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Senate File 376 - ReprintedA Bill ForAn Act 1relating to disclosure of asbestos bankruptcy trust
2claims in civil asbestos actions, asbestos and silica claims
3prioritization, and successor corporation asbestos-related
4liability, and including applicability provisions.
5BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF IOWA:
1 Section 1. NEW SECTION. 686A.1 Title.
2This chapter shall be known and may be cited as the “Asbestos
3Bankruptcy Trust Claims Transparency Act”.
4 Sec. 2. NEW SECTION. 686A.2 Definitions.
5As used in this chapter, unless the context otherwise
6requires:
71. “Asbestos” means chrysotile, amosite, crocidolite,
8tremolite asbestos, anthophyllite asbestos, actinolite
9asbestos, asbestiform winchite, asbestiform richterite,
10asbestiform amphibole minerals, and any of these minerals that
11have been chemically treated or altered, including all minerals
12defined as asbestos in 29 C.F.R. pt.1910, at the time the
13asbestos action is filed.
142. “Asbestos action” means a claim for damages or other
15civil or equitable relief presented in a civil action arising
16out of, based on, or related to the health effects of exposure
17to asbestos, including loss of consortium, wrongful death,
18mental or emotional injury, risk or fear of disease or other
19injury, costs of medical monitoring or surveillance, and any
20other derivative claim made by or on behalf of a person exposed
21to asbestos or a representative, spouse, parent, child, or
22other relative of that person.
233. “Asbestos trust” means a government-approved or
24court-approved trust, qualified settlement fund, compensation
25fund, or claims facility created as a result of an
26administrative or legal action, a court-approved bankruptcy,
27or pursuant to 11 U.S.C. §524(g) or 11 U.S.C. §1121(a) or
28other applicable provision of law, that is intended to provide
29compensation to claimants arising out of, based on, or related
30to the health effects of exposure to asbestos.
314. “Plaintiff” means the person bringing an asbestos action,
32including a personal representative if the asbestos action is
33brought by an estate, or a conservator or next friend if the
34asbestos action is brought on behalf of a minor or legally
35incapacitated individual.
-1- 15. “Trust claims materials” means a final executed proof
2of claim and all other documents and information related to a
3claim against an asbestos trust, including claims forms and
4supplementary materials, affidavits, depositions and trial
5testimony, work history, and medical and health records,
6documents reflecting the status of a claim against an asbestos
7trust, and if the trust claim has settled, all documents
8relating to the settlement of the trust claim.
96. “Trust governance documents” means all documents that
10relate to eligibility and payment levels, including claims
11payment matrices, trust distribution procedures, or plans for
12reorganization, for an asbestos trust.
13 Sec. 3. NEW SECTION. 686A.3 Required disclosures by
14plaintiff.
151. Within ninety days after an asbestos action is filed,
16or within ninety days after the effective date of this
17Act, whichever is later, the plaintiff shall do all of the
18following:
19a. Provide the court and parties with a sworn statement
20signed by the plaintiff and the plaintiff’s counsel, under
21penalty of perjury, indicating that an investigation of all
22asbestos trust claims has been conducted and that all asbestos
23trust claims that may be made by the plaintiff or any person on
24the plaintiff’s behalf have been filed. The sworn statement
25must indicate whether there has been a request to defer, delay,
26suspend, or toll any asbestos trust claim, and provide the
27disposition of each asbestos trust claim.
28b. Provide all parties with all trust claims materials,
29including trust claims materials that relate to conditions
30other than those that are the basis for the asbestos action
31and including all trust claims materials from all attorneys
32connected to the plaintiff in relation to exposure to asbestos,
33including any attorney involved in the asbestos action, any
34referring attorney, and any other attorney who has filed an
35asbestos trust claim for the plaintiff or on the plaintiff’s
-2-1behalf.
2c. If the plaintiff’s asbestos trust claim is based on
3exposure to asbestos through another individual, the plaintiff
4shall produce all trust claims materials submitted by the
5other individual to any asbestos trusts if the materials are
6available to the plaintiff or the plaintiff’s counsel.
72. The plaintiff shall supplement the information and
8materials required under subsection 1 within thirty days after
9the plaintiff or a person on the plaintiff’s behalf supplements
10an existing asbestos trust claim, receives additional
11information or materials related to an asbestos trust claim, or
12files an additional asbestos trust claim.
133. The court may dismiss the asbestos action if the
14plaintiff fails to comply with this section.
154. An asbestos action shall not be set for trial until
16at least one hundred eighty days after the requirements of
17subsection 1 are met.
18 Sec. 4. NEW SECTION. 686A.4 Identification of additional or
19alternative asbestos trusts by defendant.
201. A defendant may file a motion requesting a stay of
21the proceedings on or before the later of the sixtieth day
22before the date trial in the action is set to commence or the
23fifteenth day after the defendant first obtains information
24that could support additional trust claims by the plaintiff.
25The motion shall identify the asbestos trust claims the
26defendant believes the plaintiff can file and include
27information supporting the asbestos trust claims.
282. Within ten days of receiving the defendant’s motion, the
29plaintiff shall do one of the following:
30a. File the asbestos trust claims.
31b. File a written response with the court stating the reason
32there is insufficient evidence for the plaintiff to file the
33asbestos trust claims.
34c. File a written response with the court requesting a
35determination that the cost to file the asbestos trust claims
-3-1exceeds the plaintiff’s reasonably anticipated recovery.
23. a. If the court determines that there is a sufficient
3basis for the plaintiff to file an asbestos trust claim
4identified in the motion to stay, the court shall stay the
5asbestos action until the plaintiff files the asbestos trust
6claim and produces all related trust claims materials.
7b. If the court determines that the cost of submitting
8an asbestos trust claim exceeds the plaintiff’s reasonably
9anticipated recovery, the court shall stay the asbestos action
10until the plaintiff files with the court and provides all
11parties with a verified statement of the plaintiff’s history
12of exposure, usage, or other connection to asbestos covered by
13that asbestos trust.
144. An asbestos action shall not be set for trial until at
15least sixty days after the plaintiff provides the documentation
16required by this section.
17 Sec. 5. NEW SECTION. 686A.5 Discovery — use of materials.
181. Trust claims materials and trust governance documents
19are presumed to be relevant and authentic, and are admissible
20in evidence in an asbestos action. Notwithstanding any other
21provision of law to the contrary, a claim of privilege does
22not apply to any trust claims materials or trust governance
23documents.
242. A defendant in an asbestos action may seek discovery
25from an asbestos trust. Notwithstanding any other provision
26of law to the contrary, the plaintiff may not claim privilege
27or confidentiality to bar discovery and shall provide consent
28or other expression of permission that may be required by the
29asbestos trust to release information and materials sought by a
30defendant.
313. Trust claim materials that are sufficient to entitle
32a claim to consideration for payment under the applicable
33trust governance documents may be sufficient to support a jury
34finding that the plaintiff may have been exposed to products
35for which the trust was established to provide compensation and
-4-1that, under applicable law, such exposure may be a substantial
2contributing factor in causing the plaintiff's injury that is
3at issue in the asbestos action.
4 Sec. 6. NEW SECTION. 686A.6 Trust record — valuation of
5asbestos trust claims — judicial notice.
61. Not less than thirty days before trial in an asbestos
7action, the court shall enter into the record a document that
8identifies every asbestos trust claim made by the plaintiff or
9on the plaintiff’s behalf.
102. If a plaintiff proceeds to trial in an asbestos
11action before an asbestos trust claim is resolved, there is
12a rebuttable presumption that the plaintiff is entitled to,
13and will receive, the compensation specified in the trust
14governance document applicable to the plaintiff’s claim at the
15time of trial. The court shall take judicial notice that the
16trust governance document specifies compensation amounts and
17payment percentages and shall establish an attributed value to
18the plaintiff’s asbestos trust claims.
19 Sec. 7. NEW SECTION. 686A.7 Setoff — credit.
20In any asbestos action in which damages are awarded and
21setoffs are permitted under applicable law, a defendant is
22entitled to a setoff or credit in the amount the plaintiff
23has been awarded from an asbestos trust identified in
24section 686A.6, subsection 1, and the amount of the valuation
25established under section 686A.6, subsection 2. If multiple
26defendants are found liable for damages, the court shall
27distribute the amount of setoff or credit proportionally
28between the defendants, according to the liability of each
29defendant.
