HB 1019

CS

CHAMBER ACTION

1	The Civil Justice Committee recommends the following:
2
3	Council/Committee Substitute
4	Remove the entire bill and insert:
5	A bill to be entitled
6	An act relating to asbestos and silica claims; providing a
7	popular name; providing legislative findings; providing
8	purposes; providing definitions; requiring physical
9	impairment as an essential element of a claim; providing
10	criteria for prima facie evidence of physical impairment
11	for claims and certain actions; providing an exception;
12	providing additional requirements for evidence relating to
13	physical impairment; specifying absence of certain
14	presumptions at trial; providing procedures for claims and
15	certain actions; providing for consolidation; providing
16	for venue; providing for preliminary proceedings;
17	requiring new asbestos and silica claims to include
18	certain information; specifying certain limitation periods
19	for certain claims; specifying distinct causes of action
20	for certain conditions; limiting damages under certain
21	circumstances; prohibiting a general release from
22	liability; prohibiting award of punitive damages;
23	providing for collateral source payments; specifying
24	liability rules applicable to certain persons; providing
25	construction; providing legislative intent; providing
26	severability; providing application to certain civil
27	actions; providing an effective date.
28
29	Be It Enacted by the Legislature of the State of Florida:
30
31	Section 1.  Popular name.--This act may be cited as the
32	"Asbestos and Silica Compensation Fairness Act of 2005."
33	Section 2.  Findings and purposes.--
34	(1)  FINDINGS.--The Legislature finds that:
35	(a)  Asbestos is a mineral that was widely used prior to
36	the mid 1970's for insulation, fireproofing, and other purposes.
37	(b)  Millions of American workers and others were exposed
38	to asbestos, especially during and after World War II and prior
39	to the advent of regulation by the Occupational Safety and
40	Health Administration in the early 1970's.
41	(c)  Long-term exposure to asbestos has been associated
42	with various types of cancer, including mesothelioma and lung
43	cancer, as well as such nonmalignant conditions as asbestosis,
44	pleural plaques, and diffuse pleural thickening.
45	(d)  The diseases caused by asbestos often have long
46	latency periods.
47	(e)  Although the use of asbestos has dramatically declined
48	since the 1970's and workplace exposures have been regulated
49	since 1971 by the Occupational Safety and Health Administration,
50	past exposures will continue to result in significant claims of
51	death and disability as a result of such exposure.
52	(f)  Exposure to asbestos has created a flood of litigation
53	in state and federal courts that the United States Supreme Court
54	has characterized as "an elephantine mass" of cases that "defies
55	customary judicial administration" [Ortiz v. Fibreboard
56	Corporation, 119 S. Ct. 2295, 2302 (1999)].
57	(g)  Asbestos personal injury litigation can be unfair and
58	inefficient, imposing a severe burden on litigants and taxpayers
59	alike.
60	(h)  The extraordinary volume of nonmalignant asbestos
61	cases continues to strain state courts.
62	(i)  The vast majority of asbestos claims are filed by
63	individuals who allege they have been exposed to asbestos and
64	who may have some physical sign of exposure but who suffer no
65	present asbestos-related impairment.
66	(j)  The cost of compensating exposed individuals who are
67	not sick jeopardizes the ability of defendants to compensate
68	people with cancer and other serious asbestos-related diseases,
69	now and in the future; threatens the savings, retirement
70	benefits, and jobs of defendants' current and retired employees;
71	and adversely affects the communities in which these defendants
72	operate.
73	(k)  The crush of asbestos litigation has been costly to
74	employers, employees, litigants, and the court system. In 1982,
75	the Johns-Manville Corporation, the nation's largest single
76	supplier of asbestos-containing insulation products, declared
77	bankruptcy due to the burden of the asbestos litigation. Since
78	then, more than 70 other companies have declared bankruptcy due
79	to the burden of asbestos litigation. It is estimated that
80	between 60,000 and 128,000 American workers already have lost
81	their jobs as a result of asbestos-related bankruptcies and that
82	the total number of jobs that will be lost due to asbestos-
83	related bankruptcies will eventually reach 432,000. Each worker
84	who loses his or her job due to an asbestos-related bankruptcy
85	loses between $25,000 and $50,000 in wages over his or her
86	career. Those workers also have seen the value of their 401(k)
87	retirement plans drop by 25 percent or more due the
88	bankruptcies.
89	(l)  Additionally, it is estimated that asbestos litigation
90	has already cost over $54 billion, with well over half of this
91	expense going to attorney's fees and other litigation costs. The
92	seriously ill too often find that the value of their recovery is
93	substantially reduced due to defendant bankruptcies and the
94	inefficiency of the litigation process.
95	(m)  Silica is a naturally occurring mineral. The Earth's
96	crust is over 90 percent silica, and crystalline silica dust is
97	the primary component of sand, quartz, and granite.
98	(n)  Silica-related illness, including silicosis, can occur
99	when silica is inhaled. To be inhaled, the silica particles must
100	be sufficiently small to be respirable. These tiny particles are
101	created when sand is pulverized in the sandblasting process and
102	may be found in the fine silica flour used in various foundry
103	processes.
