HB 1019

CS

CHAMBER ACTION

1	The Judiciary 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 insulation products containing asbestos, 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, products containing asbestos, or silica-
225	containing products is the basis for an asbestos or silica
226	claim.
227	(14)  "FEV1" means forced expiratory volume in the first
228	second, which is the maximal volume of air expelled in one
229	second during performance of simple spirometric tests.
230	(15)  "FVC" means forced vital capacity which is the
231	maximal volume of air expired with maximum effort from a
232	position of full inspiration.
233	(16)  "ILO scale" means the system for the classification
234	of chest X rays set forth in the International Labour Office's
235	Guidelines for the Use of ILO International Classification of
236	Radiographs of Pneumoconioses (1980) as amended by the
237	International Labour Office.
238	(17)  "Lung cancer" means a malignant tumor in which the
239	primary site of origin of the cancer is located inside of the
240	lungs, but such term does not include an asbestos claim based
241	upon mesothelioma.
242	(18)  "Mesothelioma" means a malignant tumor with a primary
243	site in the pleura or the peritoneum which has been diagnosed by
244	a board-certified pathologist using standardized and accepted
245	criteria of microscopic morphology or appropriate staining
246	techniques.
247	(19)  "Nonmalignant condition" means any condition that is
248	caused or may be caused by asbestos other than a diagnosed
249	cancer.
250	(20)  "Nonsmoker" means an exposed person who has not
251	smoked cigarettes or any other tobacco products on a consistent
252	and frequent basis within the last 15 years.
253	(21)  "Pathological evidence of asbestosis" means a
254	statement by a board-certified pathologist that more than one
255	representative section of lung tissue uninvolved with any other
256	disease process demonstrates a pattern of peribronchiolar or
257	parenchymal scarring in the presence of characteristic asbestos
258	bodies and that there is no other more likely explanation for
259	the presence of the fibrosis.
260	(22)  "Predicted lower limit of normal" for any test means
261	the fifth percentile of healthy populations based on age,
262	height, and gender, as referenced in the AMA Guides to the
263	Evaluation of Permanent Impairment.
264	(23)  "Qualified physician" means a medical doctor who:
265	(a)  Is currently a board-certified internist, oncologist,
266	pathologist, pulmonary specialist, or radiologist, or specialist
267	in occupational and environmental medicine.
268	(b)  Has conducted a physical examination of the exposed
269	person.
270	(c)  Is actually treating or treated the exposed person and
271	has or had a doctor-patient relationship with such person.
272	(d)  Spends no more than 10 percent of his or her
273	professional practice time in providing consulting or expert
274	services in connection with actual or potential civil actions
275	and whose medical group, professional corporation, clinic, or
276	other affiliated group earns not more than 20 percent of its
277	revenues from providing such services.
278	(e)  Is currently licensed to practice and actively
279	practices in the state in which the plaintiff resides or in
280	which the plaintiff's civil action was filed.
281	(f)  Receives or received payment for the treatment of the
282	exposed person from that person's health maintenance
283	organization or other medical provider or from the exposed
284	person or a member of the exposed person's family.
285	(24)  "Radiological evidence of asbestosis" means a quality
286	1 chest X ray under the ILO System of classification showing
287	small, irregular opacities of s, t, or u, graded by a certified
288	B-reader as at least 1/1 on the ILO scale. In a death case for
289	which no pathology is available, the necessary radiologic
290	findings may be made with a quality 2 film if a quality 1 film
291	is not available.
292	(25)  "Radiological evidence of diffuse pleural thickening"
293	means a quality 1 chest X ray under the ILO System of
294	classification showing bilateral pleural thickening of at least
295	B2 on the ILO scale and blunting of at least one costophrenic
296	angle. In a death case for which no pathology is available, the
297	necessary radiologic findings may be made with a quality 2 film
298	if a quality 1 film is not available.
299	(26)  "Silica" means a respirable crystalline form of
300	silicon dioxide, including, but not limited to, alpha, quartz,
301	cristobalite, and trydmite.
