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By: Carona S.B. No. 41
A BILL TO BE ENTITLED
AN ACT
relating to civil claims involving exposure to asbestos and
resulting illnesses.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Title 4, Civil Practice and Remedies Code, is
amended by adding Chapter 90 to read as follows:
CHAPTER 90. CLAIMS INVOLVING EXPOSURE TO ASBESTOS
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 90.001. DEFINITIONS. In this chapter:
(1) "Asbestosis" means bilateral diffuse interstitial
fibrosis of the lungs caused by inhalation of asbestos fibers.
(2) "Certified B-reader" mans a person who has
successfully completed the x-ray interpretation course sponsored
by the National Institute for Occupational Safety and Health
(NIOSH) and whose NIOSH certification is current or one whose
certification has lapsed but who has not failed a reexamination.
(3) "Chest x-rays," means chest films that are:
(A) taken in the following two views:
posterior-anterior and lateral:
(B) graded quality 2 or better for reading in
accordance with the radiological standards established by the
International Labor Office, as interpreted by a certified B-reader
or otherwise determined acceptable by a board certified
radiologist.
(4) "Claim" means a civil action seeking recovery of
damages for an alleged personal injury or death caused by exposure
to asbestos fibers.
(5) "Claimant" means a party seeking recovery of
damages for a claim, including a plaintiff, counterclaimant,
cross-claimant, or third-party plaintiff. In a suit in which a
party seeks recovery of damages for personal injury or death of
another person, "claimant" includes both that other person and the
party seeking recovery of damages.
(6) "Defendant" means a party from whom the claimant
seeks recovery of damages.
(7) "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.
(8) "FVC" means forced vital capacity, which is the
maximal volume of air expired with maximum effort from a position of
full inspiration.
(9) "ILO grade" means the radiological ratings of the
International Labor Office set forth in "Guidelines for the Use of
ILO International Classification of Radiographs of Pneumoconioses"
(1980), as amended.
(10) "ILO scale" means the system for the
classification of chest x-rays set forth in the International Labor
Office's "Guidelines for the Use of ILO International
Classification of Radiographs of Pneumoconioses" (1980), as
amended.
(11) "Mesothelioma" means a rare and fatal form of
cancer caused by exposure to asbestos in which the cancer invades
cells in the membranes lining:
(A) the lungs and chest cavity, the pleural
region; or
(B) the abdominal cavity, the peritoneal region.
(12) "Physician board-certified in internal medicine"
means a physician who is certified by the American Board of Internal
Medicine.
(13) "Physician board-certified in oncology" means a
physician who is certified in the subspecialty of medical oncology
by the American Board of Internal Medicine.
(14) "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.
(15) "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.
(16) "Physician Board Certified in Radiology" means a
physician who is certified in the subspecialty of radiology by the
American Board of Radiology.
(17) "Physician Board Certified in Occupational
Medicine" means a physician who is certified by the American Board
of Preventive Medicine in the sub specialty of Occupational
Medicine.
(18) "Pulmonary function testing" means spirometry,
lung volume testing, and diffusing capacity testing that conform to
quality criteria established by the American Thoracic Society (ATS)
and are performed on equipment that meets ATS standards for
technical quality and calibration, as set forth in 20 C.F.R.
Section 718.103 and 20 C.F.R. Part 718, Appendix B, and contained in
the ATS guidelines in 144 American Review of Respiratory Disease
1202-1218 (1991); 152 American Journal of Respiratory and Critical
Care Medicine 1107-1136; 2185-2198 (1995). Predicted values for
spirometry and lung volume are to be those routinely utilized and
applied by health care institutions and physicians licensed in this
state, and shall take appropriate account of smoking history.
Sec. 90.002. APPLICABILITY. This chapter applies to any
claim alleging personal injury or death caused by exposure to
asbestos fibers. No such claim shall arise from exposure alone in
the absence of a diagnosis of asbestos related illness consistent
with this chapter.
Sec. 90.003. STATE OR FEDERAL PROCEEDINGS. This chapter
shall not be construed to diminish any substantive rights or
obligations of any party to any proceeding in this state or outside
this state, including proceedings in the courts of other states or
the United States.
[Sections 90.004–90.020 reserved for expansion]
SUBCHAPTER B. FILING CLAIMS
Sec. 90.021. LIMITATIONS. The limitations period for any
claimant failing to meet the requirements of this chapter is tolled
as to all responsible parties until such time as the claimant meets
the requirements of this chapter. No statute of limitation or of
repose governing claims under this chapter shall commence as a
result of a purported diagnosis or finding of an asbestos-related
disease that does not meet the criteria under this chapter. Upon
meeting the criteria of this chapter, the claimant's right to file
suit shall be governed by Chapter 16 of this code.