104	(o)  Silicosis was recognized as an occupational disease
105	many years ago. In fact, the American Foundrymen's Society has
106	distributed literature to its members warning of the dangers of
107	silica exposure for more than 100 years. By the 1930's, the
108	Federal Government had launched a silica-awareness campaign
109	which led to greater protection for workers exposed to silica
110	dust. As a result, the number of silica lawsuits filed each year
111	was relatively predictable. This has changed. The number of new
112	lawsuits alleging silica-related disease being filed each year
113	began to rise precipitously in recent years. For example,
114	America's largest supplier of industrial sand had more than
115	15,000 new claims in the first 6 months of 2003. This is 3 times
116	the number of claims it had in all of 2002 and more than 10
117	times the number of claims it had in all of 2001.
118	(p)  Silica claims, like asbestos claims, often arise when
119	an individual is identified as having markings on his or her
120	lungs that are possibly consistent with silica exposure but the
121	individual has no functional or physical impairment from any
122	silica-related disease. Recent studies indicate that these
123	individuals are being identified through the efforts of
124	attorneys being compensated by generating contingency fees, just
125	as with asbestos litigation. Therefore, it is necessary to
126	address silica-related litigation to avoid an asbestos-like
127	litigation crisis.
128	(q)  Concerns about statutes of limitations may prompt
129	claimants who have been exposed to asbestos or silica but who
130	have no current injury to bring premature lawsuits in order to
131	protect against losing their rights to future compensation
132	should they become impaired.
133	(r)  Consolidations, joinders, and similar procedures to
134	which some courts have resorted in order to deal with the mass
135	of asbestos and silica cases can undermine the appropriate
136	functioning of the judicial process and further encourage the
137	filing of thousands of cases by exposed individuals who are not
138	yet sick and who may never become sick.
139	(s)  Excessive, unpredictable, and often arbitrary damage
140	awards and unfair allocations of liability jeopardize the
141	financial well-being of many individuals, businesses, and entire
142	industries, particularly small businesses.
143	(t)  Punitive damage awards unfairly divert the resources
144	of defendants from compensating genuinely impaired claimants
145	and, given the lengthy history of asbestos and silica litigation
146	and the regulatory and other restrictions on the use of asbestos
147	and silica-containing products in the workplace, the legal
148	justification for such awards, punishment, and deterrence is
149	either inapplicable or inappropriate.
150	(u)  The public interest requires deferring the claims of
151	exposed individuals who are not sick in order to preserve, now
152	and for the future, defendants' ability to compensate people who
153	develop cancer and other serious asbestos-related and silica-
154	related injuries and to safeguard the jobs, benefits, and
155	savings of workers in this state and the well-being of the
156	economy of this state.
157	(2)  PURPOSES.--The purposes of this act are to:
158	(a)  Give priority to true victims of asbestos and silica
159	claimants who can demonstrate actual physical impairment caused
160	by exposure to asbestos or silica.
161	(b)  Fully preserve the rights of claimants who were
162	exposed to asbestos or silica to pursue compensation should they
163	become impaired in the future as a result of such exposure.
164	(c)  Enhance the ability of the judicial system to
165	supervise and control asbestos and silica litigation.
166	(d)  Conserve the scarce resources of the defendants to
167	allow compensation of cancer victims and others who are
168	physically impaired by exposure to asbestos or silica while
169	securing the right to similar compensation for those who may
170	suffer physical impairment in the future.
171	Section 3.  Definitions.--As used in this act:
172	(1)  "AMA Guides to the evaluation of permanent impairment"
173	means the American Medical Association's Guides to the
174	Evaluation of Permanent Impairment (Fifth Edition 2000) as
175	modified by the American Medical Association.
176	(2)  "Asbestos" means all minerals defined as asbestos in
177	29 C.F.R. s. 1910, as amended.
178	(3)  "Asbestos claim" means any claim for damages or other
179	civil or equitable relief presented in a civil action arising
180	out of, based on, or related to the health effects of exposure
181	to asbestos, including loss of consortium, wrongful death, and
182	any other derivative claim made by or on behalf of any exposed
183	person or any representative, spouse, parent, child, or other
184	relative of any exposed person. The term does not include claims
185	for benefits under a workers' compensation law or veterans'
186	benefits program or claims brought by any person as a subrogee
187	by virtue of the payment of benefits under a workers'
188	compensation law.
189	(4)  "Asbestosis" means bilateral diffuse interstitial
190	fibrosis of the lungs caused by inhalation of asbestos fibers.
191	(5)  "Bankruptcy proceeding" means a case brought under
192	Title 11, U.S.C., or any related proceeding as provided in
193	section 157 of Title 28, U.S.C.
194	(6)  "Board-certified in internal medicine" means certified
195	by the American Board of Internal Medicine or the American
196	Osteopathic Board of Internal Medicine.
197	(7)  "Board-certified in occupational medicine" means
198	certified in the subspecialty of occupational medicine by the
199	American Board of Preventive Medicine or the American
200	Osteopathic Board of Preventive Medicine.
201	(8)  "Board-certified in oncology" means certified in the
202	subspecialty of medical oncology by the American Board of
203	Internal Medicine or the American Osteopathic Board of Internal
204	Medicine.
205	(9)  "Board-certified in pathology" means holding primary
206	certification in anatomic pathology or clinical pathology from
207	the American Board of Pathology or the American Osteopathic
208	Board of Internal Medicine and with professional practice:
209	(a)  Principally in the field of pathology.