302	(27)  "Silica claim" means any claim for damages or other
303	civil or equitable relief presented in a civil action arising
304	out of, based on, or related to the health effects of exposure
305	to silica, including loss of consortium, wrongful death, and any
306	other derivative claim made by or on behalf of any exposed
307	person or any representative, spouse, parent, child, or other
308	relative of any exposed person. The term does not include claims
309	for benefits under a workers' compensation law or veterans'
310	benefits program or claims brought by any person as a subrogee
311	by virtue of the payment of benefits under a workers'
312	compensation law.
313	(28)  "Silicosis" means nodular interstitial fibrosis of
314	the lungs caused by inhalation of silica.
315	(29)  "Smoker" means a person who has smoked cigarettes or
316	other tobacco products on a consistent and frequent basis within
317	the last 15 years.
318	(30)  "State" means any state of the United States, the
319	District of Columbia, the Commonwealth of Puerto Rico, the
320	Northern Mariana Islands, the Virgin Islands, Guam, American
321	Samoa, and any other territory or possession of the United
322	States or any political subdivision of any of such governments.
323	(31)  "Substantial contributing factor" means:
324	(a)  Exposure to asbestos or silica is the predominate
325	cause of the physical impairment alleged in the claim.
326	(b)  The exposure to asbestos or silica took place on a
327	regular basis over an extended period of time and in close
328	proximity to the exposed person.
329	(c)  A qualified physician has determined with a reasonable
330	degree of medical certainly that the physical impairment of the
331	exposed person would not have occurred but for the asbestos or
332	silica exposure.
333	(32)  "Substantial occupational exposure" means employment
334	for a cumulative period of at least 5 years in industries and
335	occupations in which, for a substantial portion of a normal work
336	year for that occupation, the exposed person did any of the
337	following:
338	(a)  Handled raw asbestos fibers;
339	(b)  Fabricated products containing asbestos so that the
340	person was exposed to raw asbestos fibers in the fabrication
341	process;
342	(c)  Altered, repaired, or otherwise worked with a product
343	containing asbestos in a manner that exposed the person on a
344	regular basis to asbestos fibers; or
345	(d)  Worked in close proximity to other persons engaged in
346	any of the activities described in paragraph (a), paragraph (b),
347	or paragraph (c) in a manner that exposed the person on a
348	regular basis to asbestos fibers.
349	(33)  "Veterans' benefits program" means any program for
350	benefits in connection with military service administered by the
351	Veterans' Administration under Title 38, U.S.C.
352	(34)  "Workers' compensation law" means a law respecting a
353	program administered by a state or the United States to provide
354	benefits, funded by a responsible employer or its insurance
355	carrier, for occupational diseases or injuries or for disability
356	or death caused by occupational diseases or injuries. The term
357	includes the Longshore and Harbor Workers' Compensation Act, 33
358	U.S.C. 901-944, 948-950, and chapter 81 of Title 5, U.S.C., the
359	Federal Employees Compensation Act, but does not include the Act
360	of April 22, 1908, 45 U.S.C. 51 et seq., popularly referred to
361	as the "Federal Employers' Liability Act."
362	Section 4.  Physical impairment.--
363	(1)  IMPAIRMENT ESSENTIAL ELEMENT OF CLAIM.--Physical
364	impairment of the exposed person, to which asbestos or silica
365	exposure was a substantial contributing factor, shall be an
366	essential element of an asbestos or silica claim.
367	(2)  PRIMA FACIE EVIDENCE OF PHYSICAL IMPAIRMENT FOR
368	NONMALIGNANT ASBESTOS CLAIMS.--No person shall bring or maintain
369	a civil action alleging a nonmalignant asbestos claim in the
370	absence of a prima facie showing of physical impairment as a
371	result of a medical condition to which exposure to asbestos was
372	a substantial contributing factor. Such a prima facie showing
373	shall include:
374	(a)  Evidence verifying that a qualified physician, or
375	someone working under the direct supervision and control of a
376	qualified physician, has taken a detailed occupational and
377	exposure history of the exposed person or, if such person is
378	deceased, from a person who is knowledgeable about the exposures
379	that form the basis of the nonmalignant asbestos claim,
380	including:
381	1.  Identification of all of the exposed person's principal
382	places of employment and exposures to airborne contaminants.
