HB 1019

1	A bill to be entitled
2	An act relating to asbestos and silica claims; providing a
3	popular name; providing legislative findings; providing
4	purposes; providing definitions; requiring physical
5	impairment as an essential element of a claim; providing
6	criteria for prima facie evidence of physical impairment
7	for claims and certain actions; providing an exception;
8	providing additional requirements for evidence relating to
9	physical impairment; specifying absence of certain
10	presumptions at trial; providing procedures for claims and
11	certain actions; providing for consolidation; providing
12	for venue; providing for preliminary proceedings;
13	requiring new asbestos and silica claims to include
14	certain information; specifying certain limitation periods
15	for certain claims; specifying distinct causes of action
16	for certain conditions; limiting damages under certain
17	circumstances; prohibiting a general release from
18	liability; prohibiting award of punitive damages;
19	providing for collateral source payments; specifying
20	liability rules applicable to certain persons; providing
21	construction; providing legislative intent; providing
22	severability; providing application to certain civil
23	actions; providing an effective date.
24
25	Be It Enacted by the Legislature of the State of Florida:
26
27	Section 1.  Popular name.--This act may be cited as the
28	"Asbestos and Silica Compensation Fairness Act of 2005."
29	Section 2.  Findings and purposes.--
30	(1)  FINDINGS.--The Legislature finds that:
31	(a)  Asbestos is a mineral that was widely used prior to
32	the mid 1970's for insulation, fireproofing, and other purposes.
33	(b)  Millions of American workers and others were exposed
34	to asbestos, especially during and after World War II and prior
35	to the advent of regulation by the Occupational Safety and
36	Health Administration in the early 1970's.
37	(c)  Long-term exposure to asbestos has been associated
38	with various types of cancer, including mesothelioma and lung
39	cancer, as well as such nonmalignant conditions as asbestosis,
40	pleural plaques, and diffuse pleural thickening.
41	(d)  The diseases caused by asbestos often have long
42	latency periods.
43	(e)  Although the use of asbestos has dramatically declined
44	since the 1970's and workplace exposures have been regulated
45	since 1971 by the Occupational Safety and Health Administration,
46	past exposures will continue to result in significant claims of
47	death and disability as a result of such exposure.
48	(f)  Exposure to asbestos has created a flood of litigation
49	in state and federal courts that the United States Supreme Court
50	has characterized as "an elephantine mass" of cases that "defies
51	customary judicial administration" [Ortiz v. Fibreboard
52	Corporation, 119 S. Ct. 2295, 2302 (1999)].
53	(g)  Asbestos personal injury litigation can be unfair and
54	inefficient, imposing a severe burden on litigants and taxpayers
55	alike.
56	(h)  The extraordinary volume of nonmalignant asbestos
57	cases continues to strain state courts.
58	(i)  The vast majority of asbestos claims are filed by
59	individuals who allege they have been exposed to asbestos and
60	who may have some physical sign of exposure but who suffer no
61	present asbestos-related impairment.
62	(j)  The cost of compensating exposed individuals who are
63	not sick jeopardizes the ability of defendants to compensate
64	people with cancer and other serious asbestos-related diseases,
65	now and in the future; threatens the savings, retirement
66	benefits, and jobs of defendants' current and retired employees;
67	and adversely affects the communities in which these defendants
68	operate.
69	(k)  The crush of asbestos litigation has been costly to
70	employers, employees, litigants, and the court system. In 1982,
71	the Johns-Manville Corporation, the nation's largest single
72	supplier of insulation products containing asbestos, declared
73	bankruptcy due to the burden of the asbestos litigation. Since
74	then, more than 70 other companies have declared bankruptcy due
75	to the burden of asbestos litigation. It is estimated that
76	between 60,000 and 128,000 American workers already have lost
77	their jobs as a result of asbestos-related bankruptcies and that
78	the total number of jobs that will be lost due to asbestos-
79	related bankruptcies will eventually reach 432,000. Each worker
80	who loses his or her job due to an asbestos-related bankruptcy
81	loses between $25,000 and $50,000 in wages over his or her
82	career. Those workers also have seen the value of their 401(k)
83	retirement plans drop by 25 percent or more due the
84	bankruptcies.
85	(l)  Additionally, it is estimated that asbestos litigation
86	has already cost over $54 billion, with well over half of this
87	expense going to attorney's fees and other litigation costs. The
88	seriously ill too often find that the value of their recovery is
89	substantially reduced due to defendant bankruptcies and the
90	inefficiency of the litigation process.
91	(m)  Silica is a naturally occurring mineral. The Earth's
92	crust is over 90 percent silica, and crystalline silica dust is
93	the primary component of sand, quartz, and granite.
94	(n)  Silica-related illness, including silicosis, can occur
95	when silica is inhaled. To be inhaled, the silica particles must
96	be sufficiently small to be respirable. These tiny particles are
97	created when sand is pulverized in the sandblasting process and
98	may be found in the fine silica flour used in various foundry
99	processes.
100	(o)  Silicosis was recognized as an occupational disease
101	many years ago. In fact, the American Foundrymen's Society has
102	distributed literature to its members warning of the dangers of
103	silica exposure for more than 100 years. By the 1930's, the
104	Federal Government had launched a silica-awareness campaign
105	which led to greater protection for workers exposed to silica
106	dust. As a result, the number of silica lawsuits filed each year
107	was relatively predictable. This has changed. The number of new
108	lawsuits alleging silica-related disease being filed each year
109	began to rise precipitously in recent years. For example,
110	America's largest supplier of industrial sand had more than
111	15,000 new claims in the first 6 months of 2003. This is 3 times
112	the number of claims it had in all of 2002 and more than 10
113	times the number of claims it had in all of 2001.
