SRC-EPT, LBB, S.B. 496 78(R) BILL ANALYSIS
Senate Research Center S.B. 496
By: Janek
State Affairs
3/5/2003
As Filed
DIGEST AND PURPOSE
Current law permits an asbestos claim to be placed in the civil court
system like any other civil claim. It is estimated that over half of the
200,000 asbestos claims pending in the United States have been filed in
Texas courts. As a result, court dockets are overloaded and available
money to compensate victims may not get to those who are currently ill.
As proposed, S.B. 496 creates a new chapter in the Civil Practices and
Remedies Code for civil claims relating to asbestos litigation. This bill
establishes an inactive docket for unimpaired claims, establishes
objective medical criteria for determining actual impairment, and gives
trial preference to asbestos claims involving malignant conditions caused
by asbestos exposure.
RULEMAKING AUTHORITY
Rulemaking authority is expressly granted to the Texas Supreme Court in
SECTION 1 (Sections 90.051 and 90.058, Civil Practices and Remedies Code)
of this bill.
SECTION BY SECTION ANALYSIS
SECTION 1. Amends Title 4, Civil Practice and Remedies Code, by adding
Chapter 90, as follows:
CHAPTER 90. CLAIMS INVOLVING EXPOSURE TO ASBESTOS
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 90.001. DEFINITIONS. Defines "active docket," "asbestosis,"
"certified B-reader," "chest x-rays," "claim," "claimant," "defendant,"
"FEV1," "FVC," "inactive docket," "independent expert," "ILO grade," "ILO
scale," "Mesothelioma," "office of court administration," "physician
board-certified in internal medicine," "physician board-certified in
oncology," "physician board-certified in pathology," "physician
board-certified in pulmonary medicine," and "pulmonary function testing."
Sec. 90.002. APPLICABILITY. Provides that this chapter applies to any
claim alleging personal injury or death caused by exposure to asbestos
fibers.
Sec. 90.003. NO CAUSE OF ACTION CREATED. Provides that this chapter
does not create a cause of action.
[Reserves Sections 90.004-90.050 for expansion.]
SUBCHAPTER B. INACTIVE DOCKET
Sec. 90.051. INACTIVE DOCKET ESTABLISHED. (a) Requires the supreme
court to establish an inactive docket for claims under this chapter, to be
administered by the office of court administration.
(b) Requires the supreme court by rule to establish procedures to
implement the inactive docket according to this chapter.
Sec. 90.052. LIMITATIONS TOLLED. Provides that the limitations period
for a claim assigned to the inactive docket under this subchapter is
tolled as of the original date on which the complaint and information form
against each defendant named in the complaint are filed under Section
90.054.
Sec. 90.053. INACTIVE CLAIMS NOT SUBJECT TO DISCOVERY AND OTHER COURT
ORDERS. Provides that a claim on the inactive docket is not subject to
any order of the trial court in which the claim was originally filed
affecting active claims involving exposure to asbestos fibers, including
discovery orders. Prohibits discovery from proceeding on an inactive
claim until the claim is removed to the active docket as provided by this
subchapter.
Sec. 90.054. FILING A CLAIM; FILING FEE. (a) Requires a claimant
seeking recovery of damages for personal injury or death caused by
exposure to asbestos fibers to file, together with the complaint, a sworn
information form containing certain information.
(b) Requires each claimant to file a claim, including the complaint and
sworn information form required by this section and pay the applicable
filing fee.
(c) Prohibits a claim from being brought on behalf of a group or class
of persons, and multiple claims from being joined unless each claimant
files a complaint and information form and pays the applicable filing
fee.
(d) Requires the trial court as soon as possible after the complaint and
an information form are filed, and except as provided by Subsection (e),
to transfer the claim to the office of court administration for placement
on the inactive docket.
(e) Requires the trial court to place a claim on the active docket if
the claimant's complaint and information form are accompanied by certain
documents.
(f) Requires the clerk of the court in which the claim is filed to
forward one-half of the filing fee paid under this section to the
comptroller for deposit to the asbestos claims inactive docket account
established under Subchapter C.
Sec. 90.055. PETITION FOR REMOVAL TO ACTIVE DOCKET. (a) Requires a
claimant seeking to remove a claim from the inactive docket for placement
on the active docket to file with the trial court in which the claim was
originally filed a petition for removal.
(b) Requires the petition for removal to be accompanied by the
documentation necessary to satisfy the criteria specified by Section
90.056.
(c) Requires the claimant, at the time of filing with the trial court, to
serve the petition for removal and supporting documentation on each
defendant named in the claimant's original complaint.
(d) Requires, by a certain date, a defendant who objects to the removal
of the claim to file a motion with the trial court stating the reasons for
the objection. Requires the motion to be served on the claimant and each
other defendant.
(e) Provides that certain actions are not considered an appearance for
purposes of establishing the court's jurisdiction over the defendant in
the event the claim is removed to the active docket.
(f) Authorizes the claimant, by a certain date, to file a response with
the trial court. Requires the response to be served on each defendant.
(g) Authorizes a petition for removal to be filed simultaneously with
the original claim and information form under Section 90.054.
Sec. 90.056. CRITERIA FOR REMOVAL FOR NONMALIGNANCY. (a) Authorizes a
judge reviewing a petition for removal to remove a claim from the inactive
docket and place it on the active docket of the trial court in which it
was originally filed if the claimant shows a certain diagnosis.
(b) Requires an impairment diagnosis under Subsection (a) to meet certain
criteria.
(c) Provides that for purposes of this section, meeting the objective
criteria for generally accepted medical standards of impairment related to
a reliable history of exposure to asbestos fibers requires certain chest
x-rays and medical report, at a minimum.