210	(b)  Involving regular evaluation of pathology materials
211	obtained from surgical or postmortem specimens.
212	(10)  "Board-certified in pulmonary medicine" means
213	certified in the subspecialty of pulmonary medicine by the
214	American Board of Internal Medicine or the American Osteopathic
215	Board of Internal Medicine.
216	(11)  "Certified B-reader" means an individual qualified as
217	a final or B-reader under 42 C.F.R. s. 37.51(b), as amended.
218	(12)  "Civil action" means all suits or claims of a civil
219	nature in court, whether cognizable as cases at law or in equity
220	or in admiralty. The term does not include an action relating to
221	any workers' compensation law or a proceeding for benefits under
222	any veterans' benefits program.
223	(13)  "Exposed person" means any person whose exposure to
224	asbestos, silica, asbestos-containing products, or silica-
225	containing products is the basis for an asbestos or silica
226	claim.
227	(14)  "Exposure years" means:
228	(a)  Each single year of exposure prior to 1972 to be
229	counted as one year.
230	(b)  Each single year of exposure from 1972 through 1979 to
231	be counted as one-half year.
232	(c)  Exposure after 1979 not to be counted, except that
233	each year from 1972 forward for which the plaintiff can
234	establish exposure exceeding the Occupational Safety and Health
235	Administration limit for 8-hour, time-weighted average airborne
236	concentration for a substantial portion of the year to be
237	counted as one year.
238	(15)  "FEV1" means forced expiratory volume in the first
239	second, which is the maximal volume of air expelled in one
240	second during performance of simple spirometric tests.
241	(16)  "FVC" means forced vital capacity which is the
242	maximal volume of air expired with maximum effort from a
243	position of full inspiration.
244	(17)  "ILO scale" means the system for the classification
245	of chest X rays set forth in the International Labour Office's
246	Guidelines for the Use of ILO International Classification of
247	Radiographs of Pneumoconioses (1980) as amended by the
248	International Labour Office.
249	(18)  "Lung cancer" means a malignant tumor in which the
250	primary site of origin of the cancer is located inside of the
251	lungs, but such term does not include an asbestos claim based
252	upon mesothelioma.
253	(19)  "Mesothelioma" means a malignant tumor with a primary
254	site in the pleura or the peritoneum which has been diagnosed by
255	a board-certified pathologist using standardized and accepted
256	criteria of microscopic morphology or appropriate staining
257	techniques.
258	(20)  "Nonmalignant condition" means any condition that is
259	caused or may be caused by asbestos other than a diagnosed
260	cancer.
261	(21)  "Nonsmoker" means an exposed person who has not
262	smoked cigarettes or used any other tobacco products within the
263	last 15 years.
264	(22)  "Pathological evidence of asbestosis" means a
265	statement by a board-certified pathologist that more than one
266	representative section of lung tissue uninvolved with any other
267	disease process demonstrates a pattern of peribronchiolar or
268	parenchymal scarring in the presence of characteristic asbestos
269	bodies and that there is no other more likely explanation for
270	the presence of the fibrosis.
271	(23)  "Predicted lower limit of normal" for any test means
272	the fifth percentile of healthy populations based on age,
273	height, and gender, as referenced in the AMA Guides to the
274	Evaluation of Permanent Impairment.
275	(24)  "Qualified physician" means a medical doctor who:
276	(a)  Is currently a board-certified internist, oncologist,
277	pathologist, pulmonary specialist, or radiologist, or specialist
278	in occupational and environmental medicine.
279	(b)  Has conducted a physical examination of the exposed
280	person.
281	(c)  Is actually treating or treated the exposed person and
282	has or had a doctor-patient relationship with such person.
283	(d)  Spends no more than 10 percent of his or her
284	professional practice time in providing consulting or expert
285	services in connection with actual or potential civil actions
286	and whose medical group, professional corporation, clinic, or
287	other affiliated group earns not more than 20 percent of its
288	revenues from providing such services.
289	(e)  Is currently licensed to practice and actively
290	practices in the state in which the plaintiff resides or in
291	which the plaintiff's civil action was filed.
292	(f)  Receives or received payment for the treatment of the
293	exposed person from that person's health maintenance
294	organization or other medical provider or from the exposed
295	person or a member of the exposed person's family.
296	(25)  "Radiological evidence of asbestosis" means a quality
297	1 chest X ray under the ILO System of classification showing
298	small, irregular opacities of s, t, or u, graded by a certified
299	B-reader as at least 1/1 on the ILO scale. In a death case for
300	which no pathology is available, the necessary radiologic
301	findings may be made with a quality 2 film if a quality 1 film
302	is not available.
