S.B. No. 15
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. FINDINGS; PURPOSE. (a) The Legislature of the
State of Texas makes findings as stated in this section.
(b) Asbestos is a mineral that was used extensively in
industrial applications, especially between the 1940s and the
1970s. It is estimated that as many as 27 million American workers
were exposed to asbestos between 1940 and 1979. Exposure to
asbestos, particularly through inhalation of asbestos fibers, has
allegedly been linked to certain malignant and nonmalignant
diseases, including mesothelioma and asbestosis. These diseases
have latency periods of up to 40 years.
(c) 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
alleging asbestos-related disease filed each year 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 more than 200,000 claims.
(d) 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, the United States Supreme Court acknowledged that the
country was in the midst of an "asbestos-litigation crisis."
AmChem Products, Inc. v. Windsor, 521 U.S. 591, 597 (1997).
(e) Texas has not been spared this crisis. In the period
from 1988 to 2000, more lawsuits alleging asbestos-related disease
were filed in Texas than in any other state. Thousands of asbestos
lawsuits are pending in Texas courts today.
(f) This asbestos litigation crisis is due, in part, to
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 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 percent of
identified individuals) are not experiencing any symptoms of
asbestos-related disease and are not suffering from any
asbestos-related illness affecting their daily functions.
(g) The crush of asbestos litigation has been costly to
employers, employees, litigants, and the court system. In 2003,
the American Bar Association Commission on Asbestos Litigation
noted that in 1982, the nation's single largest 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 eventually 423,000 jobs will be lost due to
asbestos-related bankruptcies. Each worker who loses a job due to
an asbestos-related bankruptcy loses between $25,000 and $50,000 in
wages over the worker's career. These workers also have seen the
value of their 401(k) retirement plans drop by 25 percent or more
due to these bankruptcies.
(h) Additionally, it is estimated that asbestos litigation
has already cost over $54 billion, with well over half of this
expense going to attorney's 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 severely hampers the ability of seriously
ill claimants to seek redress in the courts. Those claimants 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 due to the weight of
asbestos litigation brought by unimpaired claimants.
(i) 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.
(j) Silica sand is the primary raw material for the
production of glass, including container glass (bottles and jars),
flat glass (windows), and other forms of glass. Silica sand is used
to make foundry molds and cores. Industrial minerals that contain
silica are the essential raw materials for the manufacture of
ceramics, which include industrial ceramics, sanitary ware
(bathrooms), and tableware (plates and cups). Crushed stone and
sand and gravel (aggregates), most of which contain crystalline
silica, are the primary raw materials in concrete and asphalt;
these materials are used in the construction of roads, sidewalks,
building foundations, and many other things. Sandstone and
granite, both of which contain silica, are used as building
materials.
(k) The primary adverse health effect associated with
silica is silicosis. Silicosis is a lung disease characterized by
fibrosis, or scarring, and is caused by prolonged overexposure to
respirable silica through inhalation. Additionally, silica
inhaled from occupational sources was classified as a lung
carcinogen in 1996.
(l) Silicosis has been recognized as an occupational
disease for over 100 years. By the 1930s, the federal government
had launched a silica-awareness campaign, which led to greater
protection for workers exposed to silica dust. By the early 1970s,
the United States Occupational Safety and Health Administration had
begun to regulate occupational exposure to respirable silica. In
1999, the United States Centers for Disease Control and
Prevention/National Institute for Occupational Safety and Health
called the reduction in occupational lung diseases, including
silicosis, one of the ten great public health achievements of the
20th century. The United States Centers for Disease Control and
Prevention/National Institute for Occupational Safety and Health
data disclose a substantial decrease in silicosis since 1968 (the
first year the data were collected). As a result, the number of
silica lawsuits filed each year was relatively predictable through
2001. This trend has changed. The number of new lawsuits alleging
silica-related disease being filed each year has risen
precipitously in recent years. For example, one of America's
largest suppliers of industrial sand had more than 15,000 new
claims filed in the first six months of 2003, which is three times
the number of claims it had in all of 2002 and more than 10 times the
number of claims it had in all of 2001.
(m) Silica claims, like asbestos claims, often arise when an
individual is identified as having markings on the individual's
lungs that are possibly consistent with silica exposure, but the
individual has no functional or physical impairment from any
silica-related disease. The identified individuals, like those
alleging asbestos-related injury, 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.
