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COMMITTEE REPORT
March 29, 2006
S. 1038
Introduced by Senators Martin, Gregory, Cleary, Knotts, Richardson, Ryberg, Mescher, Scott, Grooms, Elliott, Verdin and Williams
S. Printed 3/29/06--S.
Read the first time January 12, 2006.
To whom was referred a Bill (S. 1038) to amend Title 44 of the 1976 Code by adding Chapter 135, to enact "The Asbestos and Silica Victims Protection Act of 2006", to provide that, except for claims, etc., respectfully
That they have duly and carefully considered the same and recommend that the same do pass with amendment:
Amend the bill, as and if amended, by striking all after the enacting words and inserting:
/ SECTION 1. Title 44 of the 1976 Code is amended by adding a new chapter to read:
Section 44-135-10. This act may be cited as the 'Asbestos and Silica Claims Procedure Act of 2006'.
Section 44-135-20. (A) The General Assembly 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 exposed to asbestos, especially during and after World War II, at shipyards such as those that operated in the South Carolina lowcountry, prior to the advent of regulation by the United States Occupational Safety and Health Administration in the early 1970s;
(3) exposure to asbestos is associated with various types of cancer, including mesothelioma, as well as nonmalignant conditions such as asbestosis and diffuse pleural thickening;
(4) diseases caused by asbestos exposure often have long latency periods;
(5) while the cases currently filed in South Carolina are manageable by the courts and the litigants, it is proper for the legislature to support and protect the South Carolina courts from the potential of massive litigation expense and the crowding of trial dockets;
(6) silica is a naturally occurring mineral and is the second most common constituent of the earth's crust. Crystalline silica in the form of quartz is present in sand, gravel, soil, and rocks;
(7) silica-related illnesses, including silicosis, can develop from the inhalation of respirable silica dust. Silicosis was widely recognized as an occupational disease many years ago;
(8) concerns about statutes of limitations may prompt unimpaired asbestos and silica claimants to bring lawsuits to protect their ability to recover for their potentially progressive occupational disease; and
(9) several states, including Texas, Georgia, Ohio, and Florida have enacted legislation setting medical criteria governing asbestos and silica cases and tolling statutes of limitations and requiring persons alleging non-malignant disease claims to demonstrate physical impairment as a prerequisite to setting such cases for trial.
(B) The purpose of this chapter is to:
(1) provide a procedural remedy allowing efficient judicial supervision and control of asbestos and silica litigation by giving priority for the purposes of trial and resolution to asbestos and silica claimants with demonstrable physical impairment caused by exposure to asbestos or silica; and
(2) preserve the legal rights of claimants who were exposed to asbestos or silica, but have no physical impairment from asbestos or silica exposure, until such time as the claimant can demonstrate physical impairment.
Section 44-135-30. For purposes of this chapter:
(1) 'Asbestos' means all minerals defined as 'asbestos' in 29 CFR 1910, as and if amended.
(2) 'Asbestos claim' means any claim for damages or other civil or equitable relief presented in a civil action, arising out of, based on, or related to the health effects of exposure to asbestos, including loss of consortium and any other derivative claim made by or on behalf of any exposed person or any representative, spouse, parent, child, or other relative of any exposed person.
(3) 'Asbestos-related injury' means personal injury or death allegedly caused, in whole or in part, by inhalation or ingestion of asbestos.
(4) 'Asbestosis' means bilateral interstitial fibrosis of the lungs caused by inhalation of asbestos fibers.
(5) 'Certified B-reader' means a person who has successfully completed the x-ray interpretation course sponsored by the National Institute for Occupational Safety and Health (NIOSH) and passed the B-reader certification examination for x-ray interpretation and whose NIOSH certification is current at the time of any readings required by this chapter.
(6) 'Chest x-ray' means chest films that are taken in accordance with accepted medical standards in effect at the time the x-ray was taken.
(7) 'Claimant' means an exposed person and any person who is seeking recovery of damages for or arising from the injury or death of an exposed person.
(8) 'Defendant' means a person against whom a claim arising from an asbestos-related injury or a silica-related injury is made.
(9) 'Exposed person' means a person who is alleged to have suffered an asbestos-related injury or a silica-related injury.
(10) '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.
(11) 'FVC' means forced vital capacity, which is the maximal volume of air expired with maximum effort from a position of full inspiration.
(12) 'ILO system of classification' means the radiological rating system of the International Labor Office in 'Guidelines for the Use of ILO International Classification of Radiographs of Pneumoconioses', 2000 edition, as amended from time to time by the International Labor Office.
(13) 'Mesothelioma' means a rare form of cancer allegedly caused in some instances by exposure to asbestos in which the cancer invades cells in the membrane lining of the:
(a) lungs and chest cavity (the pleural region);
(b) abdominal cavity (the peritoneal region); or
(c) heart (the pericardial region).
(14) 'Nonmalignant asbestos-related injury' means an asbestos-related injury other than mesothelioma or other asbestos-related malignancy.
(15) 'Physician board certified in internal medicine' means a physician who is certified by the American Board of Internal Medicine.
(16) 'Physician board certified in occupational medicine' means a physician who is certified in the subspecialty of occupational medicine by the American Board of Preventive Medicine.
(17) 'Physician board certified in oncology' means a physician who is certified in the subspecialty of medical oncology by the American Board of Internal Medicine.
(18) 'Physician board certified in pathology' means a physician who holds primary certification in anatomic pathology or clinical pathology from the American Board of Pathology 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.
(19) 'Physician board certified in pulmonary medicine' means a physician who is certified in the subspecialty of pulmonary medicine by the American Board of Internal Medicine.
(20) 'Physician board certified in radiology' means a physician who is certified by the American Board of Radiology.
(21) 'Plethysmography' means the 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 change.
(22) '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 (5th Edition) (dated November 2000).
