H.R. 1737 (108th): Asbestos Victims’ Compensation Act of 2003

108th Congress, 2003–2004. Text as of Apr 10, 2003 (Introduced).

Status & Summary | PDF | Source: GPO

HR 1737 IH

108th CONGRESS

1st Session

H. R. 1737

To provide for the fair and efficient judicial consideration of personal injury and wrongful death claims arising out of asbestos exposure, to ensure that individuals who suffer harm, now or in the future, from illnesses caused by exposure to asbestos receive compensation for their injuries, and for other purposes.

IN THE HOUSE OF REPRESENTATIVES

April 10, 2003

Mr. DOOLEY of California (for himself, Mr. MORAN of Virginia, Mr. SMITH of Washington, Mr. LARSON of Connecticut, Mr. DAVIS of Alabama, Mr. LARSEN of Washington, and Mr. STENHOLM) introduced the following bill; which was referred to the Committee on the Judiciary


A BILL

To provide for the fair and efficient judicial consideration of personal injury and wrongful death claims arising out of asbestos exposure, to ensure that individuals who suffer harm, now or in the future, from illnesses caused by exposure to asbestos receive compensation for their injuries, and for other purposes.

    Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

SECTION 1. SHORT TITLE; TABLE OF CONTENTS.

    (a) SHORT TITLE- This Act may be cited as the ‘Asbestos Victims’ Compensation Act of 2003’.

    (b) TABLE OF CONTENTS- The table of contents for this Act is as follows:

      Sec. 1. Short title; table of contents.

      Sec. 2. Findings and purposes.

      Sec. 3. Definitions.

      Sec. 4. Physical impairment.

      Sec. 5. Consolidation.

      Sec. 6. Venue.

      Sec. 7. Removal.

      Sec. 8. Limitations; two-disease rule; general releases.

      Sec. 9. Miscellaneous provisions.

      Sec. 10. Effective date.

SEC. 2. FINDINGS AND PURPOSES.

    (a) FINDINGS- The Congress finds that--

      (1) asbestos is a mineral that was widely used prior to the 1980s for insulation, fire-proofing, and other purposes;

      (2) millions of American workers and others were significantly exposed to asbestos, especially during and after the Second World War and prior to the advent of regulation by the Occupational Safety and Health Administration in the early 1970s;

      (3) exposure to asbestos has been associated with various types of cancer, including mesothelioma and lung cancer, as well as such noncancerous conditions as asbestosis, pleural plaques, and diffuse pleural thickening;

      (4) the diseases caused by asbestos have latency periods of up to 40 years or more;

      (5) although the use of asbestos has dramatically declined since 1980 and workplace exposures have been regulated since 1971 by the Occupational Safety and Health Administration, past exposures will continue to result in significant death and disability from mesothelioma and other cancers well into the 21st Century;

      (6) exposure to asbestos has led to the filing of at least 600,000 asbestos claims in State and Federal courts, with 50,000 to 100,000 new cases filed each year, and, if nothing is done to control the litigation, as many as 2,000,000 additional claims may be filed before the litigation runs its course;

      (7) asbestos personal injury litigation can be unfair and inefficient, imposing a severe burden on courts, litigants and taxpayers alike;

      (8) asbestos personal injury litigation has already contributed to the bankruptcy of more than 60 companies, including nearly all manufacturers of asbestos textile and insulation products, and the rate of asbestos-driven bankruptcies is accelerating;

      (9) the vast majority of asbestos claims are filed by individuals who have been exposed to asbestos and who may have some physical sign of exposure, but who suffer no present asbestos-related impairment;

      (10) the cost of compensating exposed individuals who are not sick--

        (A) jeopardizes the ability of defendants to compensate people with cancer and other serious asbestos-related diseases, now and in the future;

        (B) threatens the savings, retirement benefits, and jobs of these defendants’ current and retired employees;

        (C) adversely affects the communities in which these defendants operate; and

        (D) impairs the national economy and interstate commerce;

      (11) the several thousand asbestos-related cancer cases that are filed each year would be manageable by the courts and the litigants but for the volume of noncancer claims brought by those who suffer no present asbestos-related impairment;

      (12) concerns about statutes of limitations can force claimants who have been exposed to asbestos 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;