(n) It is the purpose of this Act to protect the right of
people with impairing asbestos-related and silica-related injuries
to pursue their claims for compensation in a fair and efficient
manner through the Texas court system, while at the same time
preventing scarce judicial and litigant resources from being
misdirected by the claims of individuals who have been exposed to
asbestos or silica but have no functional or physical impairment
from asbestos-related or silica-related disease. To that end, this
Act:
(1) adopts medically accepted standards for
differentiating between individuals with nonmalignant
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 on
discovering an impairing asbestos-related or silica-related
injury; and
(3) creates an extended period before limitations
begin to run in which to bring claims for injuries caused by the
inhalation or ingestion of asbestos or by 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
that they develop an impairing 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, in whole or in part, 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 sponsored
by the National Institute for Occupational Safety and Health
(NIOSH) and passed the B-reader certification examination for x-ray
interpretation and whose NIOSH certification is 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 posterior-anterior view.
(6) "Claimant" means an exposed person and any person
who is seeking recovery of damages for or arising from the injury or
death of an exposed person.
(7) "Defendant" means a person against whom a claim
arising from an asbestos-related injury or a silica-related injury
is made.
(8) "Exposed person" means a person who is alleged to
have suffered an asbestos-related injury or a silica-related
injury.
(9) "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.
(10) "FVC" means forced vital capacity, which is the
maximal volume of air expired with maximum effort from a position of
full inspiration.
(11) "ILO system of classification" means the
radiological rating system of the International Labor Office in
"Guidelines for the Use of ILO International Classification of
Radiographs of Pneumoconioses" (2000), as amended.
(12) "MDL pretrial court" means the district court to
which related cases are transferred for consolidated or coordinated
pretrial proceedings under Rule 13, Texas Rules of Judicial
Administration.
(13) "MDL rules" means the rules adopted by the
supreme court under Subchapter H, Chapter 74, Government Code.
(14) "Mesothelioma" means a rare form of cancer
allegedly caused in some instances by exposure to asbestos in which
the cancer invades cells in the membrane lining:
(A) the lungs and chest cavity (the pleural
region);
(B) the abdominal cavity (the peritoneal
region); or
(C) the heart (the pericardial region).
(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 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 and reported 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 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" means a report required by Section
90.003, 90.004, or 90.010(f)(1).
(25) "Respirable," with respect to silica, means
particles that are less than 10 microns in diameter.
(26) "Serve" means to serve notice on a party in
compliance with Rule 21a, Texas Rules of Civil Procedure.
(27) "Silica" means a respirable form of crystalline
silicon dioxide, including alpha quartz, cristobalite, and
tridymite.
(28) "Silica-related injury" means personal injury or
death allegedly caused, in whole or in part, by inhalation of
silica.
(29) "Silicosis" means interstitial fibrosis of the
lungs caused by inhalation of silica, including:
(A) acute silicosis, which may occur after
exposure to very high levels of silica within a period of months to
five years after the initial exposure;
(B) accelerated silicosis; and
(C) chronic silicosis.
Sec. 90.002. PULMONARY FUNCTION TESTING. Pulmonary
function testing required by this chapter must be interpreted by a
physician:
(1) who is licensed in this state or another state of
the United States;
(2) who is board certified in pulmonary medicine,
internal medicine, or occupational medicine; and
(3) whose license and certification were not on
inactive status at the time the testing was interpreted.
Sec. 90.003. REPORTS REQUIRED FOR CLAIMS INVOLVING
ASBESTOS-RELATED INJURY. (a) A claimant asserting an
asbestos-related injury must serve on each defendant the following
information:
(1) a report by a physician who is board certified in
pulmonary medicine, occupational medicine, internal medicine,
oncology, or pathology and whose license and certification were not
on inactive status at the time the report was made stating that:
(A) the exposed person has been diagnosed with
malignant mesothelioma or other malignant asbestos-related cancer;
and
(B) 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 who is board certified in
pulmonary medicine, internal medicine, or occupational medicine
and whose license and certification were not on inactive status at
the time the report was made 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 a person knowledgeable about the alleged exposure
or 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, exposure, 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 or 2 chest x-ray that has
been read by a certified B-reader according to the ILO system of
classification as showing:
(a) bilateral small irregular
opacities (s, t, or u) with a profusion grading of 1/1 or higher,
for an action filed on or after May 1, 2005;
(b) bilateral small irregular
opacities (s, t, or u) with a profusion grading of 1/0 or higher,
for an action filed before May 1, 2005; or
(c) 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 Archives 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 or below 80 percent of predicted and FEV1/FVC ratio
(using actual values) at or above the lower limit of normal or at or
above 65 percent; or
(ii) total lung capacity, by
plethysmography or timed gas dilution, below the lower limit of
normal or below 80 percent of predicted;
(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 occupational, exposure, medical,
and smoking history; and
(F) is accompanied by copies of all ILO
classifications, pulmonary function tests, including printouts of
all data, flow volume loops, and other information demonstrating
compliance with the equipment, quality, interpretation, and
reporting standards set out in this chapter, lung volume tests,
diagnostic imaging of the chest, pathology reports, or other
testing reviewed by the physician in reaching the physician's
conclusions.
