To provide a new system by which to resolve claims for bodily injury caused by asbestos exposure, and for other purposes.

SA 2749. Mr. CORNYN proposed an amendment to amendment SA 2748
proposed by Mr. Cornyn (for himself, Mr. Coburn, Mr. Graham, Mr.
Ensign, Mr. Crapo, Mr. Inhofe, Mr. Martinez, Mr. DeMint, Mr. Thune, Mr.
Bennett, Mr. Smith, Mr. Craig, Mr. Bunning, Mr. Thomas, Mr. Sununu, Mr.
Chambliss, Mr. Enzi, and Mr. Hagel) to the bill S. 852, to create a
fair and efficient system to resolve claims of victims for bodily
injury caused by asbestos exposure, and for other purposes; as follows:

In lieu of the matter proposed to be inserted, insert the
following:
This Act may be cited as the ``Asbestos and Silica Claims
Priorities Act''.

SEC. 2. FINDINGS AND PURPOSES.

(a) Findings.--Congress finds the following:
(1) Asbestos is a mineral that was widely used before the
mid-1970s for insulation, fireproofing, and other purposes.
(2) Many American workers were exposed to asbestos,
especially during the Second World War.
(3) Long-term exposure to asbestos has been associated with
mesothelioma and lung cancer, as well as with such non-
malignant conditions as asbestosis, pleural plaques, and
diffuse pleural thickening.
(4) Although the use of asbestos has dramatically declined
since 1980 and workplace exposures have been regulated since
1971 by the Occupational Safety and Health Administration,
the diseases caused by asbestos often have long latency
periods and past exposures will continue to result in
significant claims well into the future.
(5) Asbestos related claims, driven largely by unimpaired
claimants, have flooded our courts such that the United
States Supreme Court has characterized the situation as ``an
elephantine mass'' that ``calls for national legislation''
(Ortiz v. Fibreboard Corporation, 119 S. Ct. 2295, 2302
(1999).
(6) The American Bar Association supports enactment of
Federal legislation that would allow persons alleging non-
malignant asbestos-related disease claims to file a cause of
action in Federal or State court only if those persons meet
the medical criteria in the ``ABA Standard for Non-Malignant
Asbestos-Related Disease Claims'' and toll all applicable
statutes of limitations until such time as the medical
criteria in such standard are met.
(7) Reports indicate that up to 90 percent of asbestos
claims are filed by individuals who allege that they have
been exposed to asbestos, but who suffer no demonstrable
asbestos-related impairment. Lawyer-sponsored x-ray
screenings of workers at occupational locations are used to
amass large numbers of claimants, the vast majority of whom
are unimpaired.
(8) The costs of compensating unimpaired claimants and
litigating their claims jeopardizes the ability of defendants
to compensate people with cancer and other serious diseases,
threatens the savings, retirement benefits, and jobs of
current and retired employees, and adversely affects the
communities in which the defendants operate.
(9) More than 73 companies have declared bankruptcy due to
the burden of asbestos litigation. The rate of asbestos-
driven bankruptcies is accelerating. Between 2000 and 2004,
there were more asbestos-related bankruptcy filings than in
either of the prior 2 decades.
(10) Bankruptcies have led plaintiffs and their lawyers to
expand their search for solvent peripheral defendants. The
number of asbestos defendants now includes over 8,500
companies, affecting many small and medium size companies and
industries that span 85 percent of the United States economy.
(11) Efforts to address asbestos litigation may augment
silica-related filings.
(12) 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.
(13) Silica-related illness, including silicosis can
develop from the inhalation of respirable silica dust.
Silicosis was widely recognized as an occupational disease
many years ago.
(14) Silica claims, like asbestos claims, often involve
individuals with no demonstrable impairment. Claimants
frequently are identified through the use of interstate, for-
profit, screening companies.
(15) Silica screening processes have been found subject to
substantial abuse and potential fraud in Federal silica
litigation (In re Silica Prods. Liab. Litig. (MDL No. 1553),
398 F. Supp. 2d 563 (S.D. Tex. 2005)) and it therefore is
necessary to address silica legislation to preempt an
asbestos-like litigation crisis.
(16) Concerns about statutes of limitations may prompt
unimpaired asbestos and silica claimants to bring lawsuits
prematurely to protect against losing their ability to assert
a claim in the future should they develop an impairing
condition.
(17) Sound public policy requires that the claims of
persons with no present physical impairment from asbestos or
silica exposure, be deferred to give priority to physically
impaired claimants, and to safeguard the jobs, benefits, and
savings of workers in affected companies.
(18) Claimant consolidations, joinders, and similar
procedures used by some courts to deal with the mass of
asbestos and silica cases can--
(A) undermine the appropriate functioning of the court
system;
(B) deny due process to plaintiffs and defendants; and
(C) further encourage the filing of thousands of cases by
exposed persons who are not sick and likely will never
develop an impairing condition caused by exposure to asbestos
or silica.
(19) Several states have enacted legislation to prioritize
asbestos and silica claims that serve as a model for national
reform including Texas, Ohio, Florida, and Georgia.
(20) Asbestos litigation, if left unchecked by reasonable
congressional intervention, will--
(A) continue to inhibit the national economy and run
counter to plans to stimulate economic growth and the
creation of jobs;
(B) threaten the savings, retirement benefits, and
employment of defendant's current and retired employees;
(C) affect adversely the communities in which these
defendants operate; and
(D) impair interstate commerce and national initiatives.
(21) The public interest and the interest of interstate
commerce requires deferring the claims of exposed persons who
are not sick in order to--
(A) preserve, now and for the future, defendants' ability
to compensate people who develop cancer and other serious
asbestos-related injuries; and
(B) safeguard the jobs, benefits, and savings of American
workers and the well-being of the national economy.
(b) Purposes.--The purposes of this Act are to--
(1) give priority to current claimants who can demonstrate
an asbestos-related or silica-related impairment based on
reasonable, objective medical criteria;
(2) toll the running of statutes of limitations for persons
who have been exposed to asbestos or to silica, but who have
no present asbestos-related or silica-related impairment; and
(3) enhance the ability of the courts to supervise and
control asbestos and silica litigation.