30 Sec. 8. NEW SECTION. 686A.8 Failure to provide information
31— sanctions.
321. On the motion of a defendant or judgment debtor seeking
33sanctions or other relief in an asbestos action, the court
34may impose any sanction provided by court rule or a law of
35this state, including but not limited to vacating a judgment
-5-1rendered in the action, for a plaintiff’s failure to comply
2with the disclosure requirements of this chapter.
32. If the plaintiff or a person on the plaintiff’s behalf
4files an asbestos trust claim after the plaintiff obtains a
5judgment in an asbestos action, and that asbestos trust was
6in existence at the time the plaintiff obtained the judgment,
7the trial court, on motion by a defendant or judgment debtor
8seeking sanctions or other relief, has jurisdiction to reopen
9the judgment in the asbestos action and adjust the judgment by
10the amount of any subsequent asbestos trust payments obtained
11by the plaintiff and order any other relief to the parties that
12the court considers just and proper.
133. A defendant or judgment debtor shall file any motion
14under this section within a reasonable time and not more than
15one year after the judgment was entered.
16 Sec. 9. NEW SECTION. 686A.9 Application.
171. This chapter applies to all asbestos actions filed on or
18after the effective date of this Act.
192. This chapter applies to all pending asbestos actions in
20which trial has not commenced as of the effective date of this
21Act unless the court finds that the application of a provision
22in this chapter would unconstitutionally affect a vested right.
23In that case, the provision does not apply and the court shall
24apply prior law.
25 Sec. 10. NEW SECTION. 686B.1 Title.
26This chapter shall be known and may be cited as the “Asbestos
27and Silica Claims Priorities Act”.
28 Sec. 11. NEW SECTION. 686B.2 Definitions.
29As used in this chapter, unless the context otherwise
30requires:
311. “AMA guides” means the American medical association’s
32guides to the evaluation of permanent impairment in effect at
33the time of the performance of any examination or test on the
34exposed person required under this chapter.
352. “Asbestos” means the same as defined in section 686A.2.
-6- 13. “Asbestos action” means the same as defined in section
2686A.2.
34. “Asbestosis” means bilateral diffuse interstitial
4fibrosis of the lungs caused by inhalation of asbestos fibers.
55. “Board-certified in internal medicine” means certified
6by the American board of internal medicine or the American
7osteopathic board of internal medicine at the time of the
8performance of an examination and rendition of a report
9required by this chapter.
106. “Board-certified in occupational medicine” means
11certified in the specialty of occupational medicine by the
12American board of preventive medicine or the specialty of
13occupational/environmental medicine by the American osteopathic
14board of preventive medicine at the time of the performance
15of an examination and rendition of a report required by this
16chapter.
177. “Board-certified in pathology” means holding primary
18certification in anatomic pathology or clinical pathology from
19the American board of pathology or the American osteopathic
20board of pathology at the time of the performance of an
21examination and rendition of a report required by this chapter,
22and practicing principally in the field of pathology including
23regular evaluation of pathology materials obtained from
24surgical or postmortem specimens.
258. “Board-certified in pulmonary medicine” means certified in
26the specialty of pulmonary medicine by the American board of
27internal medicine or the American osteopathic board of internal
28medicine at the time of the performance of an examination and
29rendition of a report required by this chapter.
309. “Certified B-reader” means an individual who has
31qualified as a national institute for occupational safety and
32health final or B-reader of X rays under 42 C.F.R. §37.51(b),
33whose certification was current at the time of any readings
34required under this chapter, and whose B-reads comply with
35the national institute for occupational safety and health
-7-1B-reader’s code of ethics, issues in classification of chest
2radiographs, and classification of chest radiographs in
3contested proceedings.
410. “Exposed person” means a person whose exposure to
5asbestos or silica or to asbestos-containing products or
6silica-containing products is the basis for an asbestos action
7or silica action.
811. “FEV1” means forced expiratory volume in the first
9second, which is the maximal volume of air expelled in one
10second during the performance of simple spirometric tests.
1112. “FEV1/FVC” means the ratio between the actual values for
12FEV1 over FVC.
1313. “FVC” means forced vital capacity, which is the maximal
14volume of air expired with maximum effort from a position of
15full inspiration.
1614. “ILO system” and “ILO scale” mean the radiological
17ratings and system for the classification of chest X rays of
18the international labour office provided in guidelines for
19the use of ILO international classification of radiographs of
20pneumoconioses in effect on the day any X rays of the exposed
21person were reviewed by a certified B-reader.
2215. “Nonmalignant condition” means any condition that can be
23caused by asbestos or silica other than a diagnosed cancer.
2416. “Official statements of the American thoracic society”
25means lung function testing standards set forth in statements
26from the American thoracic society, including standardizations
27of spirometry, standardizations of lung volume testing,
28standardizations of diffusion capacity testing or single-breath
29determination of carbon monoxide uptake in the lung, and
30interpretive strategies for lung function tests, which are in
31effect on the day of the pulmonary function testing of the
32exposed person.
3317. “Pathological evidence of asbestosis” means a statement
34by a physician who is board-certified in pathology that more
35than one representative section of lung tissue uninvolved
-8-1with any other disease process demonstrates a pattern of
2peribronchiolar or parenchymal scarring in the presence of
3characteristic asbestos bodies graded 1(B) or higher under the
4criteria published in asbestos-associated diseases, 106 Archive
5of Pathology and Laboratory Medicine 11, appendix 3 (October
68, 1982), or grade one or higher in pathology of asbestosis,
7134 Archive of Pathology and Laboratory Medicine 462-80 (March
82010) (tables 2 and 3), as amended at the time of the exam, and
9there is no other more likely explanation for the presence of
10the fibrosis.
1118. “Pathological evidence of silicosis” means a statement by
12a physician who is board-certified in pathology that more than
13one representative section of lung tissue uninvolved with any
14other disease process demonstrates complicated silicosis with
15characteristic confluent silicotic nodules or lesions equal
16to or greater than one centimeter and birefringent crystals
17or other demonstration of crystal structures consistent with
18silica, well-organized concentric whorls of collagen surrounded
19by inflammatory cells, in the lung parenchyma and no other
20more likely explanation for the presence of the fibrosis
21exists, or acute silicosis with characteristic pulmonary edema,
22interstitial inflammation, and the accumulation within the
23alveoli of proteinaceous fluid rich in surfactant.
2419. “Plaintiff” means the person bringing an asbestos action
25or silica action, including a personal representative if the
26asbestos action or silica action is brought by an estate, or
27a conservator or next friend if the asbestos action or silica
28action is brought on behalf of a minor or legally incapacitated
29individual.
3020. “Predicted lower limit of normal” means the test
31value that is the calculated standard convention lying at
32the fifth percentile, below the upper ninety-five percent of
33the reference population, based on age, height, and gender,
34according to the recommendations by the American thoracic
35society and as referenced in the applicable AMA guides,
-9-1primarily national health and nutrition examination survey
2predicted values, or as amended.
321. “Pulmonary function test” means spirometry, lung volume
4testing, and diffusion capacity testing, including appropriate
5measurements, quality control data, and graphs, performed in
6accordance with the methods of calibration and techniques
7provided in the applicable AMA guides and all standards
8provided in the official statements of the American thoracic
9society in effect on the day pulmonary function testing of the
10exposed person was conducted.
1122. “Qualified physician” means a physician who is
12board-certified in internal medicine, board-certified
13in pathology, board-certified in pulmonary medicine, or
14board-certified in occupational medicine, as may be appropriate
15to the actual diagnostic specialty in question, and for whom
16all of the following are true:
17a. The physician conducted a physical examination of
18the exposed person and has taken a detailed occupational,
19exposure, medical, smoking, and social history from the exposed
20person, or if the exposed person is deceased, has reviewed the
21pathology material and has taken a detailed history from the
22person most knowledgeable about the information forming the
23basis of the asbestos action or silica action.
24b. The physician treated or is treating the exposed person,
25and has or had a doctor-patient relationship with the exposed
26person at the time of the physical examination, or in the case
27of a physician who is board-certified in pathology, examined
28tissue samples or pathological slides of the exposed person at
29the request of the treating physician.