(b) The detailed occupational and exposure history required
by Subsection (a)(2)(A)(ii) must describe:
(1) the exposed person's principal employments and
state whether the exposed person was exposed to airborne
contaminants, including asbestos fibers and other dusts that can
cause pulmonary impairment; and
(2) the nature, duration, and frequency of the exposed
person's exposure to airborne contaminants, including asbestos
fibers and other dusts that can cause pulmonary impairment.
(c) If a claimant's pulmonary function test results do not
meet the requirements of Subsection (a)(2)(D)(i) or (ii), the
claimant may serve on each defendant a report by a physician who is
board certified in pulmonary medicine, internal medicine, or
occupational medicine and whose license and certification were not
on inactive status at the time the report was made that:
(1) verifies that the physician has a
physician-patient relationship with the exposed person;
(2) verifies that the exposed person has a quality 1 or
2 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) with a profusion grading of 2/1 or
higher;
(3) verifies that the exposed person has restrictive
impairment from asbestosis and includes the specific pulmonary
function test findings on which the physician relies to establish
that the exposed person has restrictive impairment;
(4) 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 occupational, exposure, medical, and
smoking history; and
(5) is accompanied by copies of all ILO
classifications, pulmonary function tests, including printouts of
all data, flow volume loops, and other information demonstrating
compliance with the equipment, quality, interpretation, and
reporting standards set out in this chapter, lung volume tests,
diagnostic imaging of the chest, pathology reports, or other
testing reviewed by the physician in reaching the physician's
conclusions.
(d) If a claimant's radiologic findings do not meet the
requirements of Subsection (a)(2)(C)(i), the claimant may serve on
each defendant a report by a physician who is board certified in
pulmonary medicine, internal medicine, or occupational medicine
and whose license and certification were not on inactive status at
the time the report was made that:
(1) verifies that the physician has a
physician-patient relationship with the exposed person;
(2) verifies that the exposed person has
asbestos-related pulmonary impairment as demonstrated by pulmonary
function testing showing:
(A) either:
(i) forced vital capacity below the lower
limit of normal or below 80 percent of predicted and total lung
capacity, by plethysmography, below the lower limit of normal or
below 80 percent of predicted; or
(ii) forced vital capacity below the lower
limit of normal or below 80 percent of predicted and FEV1/FVC ratio
(using actual values) at or above the lower limit of normal or at or
above 65 percent; and
(B) diffusing capacity of carbon monoxide below
the lower limit of normal or below 80 percent of predicted;
(3) verifies that the exposed person has a computed
tomography scan or high-resolution computed tomography scan
showing either bilateral pleural disease or bilateral parenchymal
disease consistent with asbestos exposure;
(4) 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 as
revealed by the exposed person's occupational, exposure, medical,
and smoking history; and
(5) is accompanied by copies of all computed
tomography scans, ILO classifications, pulmonary function tests,
including printouts of all data, flow volume loops, and other
information demonstrating compliance with the equipment, quality,
interpretation, and reporting standards set out in this chapter,
lung volume tests, diagnostic imaging of the chest, pathology
reports, or other testing reviewed by the physician in reaching the
physician's conclusions.