383	2.  Whether each place of employment involved exposures to
384	airborne contaminants, including, but not limited to, asbestos
385	fibers or other disease-causing dusts, that can cause pulmonary
386	impairment and the nature, duration, and level of any such
387	exposure.
388	(b)  Evidence sufficient to demonstrate that at least 10
389	years have elapsed between the date of first exposure to
390	asbestos and the date of diagnosis.
391	(c)  Evidence verifying that a qualified physician, or
392	someone working under the direct supervision and control of a
393	qualified physician, has taken detailed medical and smoking
394	history, including a thorough review of the exposed person's
395	past and present medical problems and their most probable cause.
396	(d)  A determination by a qualified physician, on the basis
397	of a medical examination and pulmonary function testing, that
398	the exposed person has a permanent respiratory impairment rating
399	of at least Class 2 as defined by and evaluated pursuant to the
400	AMA Guides to the Evaluation of Permanent Impairment.
401	(e)  A diagnosis by a qualified physician of asbestosis or
402	diffuse pleural thickening, based at a minimum on radiological
403	or pathological evidence of asbestosis or radiological evidence
404	of diffuse pleural thickening.
405	(f)  A determination by a qualified physician that
406	asbestosis or diffuse pleural thickening, rather than chronic
407	obstructive pulmonary disease, is a substantial contributing
408	factor to the exposed person's physical impairment, based at a
409	minimum on a determination that the exposed person has:
410	1.  Total lung capacity, by plethysmography or timed gas
411	dilution, below the predicted lower limit of normal;
412	2.  Forced vital capacity below the lower limit of normal
413	and a ratio of FEV1 to FVC that is equal to or greater than the
414	predicted lower limit of normal; or
415	3.  A chest X ray showing small, irregular opacities of s,
416	t, or u, graded by a certified B-reader at least 2/1 on the ILO
417	scale.
418	(g)  A conclusion by a qualified physician that the exposed
419	person's medical findings and impairment were not more probably
420	the result of causes other than the asbestos exposure revealed
421	by the exposed person's employment and medical history. A
422	conclusion which states that the medical findings and impairment
423	are consistent with or compatible with exposure to asbestos does
424	not meet the requirements of this paragraph.
425	(h)  If a plaintiff files a civil action alleging a
426	nonmalignant asbestos claim and that plaintiff alleges that the
427	plaintiff's exposure to asbestos was the result of extended
428	contact with another exposed person who, if the civil action had
429	been filed by the other exposed person, would have met the
430	requirements of paragraph (a) and the plaintiff alleges that the
431	plaintiff had extended contact with the exposed person during
432	the time period in which that exposed person met the
433	requirements of paragraph (a), the plaintiff is considered to
434	have satisfied the requirements of paragraph (a). The plaintiff
435	in such a civil action must individually satisfy the
436	requirements of paragraphs (b), (c), (d), (e), (f), and (g).
437	(3)  PRIMA FACIE EVIDENCE OF PHYSICAL IMPAIRMENT FOR
438	ASBESTOS-RELATED LUNG CANCER.--No person shall bring or maintain
439	a civil action alleging an asbestos claim which is based upon
440	lung cancer in the absence of a prima facie showing which shall
441	include all of the following minimum requirements:
442	(a)  A diagnosis by a qualified physician, who is board
443	certified in pathology, pulmonary medicine, or oncology, of a
444	primary lung cancer and that exposure to asbestos was a
445	substantial contributing factor to the condition.
446	(b)  Evidence sufficient to demonstrate that at least 10
447	years have elapsed between the date of first exposure to
448	asbestos and the date of diagnosis of the lung cancer.
