By:  Janek                                                        S.B. No. 496
	(In the Senate - Filed February 14, 2003; February 19, 2003, 
read first time and referred to Committee on State Affairs; 
March 27, 2003, reported adversely, with favorable Committee 
Substitute; April 3, 2003, recommitted to Committee on State 
Affairs; April 14, 2003, reported adversely, with favorable 
Committee Substitute by the following vote:  Yeas 5, Nays 1; 
April 14, 2003, sent to printer.)


COMMITTEE SUBSTITUTE FOR S.B. No. 496                                    By:  Armbrister

A BILL TO BE ENTITLED
AN ACT
relating to civil claims involving exposure to asbestos. 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-ray" means chest films that are taken in accordance with all applicable state and federal regulatory standards and in the following two views: posterior-anterior, and lateral. (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 motion 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 or the American Osteopathic Board of Internal Medicine. (17) "Physician board-certified in occupational medicine" means a physician who is certified in the subspecialty of occupational medicine by the American Board of Internal Medicine or the American Osteopathic Board of Internal Medicine. (18) "Physician board-certified in oncology" means a physician who is certified in the subspecialty of medical oncology by the American Board of Internal Medicine or the American Osteopathic Board of Internal Medicine. (19) "Physician board-certified in pathology" means a physician who holds primary certification in anatomic pathology or clinical pathology from the American Board of Pathology or the American Osteopathic Board of Internal Medicine 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. (20) "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 or the American Osteopathic Board of Internal Medicine. (21) "Pulmonary function testing" means spirometry, lung volume testing, and diffusing capacity testing, performed using equipment, methods of calibration, and technique that meet: (A) the criteria incorporated in the American Medical Association Guides to the Evaluation of Permanent Impairment (5th Ed.) and reported as set forth in 20 C.F.R. Part 404, Subpart P, Appendix 1, Part (A), Section 3.00(E) and (F); and (B) the interpretative standards set forth 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) and 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 petition and information form against each defendant named in the petition 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, in addition to the petition, an 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, the claimant's relationship to the person, and, if the person is deceased, the names of any survivors of the person; (3) the beginning and ending dates of the alleged exposure to asbestos products; and (4) the specific asbestos-related condition claimed to exist. (b) Each claimant shall: (1) file a petition and information form required by this section; and (2) pay the filing fee required by Section 51.317(b)(1), Government Code. (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 petition and information form and pays the applicable filing fee. (d) Except as provided by Subsection (e), as soon as possible after the claim is filed, the trial court shall send the appropriate cause number and a copy of the claimant's information form to the office of court administration for listing on the inactive docket. (e) The trial court shall place a claim on the active docket if the claimant's petition and information form are accompanied by: (1) a statement by a physician board-certified in internal medicine, oncology, pulmonary medicine, or 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 report: (i) certified by a physician board-certified in internal medicine, oncology, pulmonary 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. (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. MOTION 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 motion for removal. (b) The motion 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 motion for removal and supporting documentation on each defendant named in the claimant's original petition. (d) Not later than the 14th day after the date of service of the motion for removal and supporting documentation, a defendant who objects to the removal of the claim must file an objection to removal with the trial court stating the reasons for the objection. The objection shall be served on the claimant and each other defendant. (e) The filing by a defendant of an objection to removal and any documentation supporting the objection, or the defendant's appearance at a hearing ordered by the court in connection with an objection 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 objection to removal, the claimant may file a response with the trial court. The response must be served on each defendant. (g) A motion for removal may be filed simultaneously with the original petition and information form under Section 90.054. Sec. 90.056. CRITERIA FOR REMOVAL FOR NONMALIGNANCY. (a) A judge reviewing a motion 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 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, occupational, 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 a thorough review of the claimant's past and present medical status and nonoccupational causes of lung and pleural changes and that documents the claimant's smoking history; and (B) a reliable history of exposure: (i) that includes 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)(A) a quality 1 