SEC. 3. DEFINITIONS.

In this Act, the following definitions shall apply:
(1) AMA guides to the evaluation of permanent impairment.--
The term ``AMA Guides to the Evaluation of Permanent
Impairment'' means the most current version of the American
Medical Association's Guides to the Evaluation of Permanent
Impairment in effect at the time of the performance of any
examination or test on the exposed person required by this
Act.
(2) Asbestos.--The term ```asbestos''' means--
(A) chrysotile;
(B) amosite;
(C) crocidolite
(D) tremolite asbestos;
(E) anthophyllite asbestos;
(F) actinolite asbestos;
(G) winchite;
(H) richterite;
(I) asbestiform amphibole minerals; and
(J) any of the minerals described in subparagraphs (A)
through (I) that have been chemically treated or altered,
including all minerals defined as asbestos under section 1910
of title 29, Code of Federal Regulations in effect at the
time an asbestos claim is filed.
(3) Asbestos claim.--The term ``asbestos claim''--
(A) means any claim for damages, losses, indemnification,
contribution, or other relief of whatever nature arising out
of, based on, or related to the alleged health effects
associated with the inhalation or ingestion of asbestos,
including--
(i) loss of consortium;
(ii) personal injury or death;
(iii) mental or emotional injury;
(iv) risk or fear of disease or other injury;
(v) the costs of medical monitoring or surveillance, to the
extent such claims are recognized under State law; or
(vi) any claim made by, or on behalf of, any person exposed
to asbestos, or a representative, spouse, parent, child, or
other relative of the exposed person; and
(B) does not include a claim for compensatory benefits
pursuant to a workers' compensation law or a veterans'
benefits program.

[[Page S1029]]

(4) Asbestosis.--The term ``asbestosis'' means bilateral
diffuse interstitial fibrosis of the lungs caused by
inhalation of asbestos.
(5) Board-certified internist.--The term ``Board-certified
internist'' means a qualified physician--
(A) who is certified by the American Board of Internal
Medicine or the American Osteopathic Board of Internal
Medicine; and
(B) whose certification was current at the time of--
(i) the performance of any examination; and
(ii) rendition of any report required under this Act.
(6) Board-certified occupational medicine specialist.--The
term ``Board-certified occupational medicine specialist''
means a physician--
(A) who is certified in the subspecialty of occupational
medicine by the American Board of Preventive Medicine or the
American Osteopathic Board of Preventive Medicine; and
(B) whose certification was current at the time of--
(i) the performance of any examination; and
(ii) rendition of any report required under this Act.
(7) Board-certified pathologist.--The term ``Board-
certified pathologist'' means a qualified physician--
(A) who holds primary certification in anatomic pathology
or combined anatomic or clinical pathology from the American
Board of Pathology or the American Osteopathic Board of
Internal Medicine;
(B) whose professional practice is principally in the field
of pathology and involves regular evaluation of pathology
materials obtained from surgical or post mortem specimens;
and
(C) whose certification was current at the time of--
(i) any tissue or slide examination; or
(ii) rendition of any report required under this Act.
(8) Board-certified pulmonologist.--The term ``Board-
certified pulmonologist'' means a qualified physician--
(A) who is certified in the subspecialty of pulmonary
medicine by the American Board of Internal Medicine or the
American Osteopathic Board of Internal Medicine; and
(B) whose certification was current at the time of--
(i) the performance of any examination; and
(ii) rendition of any report required under this Act.
(9) Certified b-reader.--The term ``Certified B-reader''
means a person--
(A) who has successfully passed the B-reader certification
examination for x-ray interpretation sponsored by the
National Institute for Occupational Safety and Health; and
(B) whose certification was current at the time of any
readings required under this Act.
(10) Chest x-rays.--The term ``chest x-rays'' means
radiographic films taken in accordance with all applicable
Federal and State standards and in the posterior-anterior
view.
(11) Claimant.--
(A) In general.--The term ``claimant'' means any party
asserting an asbestos or silica claim, including a--
(i) plaintiff;
(ii) counterclaimant;
(iii) cross-claimant; or
(iv) third-party plaintiff.
(B) Claims on behalf of an estate.--If any claim described
in subparagraph (A) is brought through, or on behalf of, an
estate, the term claimant includes the executor, surviving
spouse, or any other descendant of the decedent.
(C) Claims on behalf of a minor.--If any claim described in
subparagraph (A) is brought through, or on behalf of, a minor
or incompetent person, the term claimant includes the parent
or guardian of such minor.
(12) DLCO.--The term ``DLCO'' means diffusing capacity of
the lung for carbon monoxide, which is the measurement of
carbon monoxide transfer from inspired gas to pulmonary
capillary blood.
(13) Exposed person.--
(A) In general.--The term ``exposed person'' means a person
whose claimed exposure to asbestos or silica is the basis for
an asbestos or silica claim.
(B) Silica claims.--With respect to any claim for exposure
to silica, the term ``exposed person'' means a person whose
claimed exposure to silica is by means of the alleged
inhalation of respirable silica.
(14) FEV-1.--The term ``FEV-1'' means forced expiratory
volume in the first second, which is the maximal volume of
air expelled in 1 second during performance of simple
spirometric tests.
(15) FVC.--The term ``FVC'' means forced vital capacity,
which is the maximal volume of air expired with maximum
effort from a position of full inspiration.
(16) ILO scale.--The term ``ILO scale'' means the system
for the classification of chest x-rays set forth in the most
current version of the International Labor Office's
Guidelines for the Use of ILO International Classification of
Radiographs of Pneumoconioses in effect at the time of the
performance of any examination or test on the exposed person
required by this Act.
(17) Predicted lower limit of normal.--The term ``predicted
lower limit of normal'' means the calculated standard
convention lying at the fifth percentile, below the upper 95
percent of the reference population, based on age, height,
and gender, according to the recommendations of the American
Thoracic Society as referenced in the AMA's Guides to the
Evaluation of Permanent Impairment.
(18) Qualified physician.--The term ``qualified physician''
means a board-certified internist, occupational medicine
specialist, pathologist, or pulmonologist--
(A) who is licensed to practice in the State in which the
action is pending, or the State in which the claimant
resides, if the claimant resides outside the State where the
action is pending;
(B) who has personally conducted a physical examination of
the exposed person, or in the case of a board-certified
pathologist, has examined tissue samples or pathological
slides of the exposed person, or if the exposed person is
deceased, based upon a detailed review of the medical records
and existing tissue samples and pathological slides of the
deceased person;
(C) who is treating or has treated the exposed person, and
has or had a doctor-patient relationship with the exposed
person at the time of the physical examination or, in the
case of a board-certified pathologist, has examined tissue
samples or pathological slides of the exposed person at the
request of such treating physician;
(D) who receives or received payment for the exposed
person's diagnosis, examination, and treatment from the
exposed person or claimant or from the exposed person's
health maintenance organization or other medical provider,
and such payment was not subject to reimbursement by, or on
behalf of, anyone providing legal services to the claimant;
and
(E) whose diagnosing, examining, testing, screening or
treating of the exposed person was not, directly or
indirectly, premised upon, and did not require, the exposed
person or claimant to retain the legal services of any
attorney or law firm.
(19) Silica.--The term ``silica'' a respirable crystalline
form of the naturally occurring mineral form of silicon
dioxide, including quartz, cristobalite, and tridymite.
(20) Silica claim.--The term ``silica claim''--
(A) means any claim for damages, losses, indemnification,
contribution, or other relief of whatever nature arising out
of, based on, or in any way related to the alleged health
effects associated with the inhalation of silica, including--
(i) loss of consortium;
(ii) personal injury or death;
(iii) mental or emotional injury;
(iv) risk or fear of disease or other injury;
(v) the costs of medical monitoring or surveillance, to the
extent such claims are recognized under State law; or
(vi) any claim made by, or on behalf of, any person exposed
to silica dust, or a representative, spouse, parent, child,
or other relative of the exposed person; and
(B) does not include a claim for compensatory benefits
pursuant to the workers' compensation law or a veterans'
benefits program.
(21) Silicosis.--The term ``silicosis'' means fibrosis of
the lung produced by inhalation of silica, including--
(A) acute silicosis;
(B) accelerated silicosis; and
(C) chronic silicosis.
(22) State.--The term ``State''--
(A) means any State of the United States; and
(B) includes--
(i) the District of Columbia;
(ii) Commonwealth of Puerto Rico;
(iii) the Northern Mariana Islands;
(iv) the Virgin Islands;
(v) Guam;
(vi) American Samoa; and
(vii) any other territory or possession of the United
States, or any political subdivision of any of the locales
described under this paragraph.
(23) Substantial contributing factor.--The term
``substantial contributing factor''--
(A) in the context of an asbestos claim, means that--
(i) a claimant shall identify--