449	(c)  Depending on whether the exposed person has a history
450	of smoking, the requirements of subparagraph 1. or subparagraph
451	2.:
452	1.  In the case of an exposed person who is a nonsmoker:
453	a.  Radiological or pathological evidence of asbestosis; or
454	b.  Evidence of the exposed person's substantial
455	occupational exposure to asbestos. If a plaintiff files a civil
456	action alleging an asbestos-related lung cancer claim, and that
457	plaintiff alleges that the plaintiff's exposure to asbestos was
458	the result of extended contact with another exposed person who,
459	if the civil action had been filed by the other exposed person,
460	would have met the substantial occupational exposure requirement
461	of this subsection, and the plaintiff alleges that the plaintiff
462	had extended contact with the exposed person during the time
463	period in which that exposed person met the substantial
464	occupational exposure requirement of this subsection, the
465	plaintiff is considered to have satisfied the requirements of
466	this sub-subparagraph. The plaintiff in such a civil action must
467	individually satisfy the requirements of paragraph (a),
468	paragraph (b), sub-subparagraph a. where appropriate,
469	subparagraph 2. where appropriate, and paragraph (d).
470	2.  In the case of an exposed person who is a smoker, the
471	criteria contained in sub-subparagraphs 1.a. and b. must be met.
472	(d)  A conclusion by a qualified physician that the exposed
473	person's medical findings and impairment were not more probably
474	the result of causes other than the asbestos exposure revealed
475	by the exposed person's employment and medical history. A
476	conclusion that the medical findings and impairment are
477	consistent with or compatible with exposure to asbestos does not
478	meet the requirements of this paragraph.
479
480	If the exposed person is deceased, the qualified physician, or
481	someone working under the direct supervision and control of a
482	qualified physician, may obtain the evidence required in
483	paragraph (b) and sub-subparagraph (c)1.b. from the person most
484	knowledgeable about the alleged exposures that form the basis of
485	the asbestos claim.
486	(4)  PRIMA FACIE EVIDENCE OF ASBESTOS-RELATED OTHER
487	CANCER.--No person shall bring or maintain a civil action
488	alleging an asbestos claim which is based upon cancer of the
489	colon, rectum, larynx, pharynx, esophagus, or stomach in the
490	absence of a prima facie showing which shall include all of the
491	following minimum requirements:
492	(a)  A diagnosis by a qualified physician who is board
493	certified in pathology, pulmonary medicine, or oncology, as
494	appropriate for the type of cancer claimed, of primary cancer of
495	the colon, rectum, larynx, pharynx, esophagus, or stomach and
496	that exposure to asbestos was a substantial contributing factor
497	to the condition.
498	(b)  Evidence sufficient to demonstrate that at least 10
499	years have elapsed between the date of first exposure to
500	asbestos and the date of diagnosis of the cancer.
501	(c)  The requirement of:
502	1.  Radiological or pathological evidence of asbestosis; or
503	2.  Evidence of the exposed person's substantial
504	occupational exposure to asbestos. If a plaintiff files a civil
505	action alleging an asbestos claim which is based upon cancer of
506	the colon, rectum, larynx, pharynx, esophagus, or stomach, and
507	that plaintiff alleges that the plaintiff's exposure to asbestos
508	was the result of extended contact with another exposed person
509	who, if the civil action had been filed by the other exposed
510	person, would have met the substantial occupational exposure
511	requirement of this subsection, and the plaintiff alleges that
512	the plaintiff had extended contact with the exposed person
513	during the time period in which that exposed person met the
514	substantial occupational exposure requirement of this
515	subsection, the plaintiff is considered to have satisfied the
516	requirements of this subparagraph. The plaintiff in such a civil
517	action must individually satisfy the requirements of paragraph
518	(a), paragraph (b), subparagraph 1. where appropriate, and
519	paragraph (d).