(23) 'Pulmonary function testing' means spirometry and lung volume testing performed in accordance with Section 44-135-40 using equipment, methods of calibration, and techniques that materially comply with:
(a) the criteria incorporated in the American Medical Association Guides to the Evaluation of Permanent Impairment and reported in 20 C.F.R. Part 404, Subpart P, Appendix 1, Part (A), Sections 3.00(E) and (F)(2003), as amended from time to time by the American Medical Association; and
(b) the interpretative standards in the Official Statement of the American Thoracic Society entitled 'Lung Function Testing: Selection of Reference Values and Interpretative Strategies,' as published in 144 American Review of Respiratory Disease 1202-1218 (1991), as amended from time to time by the American Thoracic Society.
(24) 'Radiological evidence' of asbestosis or pleural thickening means a chest x-ray evaluated by a certified B-reader, a radiologist, a physician board certified in pulmonary medicine, occupational medicine, internal medicine, oncology, or pathology using the ILO System of classification. The chest x-ray shall be a quality 1 x-ray according to that ILO System, although if the certified B-reader, board certified pulmonologist or board certified radiologist confirms that a quality 2 x-ray film is of sufficient quality to render an accurate reading under the ILO System of classification and no quality 1 x-ray films are available, then the necessary radiologic findings may be made with the quality 2 x-ray film which is the subject of the confirmation above. Also, in a death case where no pathology is available, the necessary radiologic findings may be made with a quality 2 x-ray film if a quality 1 x-ray film is not available.
(25) 'Report' means a report required by Sections 44-135-50 or 44-135-60.
(26) 'Respirable' with respect to silica, means particles that are less than ten microns in diameter.
(27) 'Serve' means to serve notice on a party in compliance with the South Carolina Rules of Civil Procedure.
(28) 'Silica' means a naturally occurring, respirable form of crystalline silicon dioxide, including quartz, cristobalite, and tridymite.
(29) 'Silica claim' means any claim for damages or other civil or equitable relief presented in a civil action, arising out of, based on, or related to the health effects of exposure to silica, including loss of consortium and any other derivative claim made by or on behalf of any exposed person or any representative, spouse, parent, child or other relative of any exposed person.
(30) 'Silica-related injury' means personal injury or death allegedly caused, in whole or in part, by inhalation of silica.
(31) 'Silicosis' means fibrosis of the lungs caused by inhalation of silica, including:
(a) acute silicosis, which may occur after exposure to very high levels of silica within a period of months to five years after the initial exposure;
(b) accelerated silicosis; and
(c) chronic silicosis.
Section 44-135-40. Pulmonary function testing required by this chapter must be interpreted by a physician who is:
(1) licensed in this State or another state of the United States; and
(2) board certified in pulmonary medicine, occupational medicine, internal medicine, oncology, or pathology at the time of issuing the relevant medical report.
Section 44-135-50. (A) No person shall have an asbestos claim placed on any active trial roster in this State, or brought to trial in this State, or conduct discovery in an asbestos claim in this State, in the absence of a prima facie showing of asbestos-related malignancy or impairment as shown by service on each defendant of the information listed in either subsection (1) or (2) of this section:
(1) a report by a physician who is board certified in pulmonary medicine, occupational medicine, internal medicine, oncology, or pathology at the time of issuing the relevant medical report concluding:
(a) the exposed person has been diagnosed with mesothelioma or other asbestos related malignancy; and
(b) to a reasonable degree of medical certainty, exposure to asbestos was a proximate cause of the diagnosed mesothelioma or other asbestos related malignancy, accompanied by a conclusion that the exposed person's medical findings were not more probably the result of other causes revealed by the exposed person's employment and medical history. A conclusion that the exposed person's physical impairment(s) is/are 'consistent with' or 'compatible with' mesothelioma or other asbestos related malignancy does not meet the requirements of this section; and
(c) for malignant asbestos-related conditions other than mesothelioma, that the exposed person has an underlying nonmalignant asbestos-related condition and that at least fifteen years have elapsed between the date of first exposure to asbestos and the date of diagnosis of the malignancy; or
(2) a report by a physician who is board certified in pulmonary medicine, internal medicine, occupational medicine, or pathology that:
(a) the exposed person has been diagnosed with a nonmalignant asbestos related condition; and
(b) confirms that a physician actually treating or who treated the exposed person, or who has or who had a doctor-patient relationship with the exposed person or a medical professional employed by and under the direct supervision and control of such physician:
(i) performed a physical examination of the exposed person, or if the exposed person is deceased, reviewed available records relating to the exposed person's medical condition;
(ii) took an occupational and exposure history from the exposed person or from a person knowledgeable about the alleged exposure or exposures that form the basis of the action; and
(iii) took a medical and smoking history that includes a review of the exposed person's significant past and present medical problems relevant to the exposed person's impairment or disease;
(c) sets out sufficient details of the exposed person's occupational, exposure, medical, and smoking history to form the basis for a medical diagnosis of an asbestos-related condition and confirms that at least fifteen years have elapsed between the exposed person's first exposure to asbestos and the date of diagnosis;
(d) confirms that the exposed person has a pathological diagnosis of asbestosis graded 1(B) or higher under the criteria published in 'Asbestos-Associated Diseases,' 106 Archives of Pathology and Laboratory Medicine 11, Appendix 3 (October 8, 1982), as amended from time to time; or
(e) confirms that the exposed person's chest x-ray shows bilateral small irregular opacities (s, t or u) with a profusion grading of 2/2 or higher on the ILO system of classification; or
(f) confirms that the exposed person has radiological evidence of asbestosis and/or pleural thickening showing:
(i) bilateral small irregular opacities (s, t, or u) with a profusion grading of 1/1 or higher; or
(ii) bilateral diffuse pleural thickening graded extent b2 or higher, including blunting of the costophrenic angle; and
(g) confirms that in cases described in Subsections (d) or (f) above, the exposed person has physical impairment rated at least Class 2 pursuant to the AMA Guides to the Evaluation of Permanent Impairment (5th Edition) (dated November 2000) demonstrating:
(i) forced vital capacity below the lower limit of normal and FEV1/FVC ratio (using actual values) at or above the lower limit of normal; or
(ii) total lung capacity, by plethysmography or timed gas dilution, below the lower limit of normal; or
(iii) if the claimant's medical condition or process prevents the pulmonary function test from being performed or makes the results of such test an unreliable indicator of physical impairment, a board certified physician in pulmonary medicine, occupational medicine, internal medicine, oncology, or pathology, independent from the physician providing the report required herein must provide a report which states to a reasonable degree of medical certainty that the claimant has a nonmalignant asbestos-related condition causing physical impairment as described in (g)(i) or (g)(ii) above and states the reasons why the pulmonary function test would be an unreliable indicator of physical impairment.