303	(26)  "Radiological evidence of diffuse pleural thickening"
304	means a quality 1 chest X ray under the ILO System of
305	classification showing bilateral pleural thickening of at least
306	B2 on the ILO scale and blunting of at least one costophrenic
307	angle. In a death case for which no pathology is available, the
308	necessary radiologic findings may be made with a quality 2 film
309	if a quality 1 film is not available.
310	(27)  "Silica" means a respirable crystalline form of
311	silicon dioxide, including, but not limited to, alpha, quartz,
312	cristobalite, and trydmite.
313	(28)  "Silica claim" means any claim for damages or other
314	civil or equitable relief presented in a civil action arising
315	out of, based on, or related to the health effects of exposure
316	to silica, including loss of consortium, wrongful death, and any
317	other derivative claim made by or on behalf of any exposed
318	person or any representative, spouse, parent, child, or other
319	relative of any exposed person. The term does not include claims
320	for benefits under a workers' compensation law or veterans'
321	benefits program or claims brought by any person as a subrogee
322	by virtue of the payment of benefits under a workers'
323	compensation law.
324	(29)  "Silicosis" means nodular interstitial fibrosis of
325	the lungs caused by inhalation of silica.
326	(30)  "Smoker" means a person who has smoked cigarettes or
327	used other tobacco products within the last 15 years.
328	(31)  "State" means any state of the United States, the
329	District of Columbia, the Commonwealth of Puerto Rico, the
330	Northern Mariana Islands, the Virgin Islands, Guam, American
331	Samoa, and any other territory or possession of the United
332	States or any political subdivision of any of such governments.
333	(32)  "Substantial contributing factor" means:
334	(a)  Exposure to asbestos or silica is the predominate
335	cause of the physical impairment alleged in the claim.
336	(b)  The exposure to asbestos or silica took place on a
337	regular basis over an extended period of time and in close
338	proximity to the exposed person.
339	(c)  A qualified physician has determined with a reasonable
340	degree of medical certainly that the physical impairment of the
341	exposed person would not have occurred but for the asbestos or
342	silica exposure.
343	(33)  "Veterans' benefits program" means any program for
344	benefits in connection with military service administered by the
345	Veterans' Administration under Title 38, U.S.C.
346	(34)  "Workers' compensation law" means a law respecting a
347	program administered by a state or the United States to provide
348	benefits, funded by a responsible employer or its insurance
349	carrier, for occupational diseases or injuries or for disability
350	or death caused by occupational diseases or injuries. The term
351	includes the Longshore and Harbor Workers' Compensation Act, 33
352	U.S.C. 901-944, 948-950, and chapter 81 of Title 5, U.S.C., the
353	Federal Employees Compensation Act, but does not include the Act
354	of April 22, 1908, 45 U.S.C. 51 et seq., popularly referred to
355	as the "Federal Employers' Liability Act."
356	Section 4.  Physical impairment.--
357	(1)  IMPAIRMENT ESSENTIAL ELEMENT OF CLAIM.--Physical
358	impairment of the exposed person, to which asbestos or silica
359	exposure was a substantial contributing factor, shall be an
360	essential element of an asbestos or silica claim.
361	(2)  PRIMA FACIE EVIDENCE OF PHYSICAL IMPAIRMENT FOR
362	NONMALIGNANT ASBESTOS CLAIMS.--No person shall bring or maintain
363	a civil action alleging a nonmalignant asbestos claim in the
364	absence of a prima facie showing of physical impairment as a
365	result of a medical condition to which exposure to asbestos was
366	a substantial contributing factor. Such a prima facie showing
367	shall include:
368	(a)  Evidence verifying that a qualified physician has
369	taken a detailed occupational and exposure history of the
370	exposed person or, if such person is deceased, from a person who
371	is knowledgeable about the exposures that form the basis of the
372	nonmalignant asbestos claim, including:
373	1.  Identification of all of the exposed person's principal
374	places of employment and exposures to airborne contaminants.
375	2.  Whether each place of employment involved exposures to
376	airborne contaminants, including, but not limited to, asbestos
377	fibers or other disease-causing dusts, that can cause pulmonary
378	impairment and the nature, duration, and level of any such
379	exposure.
380	(b)  Evidence sufficient to demonstrate that at least 10
381	years have elapsed between the date of first exposure to
382	asbestos and the date of diagnosis.
383	(c)  Evidence verifying that a qualified physician has
384	taken detailed medical and smoking history, including a thorough
385	review of the exposed person's past and present medical problems
386	and their most probable cause.
387	(d)  A determination by a qualified physician, on the basis
388	of a medical examination and pulmonary function testing, that
389	the exposed person has a permanent respiratory impairment rating
390	of at least Class 2 as defined by and evaluated pursuant to the
391	AMA Guides to the Evaluation of Permanent Impairment.
392	(e)  A diagnosis by a qualified physician of asbestosis or
393	diffuse pleural thickening, based at a minimum on radiological
394	or pathological evidence of asbestosis or radiological evidence
395	of diffuse pleural thickening.