114	(p)  Silica claims, like asbestos claims, often arise when
115	an individual is identified as having markings on his or her
116	lungs that are possibly consistent with silica exposure but the
117	individual has no functional or physical impairment from any
118	silica-related disease. Recent studies indicate that these
119	individuals are being identified through the efforts of
120	attorneys being compensated by generating contingency fees, just
121	as with asbestos litigation. Therefore, it is necessary to
122	address silica-related litigation to avoid an asbestos-like
123	litigation crisis.
124	(q)  Concerns about statutes of limitations may prompt
125	claimants who have been exposed to asbestos or silica but who
126	have no current injury to bring premature lawsuits in order to
127	protect against losing their rights to future compensation
128	should they become impaired.
129	(r)  Consolidations, joinders, and similar procedures to
130	which some courts have resorted in order to deal with the mass
131	of asbestos and silica cases can undermine the appropriate
132	functioning of the judicial process and further encourage the
133	filing of thousands of cases by exposed individuals who are not
134	yet sick and who may never become sick.
135	(s)  Excessive, unpredictable, and often arbitrary damage
136	awards and unfair allocations of liability jeopardize the
137	financial well-being of many individuals, businesses, and entire
138	industries, particularly small businesses.
139	(t)  Punitive damage awards unfairly divert the resources
140	of defendants from compensating genuinely impaired claimants
141	and, given the lengthy history of asbestos and silica litigation
142	and the regulatory and other restrictions on the use of asbestos
143	and silica-containing products in the workplace, the legal
144	justification for such awards, punishment, and deterrence is
145	either inapplicable or inappropriate.
146	(u)  The public interest requires deferring the claims of
147	exposed individuals who are not sick in order to preserve, now
148	and for the future, defendants' ability to compensate people who
149	develop cancer and other serious asbestos-related and silica-
150	related injuries and to safeguard the jobs, benefits, and
151	savings of workers in this state and the well-being of the
152	economy of this state.
153	(2)  PURPOSES.--The purposes of this act are to:
154	(a)  Give priority to true victims of asbestos and silica
155	claimants who can demonstrate actual physical impairment caused
156	by exposure to asbestos or silica.
157	(b)  Fully preserve the rights of claimants who were
158	exposed to asbestos or silica to pursue compensation should they
159	become impaired in the future as a result of such exposure.
160	(c)  Enhance the ability of the judicial system to
161	supervise and control asbestos and silica litigation.
162	(d)  Conserve the scarce resources of the defendants to
163	allow compensation of cancer victims and others who are
164	physically impaired by exposure to asbestos or silica while
165	securing the right to similar compensation for those who may
166	suffer physical impairment in the future.
167	Section 3.  Definitions.--As used in this act:
168	(1)  "AMA Guides to the evaluation of permanent impairment"
169	means the American Medical Association's Guides to the
170	Evaluation of Permanent Impairment (Fifth Edition 2000) as
171	modified by the American Medical Association.
172	(2)  "Asbestos" means all minerals defined as asbestos in
173	29 C.F.R. s. 1910, as amended.
174	(3)  "Asbestos claim" means any claim for damages or other
175	civil or equitable relief presented in a civil action arising
176	out of, based on, or related to the health effects of exposure
177	to asbestos, including loss of consortium, wrongful death, and
178	any other derivative claim made by or on behalf of any exposed
179	person or any representative, spouse, parent, child, or other
180	relative of any exposed person. The term does not include claims
181	for benefits under a workers' compensation law or veterans'
182	benefits program or claims brought by any person as a subrogee
183	by virtue of the payment of benefits under a workers'
184	compensation law.
185	(4)  "Asbestosis" means bilateral diffuse interstitial
186	fibrosis of the lungs caused by inhalation of asbestos fibers.
187	(5)  "Bankruptcy proceeding" means a case brought under
188	Title 11, U.S.C., or any related proceeding as provided in
189	section 157 of Title 28, U.S.C.
190	(6)  "Board-certified in internal medicine" means certified
191	by the American Board of Internal Medicine or the American
192	Osteopathic Board of Internal Medicine.
193	(7)  "Board-certified in occupational medicine" means
194	certified in the subspecialty of occupational medicine by the
195	American Board of Preventive Medicine or the American
196	Osteopathic Board of Preventive Medicine.
197	(8)  "Board-certified in oncology" means certified in the
198	subspecialty of medical oncology by the American Board of
199	Internal Medicine or the American Osteopathic Board of Internal
200	Medicine.
201	(9)  "Board-certified in pathology" means holding primary
202	certification in anatomic pathology or clinical pathology from
203	the American Board of Pathology or the American Osteopathic
204	Board of Internal Medicine and with professional practice:
205	(a)  Principally in the field of pathology.
206	(b)  Involving regular evaluation of pathology materials
207	obtained from surgical or postmortem specimens.
208	(10)  "Board-certified in pulmonary medicine" means
209	certified in the subspecialty of pulmonary medicine by the
210	American Board of Internal Medicine or the American Osteopathic
211	Board of Internal Medicine.
212	(11)  "Certified B-reader" means an individual qualified as
213	a final or B-reader under 42 C.F.R. s. 37.51(b), as amended.
214	(12)  "Civil action" means all suits or claims of a civil
215	nature in court, whether cognizable as cases at law or in equity
216	or in admiralty. The term does not include an action relating to
217	any workers' compensation law or a proceeding for benefits under
218	any veterans' benefits program.