(h) Alternatively and not to be used in conjunction with subsection (g)(iii), if an exposed person's medical conditions or processes prevent a physician from being able to diagnose or evaluate that exposed person sufficiently to make a determination as to whether that exposed person meets the requirements of subsection (2)(f) above, the claimant may serve on each defendant a report by a physician who is board certified in pulmonary medicine, occupational medicine, internal medicine, oncology, or pathology at the time the report was made that:
(i) verifies that the physician has or had a doctor-patient relationship with the exposed person; and
(ii) verifies that the exposed person has asbestos-related pulmonary impairment as demonstrated by pulmonary function testing showing:
(aa) forced vital capacity below the lower limit of normal and total lung capacity, by plethysmography, below the lower limit of normal; or
(bb) forced vital capacity below the lower limit of normal and FEV1/FVC ratio (using actual values) at or above the lower limit of normal; and
(iii) verifies that the exposed person has a chest x-ray and computed tomography scan or high-resolution computed tomography scan read by the physician or a physician who is board certified in pulmonary medicine, occupational medicine, internal medicine, oncology, pathology, or radiology showing either bilateral pleural disease or bilateral parenchymal disease diagnosed and reported as being a consequence of asbestos exposure;
(i) confirms that the physician has concluded that the exposed person's medical findings and impairment were not more probably the result of causes other than asbestos exposure as revealed by the exposed person's occupational, exposure, medical, and smoking history; and
(j) is accompanied by the relevant radiologist's reports, pulmonary function tests, including printouts of all data, flow volume loops, and other information to the extent such has been performed demonstrating compliance with the equipment, quality, interpretation, and reporting standards set out in this chapter, lung volume tests, diagnostic imaging of the chest, pathology reports, or other testing reviewed by the physician in reaching the physician's conclusions. Upon request, the relevant computed tomography scans and/or chest x-rays will be made available for review.
(B) The detailed occupational and exposure history required herein must describe:
(1) the exposed person's principal employments where it was likely there was exposure to airborne contaminants (including asbestos, silica, and other disease causing dusts, mists, fumes, and airborne contaminants) that can cause pulmonary injury; and
(2) identification of the general nature, duration, and frequency of the exposed person's exposure to airborne contaminants, including asbestos and other dusts that can cause pulmonary injury.
(C) All evidence and reports used in presenting the prima facie showing required in this section, including pulmonary function testing and diffusing studies, if any:
(1) must comply with the technical recommendations for examinations, testing procedures, quality assurance, quality controls and equipment in the AMA's Guidelines to the Evaluation of Permanent Impairment and the most current version of the Official Statements of the American Thoracic Society regarding lung function testing. Testing performed in a hospital or other medical facility that is fully licensed and accredited by all appropriate regulatory bodies in the State in which the facility is located is presumed to meet the requirements of this act. This presumption may be rebutted by evidence demonstrating that the accreditation or licensing of the hospital or other medical facility has lapsed, or providing specific facts demonstrating that the technical recommendations for examinations, testing procedures, quality assurance, quality control, and equipment have not been followed;
(2) must not be obtained through testing or examinations that violate any applicable law, regulation, licensing requirement, or medical code of practice;
(3) must not be obtained under the condition that the exposed person retains legal services in exchange for the examination, testing, or screening;
(4) shall not result in any presumption at trial that the exposed person is impaired by an asbestos or silica-related condition; and
(5) shall not be conclusive as to the liability of any defendant.
(D) The conclusion that a prima facie showing has been made is not admissible at trial.
Section 44-135-60. (A) No person shall have a silica claim placed on any active trial roster in this State, or brought to trial in this State, or conduct discovery in a silica claim in this State, in the absence of a prima facie showing of impairment as shown by service on each defendant of a report by a physician who is board certified in pulmonary medicine, internal medicine, oncology, pathology, or occupational medicine at the time of issuing the relevant medical report.
(B) In a case alleging silicosis, the medical report must:
(1) be issued by a physician who is board certified in pulmonary medicine, internal medicine, occupational medicine, or pathology that:
(a) the exposed person has been diagnosed with a silica-related condition; and
(b) confirms that a physician actually treating or who treated the exposed person, or who has or who had a doctor-patient relationship with the exposed person or a medical professional employed by and under the direct supervision and control of such physician:
(i) performed a physical examination of the exposed person, or if the exposed person is deceased, reviewed available records relating to the exposed person's medical condition;
(ii) took a detailed occupational and exposure history from the exposed person or, if the exposed person is deceased, from a person knowledgeable about the alleged exposure or exposures that form the basis of the action; and
(iii) took a detailed medical and smoking history that includes a thorough review of the exposed person's significant past and present medical problems and the most probable cause of any such problem that is relevant to the exposed person's impairment or disease.
(C) The medical report must set out the details of the exposed person's occupational, exposure, medical, and smoking history, and set forth that there has been a sufficient latency period for the applicable type of silicosis.
(D) The medical report must confirm, on the basis of medical examination, chest x-ray and pulmonary function testing, that the exposed person has permanent respiratory impairment:
(1) rated at least Class 2 pursuant to the AMA Guides to the Evaluation of Permanent Impairment; and
(2) accompanied by:
(a) a chest x-ray that is an ILO quality 1 film, except, that in the case of a deceased exposed individual where no pathology is available, the film can be ILO quality 2, showing bilateral nodular opacities (p, q, or r) occurring primarily in the upper lung fields, graded 1/1 or higher under the ILO system of classification; or
(b) a chest x-ray that is an ILO quality 1 film, except, that in the case of a deceased exposed individual where no pathology is available, the film can be ILO quality 2, showing large opacities (A, B, or C) in addition to the small opacities referred to in the preceding section; or
(c) a chest x-ray that is an ILO quality 1 film showing acute silicosis as described in Occupational Lung Diseases, Third Edition, as amended from time to time; or
(d) pathological demonstration of classic silicotic nodules exceeding one centimeter in diameter as published in 112 Archive of Pathology and Laboratory Medicine 7 (July 1988), as amended from time to time; or
(e) pathological demonstration of acute silicosis.