30c. The physician spends no more than twenty-five percent of
31the physician’s professional practice time providing consulting
32or expert services in actual or potential civil actions, and
33whose medical group, professional corporation, clinic, or other
34affiliated group earns not more than twenty-five percent of its
35revenue providing such services.
-10- 1d. The physician was licensed to practice on the date any
2examination or pulmonary function testing was conducted, and
3actively practices or practiced in the state where the exposed
4person resides or resided at the time of the examination or
5pulmonary function testing, or the state where the asbestos
6action or silica action was filed.
7e. The physician received or is receiving payment for the
8treatment of the exposed person from the exposed person, a
9member of the exposed person’s family, or the exposed person’s
10health care plan and not from the exposed person’s attorney.
11f. The physician prepared or directly supervised the
12preparation and final review of any medical report under this
13chapter.
14g. The physician has not relied on any examinations, tests,
15radiographs, reports, or opinions of any physician, clinic,
16laboratory, or testing company that performed an examination,
17test, radiograph, or screening of the exposed person in
18violation of any law, regulation, licensing requirement, or
19medical code of practice of the state in which the examination,
20test, or screening was conducted, or that was conducted without
21establishing a physician-patient relationship with the exposed
22person or medical personnel involved in the examination, test,
23or screening process, or that required the exposed person to
24agree to retain the service of an attorney.
2523. “Radiological evidence of asbestosis” means a quality 1
26chest X ray under the ILO system, or a quality 2 chest X ray
27in a death case when no pathology or quality 1 chest X ray is
28available, showing bilateral small, irregular opacities (s, t,
29or u) occurring primarily in the lower lung zones graded by a
30certified B-reader as at least 1/1 on the ILO scale.
3124. “Radiological evidence of diffuse bilateral pleural
32thickening” means a quality 1 chest X ray under the ILO system,
33or a quality 2 chest X ray in a death case when no pathology or
34quality 1 chest X ray is available, showing diffuse bilateral
35pleural thickening of at least b2 on the ILO scale and blunting
-11-1of at least one costophrenic angle as classified by a certified
2B-reader.
325. “Radiological evidence of silicosis” means a quality
41 chest X ray under the ILO system, or a quality 2 chest X
5ray in a death case when no pathology or quality 1 chest X
6ray is available, showing bilateral predominantly nodular
7or rounded opacities (p, q, or r) occurring primarily in
8the upper lung fields graded by a certified B-reader as at
9least 1/1 on the ILO scale or A, B, or C sized opacities
10representing complicated silicosis or acute silicosis with
11characteristic pulmonary edema, interstitial inflammation, and
12the accumulation within the alveoli of proteinaceous fluid rich
13in surfactant.
1426. “Silica” means a respirable crystalline form of silicon
15dioxide, including quartz, cristobalite, and tridymite.
1627. “Silica action” means a claim for damages or other civil
17or equitable relief presented in a civil action arising out
18of, based on, or related to the health effects of exposure to
19silica, including loss of consortium, wrongful death, mental
20or emotional injury, risk or fear of disease or other injury,
21costs of medical monitoring or surveillance, and any other
22derivative claim made by or on behalf of a person exposed to
23silica or a representative, spouse, parent, child, or other
24relative of that person.
2528. “Silicosis” means simple silicosis, acute silicosis,
26accelerated silicosis, or chronic silicosis caused by the
27inhalation of respirable silica.
2829. “Supporting test results” means copies of the B-reading;
29pulmonary function tests, including printouts of the flow
30volume loops, volume time curves, diffusing capacity of the
31lung for carbon monoxide graphs, lung volume tests and graphs,
32quality control data and other pertinent data for all trials
33and all other elements required to demonstrate compliance with
34the equipment, quality, interpretation, and reporting standards
35set forth in this chapter; B-reader reports; reports of X
-12-1ray examinations; diagnostic imaging of the chest; pathology
2reports; and all other tests reviewed by the diagnosing
3physician or a qualified physician in reaching the physician’s
4conclusions.
5 Sec. 12. NEW SECTION. 686B.3 Filing claims — establishment
6of prima facie case — individual actions to be filed.
71. A plaintiff in an asbestos action involving a
8nonmalignant condition or a silica action involving silicosis
9shall file with the complaint or other initial pleading a
10detailed narrative medical report and diagnosis, signed under
11oath by a qualified physician and accompanied by supporting
12test results, which constitute prima facie evidence that the
13exposed person meets the requirements of this chapter. The
14report shall not be prepared by an attorney or person working
15for or on behalf of an attorney.
162. A plaintiff shall include with the detailed narrative
17medical report a sworn information form containing all of the
18following:
19a. The name, address, date of birth, social security
20number, marital status, occupation, and employer of the exposed
21person, and any person through whom the exposed person alleges
22exposure.
23b. The plaintiff’s relationship to the exposed person or
24person through whom the exposure is alleged.
25c. The specific location and manner of each alleged
26exposure, including the specific location and manner of
27exposure for any person through whom the exposed person alleges
28exposure.
29d. The beginning and ending dates of each alleged exposure.
30e. The identity of the manufacturer of the specific asbestos
31or silica product for each exposure.
32f. The identity of the defendant or defendants against whom
33the plaintiff asserts a claim.
34g. The specific asbestos-related or silica-related disease
35claimed to exist.
-13- 1h. Any supporting documentation relating to the information
2required under this subsection.
33. For an asbestos action or silica action pending as of
4the effective date of this Act, the detailed narrative medical
5report and supporting test results and sworn information form
6described in subsections 1 and 2 shall be provided to all
7parties not later than ninety days after the effective date of
8this Act or not later than ninety days before trial, whichever
9is earlier.
104. A defendant shall be afforded a reasonable opportunity
11to challenge the adequacy of the prima facie evidence before
12trial.
135. The court shall dismiss the asbestos action or silica
14action without prejudice on finding that the plaintiff has
15failed to make the prima facie showing required by this chapter
16or failed to comply with the requirements of this section.
176. An asbestos action or silica action must be individually
18filed and shall not be filed on behalf of a group or class of
19plaintiffs.
20 Sec. 13. NEW SECTION. 686B.4 Asbestos claims involving
21nonmalignant conditions — elements of proof.
22An asbestos action involving a nonmalignant condition shall
23not be brought or maintained in the absence of prima facie
24evidence that the exposed person has a physical impairment for
25which asbestos exposure was a substantial contributing factor.
26The prima facie showing shall be made as to each defendant
27and include a detailed narrative medical report and diagnosis
28signed under oath by a qualified physician that includes all
29of the following:
301. Radiological or pathological evidence of asbestosis or
31radiological evidence of diffuse bilateral pleural thickening
32or a high-resolution computed tomography scan showing evidence
33of asbestosis or diffuse bilateral pleural thickening.
342. A detailed occupational and exposure history from
35the exposed person or, if that person is deceased, from the
-14-1person most knowledgeable about the exposures that form the
2basis of the action, including identification of all of the
3exposed person’s principal places of employment and exposures
4to airborne contaminants and whether each place of employment
5involved exposures to airborne contaminants, including asbestos
6fibers or other disease-causing dusts or fumes, that may cause
7pulmonary impairment and the nature, duration, and level of any
8exposure.
93. A detailed medical, social, and smoking history from the
10exposed person or, if that person is deceased, from the person
11most knowledgeable, including a thorough review of the past and
12present medical problems of the exposed person and the most
13probable cause of such medical problems.
144. Evidence verifying that at least fifteen years have
15elapsed between the exposed person’s date of first exposure to
16asbestos and the date of diagnosis.
175. Evidence based upon a personal medical examination
18and pulmonary function testing of the exposed person or,
19if the exposed person is deceased, based upon the person’s
20medical records, that the exposed person has or the deceased
21person had a permanent respiratory impairment rating of at
22least class 2 as defined by and evaluated pursuant to the
23AMA guides or reported significant changes year to year in
24lung function for FVC, FEV1, or diffusing capacity of the
25lung for carbon monoxide as defined by the American thoracic
26society’s interpretative strategies for lung function tests, 26
27European Respiratory Journal 948-68, 961-62, table 12 (2005),
28as updated.
