South Carolina General Assembly
116th Session, 2005-2006

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Bill 4680


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Indicates New Matter


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A BILL

TO AMEND THE CODE OF LAWS OF SOUTH CAROLINA, 1976, BY ADDING CHAPTER 80, TITLE 15 SO AS TO ENACT THE "ASBESTOS AND SILICA VICTIMS PROTECTION ACT OF 2006" SO AS TO DEFINE KEY TERMS IN THE ACT, TO DEFINE THE ELEMENTS OF A PRIMA FACIE SHOWING REQUIRED TO FILE A CIVIL ACTION BASED ON AN ASBESTOS OR SILICA CLAIM, TO PROVIDE PARAMETERS FOR WHEN AN ASBESTOS OR SILICA CLAIM MAY BE BROUGHT IN THIS STATE AND TO DELINEATE THE INFORMATION THAT MUST BE PROVIDED IN THE CLAIM, TO PROVIDE THAT THE LIMITATIONS PERIOD ON A CLAIM DOES NOT BEGIN TO RUN UNTIL THE EXPOSED PERSON DISCOVERS THAT HE IS PHYSICALLY IMPAIRED BY AN ASBESTOS-RELATED OR SILICA-RELATED CONDITION, TO PROVIDE THAT A PRODUCT SELLER OTHER THAN A MANUFACTURER IS LIABLE TO A PLAINTIFF IN A CIVIL ACTION ONLY IF THE PLAINTIFF ESTABLISHES CERTAIN ELEMENTS RELATED TO REASONABLE CARE AND PROXIMATE CAUSE, AND TO PROVIDE FOR SPECIFIC EXCEPTIONS TO THE LIMITATIONS ON CIVIL ACTIONS FOR ASBESTOS AND SILICA CLAIMS.

Whereas, asbestos is a mineral that was widely used before the 1980's for insulation, fireproofing, and other purposes; and

Whereas, millions of American workers and others were exposed to asbestos, especially during and after World War II, particularly at shipyards like those operated in the lowcountry region of South Carolina, and before the advent of regulation by the Occupational Safety and Health Administration in the early 1970's; and

Whereas, long-term exposure to asbestos has been associated with various types of cancer, including mesothelioma, as well as the nonmalignant conditions of asbestosis and diffuse pleural thickening; and

Whereas, the diseases caused by asbestos often have long latency periods; and

Whereas, organized mass screenings for asbestos exposure often have long latency periods; and

Whereas, these attorney-directed screenings have resulted in thousands of lawsuits nationwide by individuals who show no signs of physical impairment at all from an asbestos-related illness; and

Whereas, these 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"; and

Whereas, in Ortiz v. Fibreboard Corporation, 119 S. Ct. 2295, 2302 (1999), the United States Supreme Court characterized this flood of asbestos litigation as an "elephantine mass" of cases that "defies customary judicial administration"; and

Whereas, the cases filed each year by those who are truly impaired because of an 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; and

Whereas, these unimpaired individuals are often motivated to file a claim because of concerns about the statute of limitations; and

Whereas, the crush of asbestos litigation has been costly to employers, forcing or threatening to force 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; and

Whereas, 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 municipalities dependent on tax revenue associated with these facilities and their employees; and

Whereas, the crowded dockets that result from the crush of asbestos cases filed by those who are not physically impaired delay the cases of those who are experiencing physical impairment; and

Whereas, this docket crowding has already prompted South Carolina courts to implement an "inactive docket" for the cases of asbestos claimants who show no signs of physical impairment; and

Whereas, an immediate legislative remedy is necessary to relieve the courts of many cases currently pending in which the plaintiff shows no signs of physical impairment and to protect the financial viability of the defendants in these cases to encourage their continued ability to provide jobs, revenue, and other benefits to the State; and

Whereas, legislation recently enacted in several states, including Georgia, Florida, and Texas, prescribes efficient and equitable judicial administration of asbestos-related cases. This legislation has allowed Georgia, Florida, and Texas courts to now apply sensible, objective medical standards to asbestos claims while keeping the courtroom door open to those who may become impaired in the future; and

Whereas, this type of legislation in other states has prompted forum shopping in other jurisdictions like South Carolina where defendants are situated and where no legislation adopting medical standards have been enacted; and

Whereas, the public interest requires that South Carolina enact similar medical standards legislation so that the claims of exposed individuals who are physically impaired are advanced while preserving the rights of those who have been exposed but are not physically impaired to pursue a claim if they become impaired; and

Whereas, while asbestos is a man-made substance that can cause illness when inhaled, silica is a naturally occurring mineral that can cause similar illness when inhaled; and

Whereas, 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 1930's, a silica-awareness campaign launched by the federal government led to greater protection for workers exposed to silica dust; and

Whereas, like asbestos claims, silica claims often arise when an individual is identified as having marking on his lungs consistent with silica exposure even though the individual has no physical impairment from a silica-related disease; and

Whereas, like asbestos exposure victims, these individuals are being identified through the efforts of attorney-directed mass screenings; and

Whereas, it is necessary to address silica litigation in a similar manner to avoid an asbestos-like litigation crisis. Now, therefore,

Be it enacted by the General Assembly of the State of South Carolina:

SECTION    1.    Title 15 of the 1976 Code is amended by adding:

"Chapter 80

Asbestos and Silica Victims Protection Act

Section 15-80-110.    This act may be cited as the 'Asbestos and Silica Victims Protection Act'.