396	(f)  A determination by a qualified physician that
397	asbestosis or diffuse pleural thickening, rather than chronic
398	obstructive pulmonary disease, is a substantial contributing
399	factor to the exposed person's physical impairment, based at a
400	minimum on a determination that the exposed person has:
401	1.  Total lung capacity, by plethysmography or timed gas
402	dilution, below the predicted lower limit of normal;
403	2.  Forced vital capacity below the lower limit of normal
404	and a ratio of FEV1 to FVC that is equal to or greater than the
405	predicted lower limit of normal; or
406	3.  A chest X ray showing small, irregular opacities of s,
407	t, or u, graded by a certified B-reader at least 2/1 on the ILO
408	scale.
409	(g)  A conclusion by a qualified physician that the exposed
410	person's medical findings and impairment were not more probably
411	the result of causes other than the asbestos exposure revealed
412	by the exposed person's employment and medical history. A
413	conclusion which states that the medical findings and impairment
414	are consistent with or compatible with exposure to asbestos does
415	not meet the requirements of this paragraph.
416	(3)  PRIMA FACIE EVIDENCE OF PHYSICAL IMPAIRMENT FOR
417	ASBESTOS-RELATED LUNG CANCER.--No person shall bring or maintain
418	a civil action alleging an asbestos claim which is based upon
419	lung cancer in the absence of a prima facie showing which shall
420	include all of the following minimum requirements:
421	(a)  A diagnosis by a qualified physician, who is board
422	certified in pathology, pulmonary medicine, or oncology, of a
423	primary lung cancer and that exposure to asbestos was a
424	substantial contributing factor to the condition.
425	(b)  Evidence sufficient to demonstrate that at least 10
426	years have elapsed between the date of first exposure to
427	asbestos and the date of diagnosis of the lung cancer.
428	(c)  Depending on whether the exposed person has a history
429	of smoking, the requirements of subparagraph 1. or subparagraph
430	2.:
431	1.  In the case of an exposed person who is a nonsmoker:
432	a.  Radiological or pathological evidence of asbestosis; or
433	b.  Evidence of occupational exposure to asbestos for the
434	following minimum exposure periods in the specified occupations:
435	(I)  Five exposure years for insulators, shipyard workers,
436	workers in manufacturing plants handling raw asbestos,
437	boilermakers, shipfitters, steamfitters, or other trades
438	performing similar functions;
439	(II)  Ten exposure years for utility and powerhouse
440	workers, secondary manufacturing workers, or other trades
441	performing similar functions; or
442	(III)  Fifteen exposure years for general construction,
443	maintenance workers, chemical and refinery workers, marine
444	engine room personnel and other personnel on vessels, stationary
445	engineers and firemen, railroad engine repair workers, or other
446	trades performing similar functions.
447	2.  In the case of an exposed person who is a smoker, the
448	criteria contained in sub-subparagraphs 1.a. and b. must be met.
449	(d)  A conclusion by a qualified physician that the exposed
450	person's medical findings and impairment were not more probably
451	the result of causes other than the asbestos exposure revealed
452	by the exposed person's employment and medical history. A
453	conclusion that the medical findings and impairment are
454	consistent with or compatible with exposure to asbestos does not
455	meet the requirements of this paragraph.
456
457	If the exposed person is deceased, the qualified physician may
458	obtain the evidence required in paragraph (b) and sub-
459	subparagraph (c)1.b. from the person most knowledgeable about
460	the alleged exposures that form the basis of the asbestos claim.
461	(4)  PRIMA FACIE EVIDENCE OF ASBESTOS-RELATED OTHER
462	CANCER.--No person shall bring or maintain a civil action
463	alleging an asbestos claim which is based upon cancer of the
464	colon, rectum, larynx, pharynx, esophagus, or stomach in the
465	absence of a prima facie showing which shall include all of the
466	following minimum requirements:
467	(a)  A diagnosis by a qualified physician who is board
468	certified in pathology, pulmonary medicine, or oncology, as
469	appropriate for the type of cancer claimed, of primary cancer of
470	the colon, rectum, larynx, pharynx, esophagus, or stomach and
471	that exposure to asbestos was a substantial contributing factor
472	to the condition.
473	(b)  Evidence sufficient to demonstrate that at least 10
474	years have elapsed between the date of first exposure to
475	asbestos and the date of diagnosis of the cancer.
476	(c)  The requirement of:
477	1.  Radiological or pathological evidence of asbestosis; or
478	2.  Evidence of occupational exposure to asbestos for the
479	following minimum exposure periods in the specified occupations:
480	a.  Five exposure years for insulators, shipyard workers,
481	workers in manufacturing plants handling raw asbestos,
482	boilermakers, shipfitters, steamfitters, or other trades
483	performing similar functions;
484	b.  Ten exposure years for utility and powerhouse workers,
485	secondary manufacturing workers, or other trades performing
486	similar functions; or
487	c.  Fifteen exposure years for general construction,
488	maintenance workers, chemical and refinery workers, marine
489	engine room personnel and other personnel on vessels, stationary
490	engineers and firemen, railroad engine repair workers, or other
491	trades performing similar functions.
492	(d)  A conclusion by a qualified physician that the exposed
493	person's medical findings and impairment were not more probably
494	the result of causes other than the asbestos exposure revealed
495	by the exposed person's employment and medical history. A
496	conclusion that the medical findings and impairment are
497	consistent with or compatible with exposure to asbestos does not
498	meet the requirements of this paragraph.