219	(13)  "Exposed person" means any person whose exposure to
220	asbestos, silica, products containing asbestos, or silica-
221	containing products is the basis for an asbestos or silica
222	claim.
223	(14)  "FEV1" means forced expiratory volume in the first
224	second, which is the maximal volume of air expelled in one
225	second during performance of simple spirometric tests.
226	(15)  "FVC" means forced vital capacity which is the
227	maximal volume of air expired with maximum effort from a
228	position of full inspiration.
229	(16)  "ILO scale" means the system for the classification
230	of chest X rays set forth in the International Labour Office's
231	Guidelines for the Use of ILO International Classification of
232	Radiographs of Pneumoconioses (1980) as amended by the
233	International Labour Office.
234	(17)  "Lung cancer" means a malignant tumor in which the
235	primary site of origin of the cancer is located inside of the
236	lungs, but such term does not include an asbestos claim based
237	upon mesothelioma.
238	(18)  "Mesothelioma" means a malignant tumor with a primary
239	site in the pleura or the peritoneum which has been diagnosed by
240	a board-certified pathologist using standardized and accepted
241	criteria of microscopic morphology or appropriate staining
242	techniques.
243	(19)  "Nonmalignant condition" means any condition that is
244	caused or may be caused by asbestos other than a diagnosed
245	cancer.
246	(20)  "Nonsmoker" means an exposed person who has not
247	smoked cigarettes or any other tobacco products on a consistent
248	and frequent basis within the last 15 years.
249	(21)  "Pathological evidence of asbestosis" means a
250	statement by a board-certified pathologist that more than one
251	representative section of lung tissue uninvolved with any other
252	disease process demonstrates a pattern of peribronchiolar or
253	parenchymal scarring in the presence of characteristic asbestos
254	bodies and that there is no other more likely explanation for
255	the presence of the fibrosis.
256	(22)  "Predicted lower limit of normal" for any test means
257	the fifth percentile of healthy populations based on age,
258	height, and gender, as referenced in the AMA Guides to the
259	Evaluation of Permanent Impairment.
260	(23)  "Qualified physician" means a medical doctor who:
261	(a)  Is currently a board-certified internist, oncologist,
262	pathologist, pulmonary specialist, or radiologist, or specialist
263	in occupational and environmental medicine.
264	(b)  Has conducted a physical examination of the exposed
265	person.
266	(c)  Is actually treating or treated the exposed person and
267	has or had a doctor-patient relationship with such person.
268	(d)  Spends no more than 10 percent of his or her
269	professional practice time in providing consulting or expert
270	services in connection with actual or potential civil actions
271	and whose medical group, professional corporation, clinic, or
272	other affiliated group earns not more than 20 percent of its
273	revenues from providing such services.
274	(e)  Is currently licensed to practice and actively
275	practices in the state in which the plaintiff resides or in
276	which the plaintiff's civil action was filed.
277	(f)  Receives or received payment for the treatment of the
278	exposed person from that person's health maintenance
279	organization or other medical provider or from the exposed
280	person or a member of the exposed person's family.
281	(24)  "Radiological evidence of asbestosis" means a quality
282	1 chest X ray under the ILO System of classification showing
283	small, irregular opacities of s, t, or u, graded by a certified
284	B-reader as at least 1/1 on the ILO scale. In a death case for
285	which no pathology is available, the necessary radiologic
286	findings may be made with a quality 2 film if a quality 1 film
287	is not available.
288	(25)  "Radiological evidence of diffuse pleural thickening"
289	means a quality 1 chest X ray under the ILO System of
290	classification showing bilateral pleural thickening of at least
291	B2 on the ILO scale and blunting of at least one costophrenic
292	angle. In a death case for which no pathology is available, the
293	necessary radiologic findings may be made with a quality 2 film
294	if a quality 1 film is not available.
295	(26)  "Silica" means a respirable crystalline form of
296	silicon dioxide, including, but not limited to, alpha, quartz,
297	cristobalite, and trydmite.
298	(27)  "Silica claim" means any claim for damages or other
299	civil or equitable relief presented in a civil action arising
300	out of, based on, or related to the health effects of exposure
301	to silica, including loss of consortium, wrongful death, and any
302	other derivative claim made by or on behalf of any exposed
303	person or any representative, spouse, parent, child, or other
304	relative of any exposed person. The term does not include claims
305	for benefits under a workers' compensation law or veterans'
306	benefits program or claims brought by any person as a subrogee
307	by virtue of the payment of benefits under a workers'
308	compensation law.
309	(28)  "Silicosis" means nodular interstitial fibrosis of
310	the lungs caused by inhalation of silica.
311	(29)  "Smoker" means a person who has smoked cigarettes or
312	other tobacco products on a consistent and frequent basis within
313	the last 15 years.
314	(30)  "State" means any state of the United States, the
315	District of Columbia, the Commonwealth of Puerto Rico, the
316	Northern Mariana Islands, the Virgin Islands, Guam, American
317	Samoa, and any other territory or possession of the United
318	States or any political subdivision of any of such governments.
319	(31)  "Substantial contributing factor" means:
320	(a)  Exposure to asbestos or silica is the predominate
321	cause of the physical impairment alleged in the claim.
322	(b)  The exposure to asbestos or silica took place on a
323	regular basis over an extended period of time and in close
324	proximity to the exposed person.