296. Evidence that asbestosis or diffuse bilateral pleural
30thickening, rather than chronic obstructive pulmonary disease,
31is a substantial contributing factor to the exposed person’s
32physical impairment, based on a determination that the exposed
33person has any of the following:
34a. FVC below the predicted lower limit of normal and
35FEV1/FVC ratio, using actual values, at or above the predicted
-15-1lower limit of normal.
2b. Total lung capacity, by plethysmography or timed gas
3dilution, below the predicted lower limit of normal.
4c. A chest X ray showing bilateral small, irregular
5opacities (s, t, or u) graded by a certified B-reader as at
6least 2/1 on the ILO scale.
77. The qualified physician signing the detailed narrative
8medical report has concluded that exposure to asbestos was
9a substantial contributing factor to the exposed person’s
10physical impairment and not more probably the result of other
11causes. An opinion that the medical findings and impairment
12are consistent with or compatible with exposure to asbestos,
13or similar opinion, does not satisfy the requirements of this
14subsection.
15 Sec. 14. NEW SECTION. 686B.5 Silica claims involving
16silicosis — elements of proof.
17A silica action involving silicosis shall not be brought
18or maintained in the absence of prima facie evidence that the
19exposed person has a physical impairment for which exposure
20to silica was a substantial contributing factor. The prima
21facie showing shall be made as to each defendant and include
22a detailed narrative medical report and diagnosis signed
23under oath by a qualified physician that includes all of the
24following:
251. Radiological or pathological evidence of silicosis or a
26high-resolution computed tomography scan showing evidence of
27silicosis.
282. A detailed occupational and exposure history from the
29exposed person or, if that person is deceased, from the person
30most knowledgeable about the exposures that form the basis of
31the action, including identification of all principal places
32of employment and exposures to airborne contaminants and
33whether each place of employment involved exposures to airborne
34contaminants, including silica or other disease-causing dusts
35or fumes, that may cause pulmonary impairment and the nature,
-16-1duration, and level of any exposure.
23. A detailed medical, social, and smoking history from the
3exposed person or, if that person is deceased, from the person
4most knowledgeable, including a thorough review of the past and
5present medical problems of the exposed person and the most
6probable cause of such medical problems.
74. Evidence that a sufficient latency period has elapsed
8between the exposed person’s date of first exposure to silica
9and the day of diagnosis.
105. Evidence based upon a personal medical examination
11and pulmonary function testing of the exposed person or,
12if the exposed person is deceased, based upon the person’s
13medical records, that the exposed person has or the deceased
14person had a permanent respiratory impairment rating of at
15least class 2 as defined by and evaluated pursuant to the
16AMA guides or reported significant changes year to year in
17lung function for FVC, FEV1, or diffusing capacity of the
18lung for carbon monoxide as defined by the American thoracic
19society’s interpretative strategies for lung function tests, 26
20European Respiratory Journal 948-68, 961-62, table 12 (2005),
21as updated.
226. The qualified physician signing the detailed narrative
23medical report has concluded that exposure to silica was
24a substantial contributing factor to the exposed person’s
25physical impairment and not more probably the result of other
26causes. An opinion stating that the medical findings and
27impairment are consistent with or compatible with exposure to
28silica, or similar opinion, does not satisfy the requirements
29of this subsection.
30 Sec. 15. NEW SECTION. 686B.6 Evidence of physical
31impairment.
32Evidence relating to physical impairment, including
33pulmonary function testing and diffusing studies, offered in
34an action governed by this chapter, must satisfy all of the
35following requirements:
-17- 11. The evidence must comply with the quality controls,
2equipment requirements, methods of calibration, and techniques
3set forth in the AMA guides and all standards set forth in the
4official statements of the American thoracic society which are
5in effect on the date of any examination or pulmonary function
6testing of the exposed person required by this chapter.
72. The evidence must not be obtained by or based on testing
8or examinations that violate any law, regulation, licensing
9requirement, or medical code of practice of the state in which
10the examination, test, or screening was conducted, or of this
11state.
123. The evidence must not be obtained under the condition
13that the plaintiff or exposed person retains the legal services
14of the attorney sponsoring the examination, test, or screening.
15 Sec. 16. NEW SECTION. 686B.7 Procedures — limitation.
161. Evidence relating to the prima facie showings required
17under this chapter shall not create any presumption that the
18exposed person has an asbestos-related or silica-related injury
19or impairment, and shall not be conclusive as to the liability
20of any defendant.
212. No evidence shall be offered at trial, and the jury shall
22not be informed, of any of the following:
23a. The grant or denial of a motion to dismiss an asbestos
24action or silica action under the provisions of this chapter.
25b. The provisions of this chapter with respect to what
26constitutes a prima facie showing of asbestos-related
27impairment or silica-related impairment.
283. Until a court enters an order determining that the
29exposed person has established prima facie evidence of
30impairment, an asbestos action or silica action shall not be
31subject to discovery, except discovery related to establishing
32or challenging the prima facie evidence or by order of the
33trial court upon motion of one of the parties and for good
34cause shown.
354. a. A court may consolidate for trial any number and
-18-1type of asbestos actions or silica actions with the consent of
2all the parties. In the absence of such consent, the court may
3consolidate for trial only asbestos actions or silica actions
4relating to the exposed person and members of that person’s
5household.
6b. This subsection does not preclude the consolidation of
7cases by court order for pretrial or discovery purposes.
85. A defendant in an asbestos action or silica action shall
9not be liable for exposures from a product or component part
10made or sold by a third party.
11 Sec. 17. NEW SECTION. 686B.8 Statute of limitations —
12two-disease rule.
131. With respect to an asbestos action or silica action not
14barred by limitations as of the effective date of this Act, an
15exposed person’s cause of action shall not accrue, nor shall
16the running of limitations commence, prior to the earliest of
17the following:
18a. The exposed person received a medical diagnosis of an
19asbestos-related impairment or silica-related impairment.
20b. The exposed person discovered facts that would have
21led a reasonable person to obtain a medical diagnosis with
22respect to the existence of an asbestos-related impairment or
23silica-related impairment.
24c. The date of death of the exposed person having an
25asbestos-related impairment or silica-related impairment.
262. This section shall not be construed to revive or extend
27limitations with respect to any claim for asbestos-related
28impairment or silica-related impairment that was otherwise
29time-barred as of the effective date of this Act.
303. An asbestos action or silica action arising out of a
31nonmalignant condition shall be a distinct cause of action from
32an action for an asbestos-related cancer or silica-related
33cancer. Where otherwise permitted under state law, no damages
34shall be awarded for fear or increased risk of future disease
35in an asbestos action or silica action.
-19-1 Sec. 18. NEW SECTION. 686B.9 Application.
21. This chapter applies to all asbestos actions and silica
3actions filed on or after the effective date of this Act.
42. This chapter applies to all pending asbestos actions
5and silica actions in which trial has not commenced as
6of the effective date of this Act unless the court finds
7that the application of a provision in this chapter would
8unconstitutionally affect a vested right. In that case, the
9provision does not apply and the court shall apply prior law.
10 Sec. 19. NEW SECTION. 686C.1 Title.
11This chapter shall be known and may be cited as the
12“Successor Corporation Asbestos-Related Liability Fairness Act”.
13 Sec. 20. NEW SECTION. 686C.2 Definitions.
14As used in this chapter, unless the context otherwise
15requires:
161. “Asbestos action” means the same as defined in section
17686A.2, but also includes any claim for damage or loss caused
18by the installation, presence, or removal of asbestos.
192. “Corporation” means any corporation established under
20either domestic or foreign charter and includes a corporate
21subsidiary and any business entity in which a corporation
22participates or is a stockholder, a partner, or a joint
23venture.
243. “Successor” means a corporation that assumes or incurs or
25has assumed or incurred successor asbestos-related liabilities
26through operation of law, including but not limited to a
27merger or consolidation or plan of merger or consolidation
28related to such consolidation or merger or by appointment as
29an administrator or as a trustee in bankruptcy, debtor in
30possession, liquidation, or receivership and that became a
31successor before January 1, 1972. “Successor” includes any of
32that successor corporation’s successors.
