79R6554 T
By: Nixon H.B. No. 8
A BILL TO BE ENTITLED
AN ACT
relating to civil claims involving exposure to asbestos and silica.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. (a) The Legislature of the State of Texas finds:
(1) Asbestos is a mineral that was used extensively in
industrial applications, especially between the 1940s and the
1970s. Exposure to asbestos, particularly through inhalation of
asbestos fibers, has allegedly been linked to certain malignant and
non-malignant diseases, including mesothelioma and asbestosis.
These diseases have latency periods of up to 40 years. It is
estimated that as many as 27 million American workers were exposed
to asbestos between 1940 and 1979.
(2) Over the last three decades, hundreds of thousands
of lawsuits alleging asbestos-related disease have been filed
throughout the United States. In the early 1990s, between 15,000
and 20,000 new lawsuits alleging asbestos-related disease were
filed each year. By the late 1990s, the number of new lawsuits
filed each year alleging asbestos-related disease was more than
double the number of yearly filings seen in the early 1990s. By one
estimate, the number of asbestos lawsuits pending in state and
federal courts in the United States doubled in the 1990s, from
approximately 100,000 to over 200,000.
(3) In 1991, the Judicial Conference Ad Hoc Committee
on Asbestos Litigation, appointed by United States Supreme Court
Chief Justice William Rehnquist, found that "the [asbestos
litigation] situation has reached critical dimensions and is
getting worse." In 1997 in Amchem Products, Inc. v. Windsor, the
United States Supreme Court acknowledged that the country is in the
midst of an "asbestos-litigation crisis." 521 U.S. 591, 597 (1997).
(4) Texas has not been spared this crisis. Since 1988,
more lawsuits alleging asbestos-related disease were filed in Texas
than in any other state. Today, thousands of asbestos lawsuits are
pending in Texas courts.
(5) This asbestos litigation crisis is due, in part,
to for-profit litigation screening of persons with possible
occupational exposure to asbestos, and to the existence of statutes
of limitations that begin to run based merely on knowledge of a
possible asbestos-related disease or symptom. The for-profit
screening process identifies individuals with radiographically
detectable markings on their lungs that are "consistent with"
asbestos-related disease regardless of whether the individuals
have any physical impairment. The identified individuals then file
lawsuits, in part, to avoid the running of limitations triggered by
the "discovery" that they may have an asbestos-related injury.
Many of the identified individuals (at least one estimate puts the
figure as high as 90%) are not experiencing any symptoms of
asbestos-related disease and not suffering from any
asbestos-related illness affecting their daily functions.
(6) The crush of asbestos litigation has been costly
to employers, employees, litigants, and the court system. In 1982,
the Nation's largest single supplier of asbestos-containing
insulation products, the Johns-Manville Corporation, declared
bankruptcy due to the burden of the asbestos litigation. Since
then, more than 70 other companies have declared bankruptcy due to
the burden of asbestos litigation. It is estimated that between
60,000 and 128,000 American workers already have lost their jobs as
a result of asbestos-related bankruptcies, and that the total
number of jobs that will be lost due to asbestos-related
bankruptcies will eventually reach 432,000. Each worker who loses
his or her job due to an asbestos-related bankruptcy loses between
$25,000 and $50,000 in wages over his or her career. Those workers
also have seen the value of their 401(k) retirement plans drop by
25% or more due the bankruptcies.
(7) Additionally, it is estimated that asbestos
litigation has already cost over $54 billion, with well over half of
this expense going to lawyers' fees and other litigation costs. The
crowded dockets that result from the crush of asbestos cases filed
by persons who are not functionally or physically impaired by any
asbestos-related illness prevent seriously ill claimants from
having their day in court, while those who have had their day in
court often find that the value of their recovery is seriously
reduced when the company against whom the judgment was rendered
files bankruptcy.
(8) Silica is a naturally occurring mineral, and is
the second most common constituent of the Earth's crust.
Crystalline silica in the form of quartz is present in sand, gravel,
soil and rocks.
(9) Materials that contain crystalline silica are
essential to the Texas way of life. For example, silica sand is the
primary raw material for the production of glass, including
container glass (bottles, jars), flat glass (windows), and other
forms of glass. Aggregates, most of which contain crystalline
silica, are the primary raw material in concrete and asphalt, and
therefore are the primary raw material used in the construction of
roads, sidewalks, building foundations and many other things.