325	(c)  A qualified physician has determined with a reasonable
326	degree of medical certainly that the physical impairment of the
327	exposed person would not have occurred but for the asbestos or
328	silica exposure.
329	(32)  "Substantial occupational exposure" means employment
330	for an extended period of time in industries and occupations in
331	which, for a substantial portion of a normal work year for that
332	occupation, the exposed person did any of the following:
333	(a)  Handled raw asbestos fibers;
334	(b)  Fabricated products containing asbestos so that the
335	person was exposed to raw asbestos fibers in the fabrication
336	process;
337	(c)  Altered, repaired, or otherwise worked with a product
338	containing asbestos in a manner that exposed the person on a
339	regular basis to asbestos fibers; or
340	(d)  Worked in close proximity to other persons engaged in
341	any of the activities described in paragraph (a), paragraph (b),
342	or paragraph (c) in a manner that exposed the person on a
343	regular basis to asbestos fibers.
344	(33)  "Veterans' benefits program" means any program for
345	benefits in connection with military service administered by the
346	Veterans' Administration under Title 38, U.S.C.
347	(34)  "Workers' compensation law" means a law respecting a
348	program administered by a state or the United States to provide
349	benefits, funded by a responsible employer or its insurance
350	carrier, for occupational diseases or injuries or for disability
351	or death caused by occupational diseases or injuries. The term
352	includes the Longshore and Harbor Workers' Compensation Act, 33
353	U.S.C. 901-944, 948-950, and chapter 81 of Title 5, U.S.C., the
354	Federal Employees Compensation Act, but does not include the Act
355	of April 22, 1908, 45 U.S.C. 51 et seq., popularly referred to
356	as the "Federal Employers' Liability Act."
357	Section 4.  Physical impairment.--
358	(1)  IMPAIRMENT ESSENTIAL ELEMENT OF CLAIM.--Physical
359	impairment of the exposed person, to which asbestos or silica
360	exposure was a substantial contributing factor, shall be an
361	essential element of an asbestos or silica claim.
362	(2)  PRIMA FACIE EVIDENCE OF PHYSICAL IMPAIRMENT FOR
363	NONMALIGNANT ASBESTOS CLAIMS.--No person shall bring or maintain
364	a civil action alleging a nonmalignant asbestos claim in the
365	absence of a prima facie showing of physical impairment as a
366	result of a medical condition to which exposure to asbestos was
367	a substantial contributing factor. Such a prima facie showing
368	shall include:
369	(a)  Evidence verifying that a qualified physician, or
370	someone working under the direct supervision and control of a
371	qualified physician, has taken a detailed occupational and
372	exposure history of the exposed person or, if such person is
373	deceased, from a person who is knowledgeable about the exposures
374	that form the basis of the nonmalignant asbestos claim,
375	including:
376	1.  Identification of all of the exposed person's principal
377	places of employment and exposures to airborne contaminants.
378	2.  Whether each place of employment involved exposures to
379	airborne contaminants, including, but not limited to, asbestos
380	fibers or other disease-causing dusts, that can cause pulmonary
381	impairment and the nature, duration, and level of any such
382	exposure.
383	(b)  Evidence sufficient to demonstrate that at least 10
384	years have elapsed between the date of first exposure to
385	asbestos and the date of diagnosis.
386	(c)  Evidence verifying that a qualified physician, or
387	someone working under the direct supervision and control of a
388	qualified physician, has taken detailed medical and smoking
389	history, including a thorough review of the exposed person's
390	past and present medical problems and their most probable cause.
391	(d)  A determination by a qualified physician, on the basis
392	of a medical examination and pulmonary function testing, that
393	the exposed person has a permanent respiratory impairment rating
394	of at least Class 2 as defined by and evaluated pursuant to the
395	AMA Guides to the Evaluation of Permanent Impairment.
396	(e)  A diagnosis by a qualified physician of asbestosis or
397	diffuse pleural thickening, based at a minimum on radiological
398	or pathological evidence of asbestosis or radiological evidence
399	of diffuse pleural thickening.
400	(f)  A determination by a qualified physician that
401	asbestosis or diffuse pleural thickening, rather than chronic
402	obstructive pulmonary disease, is a substantial contributing
403	factor to the exposed person's physical impairment, based at a
404	minimum on a determination that the exposed person has:
405	1.a.  Total lung capacity, by plethysmography or timed gas
406	dilution, below the predicted lower limit of normal; and
407	b.  Forced vital capacity below the lower limit of normal
408	and a ratio of FEV1 to FVC that is equal to or greater than the
409	predicted lower limit of normal; or
410	2.  In lieu of subparagraph 1., a chest X-ray showing
411	small, irregular opacities of s, t, or u, graded by a certified
412	B-reader as at least 2/1 on the ILO scale.
413	(g)  If the exposed person meets the requirements of
414	paragraphs (a), (b), and (c), and if a qualified physician
415	determines that the exposed person has a physical impairment, as
416	demonstrated by meeting the criteria set forth in paragraph (d)
417	and subparagraph (f)1., but the exposed person's chest X-ray
418	does not demonstrate radiological evidence of asbestosis, the
419	exposed person may meet the criteria of paragraph (e), if his or
420	her chest X-ray is graded by a certified B-reader as at least
421	1/0, and a qualified physician, relying on high-resolution
422	computed tomography, determines to a reasonable degree of
423	medical certainty that the exposed person has asbestosis and
424	forms the conclusion set forth in paragraph (h).
