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2003S0270-2 02/14/03
By: Janek S.B. No. 496
A BILL TO BE ENTITLED
AN ACT
relating to civil claims involving exposure to asbestos and to
certain successor liability.
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) "Active docket" means a trial court's regular
trial docket, established in accordance with Chapter 23, Government
Code, and other applicable law.
(2) "Asbestosis" means bilateral diffuse interstitial
fibrosis of the lungs caused by inhalation of asbestos fibers.
(3) "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 whose NIOSH certification is current.
(4) "Chest x-rays" means chest films that are:
(A) taken in the following four views:
posterior-anterior, lateral, left oblique, and right oblique; and
(B) graded quality 1 for reading in accordance
with the radiological standards established by the International
Labor Office, as interpreted by a certified B-reader.
(5) "Claim" means a civil action seeking recovery of
damages for an alleged personal injury or death caused by exposure
to asbestos fibers.
(6) "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.
(7) "Defendant" means a party from whom the claimant
seeks recovery of damages.
(8) "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.
(9) "FVC" means forced vital capacity, which is the
maximal volume of air expired with maximum effort from a position of
full inspiration.
(10) "Inactive docket" means the docket established
under Subchapter B for a claim.
(11) "Independent expert" is an expert appointed to
examine a contested petition to remove under Section 90.057.
(12) "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.
(13) "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.
(14) "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.
(15) "Office of court administration" means the Office
of Court Administration of the Texas Judicial System.
(16) "Physician board-certified in internal medicine"
means a physician who is certified by the American Board of Internal
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) "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). Pulmonary function
testing must be performed under the supervision of and interpreted
by a physician who is licensed in this state and board-certified in
pulmonary medicine. Each subject must be tested with and without
inhaled bronchodilators, with the best values taken. Predicted
values for spirometry and lung volume shall be those published by
Morris, Clinical Pulmonary Function Testing, 2nd Edition,
Intermountain Thoracic Society (1984). Predicted values for
diffusing capacity shall be those published by Miller et al., 127
American Review of Respiratory Disease 270-277 (1983), and shall
take appropriate account of smoking history or exposure to silica.
Sec. 90.002. APPLICABILITY. 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. This chapter does
not create a cause of action.
[Sections 90.004-90.050 reserved for expansion]
SUBCHAPTER B. INACTIVE DOCKET
Sec. 90.051. INACTIVE DOCKET ESTABLISHED. (a) The supreme
court shall establish an inactive docket for claims under this
chapter. The inactive docket shall be administered by the office of
court administration.
(b) The supreme court by rule shall establish procedures to
implement the inactive docket according to this chapter.
Sec. 90.052. LIMITATIONS TOLLED. 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. 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. Discovery may not proceed 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) A claimant
seeking recovery of damages for personal injury or death caused by
exposure to asbestos fibers shall file, together with the
complaint, 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 is not the person whose alleged
exposure to asbestos fibers gave rise to the claim, the person's
name, address, date of birth, social security number, and marital
status and the claimant's relationship to the person;
(3) the beginning and ending dates of each alleged
exposure for each asbestos product at each location;
(4) the specific location of each alleged exposure;
(5) the occupation and name of the employer of the
exposed person at the time of each alleged exposure;
(6) the specific asbestos-related condition claimed
to exist; and
(7) any supporting documentation of the
asbestos-related condition claimed to exist.
(b) Each claimant shall:
(1) file a claim, including the complaint and sworn
information form required by this section; and
(2) 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) Except as provided by Subsection (e), as soon as
possible after the complaint and an information form are filed, the
trial court shall transfer the claim to the office of court
administration for placement on the inactive docket.
(e) The trial court shall place a claim on the active docket
if the claimant's complaint and information form are accompanied
by:
(1) a sworn statement by a physician licensed in this
state and board-certified in pathology indicating a diagnosis of
pleural or peritoneal mesothelioma; or
(2) a written diagnosis of cancer demonstrated by:
(A) a medical report showing the diagnosis as a
primary cancer; and
(B) a signed and sworn report:
(i) certified by a physician licensed in
this state and board-certified in internal medicine, oncology,
pulmonary medicine, or pathology; and
(ii) stating to a reasonable degree of
medical certainty that the diagnosed cancer was substantially
caused by exposure to asbestos fibers.