499
500	If the exposed person is deceased, the qualified physician may
501	obtain the evidence required in paragraph (b) and subparagraph
502	(c)2. from the person most knowledgeable about the alleged
503	exposures that form the basis of the asbestos claim.
504	(5)  NO PRIMA FACIE REQUIREMENT FOR MESOTHELIOMA.--In a
505	civil action alleging an asbestos claim based upon mesothelioma,
506	no prima facie showing is required.
507	(6)  PRIMA FACIE EVIDENCE OF PHYSICAL IMPAIRMENT FOR SILICA
508	CLAIMS.--No person shall bring or maintain a civil action
509	alleging a silica claim in the absence of a prima facie showing
510	of physical impairment as a result of a medical condition to
511	which exposure to silica was a substantial contributing factor.
512	Such prima facie showing shall include:
513	(a)  Evidence verifying that a qualified physician has
514	taken a detailed occupational and exposure history of the
515	exposed person or, if such person is deceased, from a person who
516	is knowledgeable about the exposures that form the basis of the
517	nonmalignant silica claim, including:
518	1.  All of the exposed person's principal places of
519	employment and exposures to airborne contaminants.
520	2.  Whether each place of employment involved exposures to
521	airborne contaminants, including, but not limited to, silica
522	particles or other disease-causing dusts, that can cause
523	pulmonary impairment and the nature, duration, and level of any
524	such exposure.
525	(b)  Evidence verifying that a qualified physician has
526	taken detailed medical and smoking history, including a thorough
527	review of the exposed person's past and present medical problems
528	and their most probable cause, and verifying a sufficient
529	latency period for the applicable stage of silicosis.
530	(c)  A determination by a qualified physician, on the basis
531	of a medical examination and pulmonary function testing, that
532	the exposed person has a permanent respiratory impairment rating
533	of at least Class 2 as defined by and evaluated pursuant to the
534	AMA Guides to the Evaluation of Permanent Impairment.
535	(d)  A determination by a qualified physician that the
536	exposed person has:
537	1.  A quality 1 chest X ray under the ILO System of
538	classification and that the X ray has been read by a certified
539	B-reader as showing, according to the ILO System of
540	classification, bilateral nodular opacities of p, q, or r,
541	occurring primarily in the upper lung fields, graded 1/1 or
542	higher. In a death case for which no pathology is available, the
543	necessary radiologic findings may be made with a quality 2 film
544	if a quality 1 film is not available; or
545	2.  Pathological demonstration of classic silicotic nodules
546	exceeding 1 centimeter in diameter as published in 112 Archive
547	of Pathology and Laboratory Medicine 7 (July 1988).
548	(e)  A conclusion by a qualified physician that the exposed
549	person's medical findings and impairment were not more probably
550	the result of causes other than silica exposure revealed by the
551	exposed person's employment and medical history. A conclusion
552	that the medical findings and impairment are consistent with or
553	compatible with exposure to asbestos does not meet the
554	requirements of this paragraph.
555	(7)  PRIMA FACIE EVIDENCE OF PHYSICAL IMPAIRMENT FOR OTHER
556	SILICA-RELATED DISEASES.--No person shall bring or maintain a
557	civil action alleging any silica claim other than as provided in
558	subsection (6) in the absence of a prima facie showing which
559	shall include the following minimum requirements:
560	(a)  A report by a qualified physician who is:
561	1.  Board certified in pulmonary medicine, internal
562	medicine, oncology, or pathology, stating a diagnosis of the
563	exposed person of silica-related lung cancer and stating that,
564	to a reasonable degree of medical probability, exposure to
565	silica was a substantial contributing factor to the diagnosed
566	lung cancer; or
567	2.  Board certified in pulmonary medicine, internal
568	medicine, or pathology, stating a diagnosis of the exposed
569	person of silica-related progressive massive fibrosis or acute
570	silicoproteinosis, or silicosis complicated by documented
571	tuberculosis.
572	(b)  Evidence verifying that a qualified physician has
573	taken a detailed occupational and exposure history of the
574	exposed person or, if such person is deceased, from a person who
575	is knowledgeable about the exposures that form the basis of the
576	nonmalignant silica claim, including:
577	1.  All of the exposed person's principal places of
578	employment and exposures to airborne contaminants.
579	2.  Whether each place of employment involved exposures to
580	airborne contaminants, including, but not limited to, silica
581	particles or other disease-causing dusts, that can cause
582	pulmonary impairment and the nature, duration, and level of any
583	such exposure.
584	(c)  Evidence verifying that a qualified physician has
585	taken detailed medical and smoking history, including a thorough
586	review of the exposed person's past and present medical problems
587	and their most probable cause.
588	(d)  A determination by a qualified physician that the
589	exposed person has:
590	1.  A quality 1 chest X ray under the ILO System of
591	classification and that the X ray has been read by a certified
592	B-reader as showing, according to the ILO System of
593	classification, bilateral nodular opacities of p, q, or r,
594	occurring primarily in the upper lung fields, graded 1/1 or
595	higher. In a death case for which no pathology is available, the
596	necessary radiologic findings may be made with a quality 2 film
597	if a quality 1 film is not available; or
598	2.  Pathological demonstration of classic silicotic nodules
599	exceeding 1 centimeter in diameter as published in 112 Archive
600	of Pathology and Laboratory Medicine 7 (July 1988).