      (13) consolidation, joinder, and similar procedures, to which some courts have resorted to deal with the mass of asbestos cases, can undermine the appropriate functioning of the judicial process and encourage the filing of thousands of cases by exposed individuals who are not yet sick and who may never become sick;

      (14) similarly, the availability of sympathetic forums in States with no connection to the plaintiff or to the exposures that form the basis of the lawsuit has encouraged the filing of thousands of cases on behalf of exposed individuals who are not yet sick and may never become sick; and

      (15) the United States Supreme Court has characterized asbestos cases as ‘an elephantine mass’ that ‘defies customary judicial administration and calls for national legislation’, Ortiz v. Fibreboard Corporation, 119 S. Ct. 2295, 2302 (1999), and has reaffirmed its call for national legislation in Norfolk & Western Railway. Co. v. Ayers, No. 01-963 (decided March 10, 2003).

    (b) PURPOSES- The purposes of this Act are--

      (1) to give priority to those asbestos claimants who can demonstrate actual physical harm or illness caused by asbestos;

      (2) to fully preserve the rights of claimants who were exposed to asbestos to pursue compensation should they become sick in the future;

      (3) to enhance the ability of the State and Federal judicial systems to supervise and control asbestos litigation and asbestos-related bankruptcy proceedings; and

      (4) to conserve the scarce resources of the defendants, and marshal assets in bankruptcy, to allow compensation of cancer victims and others who are physically harmed by exposure to asbestos while securing the right to similar compensation for those who may suffer cancer or other physical harm in the future.

SEC. 3. DEFINITIONS.

    In this Act:

      (1) AMA GUIDES TO THE EVALUATION OF PERMANENT IMPAIRMENT- 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).

      (2) ASBESTOS- The term ‘asbestos’ includes all minerals defined as ‘asbestos’ in 29 C.F.R. 1910 as amended from time to time.

      (3) ASBESTOS CLAIM- The term ‘asbestos claim’ means any claim for damages or other relief presented in a civil action or bankruptcy proceeding, arising out of, based on, or related to the health effects of exposure to asbestos, including loss of consortium, wrongful death, and any derivative claim made by or on behalf of any exposed person or any representative, spouse, parent, child or other relative of any exposed person. 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) ASBESTOSIS- The term ‘asbestosis’ means bilateral diffuse interstitial fibrosis of the lungs caused by inhalation of asbestos fibers.

      (5) CANCER CLAIM- The term ‘cancer claim’ means an asbestos claim that is based upon the exposed person’s diagnosed cancer.

      (6) CERTIFIED B-READER- The term ‘certified B-reader’ means an individual qualified as a ‘final’ or ‘B-reader’ under 42 C.F.R. 37.51(b) as amended from time to time.

      (7) CIVIL ACTION- The term ‘civil action’ means all suits of a civil nature in State or Federal court, whether cognizable as cases at law or in equity or in admiralty, but does not include an action relating to any workers’ compensation law, or a proceeding for benefits under any veterans’ benefits program.

      (8) EXPOSED PERSON- The term ‘exposed person’ means any person whose exposure to asbestos or to asbestos-containing products is the basis for an asbestos claim.

      (9) FEV1- The term ‘FEV1’ means forced expiratory volume in the first second, which is the maximal volume of air that can be expired from a full inspiration in one second.

      (10) FVC- The term ‘FVC’ means forced vital capacity, which is the maximal volume of air expired with maximum effort from a position of full inspiration.

      (11) ILO SCALE- The term ‘ILO Scale’ means the system for the classification of chest x-rays set forth in the International Labour Office’s Guidelines for the Use of ILO International Classification of Radiographs of Pneumoconioses (1980) as amended from time to time by the International Labour Office.

      (12) NONMALIGNANT CLAIM- The term ‘nonmalignant claim’ means an asbestos claim that is based upon a condition of the exposed person that is caused or may be caused by asbestos other than a diagnosed cancer.

      (13) PREDICTED LOWER LIMIT OF NORMAL- The term ‘predicted lower limit of normal’ for any test means the fifth percentile of healthy populations based on age, height, and gender, based on an appropriate reference population.

      (14) PULMONARY FUNCTION TESTING- The term ‘pulmonary function testing’ means spirometry, lung volume tests, diffusing capacity tests, and arterial gas tests.