(f) The clerk of the court in which the claim is filed shall
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) A
claimant seeking to remove a claim from the inactive docket for
placement on the active docket shall file with the trial court in
which the claim was originally filed a petition for removal.
(b) The petition for removal must be accompanied by the
documentation necessary to satisfy the criteria specified by
Section 90.056.
(c) At the time of filing with the trial court, the claimant
shall serve the petition for removal and supporting documentation
on each defendant named in the claimant's original complaint.
(d) Not later than the 14th day after the date of service of
the petition for removal and supporting documentation, a defendant
who objects to the removal of the claim must file a motion with the
trial court stating the reasons for the objection. The motion shall
be served on the claimant and each other defendant.
(e) The filing by a defendant of a motion objecting to
removal and any documentation supporting the motion, or the
defendant's appearance at a hearing ordered by the court in
connection with a petition for removal, is 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) Not later than the 10th day after the date of service of
the motion objecting to removal, the claimant may file a response
with the trial court. The response must be served on each
defendant.
(g) A petition for removal may be filed simultaneously with
the original claim and information form under Section 90.054.
Sec. 90.056. CRITERIA FOR REMOVAL FOR NONMALIGNANCY.
(a) A judge reviewing a petition for removal may 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
by a preponderance of the evidence a diagnosis of impaired
asbestosis or other specific, nonmalignant asbestos-related
condition accompanied by a substantial, verifiable physical
impairment substantially caused by the asbestos-related condition.
(b) An impairment diagnosis under Subsection (a) must:
(1) be demonstrated by a medical report certified by a
physician licensed in this state and board-certified in internal or
pulmonary medicine;
(2) be based on objective criteria of generally
accepted medical standards related to impairment due to a reliable
history of exposure to asbestos fibers; and
(3) include a physical examination of the claimant by
the physician rendering the diagnosis that sets forth:
(A) a detailed medical history that includes
nonoccupational causes of lung and pleural changes and that
documents the claimant's smoking history; and
(B) a reliable history of exposure:
(i) that is based on a detailed
occupational and exposure history taken from the claimant by the
physician rendering the diagnosis or, if the claimant is deceased,
by the person most knowledgeable about those histories, including
all known trades and all principal places of employment for the
claimant involving airborne contaminants; and
(ii) that indicates whether each employment
involved exposures to airborne contaminants, including asbestos
fibers and other disease-causing dusts, that can cause pulmonary
impairment, and indicates the nature, duration, and level of any
such exposure.
(c) 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 at a minimum:
(1) chest x-rays that, in the opinion of a certified
B-reader, show bilateral small irregular opacities (s, t, or u) of
ILO grade of 1/1 or greater, and pulmonary function testing that
demonstrates either:
(A) forced vital capacity (FVC) less than or
equal to 70 percent of the predicted value with the ratio of forced
expiratory volume 1 to forced vital capacity (FEV1/FVC) greater
than or equal to 70 percent (actual value); or
(B) total lung capacity less than 70 percent of
the predicted value;
(2) chest x-rays that, in the opinion of a certified
B-reader, show asbestos-related bilateral pleural encasement
graded C2 or higher on the ILO scale and that include the blunting
of at least one costophrenic angle, and pulmonary function testing
that demonstrates either:
(A) forced vital capacity (FVC) less than 70
percent of the predicted value with the ratio of forced expiratory
volume 1 to forced vital capacity (FEV1/FVC) greater than 70
percent (actual value); or
(B) total lung capacity less than 70 percent of
the predicted value with the ratio of forced expiratory volume 1 to
forced vital capacity (FEV1/FVC) greater than 70 percent (actual
value); or
(3) if the person whose personal injury or death is the
basis of the claim is deceased, a medical report demonstrating an
appropriate diagnosis of pathological asbestosis greater than
grade 1B, as defined in "Asbestos-Associated Diseases," 106 Archive
of Pathology and Laboratory Medicine 11, Appendix 3 (October 8,
1982).
(d) A chest x-ray taken or interpreted by a person directly
or indirectly employed or compensated by an attorney for the
claimant may not be admitted for the purpose of establishing
whether a claim may be removed from the inactive docket.