(10) The primary adverse health effect associated with
crystalline silica is silicosis, a fibrosis--scarring--of the
lungs. Additionally, crystalline silica inhaled from occupational
sources was classified as a lung carcinogen in 1996, and there are
equivocal studies associating occupational exposures to
crystalline silica to other diseases.
(11) The potential adverse health effects associated
with crystalline silica, including silicosis, can occur after the
prolonged inhalation of respirable crystalline silica in excess of
certain levels. Respirable means that the silica particles must be
less than 10 microns, around 1/24,000 of an inch, in diameter. The
term prolonged means that respirable silica particles must be
breathed over a period of time, usually many years, to present a
risk of adverse health effects.
(12) Silicosis was recognized as an occupational
disease many years ago. In fact, the American Foundrymen's Society
has distributed literature to its members warning of the dangers of
overexposure to respirable crystalline silica in foundry
operations for more than 70 years. In the 1930s, the federal
government launched a silica-awareness campaign; the U.S.
Department of Labor brought together labor unions, industry, and
state and federal government for a National Silicosis Conference in
1936, which focused on understanding and providing solutions for
occupations with silicosis, and the US Department of Labor issued a
newsreel entitled "Stop Silicosis" in 1938.
(13) In 1999, the US Centers for Disease
Control/National Institute for Occupational Safety and Health
(CDC/NIOSH) in 1999 called the reduction in occupational lung
diseases--specifically mentioning silicosis--as one of the ten
great public health achievements of the 20th Century. CDC/NIOSH
data disclose a substantial decrease in silicosis since 1968 (the
first year the data were collected). Specifically, these data show
a 70 per cent decrease in deaths from silicosis during the period
1982-2000 when compared to the period 1968-1981.
(14) After a decades long decline in the prevalence of
silicosis, the number of new lawsuits alleging silicosis filed each
year began to rise precipitously in 2002. For example, one of
America's largest suppliers of industrial sand had more than 15,000
new claims in the first six months of 2003. This is three times the
number of claims it had in all of 2002, and more than ten times the
number of claims it had in all of 2001.
(15) Silica claims, like asbestos claims, often arise
when an individual is identified as having markings on his or her
lungs that are possibly consistent with silica exposure, but the
individual has no functional or physical impairment from any
silica-related disease. These individuals are being identified
through the efforts of marketing firms and screening companies, in
conjunction with lawyers being compensated by contingency fees,
just as with asbestos litigation. The lawyers for the individuals
identified by these marketing firms and screening companies as
"inventory" file lawsuits [under the theory that they must do so to
avoid having their claims barred by limitations even though they
have no current impairment and may never have impairment.] It is,
therefore, necessary to address silica-related litigation to avoid
an asbestos-like litigation crisis in Texas.
(b) It is the purpose of this Act: (i) to protect the right
of people with impairing asbestos-related and silica-related
injuries to pursue their claims for compensation under our tort
principles in a fair and efficient manner through the Texas court
system; and (ii) while, at the same time, preventing scarce
judicial and litigant resources from being misdirected by the
claims of individuals exposed to asbestos or silica but having no
functional or physical impairment from asbestos-related or
silica-related disease, or by the factually and medically baseless
claims of individuals who have been mistakenly identified as
claimants by marketing firms and screening companies in the
business of creating "inventories" of toxic tort claimants. To
that end, this Act:
(1) adopts medically accepted standards for
differentiating between individuals with non-malignant
asbestos-related or silica-related disease causing functional
impairment and individuals with no functional impairment;
(2) provides a method to obtain the dismissal of
lawsuits in which the exposed person has no functional impairment
while, at the same time, protecting a person's right to bring suit
upon discovering an impairing asbestos-related or silica-related
injury; and
(3) creates an extended period of limitations in which
to bring claims for non-malignant injuries caused by inhalation or
ingestion of asbestos or the inhalation of silica to preserve the
right of those who have been exposed to asbestos or silica but are
not yet impaired to bring a claim later, in the event they develop
an asbestos-related or silica-related disease or injury.
SECTION 2. Title 4, Civil Practice and Remedies Code, is
amended by adding Chapter 90 to read as follows:
CHAPTER 90. CLAIMS INVOLVING ASBESTOS AND SILICA
Sec. 90.001. DEFINITIONS. In this chapter:
(1) "Asbestos" means chrysotile, amosite,
crocidolite, tremolite asbestos, anthophyllite asbestos,
actinolite asbestos, and any of these minerals that have been
chemically treated or altered.