(I) the specific asbestos product to which the exposed
person was exposed;
(II) the location and duration of such exposure; and
(III) the specific circumstances of such exposure;

(ii) such exposure--

(I) was more than incidental contact with the product and
location; and
(II) took place on a regular basis over an extended period
of time in physical proximity to the exposed person;

(iii) the exposed person inhaled respirable asbestos fibers
in sufficient quantities to be capable of causing harm; and
(iv) a qualified physician has determined with a reasonable
degree of medical certainty that the impairment of the
exposed person would not have occurred but for the specific
asbestos exposure; and
(B) in the context of a silica claim, means that--
(i) a claimant shall identify--

(I) the specific silica product to which the exposed person
was exposed;
(II) the location and duration of such exposure; and
(III) the specific circumstances of such exposure;

(ii) such exposure--

(I) was more than incidental contact with the product and
location; and
(II) took place on a regular basis over an extended period
of time in physical proximity to the exposed person;

[[Page S1030]]

(iii) the exposed person inhaled respirable silica
particles in sufficient quantities to be capable of causing
harm; and
(iv) a qualified physician has determined with a reasonable
degree of medical certainty that the impairment of the
exposed person would not have occurred but for the specific
silica exposure.
(24) Total lung capacity.--The term ``total lung capacity''
means the volume of gas contained in the lungs at the end of
a maximal inspiration.
(25) Veterans' benefits program.--The term ``veterans'
benefits program'' means any program for benefits in
connection with military service administered by the
Veterans' Administration under title 38, United States Code.
(26) Workers' compensation law.--The term ``workers'
compensation law''--
(A) means a law respecting a program administered by a
State or the United States to provide benefits, funded by a
responsible employer or its insurance carrier, for
occupational diseases or injuries or for disability or death
caused by occupational diseases or injuries;
(B) includes the Longshore and Harbor Workers' Compensation
Act (33 U.S.C. 901 et seq.) and chapter 81 of title 5, United
States Code; and
(C) does not include--
(i) the Act of April 22, 1908 (45 U.S.C. 51 et seq.),
commonly known as the Employers' Liability Act, or damages
recovered by any employee in a liability action against an
employer; or
(ii) any claim for exemplary or punitive damages by an
employee, estate, heir, representative, or any other person
or entity against the employer of an exposed person arising
out of, or related to, an asbestos-related injury or silica-
related injury.

SEC. 4. ELEMENTS OF PROOF FOR ASBESTOS OR SILICA CLAIMS.