425	(h)  A conclusion by a qualified physician that the exposed
426	person's medical findings and impairment were not more probably
427	the result of causes other than the asbestos exposure revealed
428	by the exposed person's employment and medical history. A
429	conclusion which states that the medical findings and impairment
430	are consistent with or compatible with exposure to asbestos does
431	not meet the requirements of this paragraph.
432	(i)  If a plaintiff files a civil action alleging a
433	nonmalignant asbestos claim and that plaintiff alleges that the
434	plaintiff's exposure to asbestos was the result of extended
435	contact with another exposed person who, if the civil action had
436	been filed by the other exposed person, would have met the
437	requirements of paragraph (a) and the plaintiff alleges that the
438	plaintiff had extended contact with the exposed person during
439	the time period in which that exposed person met the
440	requirements of paragraph (a), the plaintiff is considered to
441	have satisfied the requirements of paragraph (a). The plaintiff
442	in such a civil action must individually satisfy the
443	requirements of this paragraph and paragraphs (b), (c), (d),
444	(e), (f), (g), and (h).
445	(3)  PRIMA FACIE EVIDENCE OF PHYSICAL IMPAIRMENT FOR
446	ASBESTOS-RELATED LUNG CANCER.--No person shall bring or maintain
447	a civil action alleging an asbestos claim which is based upon
448	lung cancer in the absence of a prima facie showing which shall
449	include all of the following minimum requirements:
450	(a)  A diagnosis by a qualified physician, who is board
451	certified in pathology, pulmonary medicine, or oncology, of a
452	primary lung cancer and that exposure to asbestos was a
453	substantial contributing factor to the condition.
454	(b)  Evidence sufficient to demonstrate that at least 10
455	years have elapsed between the date of first exposure to
456	asbestos and the date of diagnosis of the lung cancer.
457	(c)  Depending on whether the exposed person has a history
458	of smoking, the requirements of subparagraph 1. or subparagraph
459	2.:
460	1.  In the case of an exposed person who is a nonsmoker:
461	a.  Radiological or pathological evidence of asbestosis or
462	diffuse pleural thickening or a qualified physician's diagnosis
463	of asbestosis based on a chest X-ray graded by a certified B-
464	reader as at least 1/0 on the ILO scale and high-resolution
465	computed tomography supporting the diagnosis of asbestosis to a
466	reasonable degree of medical certainty; or
467	b.  Evidence of the exposed person's substantial
468	occupational exposure to asbestos. If a plaintiff files a civil
469	action alleging an asbestos-related lung cancer claim, and that
470	plaintiff alleges that the plaintiff's exposure to asbestos was
471	the result of extended contact with another exposed person who,
472	if the civil action had been filed by the other exposed person,
473	would have met the substantial occupational exposure requirement
474	of this subsection, and the plaintiff alleges that the plaintiff
475	had extended contact with the exposed person during the time
476	period in which that exposed person met the substantial
477	occupational exposure requirement of this subsection, the
478	plaintiff is considered to have satisfied the requirements of
479	this sub-subparagraph. The plaintiff in such a civil action must
480	individually satisfy the requirements of paragraph (a),
481	paragraph (b), sub-subparagraph a. where appropriate,
482	subparagraph 2. where appropriate, and paragraph (d).
483	2.  In the case of an exposed person who is a smoker, the
484	criteria contained in sub-subparagraphs 1.a. and b. must be met.
485	(d)  A conclusion by a qualified physician that the exposed
486	person's medical findings and impairment were not more probably
487	the result of causes other than the asbestos exposure revealed
488	by the exposed person's employment and medical history. A
489	conclusion that the medical findings and impairment are
490	consistent with or compatible with exposure to asbestos does not
491	meet the requirements of this paragraph.
492
493	If the exposed person is deceased, the qualified physician, or
494	someone working under the direct supervision and control of a
495	qualified physician, may obtain the evidence required in
496	paragraph (b) and sub-subparagraph (c)1.b. from the person most
497	knowledgeable about the alleged exposures that form the basis of
498	the asbestos claim.
499	(4)  PRIMA FACIE EVIDENCE OF ASBESTOS-RELATED OTHER
500	CANCER.--No person shall bring or maintain a civil action
501	alleging an asbestos claim which is based upon cancer of the
502	colon, rectum, larynx, pharynx, esophagus, or stomach in the
503	absence of a prima facie showing which shall include all of the
504	following minimum requirements:
505	(a)  A diagnosis by a qualified physician who is board
506	certified in pathology, pulmonary medicine, or oncology, as
507	appropriate for the type of cancer claimed, of primary cancer of
508	the colon, rectum, larynx, pharynx, esophagus, or stomach and
509	that exposure to asbestos was a substantial contributing factor
510	to the condition.
511	(b)  Evidence sufficient to demonstrate that at least 10
512	years have elapsed between the date of first exposure to
513	asbestos and the date of diagnosis of the cancer.
514	(c)  The requirement of:
515	1.  Radiological or pathological evidence of asbestosis or
516	diffuse pleural thickening or a qualified physician's diagnosis
517	of asbestosis based on a chest X-ray graded by a certified B-
518	reader as at least 1/0 on the ILO scale and high-resolution
519	computed tomography supporting the diagnosis of asbestosis to a
520	reasonable degree of medical certainty; or
521	2.  Evidence of the exposed person's substantial
522	occupational exposure to asbestos. If a plaintiff files a civil
523	action alleging an asbestos claim which is based upon cancer of
524	the colon, rectum, larynx, pharynx, esophagus, or stomach, and
525	that plaintiff alleges that the plaintiff's exposure to asbestos
526	was the result of extended contact with another exposed person
527	who, if the civil action had been filed by the other exposed
528	person, would have met the substantial occupational exposure
529	requirement of this subsection, and the plaintiff alleges that
530	the plaintiff had extended contact with the exposed person
531	during the time period in which that exposed person met the
532	substantial occupational exposure requirement of this
533	subsection, the plaintiff is considered to have satisfied the
534	requirements of this subparagraph. The plaintiff in such a civil
535	action must individually satisfy the requirements of paragraph
536	(a), paragraph (b), subparagraph 1. where appropriate, and
537	paragraph (d).