(E) For all other silica-related claims, other than silicosis, the medical report must:
(1) be issued by a physician who is board certified in pulmonary medicine, internal medicine, occupational medicine, or pathology that:
(a) the exposed person has been diagnosed with a silica related condition; and
(b) confirms that a physician actually treating or who treated the exposed person, or who has or who had a doctor-patient relationship with the exposed person or a medical professional employed by and under the direct supervision and control of such physician:
(i) stating a diagnosis of silica-related lung cancer based on a sufficient latency period which is not less than fifteen years and a statement that to a reasonable degree of medical certainty exposure to silica was a proximate cause of the exposed person's physical impairment, accompanied by a conclusion that the exposed person's silica-related lung cancer was not more probably the result of causes other than exposure to silica revealed by the exposed person's occupational, exposure, medical and smoking history; or
(ii) stating a diagnosis of silicosis complicated by documented tuberculosis; or
(iii) stating a diagnosis of any other silica related disease, accompanied by a diagnosis of silicosis as defined herein, based on a sufficient latency period and a statement that to a reasonable degree of medical certainty exposure to silica was a proximate cause of the exposed person's physical impairment, accompanied by a conclusion that the exposed person's silica-related disease was not more probably the result of causes other than exposure to silica revealed by the exposed person's occupational, exposure, medical and smoking history; and
(2) be accompanied by:
(a) a chest x-ray that is an ILO quality 1 film, except, that in the case of a deceased exposed individual where no pathology is available, the film can be ILO quality 2, showing bilateral nodular opacities (p, q, or r) occurring primarily in the upper lung fields, graded 1/1 or higher under the ILO system of classification;
(b) chest x-ray that is an ILO quality 1 film, except, that in the case of a deceased exposed individual where no pathology is available, the film can be ILO quality 2, showing large opacities (A, B, or C) in addition to the small opacities referred to in subitem (E)(2)(a) of this section;
(c) chest x-ray that is an ILO quality 1 film showing acute silicosis as described in Occupational Lung Diseases, Third Edition, as amended from time to time;
(d) pathological demonstration of classic silicotic nodules exceeding one centimeter in diameter as published in 112 Archive of Pathology and Laboratory Medicine 7 (July 1988), as amended from time to time; or
(e) pathological demonstration of acute silicosis.
(F) All evidence and reports used in presenting the prima facie showing required in this section, including pulmonary function testing and diffusing studies, if any:
(1) must comply with the technical recommendations for examinations, testing procedures, quality assurance, quality controls and equipment in the AMA's Guidelines to the Evaluation of Permanent Impairment and the most current version of the Official Statements of the American Thoracic Society regarding lung function testing, including general considerations for lung function testing, standardization of spirometry, standardization of the measurement of lung volumes, standardization of the single breath determination of carbon monoxide uptake in the lung, and interpretive strategies of lung testing in effect at the time of the performance of any examination or test on the exposed person required by this act. Testing performed in a hospital or other medical facility that is fully licensed and accredited by all appropriate regulatory bodies in the state in which the facility is located, is presumed to meet the requirements of this subsection. This presumption may be rebutted by evidence demonstrating that the accreditation or licensing of the hospital or other medical facility has lapsed, or providing specific facts demonstrating that the technical recommendations for examinations, testing procedures, quality assurance, quality control, and equipment have not been followed;
(2) must not be obtained through testing or examinations that violate any applicable law, regulation, licensing requirement or medical code of practice;
(3) must not be obtained under the condition that the exposed person retains legal services in exchange for the examination, test or screening;
(4) shall not result in any presumption at trial that the exposed person is impaired by an asbestos or silica-related condition; and
(5) shall not be conclusive as to the liability of any defendant.
(G) The conclusion that a prima facie showing has been made is not admissible at trial.
Section 44-135-70. (A) In order to have an asbestos or silica claim placed on any active trial docket in this State, or brought to trial in this State, or conduct discovery in an asbestos or silica claim in this State, an individual must provide prima facie evidence of impairment by serving on each defendant who answers or otherwise appears, a report prescribed by this act.
(B) In an action pending on the date this chapter becomes law, the case shall not be allowed to be called for or proceed to trial until ninety days after a report has been served on each defendant.
(C) This act shall not be interpreted to create, alter, or eliminate a legal cause of action for any asbestos and/or silica-related claimant who has been diagnosed with any asbestos and/or silica-related disease. The act sets the procedure by which the courts in South Carolina shall manage trial settings for all asbestos and/or silica-related claims.
Section 44-135-80. (A) In any action covered by the provisions of this act, a claimant shall file together with the complaint or other initial pleading a written report and supporting test results constituting the prima facie showing required pursuant to this act. In an action where the claimant either fails to provide such prima facie evidence or provides inadequate prima facie evidence, the defendant may, without waiving any defenses otherwise available to him, file within the time allotted for his Answer, a Notice of Appearance rather than an Answer to the Complaint. The claimant shall, within ninety days of receipt of such Answer or Notice of Appearance, provide such prima facie evidence as is called for by the provisions of this act. The defendant in any case shall then be afforded a reasonable opportunity to challenge the adequacy of the proffered prima facie evidence of asbestos-related or silica-related impairment as referenced in this section and Section 44-135-70(B). Upon a finding of failure to make the required prima facie showing, the claimant's action shall not be placed on any trial docket nor be the subject of any discovery other than discovery on the issue of prima facie evidence of impairment. Upon the finding of the required prima facie showing, no defendant shall be allowed to challenge such prima facie showing absent a showing of misrepresentation, fraud, and/or good cause.
(B) In any action covered by the provisions of this act in which the exposed person has received a diagnosis of mesothelioma which meets the requirements of Section 44-135-50 (A)(1), the claimant may petition the court requesting that a trial date be set on an expedited basis. The court may, in its discretion, provide for an expedited trial setting, if the claimant demonstrates good cause for such an expedited trial setting and the defendant(s) is/are not prejudiced by such an expedited trial setting. In no event shall a trial date be set less than one-hundred twenty days from the date of an order granting such a motion and in no event shall a case be called for trial unless six months have passed between the date of the initial filing of the case and the date of trial.