520	(d)  A conclusion by a qualified physician that the exposed
521	person's medical findings and impairment were not more probably
522	the result of causes other than the asbestos exposure revealed
523	by the exposed person's employment and medical history. A
524	conclusion that the medical findings and impairment are
525	consistent with or compatible with exposure to asbestos does not
526	meet the requirements of this paragraph.
527
528	If the exposed person is deceased, the qualified physician, or
529	someone working under the direct supervision and control of a
530	qualified physician, may obtain the evidence required in
531	paragraph (b) and subparagraph (c)2. from the person most
532	knowledgeable about the alleged exposures that form the basis of
533	the asbestos claim.
534	(5)  NO PRIMA FACIE REQUIREMENT FOR MESOTHELIOMA.--In a
535	civil action alleging an asbestos claim based upon mesothelioma,
536	no prima facie showing is required.
537	(6)  PRIMA FACIE EVIDENCE OF PHYSICAL IMPAIRMENT FOR SILICA
538	CLAIMS.--No person shall bring or maintain a civil action
539	alleging a silica claim in the absence of a prima facie showing
540	of physical impairment as a result of a medical condition to
541	which exposure to silica was a substantial contributing factor.
542	Such prima facie showing shall include:
543	(a)  Evidence verifying that a qualified physician, or
544	someone working under the direct supervision and control of a
545	qualified physician, has taken a detailed occupational and
546	exposure history of the exposed person or, if such person is
547	deceased, from a person who is knowledgeable about the exposures
548	that form the basis of the nonmalignant silica claim, including:
549	1.  All of the exposed person's principal places of
550	employment and exposures to airborne contaminants.
551	2.  Whether each place of employment involved exposures to
552	airborne contaminants, including, but not limited to, silica
553	particles or other disease-causing dusts, that can cause
554	pulmonary impairment and the nature, duration, and level of any
555	such exposure.
556	(b)  Evidence verifying that a qualified physician, or
557	someone working under the direct supervision and control of a
558	qualified physician, has taken detailed medical and smoking
559	history, including a thorough review of the exposed person's
560	past and present medical problems and their most probable cause,
561	and verifying a sufficient latency period for the applicable
562	stage of silicosis.
563	(c)  A determination by a qualified physician, on the basis
564	of a medical examination and pulmonary function testing, that
565	the exposed person has a permanent respiratory impairment rating
566	of at least Class 2 as defined by and evaluated pursuant to the
567	AMA Guides to the Evaluation of Permanent Impairment.
568	(d)  A determination by a qualified physician that the
569	exposed person has:
570	1.  A quality 1 chest X ray under the ILO System of
571	classification and that the X ray has been read by a certified
572	B-reader as showing, according to the ILO System of
573	classification, bilateral nodular opacities of p, q, or r,
574	occurring primarily in the upper lung fields, graded 1/1 or
575	higher. In a death case for which no pathology is available, the
576	necessary radiologic findings may be made with a quality 2 film
577	if a quality 1 film is not available; or
578	2.  Pathological demonstration of classic silicotic nodules
579	exceeding 1 centimeter in diameter as published in 112 Archive
580	of Pathology and Laboratory Medicine 7 (July 1988).
581	(e)  A conclusion by a qualified physician that the exposed
582	person's medical findings and impairment were not more probably
583	the result of causes other than silica exposure revealed by the
584	exposed person's employment and medical history. A conclusion
585	that the medical findings and impairment are consistent with or
586	compatible with exposure to silica does not meet the
587	requirements of this paragraph.
588	(7)  PRIMA FACIE EVIDENCE OF PHYSICAL IMPAIRMENT FOR OTHER
589	SILICA-RELATED DISEASES.--No person shall bring or maintain a
590	civil action alleging any silica claim other than as provided in
591	subsection (6) in the absence of a prima facie showing which
592	shall include the following minimum requirements:
593	(a)  A report by a qualified physician who is:
594	1.  Board certified in pulmonary medicine, internal
595	medicine, oncology, or pathology, stating a diagnosis of the
596	exposed person of silica-related lung cancer and stating that,
597	to a reasonable degree of medical probability, exposure to
598	silica was a substantial contributing factor to the diagnosed
599	lung cancer; or
600	2.  Board certified in pulmonary medicine, internal
601	medicine, or pathology, stating a diagnosis of the exposed
602	person of silica-related progressive massive fibrosis or acute
603	silicoproteinosis, or silicosis complicated by documented
604	tuberculosis.