538	(d)  A conclusion by a qualified physician that the exposed
539	person's medical findings and impairment were not more probably
540	the result of causes other than the asbestos exposure revealed
541	by the exposed person's employment and medical history. A
542	conclusion that the medical findings and impairment are
543	consistent with or compatible with exposure to asbestos does not
544	meet the requirements of this paragraph.
545
546	If the exposed person is deceased, the qualified physician, or
547	someone working under the direct supervision and control of a
548	qualified physician, may obtain the evidence required in
549	paragraph (b) and subparagraph (c)2. from the person most
550	knowledgeable about the alleged exposures that form the basis of
551	the asbestos claim.
552	(5)  NO PRIMA FACIE REQUIREMENT FOR MESOTHELIOMA.--In a
553	civil action alleging an asbestos claim based upon mesothelioma,
554	no prima facie showing is required.
555	(6)  PRIMA FACIE EVIDENCE OF PHYSICAL IMPAIRMENT FOR SILICA
556	CLAIMS.--No person shall bring or maintain a civil action
557	alleging a silica claim in the absence of a prima facie showing
558	of physical impairment as a result of a medical condition to
559	which exposure to silica was a substantial contributing factor.
560	Such prima facie showing shall include:
561	(a)  Evidence verifying that a qualified physician, or
562	someone working under the direct supervision and control of a
563	qualified physician, has taken a detailed occupational and
564	exposure history of the exposed person or, if such person is
565	deceased, from a person who is knowledgeable about the exposures
566	that form the basis of the nonmalignant silica claim, including:
567	1.  All of the exposed person's principal places of
568	employment and exposures to airborne contaminants.
569	2.  Whether each place of employment involved exposures to
570	airborne contaminants, including, but not limited to, silica
571	particles or other disease-causing dusts, that can cause
572	pulmonary impairment and the nature, duration, and level of any
573	such exposure.
574	(b)  Evidence verifying that a qualified physician, or
575	someone working under the direct supervision and control of a
576	qualified physician, has taken detailed medical and smoking
577	history, including a thorough review of the exposed person's
578	past and present medical problems and their most probable cause,
579	and verifying a sufficient latency period for the applicable
580	stage of silicosis.
581	(c)  A determination by a qualified physician, on the basis
582	of a medical examination and pulmonary function testing, that
583	the exposed person has a permanent respiratory impairment rating
584	of at least Class 2 as defined by and evaluated pursuant to the
585	AMA Guides to the Evaluation of Permanent Impairment.
586	(d)  A determination by a qualified physician that the
587	exposed person has:
588	1.  A quality 1 chest X ray under the ILO System of
589	classification and that the X ray has been read by a certified
590	B-reader as showing, according to the ILO System of
591	classification, bilateral nodular opacities of p, q, or r,
592	occurring primarily in the upper lung fields, graded 1/1 or
593	higher. In a death case for which no pathology is available, the
594	necessary radiologic findings may be made with a quality 2 film
595	if a quality 1 film is not available; or
596	2.  Pathological demonstration of classic silicotic nodules
597	exceeding 1 centimeter in diameter as published in 112 Archive
598	of Pathology and Laboratory Medicine 7 (July 1988).
599	(e)  A conclusion by a qualified physician that the exposed
600	person's medical findings and impairment were not more probably
601	the result of causes other than silica exposure revealed by the
602	exposed person's employment and medical history. A conclusion
603	that the medical findings and impairment are consistent with or
604	compatible with exposure to silica does not meet the
605	requirements of this paragraph.
606	(7)  PRIMA FACIE EVIDENCE OF PHYSICAL IMPAIRMENT FOR OTHER
607	SILICA-RELATED DISEASES.--No person shall bring or maintain a
608	civil action alleging any silica claim other than as provided in
609	subsection (6) in the absence of a prima facie showing which
610	shall include the following minimum requirements:
611	(a)  A report by a qualified physician who is:
612	1.  Board certified in pulmonary medicine, internal
613	medicine, oncology, or pathology, stating a diagnosis of the
614	exposed person of silica-related lung cancer and stating that,
615	to a reasonable degree of medical probability, exposure to
616	silica was a substantial contributing factor to the diagnosed
617	lung cancer; or
618	2.  Board certified in pulmonary medicine, internal
619	medicine, or pathology, stating a diagnosis of the exposed
620	person of silica-related progressive massive fibrosis or acute
621	silicoproteinosis, or silicosis complicated by documented
622	tuberculosis.
623	(b)  Evidence verifying that a qualified physician, or
624	someone working under the direct supervision and control of a
625	qualified physician, has taken a detailed occupational and
626	exposure history of the exposed person or, if such person is
627	deceased, from a person who is knowledgeable about the exposures
628	that form the basis of the nonmalignant silica claim, including:
629	1.  All of the exposed person's principal places of
630	employment and exposures to airborne contaminants.