(a) Impairment Essential Element of Claim.--
(1) In general.--It shall be an essential element to bring
or maintain an asbestos or silica claim, that an exposed
person suffer a physical impairment, of which asbestos or
silica was a substantial contributing factor to such
impairment.
(2) Evidence as to each defendant.--Any requirement of a
prima facie showing under this section shall be made as to
each defendant against whom a claimant alleges an asbestos or
silica claim.
(b) Preliminary Proceedings; Service of Prima Facie
Evidence of Impairment.--
(1) Filing of report.--A claimant in any civil action
alleging an asbestos or silica claim shall file, together
with the complaint or other initial pleading, a written
report and supporting test results constituting prima facie
evidence of the exposed person's asbestos-related or silica-
related impairment meeting the requirements of this section
as to each defendant.
(2) Timing.--For any asbestos or silica claim pending on
the date of enactment of this Act, a claimant shall file the
written report and supporting test results described in
paragraph (1) not later than 150 days after such date or not
later than 60 days prior to the commencement of trial,
whichever occurs first.
(3) Defendants right to challenge.--A defendant shall be
afforded a reasonable opportunity to challenge the adequacy
of any proffered prima facie evidence of impairment.
(4) Dismissal.--A claim shall be dismissed without
prejudice upon a finding of failure to make the prima facie
showing required under this section.
(c) New Claim Required Information.--
(1) In general.--Any asbestos claim or silica claim filed
in a Federal or State court, on or after on the date of
enactment of this Act shall include a sworn information form
containing the following information:
(A) The name, address, date of birth, social security
number, and marital status of the claimant.
(B) The name, last address, date of birth, social security
number, and marital status of the exposed person.
(C) If the claimant alleges exposure to asbestos or silica
through the testimony of another person or other than by
direct or bystander exposure to a product or products, the
name, address, date of birth, social security number, and
marital status, for each person by which claimant alleges
exposure (hereafter in this subsection referred to as the
``index person'') and the relationship of the claimant to
each such person.
(D) For each alleged exposure of the exposed person and for
each index person--
(i) the specific location and manner of each such exposure;
(ii) the beginning and ending dates of each such exposure;
and
(iii) the identity of the manufacturer of the specific
asbestos or silica to which the exposed person or index
person was exposed.
(E) The occupation and name of the employer of the exposed
person at the time of each alleged exposure.
(F) If the asbestos claim or silica claim involves more
than 1 claimant, the identity of the defendant or defendants
against whom each claimant asserts a claim.
(G) The specific disease related to asbestos or silica
claimed to exist.
(H) Any--
(i) supporting documentation of the condition claimed to
exist; and
(ii) documentation to support the claimant or index
person's identification of the asbestos or silica product
that such person was exposed to.
(2) Individual requirement.--
(A) In general.--All asbestos claims and silica claims
along with any sworn information required under paragraph (1)
shall be individually filed.
(B) Class claims not permitted.--No claims on behalf of a
group or class of persons shall be permitted.
(d) Prima Facie Evidence of Physical Impairment for
Nonmalignant Asbestos Claims.--
(1) In general.--No person shall bring or maintain an
asbestos claim related to an alleged nonmalignant asbestos-
related condition in the absence of a prima facie showing of
physical impairment of the exposed person for which asbestos
exposure is a substantial contributing factor.
(2) Prima facie showing.--A prima facie showing under
paragraph (1) shall be made as to each defendant and include
a detailed narrative medical report and diagnosis by a
qualified physician that includes:
(A) Evidence verifying that the diagnosing, qualified
physician has taken a detailed occupational and exposure
history from the exposed person or, if that person is
deceased, from a person who is knowledgeable about the
exposures that form the basis for the claim, including
identification of--
(i) all of the exposed person's places of employment and
exposure to airborne contaminants (including asbestos,
silica, and other disease-causing dusts, mists, fumes, and
airborne contaminants) that can cause pulmonary impairment;
and
(ii) the nature, duration, and level of each such exposure.
(B) Evidence--
(i) verifying that the diagnosing, qualified physician has
taken a detailed medical and smoking history, including a
thorough review of--

(I) the exposed person's past and present medical problems;
and
(II) the most probable cause of each such medical problem;
or

(ii) if the exposed person is deceased, from a person who
is knowledgeable regarding such exposed person's medical and
smoking history.
(C) Evidence sufficient to demonstrate--
(i) that at least 15 years have elapsed since the exposed
person's first exposure to asbestos; and
(ii) the date of any such diagnosis.
(D) A determination by the diagnosing, qualified physician,
on the basis of a medical examination and pulmonary function
testing of the exposed person, or if the exposed person is
deceased, based upon the medical records of the deceased,
that the claimant has, or if deceased, that the claimant had
a permanent respiratory impairment rating of at least Class 2
as defined by, and evaluated under, the AMA's Guides to the
Evaluation of Permanent Impairment.
(E) Evidence verifying that the exposed person has an ILO
quality 1 chest x-ray (or a quality 2 chest x-ray if the
exposed person is deceased and a quality 1 chest x-ray does
not exist) read by a certified B-reader as showing, according
to the ILO scale--
(i) bilateral small irregular opacities (s, t, or u) graded
1/1 or higher on the ILO scale;
(ii) bilateral pleural thickening graded b2 or higher on
the ILO scale including blunting of the costophrenic angle;
or
(iii) pathological asbestosis graded 1(B) or higher under
the criteria published in the Asbestos-Associated Diseases,
Special Issue of the Archives of Pathological and Laboratory
Medicine, Volume 106, Number 11, Appendix 3 (October 8,
1982).
(F) A determination by the diagnosing, qualified physician
that asbestosis or diffuse pleural thickening is a
substantial contributing factor to the exposed person's
physical impairment, based at a minimum on a determination
that the claimant has--
(i) forced vital capacity below the predicted lower limit
of normal and FEV-1/FVC ratio (using actual values) at or
above the predicted lower limit of normal; or
(ii) total lung capacity, by plethysmography or timed gas
dilution, below the predicted lower limit of normal.
(G) Verification that the diagnosing, qualified physician
has concluded that the exposed person's impairment was not
more probably the result of causes other than asbestos
exposure as revealed by the employment, medical, and smoking
history of the exposed person. Any verification that includes
a conclusion which states that the medical findings and
impairment are consistent or compatible with asbestos
exposure or silica-related disease does not meet the
requirements of this subsection.
(H) Copies of--
(i) the B-reading, pulmonary function tests (including
printouts of the flow volume loops, volume time curves, DLCO
graphs, and data for all trials, and all other elements
required to demonstrate compliance with the equipment,
quality, interpretation, and reporting standards established
in this Act);
(ii) lung volume tests;
(iii) reports of x-ray examinations and diagnostic imaging
of the chest;
(iv) pathology reports; and
(v) any other testing reviewed by the diagnosing, qualified
physician in reaching the physician's conclusions.
(e) Prima Facie Evidence of Physical Impairment for
Asbestos-Related Cancer.--
(1) In general.--No person shall bring or maintain an
asbestos claim related to an alleged asbestos-related cancer,
other than