(2) "Asbestos-related injury" means personal injury
or death allegedly caused by inhalation or ingestion of asbestos.
(3) "Asbestosis" means bilateral diffuse interstitial
fibrosis of the lungs caused by inhalation of asbestos fibers.
(4) "Certified B-reader" means a person who has
successfully completed the x-ray interpretation course and passed
the B-reader certification examination for x-ray interpretation
sponsored by the National Institute for Occupational Safety and
Health (NIOSH) and whose NIOSH certification was current at the
time of any readings required by this Chapter.
(5) "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:
(A) posterior-anterior; and
(B) lateral.
(6) "Claimant" means an exposed person and any person
who is seeking recovery of damages for or arising from the injury or
death of that exposed person.
(7) "Competent medical authority" means a person who
is providing a diagnosis for purposes of constituting prima-facie
evidence of an exposed person's physical impairment and who:
(A) is licensed to practice medicine in this or
another state of the United States whose license was not on inactive
status at the time the diagnosis was made;
(B) is a physician board-certified in internal
medicine, occupational medicine, oncology, pathology, or pulmonary
medicine;
(C) is actually treating, or has treated, the
exposed person and has or had a doctor-patient relationship with
the person;
(D) spends not more than twenty-five per cent of
the his or her professional practice time providing consulting or
expert services in connection with actual or potential tort
actions, and whose medical group, professional corporation,
clinic, or other affiliated group earns not more than twenty per
cent of its revenues from providing such services; and
(E) has not relied, in whole or in part, on any of
the following as the basis for the diagnosis:
(1) reports or opinions of any doctor,
clinic, laboratory, or testing company that performed an
examination, test, or screening of the claimant's medical condition
in violation of any law, regulation, licensing requirement, or
medical code of practice of the state in which that examination,
test, or screening was conducted;
(2) reports or opinions of any doctor,
clinic, laboratory, or testing company that performed an
examination, test, or screening of the claimant's medical condition
that was conducted without clearly establishing a doctor-patient
relationship with the claimant or medical personnel involved in the
examination, test, or screening process;
(3) reports or opinions of any doctor,
clinic, laboratory, or testing company that performed an
examination, test, or screening of the claimant's medical condition
that required the claimant to agree to retain the legal services of
the law firm sponsoring the examination, test, or screening.
(8) "Defendant" means a person against whom a claim
arising from an asbestos-related injury or a silica-related injury
is made.
(9) "Exposed person" means a person who has
substantial occupational exposure to asbestos or silica and who is
alleged to have suffered an injury caused by exposure to asbestos or
silica.
(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 system" means the radiological rating system
of the International Labour Office set forth in "Guidelines for the
Use of ILO International Classification of Radiographs of
Pneumoconioses" (2000), as amended.
(13) "Mesothelioma" means a rare form of cancer
allegedly caused in some instances by exposure to asbestos in which
the cancer invades cells in the membranes lining:
(A) the lungs and chest cavity (the pleural
region);
(B) the abdominal cavity (the peritoneal
region); or
(C) the heart (the pericardial region).
(14) "Mixed dust claimant" means a person alleging
injury from both asbestos and silica exposure, either in the same or
separate proceedings.
(15) "Nonmalignant asbestos-related injury" means an
asbestos-related injury other than mesothelioma or other cancer.
(16) "Nonmalignant silica-related injury" means a
silica-related injury other than lung cancer.
(17) "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.
(18) "Physician board-certified in occupational
medicine" means a physician who is certified in the subspecialty of
occupational medicine by the American Board of Preventive Medicine
or the American Osteopathic Board of Preventive Medicine.
(19) "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.
(20) "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.
(21) "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.
(22) "Plethysmography" means the test for determining
lung volume, also known as "body plethysmography," in which the
subject of the test is enclosed in a chamber that is equipped to
measure pressure, flow, or volume change.
(23) "Pulmonary function testing" means spirometry,
lung volume, and diffusion capacity testing performed in accordance
with Section 90.002 using equipment, methods of calibration, and
techniques 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), Sections 3.00(E) and
(F)(2003); 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).
(24) "Report" when used in sections 90.006 and 90.007
means a report required by Section 90.003 or 90.004.
(25) "Serve" means service complying with Texas Rule
of Civil Procedure 21a.