334. “Successor asbestos-related liability” means any
34liabilities, whether known or unknown, asserted or unasserted,
35absolute or contingent, accrued or unaccrued, liquidated or
-20-1unliquidated, or due or to become due, which are related in
2any way to an asbestos action and were assumed or incurred by
3a corporation as a result of or in connection with a merger
4or consolidation, or the plan of merger or consolidation
5related to the merger or consolidation with or into another
6corporation, or that are related in any way to an asbestos
7action based on the exercise of control or the ownership of
8stock of the corporation before the merger or consolidation.
9“Successor asbestos-related liability” includes liabilities
10that, after the time of the merger or consolidation for which
11the fair market value of total gross assets is determined under
12section 686C.4, were or are paid or otherwise discharged, or
13committed to be paid or otherwise discharged, by or on behalf
14of the corporation, or by a successor of the corporation, or by
15or on behalf of a transferor, in connection with settlements,
16judgments, or other discharges in this state or another
17jurisdiction.
185. “Transferor” means a corporation from which successor
19asbestos-related liabilities are or were assumed or incurred.
20 Sec. 21. NEW SECTION. 686C.3 Limitations on successor
21asbestos-related liabilities.
221. Except as provided in subsection 2, the cumulative
23successor asbestos-related liabilities of a successor are
24limited to the fair market value of the total gross assets
25of the transferor determined as of the time of the merger
26or consolidation. A successor shall not have responsibility
27for successor asbestos-related liabilities in excess of this
28limitation.
292. If the transferor had assumed or incurred successor
30asbestos-related liabilities in connection with a prior
31merger or consolidation with a prior transferor, then the
32fair market value of the total gross assets of the prior
33transferor determined as of the time of the earlier merger or
34consolidation shall be substituted for the limitation set forth
35in subsection 1 for purposes of determining the limitation of
-21-1liability of a successor.
23. The limitations in this section shall apply to any
3successor but shall not apply to any of the following:
4a. Workers’ compensation benefits paid by or on behalf of
5an employer to an employee under the provisions of chapter 85
6or 85A, or a comparable workers’ compensation law of another
7jurisdiction.
8b. Any claim against a corporation that does not constitute
9a successor asbestos-related liability.
10c. Any obligation under the federal National Labor
11Relations Act, 29 U.S.C. §151 et seq., as amended, or under any
12collective bargaining agreement.
13d. A successor that, after a merger or consolidation,
14continued in the business of mining asbestos or in the
15business of selling or distributing asbestos fibers or
16in the business of manufacturing, distributing, removing,
17or installing asbestos-containing products which were the
18same or substantially the same as those products previously
19manufactured, distributed, removed, or installed by the
20transferor.
21 Sec. 22. NEW SECTION. 686C.4 Establishing fair market value
22of total gross assets.
231. A successor may establish the fair market value of
24total gross assets, which include intangible assets, for the
25purpose of the limitations under section 686C.3, through any
26method reasonable under the circumstances, including any of the
27following:
28a. By reference to the going concern value of the assets or
29to the purchase price attributable to or paid for the assets
30in an arms-length transaction.
31b. In the absence of other readily available information
32from which the fair market value can be determined, by
33reference to the value of the assets recorded on a balance
34sheet.
352. To the extent total gross assets include any liability
-22-1insurance that was issued to the transferor whose assets are
2being valued for purposes of this section, the applicability,
3terms, conditions, and limits of such insurance shall not be
4affected by this chapter, nor shall this chapter otherwise
5affect the rights and obligations of an insurer, transferor,
6or successor under any insurance contract or any related
7agreement, including, without limitation, preenactment
8settlements resolving coverage-related disputes, and the rights
9of an insurer to seek payment for applicable deductibles,
10retrospective premiums, or self-insured retentions or to seek
11contribution from a successor for uninsured or self-insured
12periods or periods where insurance is uncollectible or
13otherwise unavailable. Without limiting the foregoing, to the
14extent total gross assets include any such liability insurance,
15a settlement of a dispute concerning any such liability
16insurance coverage entered into by a transferor or successor
17with the insurers of the transferor before the effective date
18of this Act shall be determinative of the total coverage of
19such liability insurance to be included in the calculation of
20the transferor’s total gross assets.
21 Sec. 23. NEW SECTION. 686C.5 Adjustment.
221. Except as provided in subsections 2, 3, and 4, the fair
23market value of total gross assets at the time of a merger or
24consolidation shall increase annually at a rate equal to the
25sum of the prime rate as listed in the first edition of the
26Wall street journal published for each calendar year since the
27merger or consolidation, unless the prime rate is not published
28in that edition of the Wall street journal, in which case any
29reasonable determination of the prime rate on the first day of
30the year may be used, plus one percent.
312. The rate determined under subsection 1 shall not be
32compounded.
333. The adjustment of the fair market value of total
34gross assets shall continue as provided in subsection 1
35until the date the adjusted value is first exceeded by the
-23-1cumulative amounts of successor asbestos-related liabilities
2paid or committed to be paid by or on behalf of the successor
3corporation or a predecessor or by or on behalf of a transferor
4after the time of the merger or consolidation for which the
5fair market value of total gross assets is determined.
64. No adjustment of the fair market value of total gross
7assets shall be applied to any liability insurance that may be
8included in the total gross assets pursuant to section 686C.4,
9subsection 2.
10 Sec. 24. NEW SECTION. 686C.6 Scope of chapter —
11application.
121. This chapter shall be liberally construed with regard to
13successors.
142. This chapter applies to all asbestos claims filed against
15a successor on or after the effective date of this Act.
163. This chapter applies to all pending asbestos actions in
17which trial has not commenced as of the effective date of this
18Act unless the court finds that the application of a provision
19in this chapter would unconstitutionally affect a vested right.
20In that case, the provision does not apply and the court shall
21apply prior law.
jh/nh/bs
2claims in civil asbestos actions, asbestos and silica claims
3prioritization, and successor corporation asbestos-related
4liability, and including applicability provisions.
5BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF IOWA:
1 Section 1. NEW SECTION. 686A.1 Title.
2This chapter shall be known and may be cited as the “Asbestos
3Bankruptcy Trust Claims Transparency Act”.
4 Sec. 2. NEW SECTION. 686A.2 Definitions.
5As used in this chapter, unless the context otherwise
6requires:
71. “Asbestos” means chrysotile, amosite, crocidolite,
8tremolite asbestos, anthophyllite asbestos, actinolite
9asbestos, asbestiform winchite, asbestiform richterite,
10asbestiform amphibole minerals, and any of these minerals that
11have been chemically treated or altered, including all minerals
12defined as asbestos in 29 C.F.R. pt.1910, at the time the
13asbestos action is filed.
142. “Asbestos action” means a claim for damages or other
15civil or equitable relief presented in a civil action arising
16out of, based on, or related to the health effects of exposure
17to asbestos, including loss of consortium, wrongful death,
18mental or emotional injury, risk or fear of disease or other
19injury, costs of medical monitoring or surveillance, and any
20other derivative claim made by or on behalf of a person exposed
21to asbestos or a representative, spouse, parent, child, or
22other relative of that person.
233. “Asbestos trust” means a government-approved or
24court-approved trust, qualified settlement fund, compensation
25fund, or claims facility created as a result of an
26administrative or legal action, a court-approved bankruptcy,
27or pursuant to 11 U.S.C. §524(g) or 11 U.S.C. §1121(a) or
28other applicable provision of law, that is intended to provide
29compensation to claimants arising out of, based on, or related
30to the health effects of exposure to asbestos.
314. “Plaintiff” means the person bringing an asbestos action,
32including a personal representative if the asbestos action is
33brought by an estate, or a conservator or next friend if the
34asbestos action is brought on behalf of a minor or legally
35incapacitated individual.
-1- 15. “Trust claims materials” means a final executed proof
2of claim and all other documents and information related to a
3claim against an asbestos trust, including claims forms and
4supplementary materials, affidavits, depositions and trial
5testimony, work history, and medical and health records,
6documents reflecting the status of a claim against an asbestos
7trust, and if the trust claim has settled, all documents
8relating to the settlement of the trust claim.
96. “Trust governance documents” means all documents that
10relate to eligibility and payment levels, including claims
11payment matrices, trust distribution procedures, or plans for
12reorganization, for an asbestos trust.