Section 44-135-90. Nothing in this act is intended to, and nothing in this act shall be interpreted to:
(1) affect the rights of any party in bankruptcy proceedings; or
(2) affect the ability of any person who is able to make a showing that the person satisfies the claim criteria for compensable claims or demands under a trust established under a plan of reorganization under Chapter 11 of the United States Bankruptcy Code, 11 U.S.C. Chapter 11, to make a claim or demand against that trust.
Section 44-135-100. An entity that offers a health benefit plan or an annuity or life insurance policy or contract, issued for delivery, or renewed on or after the effective date of this act, may not use the fact that a person has met the requirements of this act to reject, deny, limit, cancel, refuse to renew, increase the premiums for, or otherwise adversely affect the person's eligibility for or coverage under the policy or contract.
Section 44-135-110. (A) Notwithstanding any other provision of law, with respect to any asbestos or silica claim not barred as of the effective date of this chapter, the limitations period shall not begin to run until the exposed person discovers, or through the exercise of reasonable diligence should have discovered, that he or she is physically impaired as set forth in this chapter by an asbestos or silica-related condition.
(B) 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, and resolution of an asbestos or silica claim arising out of a nonmalignant condition shall not affect the ability of the same exposed person to bring a separate asbestos or silica claim arising out of an asbestos or silica-related cancer, that otherwise meets all the requirements of Sections 44-135-50 or 44-135-60."
SECTION 2. If any section, subsection, item, subitem, paragraph, subparagraph, sentence, clause, phrase, or word of this act is for any reason held to be unconstitutional or invalid, such holding shall not affect the constitutionality or validity of the remaining portions of this act, the General Assembly hereby declaring that it would have passed this act, and each and every section, subsection, item, subitem, paragraph, subparagraph, sentence, clause, phrase, and word thereof, irrespective of the fact that any one or more other sections, subsections, paragraphs, subparagraphs, sentences, clauses, phrases, or words hereof may be declared to be unconstitutional, invalid, or otherwise ineffective.
SECTION 3. This act takes effect upon approval by the Governor. /
Renumber sections to conform.
Amend title to conform.
LARRY A. MARTIN for Committee.
EXPLANATION OF IMPACT:
The Judicial Department, Department of Health & Environmental Control, Workers' Compensation Commission and State Accident Fund each indicate enactment would have no fiscal impact on the General Fund of the State, nor on federal and/or other funds.
Approved By:
Don Addy
Office of State Budget
TO AMEND TITLE 44 OF THE 1976 CODE BY ADDING CHAPTER 135, TO ENACT "THE ASBESTOS AND SILICA VICTIMS PROTECTION ACT OF 2006", TO PROVIDE THAT, EXCEPT FOR CLAIMS BASED ON MESOTHELIOMA, NO PERSON MAY BRING OR MAINTAIN AN ASBESTOS OR SILICA CLAIM WITHOUT FIRST MAKING A PRIMA FACIE SHOWING THAT A QUALIFIED PHYSICIAN HAS DIAGNOSED THE PERSON WITH AN ASBESTOS-RELATED OR SILICA-RELATED DISEASE BASED ON THE PHYSICIAN'S ANALYSIS OF A DETAILED OCCUPATIONAL AND EXPOSURE HISTORY OF THE PERSON AND AN ANALYSIS OF THE PERSON'S MEDICAL HISTORY, TO ESTABLISH CRITERIA FOR THE REQUIRED MEDICAL DOCUMENTATION OF THE EXPOSED PERSON'S PHYSICAL IMPAIRMENT, TO ESTABLISH THAT THE LIMITATIONS PERIOD FOR AN EXPOSED PERSON TO BRING AN ACTION DOES NOT BEGIN TO RUN UNTIL THE EXPOSED PERSON DISCOVERS, OR SHOULD HAVE DISCOVERED, HIS OR HER PHYSICAL IMPAIRMENT, TO LIMIT THE LIABILITY OF THE SELLER OF A PRODUCT THAT CONTAINS ASBESTOS OR SILICA WHERE THE SELLER IS NOT THE MANUFACTURER OF THE PRODUCT, TO CLARIFY THAT THIS ACT DOES NOT AFFECT THE SCOPE OR OPERATION OF ANY WORKER'S COMPENSATION LAW OR VETERANS' BENEFIT PROGRAM, AND TO ESTABLISH CERTAIN OTHER REQUIREMENTS TO FILE AND MAINTAIN AN ASBESTOS OR SILICA CLAIM.
Be it enacted by the General Assembly of the State of South Carolina:
SECTION 1. Title 44 of the 1976 Code is amended by adding a new Chapter to read:
Section 44-135-10. This Act may be cited as the "Asbestos and Silica Victims Protection Act of 2006."