(26) "Silica" means any material containing
crystalline silica, including, but not limited to, quartz,
cristobalite, and trydimite, of respirable particle size.
(27) "Silica-related injury" means personal injury or
death allegedly caused by inhalation of silica.
(28) "Silicosis" means interstitial fibrosis of the
lungs caused by inhalation of respirable silica.
(29) "Substantial occupational exposure," with
respect to exposure to silica, means employment for a cumulative
period of at least five years in an industry and an occupation in
which, for a substantial portion of a normal work year for that
occupation, the person did any of the following:
(A) handled silica;
(B) worked directly with industrial equipment in
a manner that exposed the person on a regular basis to silica;
(C) fabricated silica-containing products so
that the person was exposed to silica in the fabrication process;
(D) altered, repaired, or otherwise worked with
silica-containing products or materials in a manner that exposed
the person on a regular basis to silica; or
(E) worked in close proximity to other workers
engaged in any of the activities described in (27)(A), (B), (C), or
(D) of this section in a manner that exposed the person on a regular
basis to silica.
Sec. 90.002. PULMONARY FUNCTION TESTING. Pulmonary
function testing required by this Chapter must be performed under
the supervision of and interpreted by a physician board-certified
in pulmonary medicine who is licensed in the State where the
pulmonary function testing is performed and whose license and
certification was not on inactive status at the time the acts were
performed.
Sec. 90.003. REPORTS REQUIRED FOR CLAIMS INVOLVING
ASBESTOS-RELATED INJURY. (a) Unless a claimant is excused from
doing so by Section 90.007(b), a claimant must serve the following
in accordance with Section 90.007:
(1) a report by a physician board-certified in
pulmonary medicine, internal medicine, oncology, or pathology
whose license and certification were not on inactive status at the
time the acts were performed, stating a diagnosis of the exposed
person of mesothelioma or other cancer and stating that, to a
reasonable degree of medical probability, exposure to asbestos was
a cause of the diagnosed mesothelioma or other cancer in the exposed
person; or
(2) a report by a physician board-certified in
pulmonary medicine, internal medicine, or occupational medicine,
whose license and certification were not on inactive status at the
time the acts were performed, that:
(A) verifies that the physician or a medical
professional employed by and under the direct supervision and
control of the physician:
(i) performed a physical examination of the
exposed person, or if the exposed person is deceased, reviewed
available records relating to the exposed person's medical
condition;
(ii) took a detailed occupational and
exposure history from the exposed person or, if the exposed person
is deceased, from the person most knowledgeable about the alleged
exposures that form the basis of the action; and
(iii) took a detailed medical and smoking
history that includes a thorough review of the exposed person's
past and present medical problems, and their most probable cause;
(B) sets out the details of the exposed person's
occupational, medical, and smoking history, and verifies that at
least 10 years have elapsed between the exposed person's first
exposure to asbestos and the date of diagnosis;
(C) verifies that the exposed person has:
(i) 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), and that the
x-ray has been read by a certified B-reader as showing, according to
the ILO System of classification, bilateral small irregular
opacities (s, t, or u) graded 1/1 or higher or bilateral diffuse
pleural thickening graded b2 or higher including blunting of the
costophrenic angle; or
(ii) 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);
(D) verifies that the exposed person has
asbestos-related pulmonary impairment as demonstrated by pulmonary
function testing showing:
(i) forced vital capacity below the lower
limit of normal and FEV1/FVC ratio (using actual values) at or above
the lower limit of normal; or
(ii) total lung capacity, by
plethysmography or timed gas dilution, below the lower limit of
normal;
(E) verifies that the physician has concluded
that the exposed person's medical findings and impairment were not
more probably the result of causes other than asbestos exposure
revealed by the exposed person's employment and medical history;
and
(F) is accompanied by copies of all B-reading,
pulmonary function tests (including printouts of all data, flow
volume loops, and other information required to demonstrate
compliance with the equipment, quality, interpretation and
reporting standards set out in this Chapter), lung volume tests,
x-ray examinations, pathology reports or other testing reviewed by
the physician in reaching his or her conclusions.
(b) The detailed occupational and exposure history required
by (a)(2)(A)(ii) must include all of the principal employments and
exposures of the exposed person involving exposures to airborne
contaminants. It must indicate whether each employment involved
exposure to airborne contaminants (including, but not limited to,
asbestos fibers and other disease-causing dusts) that can cause
pulmonary impairment and the nature, duration, and level of such
exposure.