601	(e)  A conclusion by a qualified physician that the exposed
602	person's medical findings and impairment were not more probably
603	the result of causes other than silica exposure revealed by the
604	exposed person's employment and medical history. A conclusion
605	that the medical findings and impairment are consistent with or
606	compatible with exposure to asbestos does not meet the
607	requirements of this paragraph.
608	(8)  COMPLIANCE WITH TECHNICAL STANDARDS.--Evidence
609	relating to physical impairment under this section, including
610	pulmonary function testing and diffusing studies, shall:
611	(a)  Comply with the technical recommendations for
612	examinations, testing procedures, quality assurance, quality
613	control, and equipment of the AMA Guides to the Evaluation of
614	Permanent Impairment, as set forth in 2d C.F.R. Pt. 404, Subpt.
615	P. Appl., Part A, Sec. 3.00 E. and F., and the interpretive
616	standards set forth in the official statement of the American
617	Thoracic Society entitled "Lung function testing: selection of
618	reference values and interpretive strategies" as published in
619	American Review of Respiratory Disease, 1991, 144:1202-1218.
620	(b)  Not be obtained through testing or examinations that
621	violate any applicable law, regulation, licensing requirement,
622	or medical code of practice.
623	(c)  Not be obtained under the condition that the exposed
624	person retain legal services in exchange for the examination,
625	test, or screening.
626	(9)  NO PRESUMPTION AT TRIAL.--Presentation of prima facie
627	evidence meeting the requirements of subsection (2), subsection
628	(3), subsection (4), subsection (6), or subsection (7) shall
629	not:
630	(a)  Result in any presumption at trial that the exposed
631	person is impaired by an asbestos-related or silica-related
632	condition.
633	(b)  Be conclusive as to the liability of any defendant.
634	(c)  Be admissible at trial.
635	Section 5.  Procedures.--
636	(1)  CONSOLIDATION.--A court may consolidate for trial any
637	number and type of asbestos or silica claims with consent of all
638	the parties. In the absence of such consent, the court may
639	consolidate for trial only asbestos or silica claims relating to
640	the same exposed person and members of his or her household.
641	(2)  VENUE.--A civil action alleging an asbestos or silica
642	claim may only be brought in the courts of this state if the
643	plaintiff is domiciled in this state or the exposure to asbestos
644	or silica that is a substantial contributing factor to the
645	physical impairment on which the claim is based occurred in this
646	state.
647	(3)  PRELIMINARY PROCEEDINGS.--The plaintiff in any civil
648	action alleging an asbestos or silica claim shall file together
649	with the complaint or other initial pleading a written report
650	and supporting test results constituting prima facie evidence of
651	the exposed person's asbestos-related or silica-related physical
652	impairment meeting the requirements of subsections (2)?(7) of
653	section 4. For any asbestos or silica claim pending on the
654	effective date of this act, the plaintiff shall file such a
655	written report and supporting test results no later than 60 days
656	after the effective date or no later than 30 days prior to the
657	commencement of trial. The defendant shall be afforded a
658	reasonable opportunity to challenge the adequacy of the
659	proffered prima facie evidence of asbestos-related impairment.
660	The plaintiff's claim shall be dismissed without prejudice upon
661	a finding of failure to make the required prima facie showing.
662	(4)  NEW CLAIM REQUIRED INFORMATION.--All asbestos claims
663	and silica claims filed in this state on or after the effective
664	date of this act shall include, in addition to the report
665	required in subsection (3) and the information required in
666	subsection (2) of section 7, a sworn information form containing
667	the following information:
668	(a)  The claimant's name, address, date of birth, social
669	security number, and marital status.
670	(b)  If the claimant alleges exposure to asbestos or silica
671	through the testimony of another person or other than by direct
672	or bystander exposure to any product, the name, address, date of
673	birth, social security number, and marital status for each
674	person by which claimant alleges exposure, hereafter the "index
675	person," and the claimant's relationship to each person.
676	(c)  The specific location of each alleged exposure.
677	(d)  The beginning and ending dates of each alleged
678	exposure as to each asbestos product or silica product for each
679	location at which the exposure allegedly took place for
680	plaintiff and for each index person.
681	(e)  The occupation and name of employer of the exposed
682	person at the time of each alleged exposure.
683	(f)  The specific condition related to asbestos or silica
684	claimed to exist.
685	(g)  Any supporting documentation of the condition claimed
686	to exist.
687	Section 6.  Statute of limitation; two-disease rule.--
688	(1)  STATUTE OF LIMITATIONS.--Notwithstanding any other
689	provision of law, with respect to any asbestos or silica claim
690	not barred as of the effective date of this act, the limitations
691	period shall not begin to run until the exposed person
692	discovers, or through the exercise of reasonable diligence
693	should have discovered, that the he or she is physically
694	impaired by an asbestos-related or silica-related condition, as
695	defined in section 4.