605	(b)  Evidence verifying that a qualified physician, or
606	someone working under the direct supervision and control of a
607	qualified physician, has taken a detailed occupational and
608	exposure history of the exposed person or, if such person is
609	deceased, from a person who is knowledgeable about the exposures
610	that form the basis of the nonmalignant silica claim, including:
611	1.  All of the exposed person's principal places of
612	employment and exposures to airborne contaminants.
613	2.  Whether each place of employment involved exposures to
614	airborne contaminants, including, but not limited to, silica
615	particles or other disease-causing dusts, that can cause
616	pulmonary impairment and the nature, duration, and level of any
617	such exposure.
618	(c)  Evidence verifying that a qualified physician, or
619	someone working under the direct supervision and control of a
620	qualified physician, has taken detailed medical and smoking
621	history, including a thorough review of the exposed person's
622	past and present medical problems and their most probable cause.
623	(d)  A determination by a qualified physician that the
624	exposed person has:
625	1.  A quality 1 chest X ray under the ILO System of
626	classification and that the X ray has been read by a certified
627	B-reader as showing, according to the ILO System of
628	classification, bilateral nodular opacities of p, q, or r,
629	occurring primarily in the upper lung fields, graded 1/1 or
630	higher. In a death case for which no pathology is available, the
631	necessary radiologic findings may be made with a quality 2 film
632	if a quality 1 film is not available; or
633	2.  Pathological demonstration of classic silicotic nodules
634	exceeding 1 centimeter in diameter as published in 112 Archive
635	of Pathology and Laboratory Medicine 7 (July 1988).
636	(e)  A conclusion by a qualified physician that the exposed
637	person's medical findings and impairment were not more probably
638	the result of causes other than silica exposure revealed by the
639	exposed person's employment and medical history. A conclusion
640	that the medical findings and impairment are consistent with or
641	compatible with exposure to silica does not meet the
642	requirements of this paragraph.
643	(8)  COMPLIANCE WITH TECHNICAL STANDARDS.--Evidence
644	relating to physical impairment under this section, including
645	pulmonary function testing and diffusing studies, shall:
646	(a)  Comply with the technical recommendations for
647	examinations, testing procedures, quality assurance, quality
648	control, and equipment of the AMA Guides to the Evaluation of
649	Permanent Impairment, as set forth in 2d C.F.R. Pt. 404, Subpt.
650	P. Appl., Part A, Sec. 3.00 E. and F., and the interpretive
651	standards set forth in the official statement of the American
652	Thoracic Society entitled "Lung function testing: selection of
653	reference values and interpretive strategies" as published in
654	American Review of Respiratory Disease, 1991, 144:1202-1218.
655	(b)  Not be obtained through testing or examinations that
656	violate any applicable law, regulation, licensing requirement,
657	or medical code of practice.
658	(c)  Not be obtained under the condition that the exposed
659	person retain legal services in exchange for the examination,
660	test, or screening.
661	(9)  NO PRESUMPTION AT TRIAL.--Presentation of prima facie
662	evidence meeting the requirements of subsection (2), subsection
663	(3), subsection (4), subsection (6), or subsection (7) shall
664	not:
665	(a)  Result in any presumption at trial that the exposed
666	person is impaired by an asbestos-related or silica-related
667	condition.
668	(b)  Be conclusive as to the liability of any defendant.
669	(c)  Be admissible at trial.
670	Section 5.  Procedures.--
671	(1)  CONSOLIDATION.--A court may consolidate for trial any
672	number and type of asbestos or silica claims with consent of all
673	the parties. In the absence of such consent, the court may
674	consolidate for trial only asbestos or silica claims relating to
675	the same exposed person and members of his or her household.