(c)(1) If the pulmonary function test results do not meet
the requirements of (a)(2)(D)(i) or (ii), a claimant may serve a
report by a physician board-certified in pulmonary medicine,
internal medicine, or occupational medicine, whose license and
certification are not on inactive status, stating that:
(A) the physician has a physician/patient
relationship with the exposed person;
(B) the exposed person has 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), and
that the x-ray has been read by a certified B-reader as showing,
according to the ILO System of classification, bilateral small
irregular opacities (s, t, or u) graded 2/1 or higher;
(C) the exposed person has restrictive
impairment from asbestosis and the specific pulmonary function test
findings on which the physician relies to establish that the
exposed person has restrictive impairment; and
(D) the physician has concluded that the exposed
person's medical findings and impairment were not more probably the
result of causes other than asbestos exposure revealed by the
exposed person's employment and medical history.
(2) The physician's report must be accompanied by
copies of all B-reading, pulmonary function tests (including
printouts of all data, flow volume loops, and other information
required to demonstrate compliance with the equipment, quality,
interpretation and reporting standards set out in this Chapter),
lung volume tests, x-ray examinations, pathology reports or other
testing reviewed by the physician in reaching his or her
conclusions.
Sec. 90.004. REPORTS REQUIRED FOR CLAIMS INVOLVING
SILICA-RELATED INJURY. (a) Unless a claimant is excused from doing
so by Section 90.007(b), a claimant must serve the following in
accordance with Section 90.007:
(1) With regard to any claim of silica-related injury,
a report that details the claimant's substantial occupational
exposure to silica.
(2) With respect to a claim for silicosis, in addition
to the report required by Section 90.004(a)(1):
(A) a report by a competent medical authority
that:
(i) verifies the competent medical
authority or a medical professional employed by and under the
direct supervision and control of the competent medical authority:
(a) performed a physical examination
of the exposed person, or if the exposed person is deceased,
reviewed available records relating to the exposed person's medical
condition;
(b) took a detailed occupational and
exposure history from the exposed person or, if the exposed person
is deceased, from the person most knowledgeable about the alleged
exposures that form the basis of the action; and
(c) took a detailed medical and
smoking history that includes a thorough review of the exposed
person's past and present medical problems, and their most probable
cause;
(ii) sets out the details of the exposed
person's occupational, medical, and smoking history, and verifies
that the exposed person has substantial occupational exposure to
silica;
(iii) verifies that a sufficiency latency
period for the applicable type of silicosis has elapsed between the
exposed person's first exposure to silica and the date of
diagnosis;
(iv) verifies that the exposed person has
at least Class 2 or higher impairment due to silicosis, as set forth
in the American Medical Association's Guides to the Evaluation of
Permanent Impairment (5th ed.), reported in 20 C.F.R. Part 404,
Subpart P, Appendix 1, Part (A), Sections 3.00(E) and (F)(2003);
(v) verifies that the exposed person has
one or more of the following:
(a) 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), and that the
x-ray has been read by a certified B-reader as showing, according to
the ILO System of classification, bilateral nodular opacities (of
size and shape p, q, or r) occurring primarily in the upper lung
fields, with a profusion of 1/1 or higher; or
(b) 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
(c) complicated silicosis
radiologically established by silicotic nodules larger than one
centimeter in diameter or acute silicoproteinosis, or silicosis
complicated by documented tuberculosis;
(vi) verifies that the physician has
concluded that the exposed person's medical findings and impairment
were not more probably the result of causes other than silica
exposure revealed by the exposed person's employment and medical
history; and
(vii) is accompanied by copies of all
B-readings, pulmonary function tests (including printouts of all
data, flow volume loops, and other information required to
demonstrate compliance with the equipment, quality, interpretation
and reporting standards set out in this Chapter), lung volume
tests, x-ray examinations, pathology reports or other testing
reviewed by the physician in reaching his or her conclusions.
(B) The detailed occupational and exposure
history required by (a)(2)(A)(ii) must include all of the principal
places of employment and exposures of the exposed person involving
exposures to airborne contaminants. It must indicate whether each
employment involved exposure to airborne contaminants (including,
but not limited to, silica and other disease-causing dusts) that
can cause pulmonary impairment and describe the nature, duration,
and intensity of each such exposure.