Section 15-80-120.    The purpose of this act 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, to pursue compensation if they become impaired in the future;

(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 15-80-130.    As used in this chapter, the term:

(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 by the American Medical Association.

(2)    'Asbestos' means all minerals defined as 'asbestos' in 29 C.F.R. Section 1910, as amended.

(3)    'Asbestos claim' means a 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 other derivative claims, made by or on behalf of an exposed person or a representative, spouse, parent, child, or other relative of an exposed person. The term does not include claims for benefits under a workers' compensation law or veterans' benefits program, or claims brought by a person as a subrogee by virtue of the payment of benefits pursuant to 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 in:

(a)    internal medicine by the American Board of Internal Medicine or the American Osteopathic Board of Internal Medicine;

(b)    the subspecialty of occupational medicine by the American Board of Preventive Medicine or the American Osteopathic Board of Preventive Medicine;

(c)    the subspecialty of medical oncology by the American Board of Internal Medicine or the American Osteopathic Board of Internal Medicine;

(d)    the subspecialty of pulmonary medicine by the American Board of Internal Medicine or the American Osteopathic Board of Internal Medicine; or

(e)    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:

(i)     principally in the field of pathology; and

(ii)    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 C.F.R. 37.51(b), as 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 a workers' compensation law, or a proceeding for benefits pursuant to a veterans' benefits program.

(8)    'Exposed person' means a person whose exposure to asbestos or to asbestos-containing products is the basis for 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:

(1)    a single calendar year of exposure before 1972;

(2)    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

(3)    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 provided in the International Labour Office's Guidelines for the Use of ILO International Classification of Radiographs of Pneumoconioses (1980), as amended.

(13)    'Lung cancer', also known as brochogenic carcinoma, means a malignant tumor located inside of the lungs, but the term does not include an asbestos claim based upon mesothelioma.

(14)    'Malignant claim' or 'malignant condition' means a 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 the term does not include as 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, or appropriate staining techniques.

(16)    'Nonmalignant claim' means a claim that is alleged to be caused by 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 another 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 a 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, who:

(a)    is a board-certified internist, oncologist, pathologist, pulmonary specialist, radiologist, or specialist in occupational and environment medicine;

(b)    has 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 treated the exposed person, and has or had a doctor-patient relationship with the person; and

(d)    spends no more than ten percent of his professional practice time 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 revenue from providing this service;

(e)    is currently licensed to practice and actively practices in the state where the plaintiff resides or where the plaintiff's civil action is 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 trydmite.

(23)    'Silica claim' means a 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 other derivative claims made by or on behalf of an exposed person or a representative, spouse, parent, child, or other relative of an exposed person. The term does not include claims for benefits pursuant to a workers' compensation law or veterans' benefits program, or claims brought by a person as a subrogee by virtue of the payment of benefits pursuant to a workers' compensation law.

(24)    'Silicosis' means nodular interstitial fibrosis of the lungs caused by inhalation of silica.

(25)    'Smoker' means a person who has smoked cigarettes or used other tobacco products on a consistent and frequent basis within the last fifteen years.

(26)    'State' means a state of the United States, the District of Columbia, the Commonwealth of Puerto Rico, the Northern Mariana Islands, the Virgin Islands, Guam, American Samoa, and another territory or possession of the United States or other political subdivision of the United States.

(27)    '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 exposure.

(28)    'Sufficient latency period' means that a qualified physician has found sufficient evidence to demonstrate that:

(a)    for an asbestos claim, at least ten years has elapsed between the date of the person's first exposure to asbestos and the date of the diagnosis of an asbestos-related disease; or

(b)    for a silica claim, a sufficient number of years has elapsed between the date of the person's first exposure to silica and the date of the diagnosis of the applicable stage of silicosis or other alleged silica-related disease.

(29)    'Veterans benefits program' means a program for benefits in connection with military service administered by the Veterans' Administration pursuant to Title 38 of the United States Code.

(30)    'Workers' compensation law' means a law respecting a program administered by this 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, 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., known as the Federal Employers Liability Act.

Section 15-80-140.    (A)    A person may not file or maintain a civil action based on 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 principal places of employment and exposures to airborne contaminants;

(ii)    whether each place of employment involved exposures 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 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 and smoking history from the exposed person, including a thorough review of the exposed person's past and present medical problems and their most probable cause;

(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. 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 item.

(B)    This section and the required prima facie showing is not required in a claim based on mesothelioma.