Sec. 90.004. REPORTS REQUIRED FOR CLAIMS INVOLVING
SILICA-RELATED INJURY. (a) A claimant asserting a silica-related
injury must serve on each defendant a report by a physician who is
board certified in pulmonary medicine, internal medicine,
oncology, pathology, or, with respect to a claim for silicosis,
occupational medicine and whose license and certification were not
on inactive status at the time the report was made that:
(1) verifies that the physician or a medical
professional employed by and under the direct supervision and
control of the physician:
(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 a person knowledgeable about the alleged exposure or
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;
(2) sets out the details of the exposed person's
occupational, exposure, medical, and smoking history;
(3) verifies that the exposed person has one or more of
the following:
(A) a quality 1 or 2 chest x-ray that has been
read by a certified B-reader according to the ILO system of
classification as showing:
(i) bilateral predominantly nodular
opacities (p, q, or r) occurring primarily in the upper lung fields,
with a profusion grading of 1/1 or higher, for an action filed on or
after May 1, 2005; or
(ii) bilateral predominantly nodular
opacities (p, q, or r) occurring primarily in the upper lung fields,
with a profusion grading of 1/0 or higher, for an action filed
before May 1, 2005;
(B) pathological demonstration of classic
silicotic nodules exceeding one centimeter in diameter as published
in "Diseases Associated with Exposure to Silica and Nonfibrous
Silicate Minerals," 112 Archives of Pathology and Laboratory
Medicine 7 (July 1988);
(C) progressive massive fibrosis radiologically
established by large opacities greater than one centimeter in
diameter; or
(D) acute silicosis; and
(4) is accompanied by copies of all ILO
classifications, pulmonary function tests, including printouts of
all data, flow volume loops, and other information demonstrating
compliance with the equipment, quality, interpretation, and
reporting standards set out in this chapter, lung volume tests,
diagnostic imaging of the chest, pathology reports, or other
testing reviewed by the physician in reaching the physician's
conclusions.
(b) If the claimant is asserting a claim for silicosis, the
report required by Subsection (a) must also verify that:
(1) there has been a sufficient latency period for the
applicable type of silicosis;
(2) the exposed person has at least Class 2 or higher
impairment due to silicosis, according to the American Medical
Association Guides to the Evaluation of Permanent Impairment and
reported in 20 C.F.R. Part 404, Subpart P, Appendix 1, Part (A),
Sections 3.00(E) and (F)(2003); and
(3) 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 occupational, exposure, medical, and smoking history.
(c) If the claimant is asserting a claim for silica-related
lung cancer, the report required by Subsection (a) must also:
(1) include a diagnosis that the exposed person has
primary lung cancer and that inhalation of silica was a substantial
contributing factor to that cancer; and
(2) verify that at least 15 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.
(d) If the claimant is asserting a claim for any disease
other than silicosis and lung cancer alleged to be related to
exposure to silica, the report required by Subsection (a) must also
verify that the physician has diagnosed the exposed person with a
disease other than silicosis or silica-related lung cancer and has
concluded that the exposed person's disease is not more probably
the result of causes other than silica exposure.
(e) The detailed occupational and exposure history required
by Subsection (a)(1)(B) must describe:
(1) the exposed person's principal employments and
state whether the exposed person was exposed to airborne
contaminants, including silica and other dusts that can cause
pulmonary impairment; and
(2) the nature, duration, and frequency of the exposed
person's exposure to airborne contaminants, including silica and
other dusts that can cause pulmonary impairment.
Sec. 90.005. PROHIBITED BASIS FOR DIAGNOSIS. (a) For
purposes of this chapter, a physician may not, as the basis for a
diagnosis, rely on 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 was
conducted 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.
(b) If a physician relies on any information in violation of
Subsection (a), the physician's opinion or report does not comply
with the requirements of this chapter.
Sec. 90.006. SERVING REPORTS. (a) In an action filed on or
after the date this chapter becomes law, a report prescribed by
Section 90.003 or 90.004 must be served on each defendant not later
than the 30th day after the date that defendant answers or otherwise
enters an appearance in the action.
(b) In an action pending on the date this chapter becomes
law and in which the trial, or any new trial or retrial following
motion, appeal, or otherwise, commences on or before the 90th day
after the date this chapter becomes law, a claimant is not required
to serve a report on any defendant unless a mistrial, new trial, or
retrial is subsequently granted or ordered.
(c) In an action pending on the date this chapter becomes
law and in which the trial, or any new trial or retrial following
motion, appeal, or otherwise, commences after the 90th day after
the date this chapter becomes law, a report must be served on each
defendant on or before the earlier of the following dates:
(1) the 60th day before trial commences; or
(2) the 180th day after the date this chapter becomes
law.
Sec. 90.007. MOTION TO DISMISS. (a) In an action filed on
or after the date this chapter becomes law, if a claimant fails to
timely serve a report on a defendant, or serves on the defendant a
report that does not comply with the requirements of Section 90.003
or 90.004, the defendant may file a motion to dismiss the claimant's
asbestos-related claims or silica-related claims. The motion must
be filed on or before the 30th day after the date the report is
served on the defendant. If a claimant fails to serve a report on
the defendant, the motion must be filed on or before the 30th day
after the date the report was required to be served on the defendant
under Section 90.006. If the basis of the motion is that the
claimant has served on the defendant a report that does not comply
with Section 90.003 or 90.004, the motion must include the reasons
why the report does not comply with that section.