[[Page S1031]]

mesothelioma, in the absence of a prima facie showing of a
primary cancer for which asbestos exposure is a substantial
contributing factor.
(2) Prima facie showing.--A prima facie showing under
paragraph (1) shall be made as to each defendant and include
a detailed narrative medical report and diagnosis by a
qualified physician that includes:
(A) Evidence verifying that the diagnosing, qualified
physician has taken a detailed occupational and exposure
history from the exposed person or, if that person is
deceased, from a person who is knowledgeable about the
exposures that form the basis for the claim, including
identification of--
(i) all of the exposed person's places of employment and
exposure to airborne contaminants (including asbestos,
silica, and other disease-causing dusts, mists, fumes, and
airborne contaminants) that can cause pulmonary impairment;
and
(ii) the nature, duration, and level of each such exposure.
(B) Evidence--
(i) verifying that the diagnosing, qualified physician has
taken a detailed medical and smoking history, including a
thorough review of--

(I) the exposed person's past and present medical problems;
and
(II) the most probable cause of each such medical problem;
or

(ii) if the exposed person is deceased, from a person who
is knowledgeable regarding such exposed person's medical and
smoking history.
(C) Evidence sufficient to demonstrate--
(i) that at least 15 years have elapsed since the exposed
person's first exposure to asbestos; and
(ii) the date of any such diagnosis of the cancer.
(D) Evidence verifying that the exposed person has--
(i) an ILO quality 1 chest x-ray (or a quality 2 chest x-
ray if the exposed person is deceased and a quality 1 chest
x-ray does not exist) read by a certified B-reader as
showing, according to the ILO scale, bilateral small
irregular opacities (s, t, or u) graded 1/1 or higher on the
ILO scale; or
(ii) pathological asbestosis graded 1(B) or higher under
the criteria published in the Asbestos-Associated Diseases,
Special Issue of the Archives of Pathological and Laboratory
Medicine, Volume 106, Number 11, Appendix 3 (October 8,
1982).
(E) Verification that the diagnosing, qualified physician
has concluded that the exposed person's impairment was not
more probably the result of causes other than asbestos as
revealed by the employment, medical, and smoking history of
the exposed person. Any verification that includes a
conclusion which states that the medical findings and
impairment are consistent or compatible with asbestos
exposure or asbestos-related disease does not meet the
requirements of this subsection.
(F) Copies of--
(i) the B-reading, pulmonary function tests (including
printouts of the flow volume loops, volume time curves, DLCO
graphs, and data for all trials, and all other elements
required to demonstrate compliance with the equipment,
quality, interpretation, and reporting standards established
in this Act);
(ii) lung volume tests;
(iii) reports of x-ray examinations and diagnostic imaging
of the chest;
(iv) pathology reports; and
(v) any other testing reviewed by the diagnosing, qualified
physician in reaching the physician's conclusions.
(f) Prima Facie Evidence of Physical Impairment for
Asbestos-Related Mesothelioma.--
(1) In general.--No person shall bring or maintain an
asbestos claim related to alleged mesothelioma in the absence
of a prima facie showing of an asbestos-related malignant
tumor with a primary site of origin in the pleura, the
peritoneum, or pericardium.
(2) Prima facie showing.--A prima facie showing under
paragraph (1) shall be made as to each defendant and include
a report by a qualified Board-certified pathologist
certifying the diagnosis of mesothelioma and a report by a
qualified physician certifying that--
(A) exposure to asbestos was a substantial contributing
factor to the diagnosed mesothelioma; and
(B) the mesothelioma was not more probably the result of
causes other than asbestos exposure as revealed by the
employment, medical, and smoking history of the exposed
person.
(g) Prima Facie Evidence of Physical Impairment for Silica
Claims.--
(1) In general.--No person shall bring or maintain a silica
claim related to an alleged silica-related condition, other
than a silica-related cancer, in the absence of a prima facie
showing of physical impairment as a result of a medical
condition to which exposure to silica was a substantial
contributing factor.
(2) Prima facie showing.--A prima facie showing under
paragraph (1) shall be made as to each defendant and include
a detailed narrative medical report and diagnosis by a
qualified physician that includes:
(A) Evidence verifying that the diagnosing, qualified
physician has taken a detailed occupational and exposure
history from the exposed person or, if that person is
deceased, from a person who is knowledgeable about the
exposures that form the basis for the claim, including
identification of--
(i) all of the exposed person's places of employment and
exposure to airborne contaminants (including asbestos,
silica, and other disease-causing dusts, mists, fumes, and
airborne contaminants) that can cause pulmonary impairment;
and
(ii) the nature, duration, and level of each such exposure.
(B) Evidence verifying that the diagnosing, qualified
physician has taken a detailed medical and smoking history
from the exposed person (or if the exposed person is
deceased, from the person most knowledgeable of such
history), including a thorough review of--
(i) the exposed person's past and present medical problems;
and
(ii) the most probable cause of each such medical problem.
(C) A determination by the diagnosing, qualified physician
that the claimant has--
(i) an ILO quality 1 chest x-ray (or a quality 2 chest x-
ray if the exposed person is deceased and a quality 1 chest
x-ray does not exist) read by a certified B-reader as
showing, according to the ILO scale, bilateral predominantly
nodular opacities (p, q, or r) occurring primarily in the
upper lung fields, graded 1/1 or higher;
(ii) an ILO quality 1 chest X-ray (or a quality 2 chest X-
ray if the exposed person is deceased and a quality 1 chest
X-ray does not exist) read by a certified B-reader as
showing, according to the ILO scale, A, B, or C sized
opacities representing complicated silicosis (also known as
progressive massive fibrosis);
(iii) pathological demonstration of classic silicotic
nodules exceeding 1 centimeter in diameter as set forth in
112 Archives of Pathology & Laboratory Medicine 673-720
(1988);
(iv) progressive massive fibrosis radiologically
established by large opacities greater than 1 centimeter in
diameter; or
(v) acute silicosis.
(D) If the claimant is asserting a claim for silicosis,
evidence verifying there has been a sufficient latency period
for the applicable type of silicosis.
(E) A determination by the diagnosing, qualified physician,
on the basis of a personal medical examination and pulmonary
function testing of the exposed person, or if the exposed
person is deceased, based upon the medical records of the
deceased, that the claimant has, or if deceased, had a
permanent respiratory impairment rating of at least Class 2
as defined by and evaluated pursuant to the AMA's Guides to
the Evaluation of Permanent Impairment.
(F) Verification that the diagnosing, qualified physician
has concluded that the exposed person's impairment was not
more probably the result of causes other than silica exposure
as revealed by the employment, medical, and smoking history
of the exposed person. Any verification that includes a
conclusion which states that the medical findings and
impairment are consistent or compatible with silica exposure
or silica-related disease does not meet the requirements of
this subsection.
(G) Copies of--
(i) the B-reading, pulmonary function tests (including
printouts of the flow volume loops, volume time curves, DLCO
graphs, and data for all trials, and all other elements
required to demonstrate compliance with the equipment,
quality, interpretation, and reporting standards established
in this Act);
(ii) lung volume tests;
(iii) reports of x-ray examinations and diagnostic imaging
of the chest;
(iv) pathology reports; and
(v) any other testing reviewed by the diagnosing, qualified
physician in reaching the physician's conclusions.
(h) Prima Facie Evidence of Physical Impairment for Silica-
Related Cancer.--
(1) In general.--No person shall bring or maintain a silica
claim related to an alleged silica-related cancer in the
absence of a prima facie showing of a primary cancer for
which exposure to the defendant's silica is a substantial
contributing factor.
(2) Prima facie showing.--A prima facie showing under
paragraph (1) shall be made as to each defendant and include
a detailed narrative medical report and diagnosis by a
qualified physician that includes:
(A) Evidence verifying that the diagnosing, qualified
physician has taken a detailed occupational and exposure
history from the exposed person or, if that person is
deceased, from a person who is knowledgeable about the
exposures that form the basis for the claim, including
identification of--
(i) all of the exposed person's places of employment and
exposure to airborne contaminants (including silica and other
disease-causing dusts, mists, fumes, and airborne
contaminants) that can cause pulmonary impairment; and
(ii) the nature, duration, and level of each such exposure.
(B) Evidence verifying that the diagnosing, qualified
physician has taken a detailed medical and smoking history
from the exposed person (or if the exposed person is
deceased, from the person most knowledgeable of that
history), including a thorough review of--
(i) the exposed person's past and present medical problems;
and
(ii) the most probable cause of each such medical problem.
(C) A determination by the diagnosing, qualified physician
that the claimant has--
(i) an ILO quality 1 chest x-ray (or a quality 2 chest x-
ray if the exposed person is deceased and a quality 1 chest
x-ray does not