696	(2)  TWO-DISEASE RULE.--An asbestos or silica claim arising
697	out of a nonmalignant condition shall be a distinct cause of
698	action from an asbestos or silica claim relating to the same
699	exposed person arising out of asbestos-related or silica-related
700	cancer. No damages shall be awarded for fear or risk of cancer
701	in any civil action asserting an asbestos or silica claim.
702	(3)  GENERAL RELEASES FROM LIABILITY PROHIBITED.--No
703	settlement of a nonmalignant asbestos or silica claim concluded
704	after the date of enactment shall require, as a condition of
705	settlement, release of any future claim for asbestos-related or
706	silica-related cancer.
707	Section 7.  Scope of liability, damages.--
708	(1)  PUNITIVE DAMAGES.--No punitive damages shall be
709	awarded in any civil action alleging an asbestos or silica
710	claim.
711	(2)  COLLATERAL SOURCE PAYMENTS.--At the time a complaint
712	is filed in a civil action alleging an asbestos or silica claim,
713	the plaintiff must file a verified written report with the court
714	that discloses the total amount of any collateral source
715	payments received, including payments which the plaintiff will
716	receive in the future, as a result of settlements or judgments
717	based upon the same claim. For any asbestos or silica claim
718	pending on the date of enactment of this act, the plaintiff
719	shall file such verified written report no later than 60 days
720	after the date of enactment or no later than 30 days prior to
721	trial. Further, the plaintiff shall be required to update such
722	reports on a regular basis during the course of the proceeding
723	until a final judgment is entered in the case. The court shall
724	permit setoff, based on the collateral source payment
725	information provided, in accordance with the laws of this state
726	as of the effective date of this act.
727	Section 8.  Liability rules applicable to product sellers,
728	renters, and lessors.--
729	(1)(a)  In general.--In any civil action alleging an
730	asbestos or silica claim, a product seller other than a
731	manufacturer shall be liable to a plaintiff only if the
732	plaintiff establishes that:
733	1.a.  The product that allegedly caused the harm that is
734	the subject of the complaint was sold, rented, or leased by the
735	product seller;
736	b.  The product seller failed to exercise reasonable care
737	with respect to the product; and
738	c.  The failure to exercise reasonable care was a proximate
739	cause of the harm to the exposed person;
740	2.a.  The product seller made an express warranty
741	applicable to the product that allegedly caused the harm that is
742	the subject of the complaint, independent of any express
743	warranty made by the manufacturer as to the same product;
744	b.  The product failed to conform to the warranty; and
745	c.  The failure of the product to conform to the warranty
746	caused the harm to the exposed person; or
747	3.a.  The product seller engaged in intentional wrongdoing,
748	as determined under applicable state law; and
749	b.  The intentional wrongdoing caused the harm that is the
750	subject of the complaint.
751	(b)  Reasonable opportunity for inspection.--For the
752	purposes of subparagraph (1)(a)1., a product seller shall not be
753	considered to have failed to exercise reasonable care with
754	respect to a product based upon an alleged failure to inspect
755	the product, if:
756	1.  The failure occurred because there was no reasonable
757	opportunity to inspect the product; or
758	2.  The inspection, in the exercise of reasonable care,
759	would not have revealed the aspect of the product that allegedly
760	caused the exposed person's impairment.
761	(2)  In any civil action alleging an asbestos or silica
762	claim, a person engaged in the business of renting or leasing a
763	product shall not be liable for the tortious act of another
764	solely by reason of ownership of that product.
765	Section 9.  Miscellaneous provisions.--
766	(1)  This act shall not be construed to affect the scope or
767	operation of any workers' compensation law or veterans' benefit
768	program, to affect the exclusive remedy or subrogation
769	provisions of any such law, or to authorize any lawsuit which is
770	barred by any such provision of law.
771	(2)  It is the intent of this act and the Legislature to
772	accord the utmost comity and respect to the constitutional
773	prerogatives of the judiciary of this state and nothing in this
774	act should be construed as any effort to impinge upon those
775	prerogatives. To that end, if the Florida Supreme Court enters a
776	final judgment concluding or declaring that any provision of
777	this act improperly encroaches upon the court's authority to
778	determine the rules of practice and procedure in the courts of
779	this state, the Legislature hereby declares its intent that any
780	such provision be construed as a request for a rule change
781	pursuant to s. 2, Art. 5 of the State Constitution and not as a
782	mandatory legislative directive.
783	(3)  This act expressly preserves the right of all injured
784	persons to recover full compensatory damages for their loss and
785	therefore does not impair vested rights. In addition, this act
786	enhances the ability of the most seriously ill to receive a
787	prompt recovery and therefore is remedial in nature.
788	(4)  If any provision of this act or the application
789	thereof to any person or circumstance is held invalid, the
790	invalidity does not affect other provisions or application of
791	the act which can be given effect without the invalid provision
792	or application, and to this end the provisions of this act are
793	declared severable.
794	Section 10.  This act shall take effect upon becoming a law
795	and shall apply to any civil action asserting an asbestos or
796	silica claim in which trial has not commenced as of the
797	effective date of this act.

CODING: Words stricken are deletions; words underlined are additions.