Sec. 90.022. FILING A CLAIM; FILING FEE. (a) A claimant
seeking recovery of damages for personal injury or death caused by
exposure to asbestos fibers shall file a petition and information
form containing the following information:
(1) the claimant's name, social security number and
date of birth;
(2) if the claimant is not the person whose alleged
exposure to asbestos fibers gave rise to the claim, the person's
name, social security number, date of birth and the claimant's
relationship to the person;
(3) the specific asbestos-related condition claimed
to exist;
(4) a brief statement of facts giving rise to venue and
jurisdiction in the county where the petition is filed; and
(5) the medical documentation detailed in Section
90.054.
(b) Each claimant shall pay the applicable filing fee.
(c) A claim may not be brought on behalf of a group or class
of persons, and multiple claims may not be joined unless each
claimant files a complaint and information form and pays the
applicable filing fee.
(d) The trial court shall dismiss a claim, upon motion of
any party, if the complaint and information form are not
accompanied by:
(1) a report by a physician board-certified in
pathology, oncology, pulmonary medicine, internal medicine or
occupational medicine establishing a diagnosis of pleural or
peritoneal mesothelioma; or
(2) a written diagnosis of cancer demonstrated by:
(A) a report establishing the diagnosis of a
primary cancer; and
(B) a report:
(i) by a physician board-certified in
internal medicine, oncology, pulmonary medicine, occupational
medicine or pathology; and
(ii) stating to a reasonable degree of
medical probability that exposure to asbestos fibers was a
producing cause of the diagnosed cancer; or
(3) a diagnosis of a non-malignant asbestos-related
disease based on generally accepted medical standards of diagnostic
practice established by:
(A) a report by a physician board certified in
pathology, internal, pulmonary, radiology or occupational medicine
establishing:
(i) a physical examination of the claimant
by the physician providing the diagnosis of the asbestos related
disease which includes a detailed medical history, including the
claimant's smoking history and a reliable history of exposure to
asbestos; and
(ii) pulmonary function testing, including
FVC, FEV1, FEV1/FVC ratio and/or diffusing capacity; and one of the
following:
(a) a chest x-ray that, in the opinion
of a certified b-reader, shows bilateral small irregular opacities
(s, t, or u) graded 1/0 or higher or bilateral pleural disease
graded A1 or higher; or
(b) a chest x-ray or CT scan that, in
the opinion of a board certified radiologist, shows bilateral
diffuse interstitial fibrosis or bilateral pleural thickening
and/or pleural plaques; or
(c) pathological asbestosis that, in
the opinion of a board-certified pathologist, shows grade 1(B) or
higher under the criteria published in "Asbestos Associated
Diseases," 106 Archive of Pathology and Laboratory Medicine 11,
Appendix 3 (October 8, 1992).
Sec. 90.023. ADDITIONAL CLAIMS. A claimant who has pursued
a claim under Subsection (D)(3) shall be entitled to pursue a
separate and new claim for a condition that has progressed to a
nonmalignant asbestos-related disease consistent with this
chapter, with pulmonary function testing that demonstrates either:
(1) forced vital capacity (FVC) below eighty percent
(80%) and FEV1/FVC ratio (using actual values) at or above
sixty-five percent (65%);
(2) total lung capacity below eighty percent (80%); or
(3) diffusing capacity below forty percent (40%).
SECTION 2. Subsection (a), Section 23.101, Government Code,
is amended to read as follows:
(a) The trial courts of this state shall regularly and
frequently set hearings and trials of pending matters, giving
preference to hearings and trials of the following:
(1) temporary injunctions;
(2) criminal actions, with the following actions given
preference over other criminal actions:
(A) criminal actions against defendants who are
detained in jail pending trial;
(B) criminal actions involving a charge that a
person committed an act of family violence, as defined by Section
71.01, Family Code; and
(C) an offense under:
(i) Section 21.11, Penal Code;
(ii) Chapter 22, Penal Code, if the victim
of the alleged offense is younger than 17 years of age;
(iii) Section 25.02, Penal Code, if the
victim of the alleged offense is younger than 17 years of age; or
(iv) Section 25.06, Penal Code;
(3) election contests and suits under the Election
Code;
(4) orders for the protection of the family under
Section 3.581, 71.11, or 71.12, Family Code;
(5) appeals of final rulings and decisions of the
Texas Workers' Compensation Commission and claims under the Federal
Employers' Liability Act and the Jones Act; and
(6) appeals of final orders of the commissioner of the
General Land Office under Section 51.3021, Natural Resources Code;
and
(7) a claim or claims alleging personal injury caused
by exposure to asbestos fibers if the basis for the claim is a
diagnosis of mesothelioma or other malignancy allegedly caused by
exposure to asbestos fibers.
SECTION 3. Chapter 90, Civil Practice and Remedies Code, as
added by this Act, applies to all actions commenced on or after the
effective date of this Act. An action commenced before the
effective date of this Act, is governed by the applicable law in
effect immediately before that date, and that law is continued in
effect for that purpose.
SECTION 4. This Act takes effect immediately if it receives
a vote of two-thirds of all the members elected to each house, as
provided by Section 39, Article III, Texas Constitution. If this
Act does not receive the vote necessary for immediate effect, this
Act takes effect November 1, 2003.