[[Page S1032]]

exist) read by a certified B-reader as showing, according to
the ILO scale, bilateral predominantly nodular opacities (p,
q, or r) occurring primarily in the upper lung fields, graded
1/1 or higher;
(ii) an ILO quality 1 chest X-ray (or a quality 2 chest X-
ray if the exposed person is deceased and a quality 1 chest
X-ray does not exist) read by a certified B-reader as
showing, according to the ILO scale, A, B, or C sized
opacities representing complicated silicosis (also known as
progressive massive fibrosis); or
(iii) a pathological demonstration of classic silicotic
nodules exceeding 1 centimeter in diameter as set forth in
112 Archives of Pathology & Laboratory Medicine 673-720
(1988).
(D) Evidence sufficient to demonstrate--
(i) that at least 15 years have elapsed since the exposed
person's first exposure to silica; and
(ii) the date of any such diagnosis of the cancer.
(E) Verification that the diagnosing, qualified physician
has concluded that the exposed person's impairment was not
more probably the result of causes other than silica exposure
as revealed by the employment, medical, and smoking history
of the exposed person. Any verification that includes a
conclusion which states that the medical findings and
impairment are consistent or compatible with silica exposure
or silica-related disease does not meet the requirements of
this subsection.
(F) Copies of--
(i) the B-reading, pulmonary function tests (including
printouts of the flow volume loops, volume time curves, DLCO
graphs, and data for all trials, and all other elements
required to demonstrate compliance with the equipment,
quality, interpretation, and reporting standards established
in this Act);
(ii) lung volume tests;
(iii) reports of x-ray examinations and diagnostic imaging
of the chest;
(iv) pathology reports; and
(v) any other testing reviewed by the diagnosing, qualified
physician in reaching the physician's conclusions.
(i) Compliance With Technical Standards.--Evidence relating
to physical impairment under this section, including
pulmonary function testing and diffusing studies--
(1) shall comply with the technical recommendations for
examinations, testing procedures, quality assurance, quality
control, and equipment in the AMA's Guides to the Evaluation
of Permanent Impairment, the most current version of the
Official Statements of the American Thoracic Society
regarding lung function testing, including general
considerations for lung function testing, standardization of
spirometry, standardization of the measurement of lung
volumes, standardization of the single-breath determination
of carbon monoxide uptake in the lung, and interpretative
strategies for lung testing in effect at the time of the
performance of any examination or test on the exposed person
required by this Act;
(2) may not be based on testing or examinations that
violate any law, regulation, licensing requirement, or
medical code of practice of any State in which the
examination, test, or screening was conducted; and
(3) may not be obtained under the condition that a claimant
retains the legal services of an attorney or law firm
sponsoring the examination, test, or screening.

SEC. 5. PROCEDURES.