(d) Prohibits a chest x-ray taken or interpreted by a person directly or
indirectly employed or compensated by an attorney for the claimant from
being admitted for the purpose of establishing whether a claim may be
removed from the inactive docket.
Sec. 90.057. REVIEW BY INDEPENDENT EXPERT. (a) Requires the trial
court, by a certain date and if a defendant objects to the petition for
removal, to refer the medical report, test results, and other
documentation submitted by the claimant, the defendant's objection to
removal, and any other information directed by the court to an independent
expert randomly selected from a list of experts published by the supreme
court according to Section 90.058.
(b) Requires the costs of the expert to be paid by the objecting
defendant if the expert determines the medical criteria for removal have
been met or by the claimant if the expert determines the medical criteria
for removal have not been met.
(c) Requires the independent expert to submit a report and
recommendation to the court by a certain date. Authorizes the
independent expert to perform pulmonary function testing to verify the
information submitted by the claimant.
Sec. 90.058. LIST OF INDEPENDENT EXPERTS. (a) Requires the supreme
court to publish a list of independent experts for the purpose of
reviewing petitions for removal filed under this subchapter.
(b) Requires a person to meet certain requirements in order to be
eligible for placement on the list of independent experts.
(c) Requires the supreme court to distribute the list of independent
experts to each district court in the state and to update the list at
least annually.
(d) Requires the supreme court by rule to adopt a system for the random
selection of independent experts from the list.
Sec. 90.059. ORDER GRANTING OR DENYING PETITION FOR REMOVAL. (a)
Requires the trial court by a certain date to issue an order granting or
denying the petition for removal based on certain factors.
(b) Authorizes the court, before issuing the order, to hold a hearing on
its own motion or, in its discretion, on the motion of a party. Provides
that the decision of the court not to grant a request for a hearing may
not be appealed and does not constitute reversible error.
(c) Provides that if the court orders a claim removed from the inactive
docket and placed on the active docket, any date, deadline, or other
provision in a court order relating to claims on the active docket or in
the Texas Rules of Civil Procedure applies as if the claim had been filed
on the date of the court's order granting the petition for removal.
(d) Requires the office of court administration, if the trial court
orders a claim removed from the inactive docket and placed on the court's
active docket, to transfer the claim, accompanied by the supporting
documentation, to the trial court.
Sec. 90.060. ADMISSIBILITY OF CERTAIN INFORMATION. (a) Provides that
the existence of an inactive docket, or the fact that a claim is or is
not on an inactive docket, is not admissible in any proceeding for any
purpose, except for a proceeding concerned with the removal of a claim
from the inactive docket.
(b) Provides that the medical criteria established by this subchapter for
removal of a claim from the inactive docket are established solely for the
purpose of determining whether a claim may be removed to the active
docket. Provides that the fact that a claimant satisfies the medical
criteria for removal of a claim from the inactive docket may not be
construed as an admission or determination that a person has a condition
related to exposure to asbestos fibers. Prohibits the criteria used to
determine whether a claim should be removed from being cited, referred to,
or otherwise used in the trial of a claim for the purpose of determining
whether a person has a condition related to exposure to asbestos fibers.
(c) Provides that an expert report submitted under Section 90.057 is
solely for the purpose of determining whether a claim may be removed to
the active docket and is inadmissible for any other purpose. Prohibits an
independent expert from being compelled to testify at any hearing or trial
for which the expert submitted a report under Section 90.057.
(d) Prohibits placement of a claim on an inactive docket from being
construed as an admission by a claimant or person allegedly exposed to
asbestos fibers that the claimant or person has not developed a
condition related to exposure to asbestos fibers.
[Reserves Sections 90.112-90.150 for expansion.]
SUBCHAPTER C. FINANCIAL PROVISIONS
Sec. 90.101. ASBESTOS CLAIMS INACTIVE DOCKET ACCOUNT. (a) Provides
that the asbestos claims inactive docket account is an account in the
general revenue fund.
(b) Provides that the account consists of money deposited to the account
under Section 90.054, grants, gifts, and donations to the account, and
interest earned on money in the account.
(c) Authorizes the account to be appropriated only for purposes of
administering this chapter.
(d) Provides that Sections 403.095(Use of Dedicated Revenue) and
404.071(Disposition of Interests on Investments), Government Code, do not
apply to the account.
Sec. 90.102. DONATIONS. Authorizes the office of court administration
to accept for the account established under Section 90.101 a donation,
grant, or gift of any kind from any person for a purpose related to the
administration of this chapter.
SECTION 2. Amends Subsection (a), Section 23.101, Government Code, to
require the trial courts of this state to regularly and frequently set
hearings and trials of pending matters, giving preference to certain
hearings and trials including a claim 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. Amends Article 8.02, Texas Business Corporation Act, to
require that only the laws of the jurisdiction of a foreign corporation
govern any successor liability of the foreign corporation.
SECTION 4. (a) Provides that Chapter 90, Civil Practice and Remedies
Code, as added by this Act, applies to all actions: (1) commenced on or
after the effective date of this Act or (2) pending on that effective
date and in which the trial, or any new trial or retrial following motion,
appeal, or otherwise, begins on or after that effective date.
(b) Provides that in an action commenced before the effective date of
this Act, a trial, new trial, or retrial that is in progress on the
effective date is governed by the applicable law in effect immediately
before that date, and that law is continued in effect for that purpose.
(c) Requires the supreme court to establish the inactive docket, as
required by this Act, by a certain date.
(d) Requires the supreme court to publish the list of independent experts
and adopt a system for the random selection of independent experts, as
required by this Act, by a certain date.
SECTION 5. Effective date: upon passage or September 1, 2003.