestos or silica claim arising
out of a nonmalignant condition shall be a distinct cause of action
from an asbestos or silica claim relating to the same exposed
person arising out of asbestos or silica related cancer. No
damages shall be awarded for fear or risk of cancer in any civil
action asserting an asbestos or silica claim for an alleged
nonmalignant condition.
(c)
General releases from liability prohibited.-- No
settlement of a nonmalignant asbestos or silica claim concluded
after the date of enactment shall require, as a condition of
settlement, release of any future claim for asbestos or silica
related cancer.
§55-7E-7. Consolidation.
(a) The Legislature finds that defendants are often forced to
settle unmeritorious claims because they know that they will face trial where the claim of one plaintiff who is truly sick is bundled
(or consolidated) with numerous claims from plaintiffs who may not
be sick. Plaintiffs' attorneys will often refuse to settle serious
claims unless their inventory of unimpaired claimants are also
settled. Federal courts have noted that when the claims of
numerous plaintiffs with dissimilar alleged injuries and factual
situations are tried together, "the maelstrom of facts, figures and
witnesses" is likely to lead to jury confusion and an unfair trial.
(Malcolm v. National Gypsum Co., 995 F.2d 346, 352 (2d Cir. 1993))
(b) The Legislature of West Virginia acknowledges the Supreme
Court's authority in prescribing rules governing practice and
procedure in the courts of this state, as provided by Section 3,
Article VIII of the West Virginia Constitution.
(c) The Legislature of West Virginia hereby requests the
Supreme Court to adopt rules to specify procedures for
consolidation of asbestos or silica claims, brought pursuant to the
provisions of this article.
(d) With respect to procedures for consolidation of asbestos
or silica claims, the Legislature of West Virginia hereby requests
the Supreme Court to adopt a rule that permits consolidation of
asbestos or silica claims for trial only with the consent of all
parties, or permits a court to consolidate for trial only those
asbestos or silica claims that relate to the same exposed person
and members of the exposed person's household.
55-7E-8. Effective date.
This article shall be effective on the date of the enactment
of this article and apply to any civil action asserting an asbestos
or silica claim in which trial has not commenced as of the date of
the enactment of this article.
§55-7E-9. Severability.
If any provision of this article is held invalid, such
invalidity shall not affect the other provisions or applications
of this article, and to this end, any such provision is deemed
severable.
§55-7E-10. Miscellaneous provisions.
Construction with other laws.--
This article shall not be construed to affect the scope or
operation of any workers' compensation law or veterans' benefit
program, to affect the exclusive remedy or subrogation provisions
of any such law, or to authorize any lawsuit which is barred by any
such provision of law.
Note: The purpose of this bill is to limit certain asbestos
claims, provide for the fair and efficient judicial consideration
of personal injury and wrongful death claims arising out of
asbestos or silica exposure, to ensure that individuals who suffer
impairment, now or in the future, from illnesses caused by exposure
to asbestos or silica, receive compensation for their injuries, and
for other purposes.
§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 are new; therefore
strike-throughs and underscoring have been omitted.