(a) No Presumption at Trial.--Evidence relating to the
prima facie showings required under section 4 shall not--
(1) create any presumption that a claimant has an asbestos
or silica-related injury or impairment; and
(2) be conclusive as to the liability of any defendant.
(b) Admissibility of Evidence.--No evidence shall be
offered at a trial, and a jury shall not be informed of--
(1) the granting or denial of a motion to dismiss an
asbestos or silica claim under the provisions of this Act; or
(2) the provisions of section 4 with respect to what
constitutes a prima facie showing of asbestos or silica-
related impairment.
(c) Discovery.--Until such time as a trial court enters an
order determining that a claimant has established prima facie
evidence of impairment, no asbestos or silica claim shall be
subject to discovery, except discovery--
(1) related to establishing or challenging such prima facie
evidence; or
(2) by order of the trial court upon--
(A) motion of 1 of the parties; and
(B) for good cause shown.
(d) Consolidation.--
(1) At trial.--
(A) In general.--A court may consolidate for trial any
number and type of asbestos or silica claims with the consent
of all the parties.
(B) Absence of consent.--In the absence of any consent
under subparagraph (A), a court may consolidate for trial
only asbestos claims or silica claims relating to the same
exposed person and members of the household of such exposed
person.
(2) Class actions.--No class action or any other form of
mass aggregation claim filing relating to more than 1 exposed
person, except claims relating to the exposed person and
members of the household of such exposed person, shall be
permitted for asbestos or silica claims.
(3) At discovery.--Any decision by a court to consolidate
claims under paragraph (1) shall not preclude consolidation
of asbestos or silica claim cases by a court order for
pretrial or discovery purposes.
(e) Forum Non Conveniens.--
(1) In general.--Any asbestos or silica claim filed on or
after the date of enactment of this Act, or that is pending
on the date of enactment of this Act, but that has not
commenced trial or any new trial or retrial following motion,
appeal, or otherwise with the presentation of evidence to the
trier of fact prior to the date of enactment of this Act, if
the court in which the such claim is pending, on written
motion of a party, finds that in the interest of justice and
for the convenience of the parties a claim or action to which
this Act applies would be more properly heard in a forum
outside the State, district, or division in which such claim
was filed, the court shall--
(A) decline to exercise jurisdiction under the doctrine of
forum non conveniens; and
(B) shall stay or dismiss such claim.
(2) Considerations.--In determining whether to grant a
motion to stay or dismiss a claim under paragraph (1), a
court shall consider whether--
(A) an alternate forum exists in which such claim or action
may be tried;
(B) the alternate forum provides an adequate remedy;
(C) maintenance of such claim in the court of the State in
which the claim was filed would work a substantial injustice
to the moving party;
(D) the alternate forum, as a result of the submission of
the parties or otherwise, can exercise jurisdiction over all
the defendants properly joined to such claim;
(E) the balance of the private interests of the parties and
the public interest of the State in which such claim was
filed predominate in favor of such claim being brought in an
alternate forum; and
(F) the stay or dismissal would not result in unreasonable
duplication or proliferation of litigation.
(3) Waiver of statute of limitations defense.--A trial
court may not abate or dismiss a claim under this subsection
until a defendant files with the court, or with the clerk of
the court, a written stipulation that, with respect to a new
action on such claim commenced by the plaintiff, the
defendant waives the right to assert a statute of limitations
defense in all other States, districts, or divisions in which
such claim was not barred by limitations at the time such
claim was filed in the State where such claim was originally
filed as necessary to effect a tolling of the limitations
periods in those States --
(A) beginning on the date such claim was originally filed;
and
(B) ending on the date--
(i) such claim is dismissed; or
(ii) an abatement period of 1 year ends.
(4) Court duties.--A court may not abate or dismiss a claim
under paragraph (3) until a defendant files with the court,
or with the clerk of the court, a written stipulation that,
with respect to a new action on such claim commenced by the
plaintiff in another State, district, or division, that the
claimant and the defendant may--
(A) rely on responses to discovery already provided under
the rules of civil procedure of the State, district, or
division in which such claim was originally filed; and
(B) rely on any additional discovery that may be conducted
under the rules of civil procedure in another State,
district, or division.
(f) Venue.--
(1) In general.--An asbestos or silica claim filed after
the date of enactment of this Act may be filed only in the
county of the State or the district or division of the United
States where--
(A) the claimant resided for a period of at least 180
consecutive days immediately prior to filing suit; or
(B) the exposed person had the most substantial cumulative
exposure to asbestos for an asbestos claim or to silica for a
silica claim, and that such exposure was a substantial
contributing factor to the asbestos or silica related
impairment on which such claim is based.
(2) Improper venue.--With respect to asbestos or silica
claims pending as of the date of enactment of this Act, and
in which the trial, or any new trial or retrial following
motion, appeal, or otherwise, has not commenced with
presentation of evidence to the trier of fact as of the date
of enactment of this Act, any claim as to which venue would
not have been proper if the claim originally had been brought
in accordance with paragraph (1) shall, not later than 90
days after the date of enactment of this Act, be transferred
to the court of general civil jurisdiction in the county,
district, or division of the State in which the action is
pending in which either--
(A) the claimant was domiciled at the time the asbestos or
silica claim originally was filed; or
(B) the exposed person had the most substantial cumulative
exposure to asbestos for an asbestos claim or to silica for a
silica claim, and that such exposure was a substantial
contributing factor to the asbestos or silica related
impairment on which the claim is based.
(3) Removal.--
(A) In general.--If a State court refuses or fails to apply
the provisions of this Act, any party in a civil action for
an asbestos claim may remove such action to a district court

[[Page S1033]]

of the United States in accordance with chapter 89 of title
28, United States Code.
(B) Jurisdiction over removed actions.--The district courts
of the United States shall have jurisdiction of all civil
actions removed under this paragraph, without regard to the
amount in controversy and without regard to the citizenship
or residence of the parties.
(C) Removal by any defendant.--A civil action may be
removed to the district court of the United States under this
paragraph by any defendant without the consent of all
defendants.
(D) Remand.--A district court of the United States shall
remand any civil action removed solely under this paragraph,
unless the court finds that--
(i) the State court failed to comply with procedures
prescribed by law; or
(ii) the failure to dismiss by the State court lacked
substantial support in the record before the State court.
(E) Limitation.--Civil actions in State court subject to
this Act may not be removed to any district court of the
United States unless such removal is otherwise proper without
regard to the provisions of this Act or is removed under this
paragraph.
(g) Preemption.--
(1) In general.--This Act shall govern all asbestos and
silica claims filed in Federal or State courts on or after
the effective date of this Act, or which are pending in
Federal or State courts 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 with
presentation of evidence to the trier of fact as of the
effective date of this Act, except for enforcement of claims
for which a final judgment has been duly entered by a court
and that is no longer subject to any appeal or judicial
review on the effective date of this Act.
(2) Greater limitations by states.--Nothing in this Act
shall limit or preempt any State law or precedent having the
effect of imposing additional or greater limits or
restrictions on the assertion or prosecution of an asbestos
or silica claim.