Section 44-135-20. (A) The General Assembly 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 exposed to asbestos, especially during and after World War II, particularly at shipyards such as those that operated in the South Carolina lowcountry, and prior to the advent of regulation by the United States Occupational Safety and Health Administration in the early 1970s;
(3) long-term exposure to asbestos is associated with various types of cancer, including mesothelioma, as well as, such nonmalignant conditions as asbestosis and diffuse pleural thickening;
(4) diseases caused by asbestos exposure often have long latency periods;
(5) organized, mass screenings for asbestos exposure have been conducted by attorneys across the country;
(6) these attorney-directed screenings have resulted in thousands of lawsuits nationwide by individuals who show no signs of physical impairment at all from asbestos-related illness;
(7) such mass screenings have been criticized by the Association of Occupational and Environmental Clinics as "medically inadequate" screenings that "do not conform to the necessary standards . . . for patient care and protection;"
(8) the United States Supreme Court has characterized this flood of asbestos litigation as "an elephantine mass" of cases that "defies customary judicial administration" Ortiz v. Fibreboard Corporation, 119 S. Ct. 2295, 2302 (1999);
(9) the cases filed each year by those who are truly impaired because of asbestos-related illness are manageable by the courts and the litigants, but the vast majority of asbestos claims are filed by individuals who allege they have been exposed to asbestos and who may have some physical sign of exposure, but who suffer no present asbestos-related physical impairment;
(10) those unimpaired individuals are often motivated to file a claim because of concerns about the statute of limitations;
(11) the crush of asbestos litigation has been costly to employers, threatening, or forcing companies with South Carolina facilities, such as Owens Corning Fiberglass, Plibrico, Federal Mogul, Washington Group International, Garlock, Greenville Computer Processing, International Paper, Georgia Pacific, Kohler, Sterling Fluid Systems, Trane, and Uniroyal, into bankruptcy;
(12) bankruptcy of these companies threatens the long-term financial viability of operations at their South Carolina facilities, jeopardizes the incomes and benefits of South Carolina citizens who are employees and retirees of these companies, and harms the localities dependent on tax revenue associated with these facilities and their employees;
(13) the crowded dockets resulting from the mass of asbestos cases filed by those who are not physically impaired delay the cases of those who are experiencing physical impairment;
(14) docket crowding has already prompted the South Carolina courts to implement an "inactive docket" for the cases of asbestos claimants who show no signs of physical impairment;
(15) an immediate legislative remedy is necessary to relieve the State's courts of the many cases currently pending in which the plaintiff shows no signs of physical impairment; also to protect the financial viability of the defendants in these cases, to encourage their continued ability to provide jobs, revenue, and other benefits to this state;
(16) legislation recently enacted in several states, including Georgia, Florida, and Texas, seeks to provide efficient and equitable judicial administration of asbestos-related cases;
(17) Georgia, Florida, and Texas courts now apply sensible, objective medical standards to asbestos claims while keeping the courtroom door open to those who may become impaired in the future;
(18) the new legislation in Georgia, Florida, and Texas has prompted forum shopping in jurisdictions, such as South Carolina, where sensible, objective medical standards have not been adopted legislatively;
(19) the public interest requires that South Carolina enact similar medical criteria legislation so that the claims of exposed individuals who are physically impaired may be advanced, while preserving the right of those who have been exposed, but are not physically impaired, to pursue a claim should they become impaired;
(20) while asbestos is a man-made substance that can cause illnesses when inhaled, silica is a naturally occurring mineral that can cause similar illness when inhaled;
(21) silicosis was recognized as an occupational hazard, particularly for those in the sandblasting or foundry industries, many years prior to the hazards of asbestos being identified and, by the 1930s, a silica-awareness campaign launched by the federal government led to greater protection for workers exposed to silica dust;
(22) like asbestos claims, silica claims often arise when an individual is identified as having markings on his or her lungs that are consistent with silica exposure, even though the individual has no physical impairment from any silica-related disease;
(23) like asbestos exposure victims, these individuals are being identified through the efforts of attorney-directed mass screenings; and
(24) it is necessary to address silica litigation in a similar manner to avoid an analagous litigation crisis.
(B) The purpose of this Chapter is to:
(1) provide a legislative remedy allowing more efficient judicial supervision and control of asbestos and silica litigation by giving priority to asbestos and silica claimants with actual physical impairment caused by exposure to asbestos or silica;
(2) preserve the rights of claimants who were exposed to asbestos or silica, but have no physical impairment from asbestos or silica exposure, to pursue compensation should they become impaired in the future; and
(3) conserve the scarce resources of the defendants to allow compensation of claimants who are physically impaired while securing the right to similar compensation for those who may suffer physical impairment in the future.
Section 44-135-30. For the purposes of this Chapter:
(1) "AMA Guides to the Evaluation of Permanent Impairment" means the American Medical Association's Guides to the Evaluation of Permanent Impairment (Fifth Edition 2000) as may be modified from time to time by the American Medical Association.
(2) "Asbestos" means all minerals defined as 'asbestos' in 29 CFR 1910, as and if amended.
(3) "Asbestos claim" means any claim for damages or other civil or equitable relief presented in a civil action, arising out of, based on, or related to the health effects of exposure to asbestos, including loss of consortium and any other 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" means bilateral diffuse interstitial fibrosis of the lungs caused by inhalation of asbestos fibers.
(5) "Board-certified" means a physician who is certified:
(a) in internal medicine by the American Board of Internal Medicine or the American Osteopathic Board of Internal Medicine;
(b) in the subspecialty of occupational medicine by the American Board of Preventive Medicine or the American Osteopathic Board of Preventive Medicine;
(c) in the subspecialty of medical oncology by the American Board of Internal Medicine or the American Osteopathic Board of Internal Medicine;
(d) in the subspecialty of pulmonary medicine by the American Board of Internal Medicine or the American Osteopathic Board of Internal Medicine; or
(e) in either anatomic or clinical pathology as a primary certification from the American Board of Pathology or the American Osteopathic Board of Internal Medicine and whose professional practice is principally in the field of pathology and involves regular evaluation of pathology materials obtained from surgical or postmortem specimens.
(6) "Certified B-reader" means an individual qualified as a "final" or "B-reader" under 42 CFR 37.51(b), as and if amended.
(7) "Civil action" means all suits or claims of a civil nature in a court of law, equity, or admiralty. The term does not include an action relating to any workers' compensation law, or a proceeding for benefits under any veterans' benefits program.
(8) "Exposed person" means any person whose exposure to asbestos or to asbestos-containing products is the basis of an asbestos claim, or whose exposure to silica or silica-containing products is the basis of a silica claim.
(9) "Exposure years" varies based on the level of regulation of airborne contaminants by the Occupational Safety and Health Administration and means:
(a) a single calendar year of exposure prior to 1972,
(b) two calendar years of exposure from 1972 through 1979 except that each year from 1972 through 1979, for which the plaintiff can establish exposure exceeding the Occupational Safety and Health Administration's limit for eight-hour time-weighted average airborne concentration for a substantial portion of the year, will count as one year, and
(c) a single calendar year after 1979, for which the plaintiff can establish exposure exceeding the Occupational Safety and Health Administration's limit for eight-hour time-weighted average airborne concentration for a substantial portion of the year, will count as one year.
(10) "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.
(11) "FVC" means forced vital capacity, which is the maximal volume of air expired, with maximum effort from a position of full inspiration.