(3) With respect to any claim of silica-related lung
cancer, in addition to the reports required by Sections
90.004(a)(1) and 90.004(a)(2):
(A) a diagnosis by a competent medical authority
that the exposed person has primary lung cancer and that exposure to
silica is a substantial contributing factor to that cancer; and
(B) evidence that is sufficient to demonstrate
that at least fifteen years have elapsed from the date of the
exposed person's first exposure to silica until the date of
diagnosis of the exposed person's primary lung cancer. The
fifteen-year latency period is a rebuttable presumption and the
plaintiff has the burden of proof to rebut the presumption.
(4) With respect to any claim for diseases other than
silicosis and lung cancer claimed to be related to silica exposure,
in addition to the reports required by Sections 90.004(a)(1) and
90.004(a)(2):
Sec. 90.005. REPORTS REQUIRED BY MIXED DUST CLAIMANTS.
Unless a claimant is excused from doing so by Section 90.007(b), any
person alleging injury from exposure to both asbestos and silica,
either in the same or separate proceedings, must serve the reports
required by both Sections 90.003 and 90.004 in accordance with
Section 90.007. If the mixed dust claimant has filed separate
lawsuits alleging asbestos and silica exposure, the reports
required by Sections 90.003 and 90.004 must be served on all parties
in each lawsuit.
Sec. 90.006. PROHIBITED BASIS FOR DIAGNOSIS. (a) For
purposes of this Chapter, a physician may not, as the basis for a
diagnosis, rely on any of the following:
(1) the reports or opinions of any doctor, clinic,
laboratory, or testing company that performed an examination, test,
or screening of the exposed person's medical condition in violation
of any law, regulation, licensing requirement, or medical code of
practice of the state in which the examination, test, or screening
was conducted; or
(2) the reports or opinions of any doctor, clinic,
laboratory, or testing company that performed an examination, test,
or screening of the exposed person's medical condition that
required the exposed person to agree to retain the legal services of
the law firm sponsoring the examination, test, or screening.
(b) If a physician relies on any information in violation of
Section 90.006(a), the physician's opinion or report does not
comply with the requirements of this Chapter.
Sec. 90.007. SERVING REPORTS. (a) In a case filed on or
after the effective date of this Act, a report must be served on
each party not later than the 30th day after the date that party
answers or otherwise appears in the suit.
(b) In a case pending on the effective date of this Act in
which trial (including a new trial or retrial following motion,
appeal, or otherwise) commences on or before the effective date of
this Act, a claimant is not required to serve a report on any party
unless a mistrial, new trial, or retrial is subsequently granted or
ordered.
(c) In a case pending on the effective date of this Act in
which trial (including a new trial or retrial following motion,
appeal, or otherwise) commences after the effective date of this
Act, a report must be served on all parties on or before the earlier
of:
(1) the 60th day before trial commences; or
(2) the 180th day after the effective date of this Act.
Sec. 90.008. MOTION TO DISMISS. (a) If a claimant fails to
timely serve a report, or serves a report that does not comply with
Section 90.003 or Section 90.004, or fails to comply with Section
90.005, a defendant may file a motion to dismiss the claimant's
asbestos-related or silica-related claims. That motion must be
filed on or before the 30th day after the date the report is served
on the defendant or was due. If the basis of the motion is that the
claimant served a report that does not comply with the requirements
of this Chapter, the motion must set out the reasons the report does
not comply with this Chapter.
(b) The claimant may file a response to the motion to
dismiss on or before the 15th calendar day after the date the motion
to dismiss is served. A report may be filed, amended, or
supplemented within the time for responding to a motion to dismiss.
The service of an amended or supplemental report does not require
the filing of an additional motion to dismiss if the reasons stated
in the original motion to dismiss are sufficient to require
dismissal under this Chapter.
(c) If the trial court is of the opinion that the motion to
dismiss is meritorious, the court shall, by written order, grant
the motion and dismiss all of the claimant's asbestos-related or
silica-related claims against the defendant. A dismissal under
this section is without prejudice to the claimant's right, if any,
to assert claims for an asbestos-related injury or a silica-related
injury in a subsequent lawsuit.
(d) Upon the filing of a motion to dismiss under this
section, all further proceedings in the case are stayed until the
motion is heard and determined by the trial court.
(e) The trial court, upon the motion of a party showing good
cause, may shorten or extend the time limits provided in this
section for filing or serving motions, responses, or reports.