(b) A claimant may file a response to a motion to dismiss on
or before the 15th day after the date the motion to dismiss is
served. A report required by Section 90.003 or 90.004 may be filed,
amended, or supplemented within the time required 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) Except as provided by Section 90.010(d) or (e), if the
court is of the opinion that a motion to dismiss is meritorious, the
court shall, by written order, grant the motion and dismiss all of
the claimant's asbestos-related claims or silica-related claims,
as appropriate, 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 action.
(d) On the filing of a motion to dismiss under this section,
all further proceedings in the action are stayed until the motion is
heard and determined by the court.
(e) On the motion of a party showing good cause, the court
may shorten or extend the time limits provided in this section for
filing or serving motions, responses, or reports.
Sec. 90.008. VOLUNTARY DISMISSAL. Before serving a report
required by Section 90.003 or 90.004, a claimant seeking damages
arising from an asbestos-related injury or silica-related injury
may voluntarily dismiss the claimant's 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 action seeking damages arising from an asbestos-related
injury or a silica-related injury.
Sec. 90.009. JOINDER OF CLAIMANTS. Unless all parties
agree otherwise, claims relating to more than one exposed person
may not be joined for a single trial.
Sec. 90.010. MULTIDISTRICT LITIGATION PROCEEDINGS.
(a) The MDL rules apply to any action pending on the date this
chapter becomes law in which the claimant alleges personal injury
or death from exposure to asbestos or silica unless:
(1) the action was filed before September 1, 2003, and
trial has commenced or is set to commence on or before the 90th day
after the date this chapter becomes law, except that the MDL rules
shall apply to the action if the trial does not commence on or
before the 90th day after the date this chapter becomes law;
(2) the action was filed before September 1, 2003, and
the claimant serves a report that complies with Section 90.003 or
90.004 on or before the 90th day after the date this chapter becomes
law; or
(3) the action was filed before September 1, 2003, and
the exposed person has been diagnosed with malignant mesothelioma,
other malignant asbestos-related cancer, or malignant
silica-related cancer.
(b) If the claimant fails to serve a report complying with
Section 90.003 or 90.004 on or before the 90th day after the date
this chapter becomes law under Subsection (a)(2), the defendant may
file a notice of transfer to the MDL pretrial court. If the MDL
pretrial court determines that the claimant served a report that
complies with Section 90.003 or 90.004 on or before the 90th day
after the date this chapter becomes law, the MDL pretrial court
shall remand the action to the court in which the action was filed.
If the MDL pretrial court determines that the report was not served
on or before the 90th day after the date this chapter becomes law or
that the report served does not comply with Section 90.003 or
90.004, the MDL pretrial court shall retain jurisdiction over the
action pursuant to the MDL rules.
(c) In an action transferred to an MDL pretrial court in
which the exposed person is living and has been diagnosed with
malignant mesothelioma, other malignant asbestos-related cancer,
malignant silica-related cancer, or acute silicosis, the MDL
pretrial court shall expedite the action in a manner calculated to
provide the exposed person with a trial or other disposition in the
shortest period that is fair to all parties and consistent with the
principles of due process. The MDL pretrial court should, as far as
reasonably possible, ensure that such action is brought to trial or
final disposition within six months from the date the action is
transferred to the MDL pretrial court, provided that all discovery
and case management requirements of the MDL pretrial court have
been satisfied.
(d) In an action pending on the date this chapter becomes
law that is transferred to or pending in an MDL pretrial court and
in which the claimant does not serve a report that complies with
Section 90.003 or 90.004, the MDL pretrial court shall not dismiss
the action pursuant to this chapter but shall retain jurisdiction
over the action under the MDL rules. The MDL pretrial court shall
not remand such action for trial unless:
(1) the claimant serves a report complying with
Section 90.003 or 90.004; or
(2)(A) the claimant does not serve a report that
complies with Section 90.003 or 90.004;
(B) the claimant serves a report complying with
Subsection (f)(1); and
(C) the court, on motion and hearing, makes the
findings required by Subsection (f)(2).