13 Sec. 3. NEW SECTION. 686A.3 Required disclosures by
14plaintiff.
151. Within ninety days after an asbestos action is filed,
16or within ninety days after the effective date of this
17Act, whichever is later, the plaintiff shall do all of the
18following:
19a. Provide the court and parties with a sworn statement
20signed by the plaintiff and the plaintiff’s counsel, under
21penalty of perjury, indicating that an investigation of all
22asbestos trust claims has been conducted and that all asbestos
23trust claims that may be made by the plaintiff or any person on
24the plaintiff’s behalf have been filed. The sworn statement
25must indicate whether there has been a request to defer, delay,
26suspend, or toll any asbestos trust claim, and provide the
27disposition of each asbestos trust claim.
28b. Provide all parties with all trust claims materials,
29including trust claims materials that relate to conditions
30other than those that are the basis for the asbestos action
31and including all trust claims materials from all attorneys
32connected to the plaintiff in relation to exposure to asbestos,
33including any attorney involved in the asbestos action, any
34referring attorney, and any other attorney who has filed an
35asbestos trust claim for the plaintiff or on the plaintiff’s
-2-1behalf.
2c. If the plaintiff’s asbestos trust claim is based on
3exposure to asbestos through another individual, the plaintiff
4shall produce all trust claims materials submitted by the
5other individual to any asbestos trusts if the materials are
6available to the plaintiff or the plaintiff’s counsel.
72. The plaintiff shall supplement the information and
8materials required under subsection 1 within thirty days after
9the plaintiff or a person on the plaintiff’s behalf supplements
10an existing asbestos trust claim, receives additional
11information or materials related to an asbestos trust claim, or
12files an additional asbestos trust claim.
133. The court may dismiss the asbestos action if the
14plaintiff fails to comply with this section.
154. An asbestos action shall not be set for trial until
16at least one hundred eighty days after the requirements of
17subsection 1 are met.
18 Sec. 4. NEW SECTION. 686A.4 Identification of additional or
19alternative asbestos trusts by defendant.
201. A defendant may file a motion requesting a stay of
21the proceedings on or before the later of the sixtieth day
22before the date trial in the action is set to commence or the
23fifteenth day after the defendant first obtains information
24that could support additional trust claims by the plaintiff.
25The motion shall identify the asbestos trust claims the
26defendant believes the plaintiff can file and include
27information supporting the asbestos trust claims.
282. Within ten days of receiving the defendant’s motion, the
29plaintiff shall do one of the following:
30a. File the asbestos trust claims.
31b. File a written response with the court stating the reason
32there is insufficient evidence for the plaintiff to file the
33asbestos trust claims.
34c. File a written response with the court requesting a
35determination that the cost to file the asbestos trust claims
-3-1exceeds the plaintiff’s reasonably anticipated recovery.
23. a. If the court determines that there is a sufficient
3basis for the plaintiff to file an asbestos trust claim
4identified in the motion to stay, the court shall stay the
5asbestos action until the plaintiff files the asbestos trust
6claim and produces all related trust claims materials.
7b. If the court determines that the cost of submitting
8an asbestos trust claim exceeds the plaintiff’s reasonably
9anticipated recovery, the court shall stay the asbestos action
10until the plaintiff files with the court and provides all
11parties with a verified statement of the plaintiff’s history
12of exposure, usage, or other connection to asbestos covered by
13that asbestos trust.
144. An asbestos action shall not be set for trial until at
15least sixty days after the plaintiff provides the documentation
16required by this section.
17 Sec. 5. NEW SECTION. 686A.5 Discovery — use of materials.
181. Trust claims materials and trust governance documents
19are presumed to be relevant and authentic, and are admissible
20in evidence in an asbestos action. Notwithstanding any other
21provision of law to the contrary, a claim of privilege does
22not apply to any trust claims materials or trust governance
23documents.
242. A defendant in an asbestos action may seek discovery
25from an asbestos trust. Notwithstanding any other provision
26of law to the contrary, the plaintiff may not claim privilege
27or confidentiality to bar discovery and shall provide consent
28or other expression of permission that may be required by the
29asbestos trust to release information and materials sought by a
30defendant.
313. Trust claim materials that are sufficient to entitle
32a claim to consideration for payment under the applicable
33trust governance documents may be sufficient to support a jury
34finding that the plaintiff may have been exposed to products
35for which the trust was established to provide compensation and
-4-1that, under applicable law, such exposure may be a substantial
2contributing factor in causing the plaintiff's injury that is
3at issue in the asbestos action.
4 Sec. 6. NEW SECTION. 686A.6 Trust record — valuation of
5asbestos trust claims — judicial notice.
61. Not less than thirty days before trial in an asbestos
7action, the court shall enter into the record a document that
8identifies every asbestos trust claim made by the plaintiff or
9on the plaintiff’s behalf.
102. If a plaintiff proceeds to trial in an asbestos
11action before an asbestos trust claim is resolved, there is
12a rebuttable presumption that the plaintiff is entitled to,
13and will receive, the compensation specified in the trust
14governance document applicable to the plaintiff’s claim at the
15time of trial. The court shall take judicial notice that the
16trust governance document specifies compensation amounts and
17payment percentages and shall establish an attributed value to
18the plaintiff’s asbestos trust claims.
19 Sec. 7. NEW SECTION. 686A.7 Setoff — credit.
20In any asbestos action in which damages are awarded and
21setoffs are permitted under applicable law, a defendant is
22entitled to a setoff or credit in the amount the plaintiff
23has been awarded from an asbestos trust identified in
24section 686A.6, subsection 1, and the amount of the valuation
25established under section 686A.6, subsection 2. If multiple
26defendants are found liable for damages, the court shall
27distribute the amount of setoff or credit proportionally
28between the defendants, according to the liability of each
29defendant.
30 Sec. 8. NEW SECTION. 686A.8 Failure to provide information
31— sanctions.
321. On the motion of a defendant or judgment debtor seeking
33sanctions or other relief in an asbestos action, the court
34may impose any sanction provided by court rule or a law of
35this state, including but not limited to vacating a judgment
-5-1rendered in the action, for a plaintiff’s failure to comply
2with the disclosure requirements of this chapter.
32. If the plaintiff or a person on the plaintiff’s behalf
4files an asbestos trust claim after the plaintiff obtains a
5judgment in an asbestos action, and that asbestos trust was
6in existence at the time the plaintiff obtained the judgment,
7the trial court, on motion by a defendant or judgment debtor
8seeking sanctions or other relief, has jurisdiction to reopen
9the judgment in the asbestos action and adjust the judgment by
10the amount of any subsequent asbestos trust payments obtained
11by the plaintiff and order any other relief to the parties that
12the court considers just and proper.
133. A defendant or judgment debtor shall file any motion
14under this section within a reasonable time and not more than
15one year after the judgment was entered.
16 Sec. 9. NEW SECTION. 686A.9 Application.
171. This chapter applies to all asbestos actions filed on or
18after the effective date of this Act.
192. This chapter applies to all pending asbestos actions in
20which trial has not commenced as of the effective date of this
21Act unless the court finds that the application of a provision
22in this chapter would unconstitutionally affect a vested right.
23In that case, the provision does not apply and the court shall
24apply prior law.
25 Sec. 10. NEW SECTION. 686B.1 Title.
26This chapter shall be known and may be cited as the “Asbestos
27and Silica Claims Priorities Act”.
28 Sec. 11. NEW SECTION. 686B.2 Definitions.
29As used in this chapter, unless the context otherwise
30requires:
311. “AMA guides” means the American medical association’s
32guides to the evaluation of permanent impairment in effect at
33the time of the performance of any examination or test on the
34exposed person required under this chapter.
352. “Asbestos” means the same as defined in section 686A.2.
-6- 13. “Asbestos action” means the same as defined in section
2686A.2.
34. “Asbestosis” means bilateral diffuse interstitial
4fibrosis of the lungs caused by inhalation of asbestos fibers.
55. “Board-certified in internal medicine” means certified
6by the American board of internal medicine or the American
7osteopathic board of internal medicine at the time of the
8performance of an examination and rendition of a report
9required by this chapter.