Sec. 90.009. VOLUNTARY DISMISSAL. Instead of and prior to
serving a report required by Section 90.003(a)(2) or Section
90.004(a)(2), a claimant seeking damages arising from a
nonmalignant asbestos-related injury or non-malignant
silica-related injury may voluntarily dismiss his or her action.
If a claimant files a voluntary dismissal under this section, the
claimant's voluntary dismissal is without prejudice to the
claimant's right to file a subsequent lawsuit seeking damages
arising from an asbestos-related injury or silica-related injury.
Sec. 90.010. JOINDER OF CLAIMANTS. Unless all parties
agree otherwise, claims relating to more than one exposed person
shall not be joined for a single trial.
Sec. 90.011. APPLICABILITY OF CHAPTERS 33 AND 41. Chapters
33 and 41, Civil Practice and Remedies Code, as amended by H.B.4,
78th Leg., R.S., are applicable in any case in which a claimant
seeks to recover damages for an alleged asbestos-related injury or
silica-related injury and which: (1) was filed on or after the
effective date of this Act, or (2) was pending on the effective date
of this Act and trial (including a new trial or retrial following
motion, appeal, or otherwise) has not commenced on or before the
effective date of this Act.
Sec. 90.012. SUPREME COURT RULEMAKING. (a) The supreme
court may promulgate amendments to the Texas Rules of Civil
Procedure regarding the joinder of claimants in asbestos-related or
silica-related actions if such rules are consistent with Section
90.010.
SECTION 3. Section 16.003, Civil Practice and Remedies
Code, is amended by adding Sections 16.003(c) and 16.003(d), as
follows:
(c)(1) This subsection applies if:
(A) the claimant's action is for personal injury
or death allegedly resulting from a nonmalignant asbestos-related
injury (as that term is defined in Section 90.001); and
(B) a report is required by Section 90.003(a)(2).
(2) In an action to which this subsection applies, the
cause of action accrues for purposes of this section on the earlier
of:
(A) the date of the exposed person's death;
(B) the date the exposed person knew or
reasonably should have known that he or she had an asbestos-related
injury that would meet the diagnostic criteria set forth in Section
90.003(a)(2)(C) and (D); or
(C) the date the claimant serves a report
complying with Section 90.003.
(d)(1) This subsection applies if:
(A) the claimant's action is for personal injury
or death allegedly resulting from a nonmalignant silica-related
injury (as that term is defined in Section 90.001); and
(B) a report is required by Section 90.004(a)(2).
(2) In an action to which this subsection applies, the
cause of action accrues for purposes of this section on the earlier
of:
(1) the date of the exposed person's death;
(2) the date the exposed person knew or reasonably
should have known that he or she had a silica-related injury that
would meet the diagnostic criteria set forth in Section
90.004(a)(2); or
(3) the date the claimant serves a report complying
with Section 90.004.
SECTION 4. Section 51.014, Civil Practice and Remedies
Code, is amended by adding Subsection (a)(11) as follows:
(11) denies a motion to dismiss filed under section 90.008,
Civil Practice and Remedies Code.
SECTION 5. Section 71.051, Civil Practice and Remedies
Code, is amended by repealing Section 71.051(f).
SECTION 6. Section 22.225, Government Code, is amended by
amending Subsection (d) as follows:
(d) A petition for review is allowed to the supreme court
for an appeal from an interlocutory order described by Section
51.014(a)(3), (6) or (11) [or (6)], Civil Practice and Remedies
Code.
SECTION 7. The rules adopted by the supreme court under
Subchapter H, Chapter 74, Government Code, apply to any action
filed or pending on or after September 1, 2003.
SECTION 8. (a) 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 on the 91st day after the last day of
the legislative session.
(b) The changes made by this Act to Section 90.010,
Civil Practice and Remedies Code, apply to actions: (1) filed on or
after the effective date of this Act, or (2) pending on the
effective date of this Act in which trial (including a new trial or
retrial following motion, appeal, or otherwise) has not commenced
on or before the effective date of this Act.
(c) The changes made by this Act to Section 71.051,
Civil Practice and Remedies Code, apply to actions: (1) filed on or
after the effective date of this Act, or (2) pending on the
effective date of this Act in which trial (including a new trial or
retrial following motion, appeal, or otherwise) has not commenced
on or before the effective date of this Act.
(d) Unless otherwise specified in this Act, an action
is governed by the law applicable to that action that was in effect
immediately before the effective date of this Act, and that law is
continued in effect for that purpose.