676	(2)  VENUE.--A civil action alleging an asbestos or silica
677	claim may only be brought in the courts of this state if the
678	plaintiff is domiciled in this state or the exposure to asbestos
679	or silica that is a substantial contributing factor to the
680	physical impairment on which the claim is based occurred in this
681	state.
682	(3)  PRELIMINARY PROCEEDINGS.--The plaintiff in any civil
683	action alleging an asbestos or silica claim shall file together
684	with the complaint or other initial pleading a written report
685	and supporting test results constituting prima facie evidence of
686	the exposed person's asbestos-related or silica-related physical
687	impairment meeting the requirements of subsections (2)?(7) of
688	section 4. For any asbestos or silica claim pending on the
689	effective date of this act, the plaintiff shall file such a
690	written report and supporting test results no later than 60 days
691	after the effective date or no later than 30 days prior to the
692	commencement of trial. The defendant shall be afforded a
693	reasonable opportunity to challenge the adequacy of the
694	proffered prima facie evidence of asbestos-related impairment.
695	The plaintiff's claim shall be dismissed without prejudice upon
696	a finding of failure to make the required prima facie showing.
697	(4)  NEW CLAIM REQUIRED INFORMATION.--All asbestos claims
698	and silica claims filed in this state on or after the effective
699	date of this act shall include, in addition to the report
700	required in subsection (3) and the information required in
701	subsection (2) of section 7, a sworn information form containing
702	the following information:
703	(a)  The claimant's name, address, date of birth, social
704	security number, and marital status.
705	(b)  If the claimant alleges exposure to asbestos or silica
706	through the testimony of another person or other than by direct
707	or bystander exposure to any product, the name, address, date of
708	birth, social security number, and marital status for each
709	person by which claimant alleges exposure, hereafter the "index
710	person," and the claimant's relationship to each person.
711	(c)  The specific location of each alleged exposure.
712	(d)  The beginning and ending dates of each alleged
713	exposure as to each asbestos product or silica product for each
714	location at which the exposure allegedly took place for
715	plaintiff and for each index person.
716	(e)  The occupation and name of employer of the exposed
717	person at the time of each alleged exposure.
718	(f)  The specific condition related to asbestos or silica
719	claimed to exist.
720	(g)  Any supporting documentation of the condition claimed
721	to exist.
722	Section 6.  Statute of limitation; two-disease rule.--
723	(1)  STATUTE OF LIMITATIONS.--Notwithstanding any other
724	provision of law, with respect to any asbestos or silica claim
725	not barred as of the effective date of this act, the limitations
726	period shall not begin to run until the exposed person
727	discovers, or through the exercise of reasonable diligence
728	should have discovered, that the he or she is physically
729	impaired by an asbestos-related or silica-related condition, as
730	defined in section 4.
731	(2)  TWO-DISEASE RULE.--An asbestos or silica claim arising
732	out of a nonmalignant condition shall be a distinct cause of
733	action from an asbestos or silica claim relating to the same
734	exposed person arising out of asbestos-related or silica-related
735	cancer. No damages shall be awarded for fear or risk of cancer
736	in any civil action asserting an asbestos or silica claim.
737	(3)  GENERAL RELEASES FROM LIABILITY PROHIBITED.--No
738	settlement of a nonmalignant asbestos or silica claim concluded
739	after the date of enactment shall require, as a condition of
740	settlement, release of any future claim for asbestos-related or
741	silica-related cancer.
742	Section 7.  Scope of liability, damages.--
743	(1)  PUNITIVE DAMAGES.--No punitive damages shall be
744	awarded in any civil action alleging an asbestos or silica
745	claim.