(e) In an action filed on or after the date this chapter
becomes law that is transferred to an MDL pretrial court and in
which the claimant does not serve on a defendant a report that
complies with Section 90.003 or 90.004, the MDL pretrial court
shall, on motion by a defendant, dismiss the action under Section
90.007 unless:
(1) the claimant serves a report that complies with
Subsection (f)(1); and
(2) the court, on motion and hearing, makes the
findings required by Subsection (f)(2).
(f) In an action in which the claimant seeks remand for
trial under Subsection (d)(2) or denial of a motion to dismiss under
Subsection (e):
(1) the claimant shall serve on each defendant a
report that:
(A) complies with the requirements of Sections
90.003(a)(2)(A), (B), (E), and (F) and 90.003(b) or Sections
90.004(a)(1), (2), and (4) and 90.004(e); and
(B) verifies that:
(i) the physician making the report has a
physician-patient relationship with the exposed person;
(ii) pulmonary function testing has been
performed on the exposed person and the physician making the report
has interpreted the pulmonary function testing;
(iii) the physician making the report has
concluded, to a reasonable degree of medical probability, that the
exposed person has radiographic, pathologic, or computed
tomography evidence establishing bilateral pleural disease or
bilateral parenchymal disease caused by exposure to asbestos or
silica; and
(iv) the physician has concluded that the
exposed person has asbestos-related or silica-related physical
impairment comparable to the impairment the exposed person would
have had if the exposed person met the criteria set forth in Section
90.003 or 90.004; and
(2) the MDL pretrial court shall determine whether:
(A) the report and medical opinions offered by
the claimant are reliable and credible;
(B) due to unique or extraordinary physical or
medical characteristics of the exposed person, the medical criteria
set forth in Sections 90.003 and 90.004 do not adequately assess the
exposed person's physical impairment caused by exposure to asbestos
or silica; and
(C) the claimant has produced sufficient
credible evidence for a finder of fact to reasonably find that the
exposed person is physically impaired as the result of exposure to
asbestos or silica to a degree comparable to the impairment the
exposed person would have had if the exposed person met the criteria
set forth in Section 90.003 or 90.004.
(g) A court's determination under Subsection (f) shall be
made after conducting an evidentiary hearing at which the claimant
and any defendant to the action may offer supporting or
controverting evidence. The parties shall be permitted a
reasonable opportunity to conduct discovery before the evidentiary
hearing.
(h) The court shall state its findings under Subsection
(f)(2) in writing and shall address in its findings:
(1) the unique or extraordinary physical or medical
characteristics of the exposed person that justify the application
of this section; and
(2) the reasons the criteria set forth in Sections
90.003 and 90.004 do not adequately assess the exposed person's
physical impairment caused by exposure to asbestos or silica.
(i) Any findings made by a court under Subsection (f) are
not admissible for any purpose at a trial on the merits.
(j) Subsections (d)(2) and (e)-(i) apply only in
exceptional and limited circumstances in which the exposed person
does not satisfy the medical criteria of Section 90.003 or 90.004
but can demonstrate meaningful asbestos-related or silica-related
physical impairment that satisfies the requirements of Subsection
(f). Subsections (d)(2) and (e)-(i) have limited application and
shall not be used to negate the requirements of this chapter.
(k) On or before September 1, 2010, each MDL pretrial court
having jurisdiction over cases to which this chapter applies shall
deliver a report to the governor, lieutenant governor, and the
speaker of the house of representatives stating:
(1) the number of cases on the court's multidistrict
litigation docket as of August 1, 2010;
(2) the number of cases on the court's multidistrict
litigation docket as of August 1, 2010, that do not meet the
criteria of Section 90.003 or 90.004, to the extent known;
(3) the court's evaluation of the effectiveness of the
medical criteria established by Sections 90.003 and 90.004;
(4) the court's recommendation, if any, as to how
medical criteria should be applied to the cases on the court's
multidistrict litigation docket as of August 1, 2010; and
(5) any other information regarding the
administration of cases in the MDL pretrial courts that the court
deems appropriate.
Sec. 90.011. BANKRUPTCY. Nothing in this chapter is
intended to affect the rights of any party in a bankruptcy
proceeding or affect the ability of any person to satisfy the claim
criteria for compensable claims or demands under a trust
established pursuant to a plan of reorganization under Chapter 11
of the United States Bankruptcy Code (11 U.S.C. Section 1101 et
seq.).
Sec. 90.012. SUPREME COURT RULEMAKING. The supreme court
may promulgate amendments to the Texas Rules of Civil Procedure
regarding the joinder of claimants in asbestos-related actions or
silica-related actions if the rules are consistent with Section
90.009.