106. “Board-certified in occupational medicine” means
11certified in the specialty of occupational medicine by the
12American board of preventive medicine or the specialty of
13occupational/environmental medicine by the American osteopathic
14board of preventive medicine at the time of the performance
15of an examination and rendition of a report required by this
16chapter.
177. “Board-certified in pathology” means holding primary
18certification in anatomic pathology or clinical pathology from
19the American board of pathology or the American osteopathic
20board of pathology at the time of the performance of an
21examination and rendition of a report required by this chapter,
22and practicing principally in the field of pathology including
23regular evaluation of pathology materials obtained from
24surgical or postmortem specimens.
258. “Board-certified in pulmonary medicine” means certified in
26the specialty of pulmonary medicine by the American board of
27internal medicine or the American osteopathic board of internal
28medicine at the time of the performance of an examination and
29rendition of a report required by this chapter.
309. “Certified B-reader” means an individual who has
31qualified as a national institute for occupational safety and
32health final or B-reader of X rays under 42 C.F.R. §37.51(b),
33whose certification was current at the time of any readings
34required under this chapter, and whose B-reads comply with
35the national institute for occupational safety and health
-7-1B-reader’s code of ethics, issues in classification of chest
2radiographs, and classification of chest radiographs in
3contested proceedings.
410. “Exposed person” means a person whose exposure to
5asbestos or silica or to asbestos-containing products or
6silica-containing products is the basis for an asbestos action
7or silica action.
811. “FEV1” means forced expiratory volume in the first
9second, which is the maximal volume of air expelled in one
10second during the performance of simple spirometric tests.
1112. “FEV1/FVC” means the ratio between the actual values for
12FEV1 over FVC.
1313. “FVC” means forced vital capacity, which is the maximal
14volume of air expired with maximum effort from a position of
15full inspiration.
1614. “ILO system” and “ILO scale” mean the radiological
17ratings and system for the classification of chest X rays of
18the international labour office provided in guidelines for
19the use of ILO international classification of radiographs of
20pneumoconioses in effect on the day any X rays of the exposed
21person were reviewed by a certified B-reader.
2215. “Nonmalignant condition” means any condition that can be
23caused by asbestos or silica other than a diagnosed cancer.
2416. “Official statements of the American thoracic society”
25means lung function testing standards set forth in statements
26from the American thoracic society, including standardizations
27of spirometry, standardizations of lung volume testing,
28standardizations of diffusion capacity testing or single-breath
29determination of carbon monoxide uptake in the lung, and
30interpretive strategies for lung function tests, which are in
31effect on the day of the pulmonary function testing of the
32exposed person.
3317. “Pathological evidence of asbestosis” means a statement
34by a physician who is board-certified in pathology that more
35than one representative section of lung tissue uninvolved
-8-1with any other disease process demonstrates a pattern of
2peribronchiolar or parenchymal scarring in the presence of
3characteristic asbestos bodies graded 1(B) or higher under the
4criteria published in asbestos-associated diseases, 106 Archive
5of Pathology and Laboratory Medicine 11, appendix 3 (October
68, 1982), or grade one or higher in pathology of asbestosis,
7134 Archive of Pathology and Laboratory Medicine 462-80 (March
82010) (tables 2 and 3), as amended at the time of the exam, and
9there is no other more likely explanation for the presence of
10the fibrosis.
1118. “Pathological evidence of silicosis” means a statement by
12a physician who is board-certified in pathology that more than
13one representative section of lung tissue uninvolved with any
14other disease process demonstrates complicated silicosis with
15characteristic confluent silicotic nodules or lesions equal
16to or greater than one centimeter and birefringent crystals
17or other demonstration of crystal structures consistent with
18silica, well-organized concentric whorls of collagen surrounded
19by inflammatory cells, in the lung parenchyma and no other
20more likely explanation for the presence of the fibrosis
21exists, or acute silicosis with characteristic pulmonary edema,
22interstitial inflammation, and the accumulation within the
23alveoli of proteinaceous fluid rich in surfactant.
2419. “Plaintiff” means the person bringing an asbestos action
25or silica action, including a personal representative if the
26asbestos action or silica action is brought by an estate, or
27a conservator or next friend if the asbestos action or silica
28action is brought on behalf of a minor or legally incapacitated
29individual.
3020. “Predicted lower limit of normal” means the test
31value that is the calculated standard convention lying at
32the fifth percentile, below the upper ninety-five percent of
33the reference population, based on age, height, and gender,
34according to the recommendations by the American thoracic
35society and as referenced in the applicable AMA guides,
-9-1primarily national health and nutrition examination survey
2predicted values, or as amended.
321. “Pulmonary function test” means spirometry, lung volume
4testing, and diffusion capacity testing, including appropriate
5measurements, quality control data, and graphs, performed in
6accordance with the methods of calibration and techniques
7provided in the applicable AMA guides and all standards
8provided in the official statements of the American thoracic
9society in effect on the day pulmonary function testing of the
10exposed person was conducted.
1122. “Qualified physician” means a physician who is
12board-certified in internal medicine, board-certified
13in pathology, board-certified in pulmonary medicine, or
14board-certified in occupational medicine, as may be appropriate
15to the actual diagnostic specialty in question, and for whom
16all of the following are true:
17a. The physician conducted a physical examination of
18the exposed person and has taken a detailed occupational,
19exposure, medical, smoking, and social history from the exposed
20person, or if the exposed person is deceased, has reviewed the
21pathology material and has taken a detailed history from the
22person most knowledgeable about the information forming the
23basis of the asbestos action or silica action.
24b. The physician treated or is treating the exposed person,
25and has or had a doctor-patient relationship with the exposed
26person at the time of the physical examination, or in the case
27of a physician who is board-certified in pathology, examined
28tissue samples or pathological slides of the exposed person at
29the request of the treating physician.
30c. The physician spends no more than twenty-five percent of
31the physician’s professional practice time providing consulting
32or expert services in actual or potential civil actions, and
33whose medical group, professional corporation, clinic, or other
34affiliated group earns not more than twenty-five percent of its
35revenue providing such services.
-10- 1d. The physician was licensed to practice on the date any
2examination or pulmonary function testing was conducted, and
3actively practices or practiced in the state where the exposed
4person resides or resided at the time of the examination or
5pulmonary function testing, or the state where the asbestos
6action or silica action was filed.
7e. The physician received or is receiving payment for the
8treatment of the exposed person from the exposed person, a
9member of the exposed person’s family, or the exposed person’s
10health care plan and not from the exposed person’s attorney.
11f. The physician prepared or directly supervised the
12preparation and final review of any medical report under this
13chapter.
14g. The physician has not relied on any examinations, tests,
15radiographs, reports, or opinions of any physician, clinic,
16laboratory, or testing company that performed an examination,
17test, radiograph, or screening of the exposed person in
18violation of any law, regulation, licensing requirement, or
19medical code of practice of the state in which the examination,
20test, or screening was conducted, or that was conducted without
21establishing a physician-patient relationship with the exposed
22person or medical personnel involved in the examination, test,
23or screening process, or that required the exposed person to
24agree to retain the service of an attorney.
2523. “Radiological evidence of asbestosis” means a quality 1
26chest X ray under the ILO system, or a quality 2 chest X ray
27in a death case when no pathology or quality 1 chest X ray is
28available, showing bilateral small, irregular opacities (s, t,
29or u) occurring primarily in the lower lung zones graded by a
30certified B-reader as at least 1/1 on the ILO scale.
3124. “Radiological evidence of diffuse bilateral pleural
32thickening” means a quality 1 chest X ray under the ILO system,
33or a quality 2 chest X ray in a death case when no pathology or
34quality 1 chest X ray is available, showing diffuse bilateral
35pleural thickening of at least b2 on the ILO scale and blunting
-11-1of at least one costophrenic angle as classified by a certified
2B-reader.
325. “Radiological evidence of silicosis” means a quality
41 chest X ray under the ILO system, or a quality 2 chest X
5ray in a death case when no pathology or quality 1 chest X
6ray is available, showing bilateral predominantly nodular
7or rounded opacities (p, q, or r) occurring primarily in
8the upper lung fields graded by a certified B-reader as at
9least 1/1 on the ILO scale or A, B, or C sized opacities
10representing complicated silicosis or acute silicosis with
11characteristic pulmonary edema, interstitial inflammation, and
12the accumulation within the alveoli of proteinaceous fluid rich
13in surfactant.