631	2.  Whether each place of employment involved exposures to
632	airborne contaminants, including, but not limited to, silica
633	particles or other disease-causing dusts, that can cause
634	pulmonary impairment and the nature, duration, and level of any
635	such exposure.
636	(c)  Evidence verifying that a qualified physician, or
637	someone working under the direct supervision and control of a
638	qualified physician, has taken detailed medical and smoking
639	history, including a thorough review of the exposed person's
640	past and present medical problems and their most probable cause.
641	(d)  A determination by a qualified physician that the
642	exposed person has:
643	1.  A quality 1 chest X ray under the ILO System of
644	classification and that the X ray has been read by a certified
645	B-reader as showing, according to the ILO System of
646	classification, bilateral nodular opacities of p, q, or r,
647	occurring primarily in the upper lung fields, graded 1/1 or
648	higher. In a death case for which no pathology is available, the
649	necessary radiologic findings may be made with a quality 2 film
650	if a quality 1 film is not available; or
651	2.  Pathological demonstration of classic silicotic nodules
652	exceeding 1 centimeter in diameter as published in 112 Archive
653	of Pathology and Laboratory Medicine 7 (July 1988).
654	(e)  A conclusion by a qualified physician that the exposed
655	person's medical findings and impairment were not more probably
656	the result of causes other than silica exposure revealed by the
657	exposed person's employment and medical history. A conclusion
658	that the medical findings and impairment are consistent with or
659	compatible with exposure to silica does not meet the
660	requirements of this paragraph.
661	(8)  COMPLIANCE WITH TECHNICAL STANDARDS.--Evidence
662	relating to physical impairment under this section, including
663	pulmonary function testing and diffusing studies, shall:
664	(a)  Comply with the technical recommendations for
665	examinations, testing procedures, quality assurance, quality
666	control, and equipment of the AMA Guides to the Evaluation of
667	Permanent Impairment, as set forth in 2d C.F.R. Pt. 404, Subpt.
668	P. Appl., Part A, Sec. 3.00 E. and F., and the interpretive
669	standards set forth in the official statement of the American
670	Thoracic Society entitled "Lung function testing: selection of
671	reference values and interpretive strategies" as published in
672	American Review of Respiratory Disease, 1991, 144:1202-1218.
673	(b)  Not be obtained through testing or examinations that
674	violate any applicable law, regulation, licensing requirement,
675	or medical code of practice.
676	(c)  Not be obtained under the condition that the exposed
677	person retain legal services in exchange for the examination,
678	test, or screening.
679	(9)  NO PRESUMPTION AT TRIAL.--Presentation of prima facie
680	evidence meeting the requirements of subsection (2), subsection
681	(3), subsection (4), subsection (6), or subsection (7) shall
682	not:
683	(a)  Result in any presumption at trial that the exposed
684	person is impaired by an asbestos-related or silica-related
685	condition.
686	(b)  Be conclusive as to the liability of any defendant.
687	(c)  Be admissible at trial.
688	Section 5.  Procedures.--
689	(1)  CONSOLIDATION.--A court may consolidate for trial any
690	number and type of asbestos or silica claims with consent of all
691	the parties. In the absence of such consent, the court may
692	consolidate for trial only asbestos or silica claims relating to
693	the same exposed person and members of his or her household.
694	(2)  VENUE.--A civil action alleging an asbestos or silica
695	claim may only be brought in the courts of this state if the
696	plaintiff is domiciled in this state or the exposure to asbestos
697	or silica that is a substantial contributing factor to the
698	physical impairment on which the claim is based occurred in this
699	state.
700	(3)  PRELIMINARY PROCEEDINGS.--The plaintiff in any civil
701	action alleging an asbestos or silica claim shall file together
702	with the complaint or other initial pleading a written report
703	and supporting test results constituting prima facie evidence of
704	the exposed person's asbestos-related or silica-related physical
705	impairment meeting the requirements of subsections (2)?(7) of
706	section 4. For any asbestos or silica claim pending on the
707	effective date of this act, the plaintiff shall file such a
708	written report and supporting test results no later than 60 days
709	after the effective date or no later than 30 days prior to the
710	commencement of trial. The defendant shall be afforded a
711	reasonable opportunity to challenge the adequacy of the
712	proffered prima facie evidence of asbestos-related impairment.
713	The plaintiff's claim shall be dismissed without prejudice upon
714	a finding of failure to make the required prima facie showing.
715	(4)  NEW CLAIM REQUIRED INFORMATION.--All asbestos claims
716	and silica claims filed in this state on or after the effective
717	date of this act shall include, in addition to the report
718	required in subsection (3) and the information required in
719	subsection (2) of section 7, a sworn information form containing
720	the following information:
721	(a)  The claimant's name, address, date of birth, social
722	security number, and marital status.
723	(b)  If the claimant alleges exposure to asbestos or silica
724	through the testimony of another person or other than by direct
725	or bystander exposure to any product, the name, address, date of
726	birth, social security number, and marital status for each
727	person by which claimant alleges exposure, hereafter the "index
728	person," and the claimant's relationship to each person.
729	(c)  The specific location of each alleged exposure.
730	(d)  The beginning and ending dates of each alleged
731	exposure as to each asbestos product or silica product for each
732	location at which the exposure allegedly took place for
733	plaintiff and for each index person.
734	(e)  The occupation and name of employer of the exposed
735	person at the time of each alleged exposure.
736	(f)  The specific condition related to asbestos or silica
737	claimed to exist.
738	(g)  Any supporting documentation of the condition claimed
739	to exist.