      (15) STATE- The term ‘State’ means any State of the United States, the District of Columbia, Commonwealth of Puerto Rico, the Northern Mariana Islands, the Virgin Islands, Guam, American Samoa, and any other territory or possession of the United States or any political subdivision of any of the foregoing.

      (16) TLC- The term ‘TLC’ means total lung capacity, which is the volume of air in the lungs after maximal inspiration as measured by plethysmography or timed gas dilution.

      (17) VETERANS’ BENEFITS PROGRAM- 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.

      (18) WORKERS’ COMPENSATION LAW- The term ‘workers’ compensation law’ means a law respecting a program administered by a 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’).

SEC. 4. PHYSICAL IMPAIRMENT.

    (a) IMPAIRMENT ESSENTIAL ELEMENT OF CLAIM- Physical impairment of the exposed person, to which asbestos exposure was a substantial contributing factor, shall be an essential element of an asbestos claim. For purposes of this section, cancer shall satisfy the requirement for physical impairment.

    (b) MEDICAL REPORT AND DIAGNOSIS: FILING- The plaintiff in any civil action involving an asbestos claim shall file, together with the complaint or other initial pleading, a narrative medical report and diagnosis, signed by a diagnosing doctor, that meets the requirements of this section. In any civil action involving an asbestos claim that is pending on the effective date of this Act, the plaintiff shall file a narrative medical report and diagnosis within 60 days following such effective date but in no event later that 30 days prior to trial. The plaintiff’s claim shall be dismissed without prejudice if a medical report and diagnosis fail to substantially meet the requirements of this section or are not timely filed.

    (c) MEDICAL REPORT AND DIAGNOSIS: CONTENTS- The medical report and diagnosis filed under this section shall contain each of the following:

      (1) An employment and exposure history, which shall include all of the principal employments and exposures of the exposed person to airborne contaminants and shall state whether each such employment involved exposure to airborne contaminants (including but not limited to asbestos) that can cause pulmonary impairment, and the nature, duration, and level of any such exposure. The employment and exposure history shall be obtained from the exposed person or, if that person is deceased or otherwise unable to provide the required information, from the person or persons most knowledgeable about the exposed person’s employment or exposures. The diagnosing doctor shall certify that the employment and exposure history was taken by the diagnosing doctor, or a medical professional employed by and under the direct supervision and control of the diagnosing doctor.

      (2) A detailed medical and smoking history, which shall include a thorough review of the exposed person’s past and present medical conditions and their most probable cause and full information regarding the exposed person’s history of smoking of tobacco products. The diagnosing doctor shall certify that the medical and smoking history was taken by the diagnosing doctor, or a medical professional employed by and under the direct supervision and control of the diagnosing doctor.

      (3) Certification that, in the opinion of the diagnosing doctor, at least 15 years have elapsed between the exposed person’s first exposure to asbestos and the time of diagnosis.

      (4) Certification that--

        (A) in the opinion of a certified B-reader, the exposed person’s chest x-ray shows either--

          (i) bilateral small irregular opacities (s, t, or u) graded 1/0 or higher on the ILO scale; or

          (ii) bilateral diffuse pleural thickening graded b2 or higher on the ILO scale and including blunting of at least one costophrenic angle; or

        (B) in the opinion of a board-certified pathologist, the exposed person has pathological evidence of asbestosis graded 1(B) or higher according to criteria published in Asbestos-Associated Diseases, Special Issue of the Archives of Pathology and Laboratory Medicine, Volume 106, Number 11, Appendix 3 (October 8, 1982).

      (5)(A) Certification that the exposed person has asbestos-related pulmonary impairment as demonstrated by pulmonary function testing that shows--

        (i) FVC below the predicted lower limit of normal and FEV1/FVC (using actual values) at or above the predicted lower limit of normal; or

        (ii) TLC below the predicted lower limit of normal.

      (B) Notwithstanding subparagraph (A), where pulmonary function test results do not meet the requirement of such subparagraph, a claimant may submit an additional report, by a board-certified pulmonologist, internist, or occupational physician, that states that the doctor providing the report has a doctor/patient relationship with the exposed person, that the exposed person has a chest x-ray meeting the requirements of this Act which in the opinion of a certified B-reader shows bilateral small irregular opacities (s, t, or u) graded 2/1 or higher on the ILO scale, and that the exposed person has restrictive impairment from asbestosis. The additional report shall set forth in detail the specific pulmonary function test findings that the doctor relies upon to establish that the claimant has restrictive impairment and shall

include the reports and readouts from all pulmonary function or other testing upon which the report is based.