746	(2)  COLLATERAL SOURCE PAYMENTS.--At the time a complaint
747	is filed in a civil action alleging an asbestos or silica claim,
748	the plaintiff must file a verified written report with the court
749	that discloses the total amount of any collateral source
750	payments received, including payments which the plaintiff will
751	receive in the future, as a result of settlements or judgments
752	based upon the same claim. For any asbestos or silica claim
753	pending on the date of enactment of this act, the plaintiff
754	shall file such verified written report no later than 60 days
755	after the date of enactment or no later than 30 days prior to
756	trial. Further, the plaintiff shall be required to update such
757	reports on a regular basis during the course of the proceeding
758	until a final judgment is entered in the case. The court shall
759	permit setoff, based on the collateral source payment
760	information provided, in accordance with the laws of this state
761	as of the effective date of this act.
762	Section 8.  Liability rules applicable to product sellers,
763	renters, and lessors.--
764	(1)(a)  In general.--In any civil action alleging an
765	asbestos or silica claim, a product seller other than a
766	manufacturer shall be liable to a plaintiff only if the
767	plaintiff establishes that:
768	1.a.  The product that allegedly caused the harm that is
769	the subject of the complaint was sold, rented, or leased by the
770	product seller;
771	b.  The product seller failed to exercise reasonable care
772	with respect to the product; and
773	c.  The failure to exercise reasonable care was a proximate
774	cause of the harm to the exposed person;
775	2.a.  The product seller made an express warranty
776	applicable to the product that allegedly caused the harm that is
777	the subject of the complaint, independent of any express
778	warranty made by the manufacturer as to the same product;
779	b.  The product failed to conform to the warranty; and
780	c.  The failure of the product to conform to the warranty
781	caused the harm to the exposed person; or
782	3.a.  The product seller engaged in intentional wrongdoing,
783	as determined under applicable state law; and
784	b.  The intentional wrongdoing caused the harm that is the
785	subject of the complaint.
786	(b)  Reasonable opportunity for inspection.--For the
787	purposes of subparagraph (1)(a)1., a product seller shall not be
788	considered to have failed to exercise reasonable care with
789	respect to a product based upon an alleged failure to inspect
790	the product, if:
791	1.  The failure occurred because there was no reasonable
792	opportunity to inspect the product; or
793	2.  The inspection, in the exercise of reasonable care,
794	would not have revealed the aspect of the product that allegedly
795	caused the exposed person's impairment.
796	(2)  In any civil action alleging an asbestos or silica
797	claim, a person engaged in the business of renting or leasing a
798	product shall not be liable for the tortious act of another
799	solely by reason of ownership of that product.
800	Section 9.  Miscellaneous provisions.--
801	(1)  This act shall not be construed to affect the scope or
802	operation of any workers' compensation law or veterans' benefit
803	program, to affect the exclusive remedy or subrogation
804	provisions of any such law, or to authorize any lawsuit which is
805	barred by any such provision of law.
806	(2)  It is the intent of this act and the Legislature to
807	accord the utmost comity and respect to the constitutional
808	prerogatives of the judiciary of this state and nothing in this
809	act should be construed as any effort to impinge upon those
810	prerogatives. To that end, if the Florida Supreme Court enters a
811	final judgment concluding or declaring that any provision of
812	this act improperly encroaches upon the court's authority to
813	determine the rules of practice and procedure in the courts of
814	this state, the Legislature hereby declares its intent that any
815	such provision be construed as a request for a rule change
816	pursuant to s. 2, Art. 5 of the State Constitution and not as a
817	mandatory legislative directive.
818	(3)  This act expressly preserves the right of all injured
819	persons to recover full compensatory damages for their loss and
820	therefore does not impair vested rights. In addition, this act
821	enhances the ability of the most seriously ill to receive a
822	prompt recovery and therefore is remedial in nature.
823	(4)  If any provision of this act or the application
824	thereof to any person or circumstance is held invalid, the
825	invalidity does not affect other provisions or application of
826	the act which can be given effect without the invalid provision
827	or application, and to this end the provisions of this act are
828	declared severable.
829	Section 10.  This act shall take effect upon becoming a law
830	and shall apply to any civil action asserting an asbestos or
831	silica claim in which trial has not commenced as of the
832	effective date of this act.

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