(12) "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 and if amended by the International Labour Office.
(13) "Lung cancer," also called brochogenic carcinoma, means a malignant tumor located inside of the lungs, but such term does not include an asbestos claim based upon mesothelioma.
(14) "Malignant claim" or "malignant condition" means any claim alleging a diagnosis of primary lung cancer or other cancer (including cancer of the colon, rectum, larynx, pharynx, esophagus or stomach) based on alleged exposure to asbestos or silica, but does not include an asbestos claim based upon mesothelioma.
(15) "Mesothelioma" means a malignant tumor with a primary site in the pleura, peritoneum, or pericardium, which has been diagnosed by a board-certified pathologist, using standardized and accepted criteria of microscopic morphology, immuno-histo chemical techniques, and/or appropriate staining techniques.
(16) "Nonmalignant claim" means any claim that is alleged to be caused by exposure to asbestos or silica other than a diagnosed cancer.
(17) "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 localized 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.
(18) "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.
(19) "Qualified physician" means a medical doctor that:
(a) is a board-certified internist, oncologist, pathologist, pulmonary specialist, radiologist, or specialist in occupational and environmental medicine;
(b) conducted a physical examination of the exposed person, or if the person is deceased, has reviewed all available records relating to the exposed person's medical condition;
(c) is treating or has treated the exposed person such that a doctor-patient relationship exists or existed with the 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 no 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 where the plaintiff's civil action was filed; and
(f) receives or received payment for the treatment of the exposed person from that person or their health maintenance organization, insurance carrier, or medical coverage provider.
(20) "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.
(21) "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.
(22) "Silica" means a respirable crystalline form of silicon dioxide, including, but not limited to, alpha, quartz, cristobalite, and tridymite.
(23) "Silica claim" means any claim for damages or other civil or equitable relief presented in a civil action, arising out of, based on, or related to the health effects of exposure to silica, including loss of consortium and any other 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.
(24) "Silicosis" means nodular interstitial fibrosis of the lungs caused by the inhalation of silica.
(25) "Smoker" means a person who has smoked cigarettes or used other tobacco products within the last fifteen years.
(26) "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.
(27) "Sufficient latency period" means that a qualified physician has found evidence sufficient to demonstrate that:
(a) with regard to an asbestos claim, at least ten years have elapsed between the date of the exposed person's first exposure to asbestos and the date of the diagnosis of an asbestos-related disease; or
(b) with regard to a silica claim, a sufficient number of years have passed between the date of the exposed person's exposure to silica and the diagnosis of the applicable stage of silicosis or other alleged silica-related disease.
(28) "Veterans' benefits program" means any program for benefits in connection with military service administered by the Veterans' Administration under Title 38 of the United States Code.
(29) "Workers' compensation law" means a law respecting a program administered by a state or the United States to provide benefits, funded by any 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 of the 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").
Section 44-135-40. (A) No person shall bring or maintain an asbestos or silica claim in the absence of a prima facie showing of:
(1) evidence verifying that a qualified physician or other licensed medical professional under the direct supervision and control of a qualified physician has taken:
(a) a detailed occupational and exposure history of the exposed person or, if the person is deceased, from a person who is knowledgeable about the exposures that form the basis of the claim, including, but not limited to:
(i) identification of all of the exposed person's places of employment and exposures to airborne contaminants;
(ii) whether each place of employment involved exposure to airborne contaminants, including, but not limited to, asbestos fibers, silica particles, or other disease causing dusts that can cause pulmonary impairment and the nature, duration, and level of any exposure; and
(iii) whether a sufficient latency period has elapsed between the date of first exposure to asbestos or silica and the date of diagnosis of the asbestos or silica-related medical condition; and
(b) a detailed medical history from the exposed person, including a detailed history of smoking habits, if any, and a thorough review of the exposed person's past and present medical problems including an identification of the most probable causes of those past and present medical problems;
(2) documentation of the exposed person's physical impairment; and
(3) a diagnosis by a qualified physician of an asbestos-related or silica-related disease, based on a statement that exposure to asbestos or silica was a substantial contributing factor of the exposed person's physical impairment, accompanied by a conclusion that the exposed person's medical findings and physical impairment were not more probably the result of other causes revealed by the exposed person's employment and medical history.
(B) A conclusion that the exposed person's medical findings and physical impairment are "consistent with" or "compatible with" exposure to asbestos or silica does not meet the requirements of this section.
(C) This section and the required prima facie showing shall not be required in any claim based on mesothelioma.
(D) In any asbestos related claim, the requirements of section (A)(2) must be met, at a minimum, with the following:
(1) for claims based on cancer, a report by a qualified physician who is board-certified in pathology, pulmonary medicine, or oncology that the exposed person has primary lung cancer or other asbestos-related cancer accompanied by:
(a) radiological evidence of asbestosis,
(b) pathological evidence of asbestosis, or
(c) evidence of occupational exposure to asbestos for at least:
(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;
(d) except that in the case of an exposed person who is a smoker, either subsection (D)(1)(a) or (b), and subsection (D)(1)(c), must be met;
(2) for other claims, a report by a qualified physician that, based on medical examination and pulmonary function testing, the exposed person has asbestosis or diffuse pleural thickening based on:
(a) radiological evidence of asbestosis, pathological evidence of asbestosis, or radiological evidence of diffuse pleural thickening;
(b) a determination 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 evidence of:
(i) a total lung capacity below the predicted lower limit of normal based on plethysmography or timed gas dilution and 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
(ii) a chest x-ray showing small, irregular opacities (s, t, u) and graded by a certified B-reader at least 2/1 on the ILO scale; and
(c) a permanent respiratory impairment rating of at least Class 2 as defined and evaluated pursuant to the American Medical Association's Guides to the Evaluation of Permanent Impairment.