740	Section 6.  Statute of limitation; two-disease rule.--
741	(1)  STATUTE OF LIMITATIONS.--Notwithstanding any other
742	provision of law, with respect to any asbestos or silica claim
743	not barred as of the effective date of this act, the limitations
744	period shall not begin to run until the exposed person
745	discovers, or through the exercise of reasonable diligence
746	should have discovered, that the he or she is physically
747	impaired by an asbestos-related or silica-related condition, as
748	defined in section 4.
749	(2)  TWO-DISEASE RULE.--An asbestos or silica claim arising
750	out of a nonmalignant condition shall be a distinct cause of
751	action from an asbestos or silica claim relating to the same
752	exposed person arising out of asbestos-related or silica-related
753	cancer. No damages shall be awarded for fear or risk of cancer
754	in any civil action asserting an asbestos or silica claim.
755	(3)  GENERAL RELEASES FROM LIABILITY PROHIBITED.--No
756	settlement of a nonmalignant asbestos or silica claim concluded
757	after the date of enactment shall require, as a condition of
758	settlement, release of any future claim for asbestos-related or
759	silica-related cancer.
760	Section 7.  Scope of liability, damages.--
761	(1)  PUNITIVE DAMAGES.--No punitive damages shall be
762	awarded in any civil action alleging an asbestos or silica
763	claim.
764	(2)  COLLATERAL SOURCE PAYMENTS.--At the time a complaint
765	is filed in a civil action alleging an asbestos or silica claim,
766	the plaintiff must file a verified written report with the court
767	that discloses the total amount of any collateral source
768	payments received, including payments which the plaintiff will
769	receive in the future, as a result of settlements or judgments
770	based upon the same claim. For any asbestos or silica claim
771	pending on the date of enactment of this act, the plaintiff
772	shall file such verified written report no later than 60 days
773	after the date of enactment or no later than 30 days prior to
774	trial. Further, the plaintiff shall be required to update such
775	reports on a regular basis during the course of the proceeding
776	until a final judgment is entered in the case. The court shall
777	permit setoff, based on the collateral source payment
778	information provided, in accordance with the laws of this state
779	as of the effective date of this act.
780	Section 8.  Liability rules applicable to product sellers,
781	renters, and lessors.--
782	(1)(a)  In general.--In any civil action alleging an
783	asbestos or silica claim, a product seller other than a
784	manufacturer shall be liable to a plaintiff only if the
785	plaintiff establishes that:
786	1.a.  The product that allegedly caused the harm that is
787	the subject of the complaint was sold, rented, or leased by the
788	product seller;
789	b.  The product seller failed to exercise reasonable care
790	with respect to the product; and
791	c.  The failure to exercise reasonable care was a proximate
792	cause of the harm to the exposed person;
793	2.a.  The product seller made an express warranty
794	applicable to the product that allegedly caused the harm that is
795	the subject of the complaint, independent of any express
796	warranty made by the manufacturer as to the same product;
797	b.  The product failed to conform to the warranty; and
798	c.  The failure of the product to conform to the warranty
799	caused the harm to the exposed person; or
800	3.a.  The product seller engaged in intentional wrongdoing,
801	as determined under applicable state law; and
802	b.  The intentional wrongdoing caused the harm that is the
803	subject of the complaint.
804	(b)  Reasonable opportunity for inspection.--For the
805	purposes of subparagraph (1)(a)1., a product seller shall not be
806	considered to have failed to exercise reasonable care with
807	respect to a product based upon an alleged failure to inspect
808	the product, if:
809	1.  The failure occurred because there was no reasonable
810	opportunity to inspect the product; or
811	2.  The inspection, in the exercise of reasonable care,
812	would not have revealed the aspect of the product that allegedly
813	caused the exposed person's impairment.
814	(2)  In any civil action alleging an asbestos or silica
815	claim, a person engaged in the business of renting or leasing a
816	product shall not be liable for the tortious act of another
817	solely by reason of ownership of that product.
818	Section 9.  Miscellaneous provisions.--
819	(1)  This act shall not be construed to affect the scope or
820	operation of any workers' compensation law or veterans' benefit
821	program, to affect the exclusive remedy or subrogation
822	provisions of any such law, or to authorize any lawsuit which is
823	barred by any such provision of law.
824	(2)  It is the intent of this act and the Legislature to
825	accord the utmost comity and respect to the constitutional
826	prerogatives of the judiciary of this state and nothing in this
827	act should be construed as any effort to impinge upon those
828	prerogatives. To that end, if the Florida Supreme Court enters a
829	final judgment concluding or declaring that any provision of
830	this act improperly encroaches upon the court's authority to
831	determine the rules of practice and procedure in the courts of
832	this state, the Legislature hereby declares its intent that any
833	such provision be construed as a request for a rule change
834	pursuant to s. 2, Art. 5 of the State Constitution and not as a
835	mandatory legislative directive.
836	(3)  This act expressly preserves the right of all injured
837	persons to recover full compensatory damages for their loss and
838	therefore does not impair vested rights. In addition, this act
839	enhances the ability of the most seriously ill to receive a
840	prompt recovery and therefore is remedial in nature.
841	(4)  If any provision of this act or the application
842	thereof to any person or circumstance is held invalid, the
843	invalidity does not affect other provisions or application of
844	the act which can be given effect without the invalid provision
845	or application, and to this end the provisions of this act are
846	declared severable.
847	Section 10.  This act shall take effect upon becoming a law
848	and shall apply to any civil action asserting an asbestos or
849	silica claim in which trial has not commenced as of the
850	effective date of this act.

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