SECTION 3. Subsection (a), Section 16.003, Civil Practice
and Remedies Code, is amended to read as follows:
(a) Except as provided by Sections 16.010, 16.0031, and
16.0045, a person must bring suit for trespass for injury to the
estate or to the property of another, conversion of personal
property, taking or detaining the personal property of another,
personal injury, forcible entry and detainer, and forcible detainer
not later than two years after the day the cause of action accrues.
SECTION 4. Subchapter A, Chapter 16, Civil Practice and
Remedies Code, is amended by adding Section 16.0031 to read as
follows:
Sec. 16.0031. ASBESTOS-RELATED OR SILICA-RELATED INJURIES.
(a) In an action for personal injury or death resulting from an
asbestos-related injury, as defined by Section 90.001, the cause of
action accrues for purposes of Section 16.003 on the earlier of the
following dates:
(1) the date of the exposed person's death; or
(2) the date that the claimant serves on a defendant a
report complying with Section 90.003 or 90.010(f).
(b) In an action for personal injury or death resulting from
a silica-related injury, as defined by Section 90.001, the cause of
action accrues for purposes of Section 16.003 on the earlier of the
following dates:
(1) the date of the exposed person's death; or
(2) the date that the claimant serves on a defendant a
report complying with Section 90.004 or 90.010(f).
SECTION 5. Subsection (a), Section 51.014, Civil Practice
and Remedies Code, is amended to read as follows:
(a) A person may appeal from an interlocutory order of a
district court, county court at law, or county court that:
(1) appoints a receiver or trustee;
(2) overrules a motion to vacate an order that
appoints a receiver or trustee;
(3) certifies or refuses to certify a class in a suit
brought under Rule 42 of the Texas Rules of Civil Procedure;
(4) grants or refuses a temporary injunction or grants
or overrules a motion to dissolve a temporary injunction as
provided by Chapter 65;
(5) denies a motion for summary judgment that is based
on an assertion of immunity by an individual who is an officer or
employee of the state or a political subdivision of the state;
(6) denies a motion for summary judgment that is based
in whole or in part upon a claim against or defense by a member of
the electronic or print media, acting in such capacity, or a person
whose communication appears in or is published by the electronic or
print media, arising under the free speech or free press clause of
the First Amendment to the United States Constitution, or Article
I, Section 8, of the Texas Constitution, or Chapter 73;
(7) grants or denies the special appearance of a
defendant under Rule 120a, Texas Rules of Civil Procedure, except
in a suit brought under the Family Code;
(8) grants or denies a plea to the jurisdiction by a
governmental unit as that term is defined in Section 101.001;
(9) denies all or part of the relief sought by a motion
under Section 74.351(b), except that an appeal may not be taken from
an order granting an extension under Section 74.351; [or]
(10) grants relief sought by a motion under Section
74.351(l); or
(11) denies a motion to dismiss filed under Section
90.007.
SECTION 6. Subsection (d), Section 22.225, Government Code,
is amended to read 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), [or] (6), or (11), Civil Practice and Remedies Code.
SECTION 7. 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
71.004, 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
Subtitle B, Title 4, 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) actions in which the claimant has been diagnosed
with malignant mesothelioma, other malignant asbestos-related
cancer, malignant silica-related cancer, or acute silicosis.
SECTION 8. Subchapter E, Chapter 21, Insurance Code, is
amended by adding Article 21.53X to read as follows:
Art. 21.53X. PROHIBITED PRACTICES RELATED TO EXPOSURE TO
ASBESTOS OR SILICA. (a) In this article, "health benefit plan"
means a plan that provides benefits for medical, surgical, or other
treatment expenses incurred as a result of a health condition, a
mental health condition, an accident, sickness, or substance abuse,
including an individual, group, blanket, or franchise insurance
policy or insurance agreement, a group hospital service contract,
or an individual or group evidence of coverage or similar coverage
document. The term includes:
(1) a small employer health benefit plan or a health
benefit plan written to provide coverage with a cooperative under
Chapter 26 of this code;
(2) a standard health benefit plan offered under
Article 3.80 of this code or Section 9N, Texas Health Maintenance
Organization Act (Article 20A.09N, Vernon's Texas Insurance Code);
and
(3) a health benefit plan offered under Chapter 1551,
1575, 1579, or 1601 of this code.