(E) In any silica-related claim, the requirements of section (A)(2) must be met, at a minimum, with the following:
(1) for silicosis claims, a determination by a qualified physician, on the basis of a medical examination and pulmonary function testing, that the exposed person has permanent respiratory impairment that is:
(a) rated at least Class 2 pursuant to the AMA Guides to the Evaluation of Permanent Impairment; and
(b) evidenced by:
(i) a chest x-ray that is an ILO quality 1 film, except, that in the case of a deceased exposed individual where no pathology is available, the film can be ILO quality 2, that has been read by a certified B-reader showing bilateral nodular opacities (p, q, or r) occurring primarily in the upper lung fields, graded 1/1 or higher under the ILO system of classification; or
(ii) 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
(2) for all other silica-related claims:
(a) a report by a qualified physician who is Board certified:
(i) in pulmonary medicine, internal medicine, oncology, or pathology stating a diagnosis of silica-related lung cancer, based on a statement that exposure to silica was a substantial contributing factor of the exposed person's physical impairment, accompanied by a conclusion that the exposed person's medical findings and physical impairment were not more probably the result of other causes revealed by the exposed person's employment and medical history; or
(ii) in pulmonary medicine, internal medicine or pathology stating a diagnosis of silica-related progressive massive fibrosis or acute silicoproteinosis, or silicosis complicated by documented tuberculosis; and
(b) either:
(i) a chest x-ray that is an ILO quality 1 film, except, that in the case of a deceased exposed individual where no pathology is available, the film can be ILO quality 2, that has been read by a certified B-reader showing bilateral nodular opacities (p, q, or r) occurring primarily in the upper lung fields, graded 1/1 or higher under the ILO system of classification or
(ii) 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);
(F) All evidence and reports used in presenting the prima facie showing required in this section, including pulmonary function testing and diffusing studies, must:
(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.
(G) Evidence and reports used in presenting the prima facie showing required in this section shall not:
(1) result in any presumption at trial that the exposed person is impaired by an asbestos or silica-related condition;
(2) be conclusive as to the liability of any defendant; or
(3) be admissible at trial.
(H) The conclusion that a prima facie showing has been made is not admissible at trial.
Section 44-135-50. (A) A court may consolidate for trial any number and type of asbestos or silica claims with consent of all the parties. In the absence of such consent, the court may consolidate for trial only asbestos or silica claims relating to the same exposed person and members of his or her household.
(B) A civil action alleging an asbestos or silica claim may only be brought in the courts of this State if the plaintiff is domiciled in this State, or the exposure to asbestos or silica that is a substantial contributing factor to the physical impairment on which the claim is based occurred in this State.
(C) 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 the prima facie showing required pursuant to this chapter. For any asbestos or silica claim pending on the effective date of this act, the plaintiff shall file such a written report and supporting test results the earlier of either sixty days following the effective date of this chapter 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. The plaintiff's claim shall be dismissed without prejudice upon a finding of failure to make the required prima facie showing.
(D) All asbestos claims and silica claims filed in this State on or after the effective date of this chapter must include, in addition to the prima facie showing described in this chapter, a sworn affidavit 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 alleges other than direct or bystander exposure to a product, the name, address, date of birth, and marital status for each person through which the claimant alleges exposure, hereinafter referred to as an "index person", and the claimant's relationship to each index person;
(3) the specific location of each alleged exposure;
(4) the beginning and ending dates of the alleged exposure to each individual asbestos product or silica product for each location where exposure to asbestos products or silica products is alleged to have occurred;
(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.
Section 44-135-60. (A) Notwithstanding any other provision of law, with respect to any asbestos or silica claim not barred as of the effective date of this chapter, the limitations period shall not begin to run until the exposed person discovers, or through the exercise of reasonable diligence should have discovered, that he or she is physically impaired as set forth in this chapter by an asbestos or silica related condition.
(B) 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.
(C) No damages shall be awarded for fear or risk of cancer in any civil action asserting an asbestos or silica claim.
(D) No settlement of a nonmalignant asbestos or silica claim concluded after the effective date of this chapter may require, as a condition of settlement, release of any future claim for asbestos or silica-related cancer.
Section 44-135-70. (A) In any civil action alleging an asbestos or silica claim, a product seller other than a manufacturer shall be liable to a plaintiff only if the plaintiff proves that, in regard to the product that allegedly caused harm to the exposed person, the product seller:
(1) failed to exercise reasonable care;
(2) failed to comply with an express warranty; or
(3) engaged in intentional wrongdoing.
(B) To establish that a product seller failed to exercise reasonable care, a plaintiff must prove:
(1) the product that allegedly caused the harm was sold, rented, or leased by the product seller;
(2) the product seller failed to exercise reasonable care with respect to the product; and
(3) the failure to exercise reasonable care was a proximate cause of the harm to the exposed person.
(C) To establish that the product failed to conform to an express warranty, a plaintiff must prove that:
(1) the product seller made an express warranty applicable to the product that allegedly caused the harm and the warranty is independent of any express warranty made by the manufacturer as to the same product;
(2) the product failed to conform to the warranty; and
(3) the failure of the product to conform to the warranty caused the harm to the exposed person.
(D) To establish that the product seller engaged in intentional wrongdoing, a plaintiff must prove that the product seller engaged in intentional wrongdoing, as defined by State law, and that the intentional wrongdoing caused the harm to the exposed person.
(E) For the purposes of this section, a product seller shall not be considered to have failed to exercise reasonable care with respect to a product based upon an alleged failure to inspect the product if:
(1) the failure occurred because there was no reasonable opportunity to inspect the product; or
(2) an inspection, in the exercise of reasonable care, would not have revealed the aspect of the product that allegedly caused the exposed person's impairment.
(F) In any civil action alleging an asbestos or silica claim, a person engaged in the business of renting or leasing a product shall not be liable for the tortious act of another solely by reason of ownership of that product.
Section 44-135-80. This Chapter 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 that is barred by any such provision of law.
SECTION 2. If any section, subsection, paragraph, subparagraph, sentence, clause, phrase, or word of this act is for any reason held to be unconstitutional or invalid, such holding shall not affect the constitutionality or validity of the remaining portions of this act, the General Assembly hereby declaring that it would have passed this act, and each and every section, subsection, paragraph, subparagraph, sentence, clause, phrase, and word thereof, irrespective of the fact that any one or more other sections, subsections, paragraphs, subparagraphs, sentences, clauses, phrases, or words hereof may be declared to be unconstitutional, invalid, or otherwise ineffective.
SECTION 3. This act takes effect upon approval by the Governor.
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