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 diffuse pleural thickening graded b2 or higher including blunting of the costophrenic angle; or (B) pathological asbestosis graded 1(B) or higher under the criteria published in "Asbestos-Associated Diseases," 106 Archive of Pathology and Laboratory Medicine 11, Appendix 3 (October 8, 1982); and (2) pulmonary function testing that demonstrates either: (A) forced vital capacity (FVC) below the lower limit of normal and FEV1/FVC ratio (using actual values) at or above the lower limit of normal; or (B) total lung capacity, by plethysmography or timed gas dilution, below the lower limit of normal. (d) If the pulmonary function testing results do not meet the requirements of Subsection (c)(2), a claimant may submit an additional report, by a physician licensed in this state and board-certified in pulmonary, internal, or occupational medicine, that states that: (1) the physician has a physician-patient relationship with the claimant; (2) the claimant has a quality 1 chest x-ray that has been read by a certified B-reader according to the ILO system of classification as showing bilateral small irregular opacities (s, t, or u) graded 2/1 or higher; (3) the claimant has restrictive impairment from asbestosis and sets forth in detail the specific pulmonary function test findings that the physician is relying upon to establish that the claimant has restrictive impairment; (4) the physician shall submit the reports and readouts from all pulmonary function, lung volume, diffusing capacity, or other testing relied upon for the report's conclusions, provided that such tests comply with equipment, quality, and reporting standards established by this chapter; and (5) the physician's conclusion that the claimant's medical findings and impairment were not more probably the result of other causes revealed by the claimant's employment and medical history. (e) If a claimant is deceased and no pathology is available, the radiologic findings required by this section may be made with a quality 2 chest x-ray if a quality 1 chest x-ray is not available. Sec. 90.057. REVIEW BY INDEPENDENT EXPERT. (a) If a defendant objects to the motion for removal, the trial court, not later than the 45th day after the date the motion 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 experts 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 motions 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, occupational medicine, or pulmonary medicine; 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 MOTION 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 motion 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 motion for removal. (d) If the trial court orders a claim removed from the inactive docket and placed on the court's active docket, the court shall notify the office of court administration. Upon receipt of such notification, the office of court administration shall remove the claim from its list of inactive claims. 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) Listing 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 90.061-90.100 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 mesthelioma or other malignancy allegedly caused by exposure to asbestos fibers and the exposed person is still living. SECTION 3. (a) Except as otherwise provided by this section, 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) Sections 90.057 and 90.058, as added by this Act, apply only to an action commenced on or after April 1, 2003. If a defendant objects to a motion for removal in an action commenced before that date, the trial court shall issue an order granting or denying the motion based on the evidence presented by the parties. (c) An action commenced before the effective date of this Act, in which a trial, new trial, or retrial is in progress on the day prior to 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. (d) 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. (e) 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 4. (a) In an action to which Subdivision (2), Subsection (a), Section 3 of this Act, applies, a claimant shall file a notice of claim with the trial court in which the claim was originally filed for purposes of placing the claim on the inactive docket established under Subchapter B, Chapter 90, Civil Practice and Remedies Code, as added by this Act, unless the claim qualifies for the active docket as provided by Subsection (e), Section 90.054, Civil Practice and Remedies Code, as added by this Act. (b) The notice of claim required under Subsection (a) of this section shall identify the claimant, each defendant named in the original petition, and the cause number of the original claim. The clerk of the court shall send a copy of the notice of claim to the Office of Court Administration of the Texas Judicial System and the claim shall be treated in all respects as any other claim placed on the inactive docket established under Subchapter B, Chapter 90, Civil Practice and Remedies Code, as added by this Act. (c) If a claimant to which this section applies did not pay the applicable filing fee when the claim was originally filed, the claimant shall pay the filing fee required by Subdivision (1), Subsection (b), Section 51.317, Government Code, with the notice of claim required under Subsection (a) of this section. The clerk of the court shall forward one-half of the fee to the comptroller of public accounts in accordance with Subsection (f), Section 90.054, Civil Practice and Remedies Code, as added by 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.
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