(b) This article applies to any entity that offers a health
benefit plan or an annuity or life insurance policy or contract in
this state, including:
(1) a stock or mutual life, health, or accident
insurance company;
(2) a group hospital service corporation operating
under Chapter 842 of this code;
(3) a fraternal benefit society operating under
Chapter 885 of this code;
(4) a stipulated premium insurance company operating
under Chapter 884 of this code;
(5) a Lloyd's plan operating under Chapter 941 of this
code;
(6) an exchange operating under Chapter 942 of this
code;
(7) a health maintenance organization operating under
Chapter 843 of this code;
(8) a multiple employer welfare arrangement that holds
a certificate of authority under Chapter 846 of this code;
(9) an approved nonprofit health corporation that
holds a certificate of authority under Chapter 844 of this code;
(10) a statewide mutual assessment company operating
under Chapter 881 of this code;
(11) a local mutual aid association operating under
Chapter 886 of this code; and
(12) a local mutual burial association operating under
Chapter 888 of this code.
(c) An entity that offers a health benefit plan or an
annuity or life insurance policy or contract may not use the fact
that a person has been exposed to asbestos fibers or silica or has
filed a claim governed by Chapter 90, Civil Practice and Remedies
Code, to reject, deny, limit, cancel, refuse to renew, increase the
premiums for, or otherwise adversely affect the person's
eligibility for or coverage under the policy or contract.
SECTION 9. (a) Sections 90.009 and 16.0031, Civil Practice
and Remedies Code, as added by this Act, apply to an action
commenced on or after the effective date of this Act or pending on
the effective date of this Act and in which the trial, or any new
trial or retrial following motion, appeal, or otherwise, has not
commenced on or before the effective date of this Act. An action
commenced before the effective date of this Act in which trial has
commenced on or before the effective date of this Act or in which
there has been a final, unappealable disposition by order,
judgment, voluntary dismissal, or otherwise is governed by the law
applicable to the action immediately before the effective date of
this Act, and that law is continued in effect for that purpose.
Section 16.0031, Civil Practice and Remedies Code, as added by this
Act, shall not operate to revive any claims that are barred by
application of the law in effect immediately before the effective
date of this Act.
(b) Article 21.53X, Insurance Code, as added by this Act,
applies only to a health benefit plan or an annuity or life
insurance policy or contract delivered, issued for delivery, or
renewed on or after the effective date of this Act. A health
benefit plan or an annuity or life insurance policy or contract
delivered, issued for delivery, or renewed before the effective
date of this Act is governed by the law as it existed immediately
before the effective date of this Act, and that law is continued in
effect for that purpose.
SECTION 10. There is a direct appeal to the supreme court
from an order, however characterized, of a trial court granting or
denying a temporary or otherwise interlocutory injunction or a
permanent injunction on the grounds of the constitutionality or
unconstitutionality, or other validity or invalidity, under the
state or federal constitution of all or any part of this Act. The
direct appeal is an accelerated appeal.
SECTION 11. Section 90.007, Civil Practice and Remedies
Code, as added by this Act, allowing the dismissal of claims for
failing to serve reports complying with the requirements of
Sections 90.003 and 90.004, Civil Practice and Remedies Code,
Subsection (d), Section 90.010, Civil Practice and Remedies Code,
as added by this Act, setting standards for certain cases to be
remanded for trial from MDL pretrial courts, and Section 16.0031,
Civil Practice and Remedies Code, as added by this Act, relating to
the limitations period for asbestos-related and silica-related
causes of action, are not severable, and none of those sections
would have been enacted without the others. If any of those
provisions are held invalid, all of those provisions are invalid.
If any other provision of this Act or its application to any person
or circumstance is held invalid, the invalidity does not affect
other provisions or applications of this Act, and to this end the
provisions of this Act, other than Section 90.007, Subsection (d),
Section 90.010, and Section 16.0031, Civil Practice and Remedies
Code, as added by this Act, are declared severable.
SECTION 12. This Act takes effect September 1, 2005.
______________________________ ______________________________
President of the Senate Speaker of the House
I hereby certify that S.B. No. 15 passed the Senate on
April 27, 2005, by the following vote: Yeas 30, Nays 0; and that
the Senate concurred in House amendment on May 16, 2005, by the
following vote: Yeas 30, Nays 0.
______________________________
Secretary of the Senate
I hereby certify that S.B. No. 15 passed the House, with
amendment, on May 11, 2005, by a non-record vote.
______________________________
Chief Clerk of the House
Approved:
______________________________
Date
______________________________
Governor