SEC. 6. STATUTE OF LIMITATIONS; 2-DISEASE RULE.

(a) Statute of Limitations.--
(1) In general.--An asbestos or silica claim not barred in
a State as of the date of enactment of this Act, a claimant's
cause of action shall not accrue, nor shall the running of
limitations commence, prior to the earlier of the date--
(A) on which an exposed person received a medical diagnosis
of an asbestos-related impairment or silica-related
impairment;
(B) on which an exposed person discovered facts that would
have led a reasonable person to obtain a medical diagnosis
with respect to the existence of an asbestos-related
impairment or silica-related impairment; or
(C) of death of the exposed person having an asbestos-
related or silica-related impairment.
(2) Rule of construction.--Nothing in this section shall be
construed to revive or extend limitations with respect to any
claim for asbestos-related impairment or silica-related
impairment that was otherwise time-barred as a matter of
applicable State law as of the date of enactment of this Act.
(3) No effect on settlement agreements.--Nothing in this
section shall be construed so as to adversely affect, impair,
limit, modify, or nullify any settlement agreement with
respect to an asbestos or silica claim entered into before
the date of enactment of this Act.
(b) 2-Disease Rule; Distinct Claims.--
(1) In general.--An asbestos or silica claim arising out of
a non-malignant condition shall be a distinct cause of
action, wholly separate from a claim for an asbestos-related
or silica-related cancer.
(2) No damages for fear.--No damages shall be awarded for
fear or increased risk of future disease in any civil action
asserting an asbestos or silica claim.

SEC. 7. EXPERTS.

(a) In General.--A person who holds a valid medical license
in good standing in a State, but who is not licensed to
practice medicine in that State, and who testifies, whether
by deposition, affidavit, live, or otherwise, as a medical
expert witness on behalf of any party in an asbestos or
silica claim is deemed to have a temporary license to
practice medicine in the State in which the claim is pending
solely for the purpose of providing such testimony and is
subject to that extent to the authority of the medical
licensing board or agency of that State.
(b) Penalty for False Testimony.--If a physician renders
expert medical testimony that is false, intentionally
misleading or deceptive, or that intentionally misstates the
relevant applicable standard of care, the medical licensing
board or agency of the State in which the claim is pending
may take such action as is permitted under the laws and
regulations of that State governing the conduct of
physicians.
(c) Rule of Construction.--This section shall not be
construed to permit an out of State physician to practice
medicine in any other State other than as provided in this
section.

SEC. 8. PROPORTIONATE RESPONSIBILITY.

(a) Definition.--In this section, the term ``fault'' shall
include any and all claims or causes of action for damages
caused by--
(1) negligence;
(2) breach of warranty;
(3) defective or unreasonably dangerous products; or
(4) any other act, omission, conduct, or activity that
violates an applicable legal standard.
(b) Report Requirements.--At the time a complaint is filed
in a civil action alleging an asbestos or silica claim, the
plaintiff shall file a written report with the court that
discloses the total amount of any payments which the
plaintiff will receive in the future, as a result of
settlements or judgments based upon the same claim. The
plaintiff shall be required to update the report under this
subsection on a regular basis during the course of the
proceeding until a final judgment is entered in the case.
(c) Liability.--
(1) Several not joint.--The liability of each defendant for
damages--
(A) shall be several only; and
(B) shall not be joint.
(2) Direct proportion.--Each defendant shall be liable only
for the amount of damages allocated to that defendant in
direct proportion to the percentage of fault of that
defendant, and a separate judgment shall be rendered against
the defendant for that amount.
(3) Amount.--The amount of judgment to be entered against
each defendant shall be the lower of the amount determined
by--
(A) multiplying the total amount of the judgment by the
percentage of fault assessed by the trier of fact against
each defendant; or
(B) subtracting from the total judgment the total amount of
all settlement monies paid or promised to be paid, and
allocating the full amount of the difference to those
defendants not part of any such settlements in proportion to
their relative percentages of fault.
(d) Settlement Exceeds Verdict.--If the total of all
settlement monies paid or promised to be paid to a claimant
is greater than the total amount of a verdict in favor of the
claimant, the claimant shall recover nothing from any
defendant.
(e) Assessing Fault.--
(1) In general.--In assessing percentages of fault at
trial, a trier of fact shall consider, and the form of the
verdict shall reflect, the fault of all persons and entities
who contributed to the alleged asbestos-related injury or
silica-related injury, regardless of whether such person or
entity was, or could have been, named as a party to the suit,
including persons or entities--
(A) subject to any pending or past bankruptcy;
(B) who have settled or agreed to settle the asbestos or
silica claim with the claimant; or
(C) subject to immunity or statutory limitation of
liability.
(2) Fault of nonparties.--Any finding of fault assessed
against a nonparty shall not--
(A) subject that nonparty to liability in the pending or
any other action; and
(B) be referred to or admitted into evidence in any other
action involving that nonparty.

SEC. 9. SEVERABILITY.

If any provision of this Act, or the application of such
provision to any person or circumstance is held to be
unconstitutional, the remainder of this Act, and the
application of the provisions of such to any person or
circumstance shall not be affected thereby.

SEC. 10. MISCELLANEOUS PROVISIONS.

(a) Construction With Other Laws.--This Act shall not be
construed to--
(1) affect the scope or operation of any workers'
compensation law or veterans' benefit program;
(2) affect the exclusive remedy or subrogation provisions
of any such law; or
(3) authorize any lawsuit which is barred by any such
provision of law.
(b) Constitutional Authority.--The constitutional authority
for this Act is contained in Article I, section 8, clause 3
and Article III, section 1 of the Constitution of the United
States.

SEC. 11. EFFECTIVE DATE.

(a) In General.--This Act applies to all asbestos or silica
claims filed on or after the date of enactment of this Act.
(b) Pending Proceedings.--This Act also applies to any
pending asbestos or silica claims in which a trial has not
commenced as of the date of enactment of this Act.
______