(C)    In an asbestos-related claim, the requirements of subsection (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 powerhouse 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 in similar functions; and

(d)    except that in the case of an exposed person who is a smoker, either the requirements of subsection (a) or (b), and (c), must be met; and

(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.

(D)    In a silica-related claim, the requirements of subsection (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 other claims:

(a)    a report by a qualified physician:

(i)     who is board-certified 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)    who is board-certified 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).

(E)    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.

(F)    Evidence and reports used in presenting the prima facie showing required in this section may not:

(1)    result in the presumption at trial that the exposed person is impaired by an asbestos or silica-related condition;

(2)    be conclusive as to the liability of a defendant; or

(3)    be admissible at trial.

(G)    The conclusion that a prima facie showing has been made is not admissible at trial, although the underlying reports and test results may be admissible.

Section 15-80-150.    (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 consent, the court may consolidate for trial only asbestos or silica claims relating to the same exposed person and members of his 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 here or the exposure to asbestos or silica that is a substantial contributing factor to the physical impairment on which the claim is based occurred here.

(C)    The plaintiff in a 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 an asbestos or

silica claim pending on the effective date of this act, the plaintiff shall file a written report and supporting test results the earlier of sixty days following the effective date of this act or no later than thirty days before the commencement of trial. The defendant must be afforded a reasonable opportunity to challenge the adequacy of the proffered prima facie evidence of asbestos-related impairment. The plaintiff's claim must 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 act must include, in addition to the prima facie showing described in this chapter, a sworn information form containing the following information:

(1)    the claimant's name, address, date of birth, social security number, and marital status;

(2)    if the claimant alleges exposure to asbestos or silica through the testimony of another person or alleges other than direct or bystander exposure to a product, the name, address, date of birth, and marital status for each person by which the claimant alleges exposure, the '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 each alleged exposure for each asbestos product or silica product for each location at which exposure allegedly took place for the claimant and each index person;

(5)    the occupation and name of the employer of the exposed person at the time of each alleged exposure;

(6)    the specific condition related to asbestos or silica claimed to exist; and

(7)    other supporting documentation of the condition claimed to exist.

Section 15-80-160.    (A)    Notwithstanding another provision of law, for an asbestos or silica claim not barred as of the effective date of this act, the limitations period does not begin to run until the exposed person discovers, or through the exercise of reasonable diligence should have discovered, that he is physically impaired by an asbestos-related or silica-related condition.

(B)    An asbestos or silica claim arising out of a nonmalignant condition is a distinct cause of action from an asbestos or silica claim relating to the same exposed person arising out of asbestos-related or silica-related cancer. Damages may not be awarded for fear or risk of cancer in a civil action asserting an asbestos or silica claim.

(C)    A settlement of a nonmalignant asbestos or silica claim concluded after the effective date of this act may not require, as a condition of settlement, the release of future claims for asbestos-related or silica-related cancer.

Section 15-80-170.    (A)    In a civil action alleging an asbestos or silica claim, a product seller other than a manufacturer is liable to a plaintiff only if the plaintiff proves that, in regard to the product that allegedly caused harm to the exposed person, the:

(1)    product seller failed to exercise reasonable care;

(2)    product failed to comply with an express warranty; and

(3)    product seller engaged in intentional wrongdoing.

(B)    To establish that a product seller failed to exercise reasonable care, a plaintiff must prove, the:

(1)    product that allegedly caused the harm was sold, rented, or leased by the product seller;

(2)    product seller failed to exercise reasonable care with respect to the product; and

(3)    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, the:

(1)    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)    product failed to conform to the warranty; and

(3)    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 determined pursuant to the applicable law of the State, and that the intentional wrongdoing caused the harm to the exposed person.

(E)    For the purposes of this section, a product seller may 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 a civil action alleging an asbestos or silica claim, a person engaged in the business of renting or leasing a product is not liable for the tortious act of another solely by reason of ownership of that product.

Section 15-80-180.    The provisions of this act do not affect the scope or operation of a workers' compensation law or veterans' benefit program, affect the exclusive remedy or subrogation provisions of the law, or authorize a lawsuit which is barred by 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.    The repeal or amendment by this act of any law, whether temporary or permanent or civil or criminal, does not affect pending actions, rights, duties, or liabilities founded thereon, or alter, discharge, release or extinguish any penalty, forfeiture, or liability incurred under the repealed or amended law, unless the repealed or amended provision shall so expressly provide. After the effective date of this act, all laws repealed or amended by this act must be taken and treated as remaining in full force and effect for the purpose of sustaining any pending or vested right, civil action, special proceeding, criminal prosecution, or appeal existing as of the effective date of this act, and for the enforcement of rights, duties, penalties, forfeitures, and liabilities as they stood under the repealed or amended laws.

SECTION    4.    This act takes effect upon approval by the Governor and applies to a civil action asserting an asbestos or silica claim in which trial has not begun as of the enactment of this act.

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