Sec. 90.057. REVIEW BY INDEPENDENT EXPERT. (a) If a
defendant objects to the petition for removal, the trial court, not
later than the 45th day after the date the petition for removal is
filed, shall 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) The costs of the expert shall be paid:
(1) by the objecting defendant if the expert
determines the medical criteria for removal have been met; or
(2) by the claimant if the expert determines the
medical criteria for removal have not been met.
(c) The independent expert shall submit a report and
recommendation to the court not later than the 10th day after the
date the expert receives the information from the court. The
independent expert may perform pulmonary function testing to verify
the information submitted by the claimant.
Sec. 90.058. LIST OF INDEPENDENT EXPERTS. (a) The supreme
court shall publish a list of independent experts for the purpose of
reviewing petitions for removal filed under this subchapter.
(b) To be eligible for placement on the list of independent
experts, a person must:
(1) be a physician licensed in this state;
(2) be board-certified in internal medicine,
oncology, pulmonary medicine, or pathology; and
(3) be actively and primarily practicing medicine in a
field directly related to the physician's board certification.
(c) The supreme court shall distribute the list of
independent experts to each district court in the state. The
supreme court shall update the list at least annually.
(d) The supreme court by rule shall adopt a system for the
random selection of independent experts from the list.
Sec. 90.059. ORDER GRANTING OR DENYING PETITION FOR
REMOVAL. (a) Not later than the seventh day after the date the
expert's report and recommendation are received, the trial court
shall issue an order granting or denying the petition for removal
based on the opinion of the independent expert and the submissions
of the parties.
(b) Before issuing the order, the court may hold a hearing
on its own motion or, in its discretion, on the motion of a party.
The decision of the court not to grant a request for a hearing may
not be appealed and does not constitute reversible error.
(c) 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) If the trial court orders a claim removed from the
inactive docket and placed on the court's active docket, the office
of court administration shall transfer the claim, accompanied by
the supporting documentation, to the trial court.
Sec. 90.060. ADMISSIBILITY OF CERTAIN INFORMATION.
(a) 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) 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. 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. The criteria
used to determine whether a claim should be removed may not be
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) 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. An
independent expert may not be compelled to testify at any hearing or
trial for which the expert submitted a report under Section 90.057.
(d) Placement of a claim on an inactive docket may not be
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.
[Sections 90.112-90.150 reserved for expansion]
SUBCHAPTER C. FINANCIAL PROVISIONS
Sec. 90.101. ASBESTOS CLAIMS INACTIVE DOCKET ACCOUNT.
(a) The asbestos claims inactive docket account is an account in
the general revenue fund.
(b) 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) The account may be appropriated only for purposes of
administering this chapter.
(d) Sections 403.095 and 404.071, Government Code, do not
apply to the account.
Sec. 90.102. DONATIONS. The office of court administration
may 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. 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 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. Article 8.02, Texas Business Corporation Act, is
amended to read as follows:
Art. 8.02. POWERS OF FOREIGN CORPORATION. A. A foreign
corporation which shall have received a certificate of authority
under this Act shall, until its certificate of authority shall have
been revoked in accordance with the provisions of this Act or until
a certificate of withdrawal shall have been issued by the Secretary
of State as provided in this Act, enjoy the same, but no greater,
rights and privileges as a domestic corporation organized for the
purposes set forth in the application pursuant to which such
certificate of authority is issued; and, as to all matters
affecting the transaction of intrastate business in this State, it
and its officers and directors shall be subject to the same duties,
restrictions, penalties, and liabilities now or hereafter imposed
upon a domestic corporation of like character and its officers and
directors; provided, however, that only the laws of the
jurisdiction of incorporation of a foreign corporation shall govern
(1) the internal affairs of the foreign corporation, including but
not limited to the rights, powers, and duties of its board of
directors and shareholders and matters relating to its shares,
[and] (2) the liability, if any, of shareholders of the foreign
corporation for the debts, liabilities, and obligations of the
foreign corporation for which they are not otherwise liable by
statute or agreement, and (3) any successor liability of the
foreign corporation.
SECTION 4. (a) 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) 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) The Supreme Court of Texas shall establish the inactive
docket, as required by this Act, not later than the 60th day after
the effective date of this Act.
(d) The Supreme Court of Texas shall publish the list of
independent experts and adopt a system for the random selection of
independent experts, as required by this Act, not later than the
60th day after the effective date of this Act.
SECTION 5. 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 September 1, 2003.