      (6) A statement that the diagnosing doctor has concluded the exposed person’s respiratory impairment is not more probably the result of causes other than exposure to asbestosis.

      (7) Copies of the B-reader’s report and the results of pulmonary function tests (including printouts of flow volume loops and all other elements necessary to demonstrate compliance with the technical standards required by this section).

    (d) COMPLIANCE WITH TECHNICAL STANDARDS- The technical standards required by this section are as follows:

      (1) Chest x-rays shall be administered in accordance with all applicable State and Federal regulatory requirements and shall be quality 1 unless the exposed person is deceased and tissue is unavailable for pathological analysis, in which case the chest x-ray may be quality 2.

      (2) Pulmonary function testing shall be performed using equipment, methods of calibration, and technique that meet the criteria incorporated in the AMA Guides to the Evaluation of Permanent Impairment and reported as set forth in 20 C.F.R. 404, Subpt. P, App.1, Part (A) section 3.00 (E) and (F), and the interpretative standards set forth in the Official Statement of the American Thoracic Society titled ‘Lung Function Testing: Selection of Reference Values and Interpretative Strategies’ as published in the American Review of Respiratory Diseases 1991: 144: 1202-1218. No adjustments with respect to the interpretation of pulmonary function testing shall be made on the basis of race.

    (e) NO PRESUMPTION AT TRIAL- Submission of a medical report and diagnosis meeting the requirements of this section shall not result in any presumption at trial that the exposed person is impaired by an asbestos-related condition, and evidence that such a report was submitted shall not be admissible at trial.

    (f) APPLICABILITY- This section shall govern the substantive rule of decision, regardless of forum.

SEC. 5. CONSOLIDATION.

    Unless all parties otherwise consent, a court may not consolidate for trial--

      (1) asbestos claims relating to more than 20 different exposed persons; and

      (2) a nonmalignant claim relating to one exposed person with a cancer claim relating to another exposed person.

SEC. 6. VENUE.

    A civil action asserting a nonmalignant claim may only be brought in the State of plaintiff’s domicile or a State in which there occurred exposure to asbestos that is a substantial contributing factor to the physical impairment on which the claim is based. This section does not affect venue for civil actions asserting a cancer claim, which shall be governed by otherwise applicable State or Federal law.

SEC. 7. REMOVAL.

    (a) IN GENERAL- Any party in a civil action involving an asbestos claim may remove such action to a district court of the United States in accordance with chapter 89 of title 28, United States Code. A civil action may be removed to the district court of the United States in accordance with this subsection by any defendant without the consent of all defendants.

    (b) REMAND- The district court shall remand any civil action removed solely under subsection (a) if it finds that the plaintiffs substantially met the requirements of section 4.

SEC. 8. LIMITATIONS; TWO-DISEASE RULE; GENERAL RELEASES.

    (a) STATUTE OF LIMITATIONS- Notwithstanding any other provision of law, with respect to any nonmalignant asbestos claim not barred as of the effective date of this Act, the limitations period on an asbestos claim shall not commence as a result of a purported diagnosis or finding of a nonmalignant condition related to asbestos that does not meet the substantive criteria in section 4.

    (b) TWO-DISEASE RULE- An asbestos claim arising out of a nonmalignant condition shall be a distinct cause of action from an asbestos claim relating to the same exposed person arising out of asbestos-related cancer. No damages shall be awarded for fear or risk of cancer in any civil action asserting only a nonmalignant asbestos claim.

    (c) GENERAL RELEASES FROM LIABILITY PROHIBITED- No settlement of a nonmalignant asbestos claim concluded after the effective date of this Act shall require, as a condition of settlement, release of any future claim for asbestos-related cancer.

SEC. 9. MISCELLANEOUS PROVISIONS.

    (a) CONSTRUCTION WITH OTHER LAWS- This Act 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.

    (b) CONSTITUTIONAL AUTHORITY- The constitutional authority for this Act is contained in Article I, section 8, clause 3 of the Constitution of the United States and in Article III, section 1 of the Constitution of the United States.

SEC. 10. EFFECTIVE DATE.

    This Act shall be effective on the date of the enactment of this Act and shall apply to any civil action asserting an asbestos claim in which trial has not commenced as of such date.