1426. “Silica” means a respirable crystalline form of silicon
15dioxide, including quartz, cristobalite, and tridymite.
1627. “Silica action” means a claim for damages or other civil
17or equitable relief presented in a civil action arising out
18of, based on, or related to the health effects of exposure to
19silica, including loss of consortium, wrongful death, mental
20or emotional injury, risk or fear of disease or other injury,
21costs of medical monitoring or surveillance, and any other
22derivative claim made by or on behalf of a person exposed to
23silica or a representative, spouse, parent, child, or other
24relative of that person.
2528. “Silicosis” means simple silicosis, acute silicosis,
26accelerated silicosis, or chronic silicosis caused by the
27inhalation of respirable silica.
2829. “Supporting test results” means copies of the B-reading;
29pulmonary function tests, including printouts of the flow
30volume loops, volume time curves, diffusing capacity of the
31lung for carbon monoxide graphs, lung volume tests and graphs,
32quality control data and other pertinent data for all trials
33and all other elements required to demonstrate compliance with
34the equipment, quality, interpretation, and reporting standards
35set forth in this chapter; B-reader reports; reports of X
-12-1ray examinations; diagnostic imaging of the chest; pathology
2reports; and all other tests reviewed by the diagnosing
3physician or a qualified physician in reaching the physician’s
4conclusions.
5 Sec. 12. NEW SECTION. 686B.3 Filing claims — establishment
6of prima facie case — individual actions to be filed.
71. A plaintiff in an asbestos action involving a
8nonmalignant condition or a silica action involving silicosis
9shall file with the complaint or other initial pleading a
10detailed narrative medical report and diagnosis, signed under
11oath by a qualified physician and accompanied by supporting
12test results, which constitute prima facie evidence that the
13exposed person meets the requirements of this chapter. The
14report shall not be prepared by an attorney or person working
15for or on behalf of an attorney.
162. A plaintiff shall include with the detailed narrative
17medical report a sworn information form containing all of the
18following:
19a. The name, address, date of birth, social security
20number, marital status, occupation, and employer of the exposed
21person, and any person through whom the exposed person alleges
22exposure.
23b. The plaintiff’s relationship to the exposed person or
24person through whom the exposure is alleged.
25c. The specific location and manner of each alleged
26exposure, including the specific location and manner of
27exposure for any person through whom the exposed person alleges
28exposure.
29d. The beginning and ending dates of each alleged exposure.
30e. The identity of the manufacturer of the specific asbestos
31or silica product for each exposure.
32f. The identity of the defendant or defendants against whom
33the plaintiff asserts a claim.
34g. The specific asbestos-related or silica-related disease
35claimed to exist.
-13- 1h. Any supporting documentation relating to the information
2required under this subsection.
33. For an asbestos action or silica action pending as of
4the effective date of this Act, the detailed narrative medical
5report and supporting test results and sworn information form
6described in subsections 1 and 2 shall be provided to all
7parties not later than ninety days after the effective date of
8this Act or not later than ninety days before trial, whichever
9is earlier.
104. A defendant shall be afforded a reasonable opportunity
11to challenge the adequacy of the prima facie evidence before
12trial.
135. The court shall dismiss the asbestos action or silica
14action without prejudice on finding that the plaintiff has
15failed to make the prima facie showing required by this chapter
16or failed to comply with the requirements of this section.
176. An asbestos action or silica action must be individually
18filed and shall not be filed on behalf of a group or class of
19plaintiffs.
20 Sec. 13. NEW SECTION. 686B.4 Asbestos claims involving
21nonmalignant conditions — elements of proof.
22An asbestos action involving a nonmalignant condition shall
23not be brought or maintained in the absence of prima facie
24evidence that the exposed person has a physical impairment for
25which asbestos exposure was a substantial contributing factor.
26The prima facie showing shall be made as to each defendant
27and include a detailed narrative medical report and diagnosis
28signed under oath by a qualified physician that includes all
29of the following:
301. Radiological or pathological evidence of asbestosis or
31radiological evidence of diffuse bilateral pleural thickening
32or a high-resolution computed tomography scan showing evidence
33of asbestosis or diffuse bilateral pleural thickening.
342. A detailed occupational and exposure history from
35the exposed person or, if that person is deceased, from the
-14-1person most knowledgeable about the exposures that form the
2basis of the action, including identification of all of the
3exposed person’s principal places of employment and exposures
4to airborne contaminants and whether each place of employment
5involved exposures to airborne contaminants, including asbestos
6fibers or other disease-causing dusts or fumes, that may cause
7pulmonary impairment and the nature, duration, and level of any
8exposure.
93. A detailed medical, social, and smoking history from the
10exposed person or, if that person is deceased, from the person
11most knowledgeable, including a thorough review of the past and
12present medical problems of the exposed person and the most
13probable cause of such medical problems.
144. Evidence verifying that at least fifteen years have
15elapsed between the exposed person’s date of first exposure to
16asbestos and the date of diagnosis.
175. Evidence based upon a personal medical examination
18and pulmonary function testing of the exposed person or,
19if the exposed person is deceased, based upon the person’s
20medical records, that the exposed person has or the deceased
21person had a permanent respiratory impairment rating of at
22least class 2 as defined by and evaluated pursuant to the
23AMA guides or reported significant changes year to year in
24lung function for FVC, FEV1, or diffusing capacity of the
25lung for carbon monoxide as defined by the American thoracic
26society’s interpretative strategies for lung function tests, 26
27European Respiratory Journal 948-68, 961-62, table 12 (2005),
28as updated.
296. Evidence that asbestosis or diffuse bilateral pleural
30thickening, rather than chronic obstructive pulmonary disease,
31is a substantial contributing factor to the exposed person’s
32physical impairment, based on a determination that the exposed
33person has any of the following:
34a. FVC below the predicted lower limit of normal and
35FEV1/FVC ratio, using actual values, at or above the predicted
-15-1lower limit of normal.
2b. Total lung capacity, by plethysmography or timed gas
3dilution, below the predicted lower limit of normal.
4c. A chest X ray showing bilateral small, irregular
5opacities (s, t, or u) graded by a certified B-reader as at
6least 2/1 on the ILO scale.
77. The qualified physician signing the detailed narrative
8medical report has concluded that exposure to asbestos was
9a substantial contributing factor to the exposed person’s
10physical impairment and not more probably the result of other
11causes. An opinion that the medical findings and impairment
12are consistent with or compatible with exposure to asbestos,
13or similar opinion, does not satisfy the requirements of this
14subsection.
15 Sec. 14. NEW SECTION. 686B.5 Silica claims involving
16silicosis — elements of proof.
17A silica action involving silicosis shall not be brought
18or maintained in the absence of prima facie evidence that the
19exposed person has a physical impairment for which exposure
20to silica was a substantial contributing factor. The prima
21facie showing shall be made as to each defendant and include
22a detailed narrative medical report and diagnosis signed
23under oath by a qualified physician that includes all of the
24following:
251. Radiological or pathological evidence of silicosis or a
26high-resolution computed tomography scan showing evidence of
27silicosis.
282. A detailed occupational and exposure history from the
29exposed person or, if that person is deceased, from the person
30most knowledgeable about the exposures that form the basis of
31the action, including identification of all principal places
32of employment and exposures to airborne contaminants and
33whether each place of employment involved exposures to airborne
34contaminants, including silica or other disease-causing dusts
35or fumes, that may cause pulmonary impairment and the nature,
-16-1duration, and level of any exposure.
23. A detailed medical, social, and smoking history from the
3exposed person or, if that person is deceased, from the person
4most knowledgeable, including a thorough review of the past and
5present medical problems of the exposed person and the most
6probable cause of such medical problems.
74. Evidence that a sufficient latency period has elapsed
8between the exposed person’s date of first exposure to silica
9and the day of diagnosis.
105. Evidence based upon a personal medical examination
11and pulmonary function testing of the exposed person or,
12if the exposed person is deceased, based upon the person’s
13medical records, that the exposed person has or the deceased
14person had a permanent respiratory impairment rating of at
15least class 2 as defined by and evaluated pursuant to the
16AMA guides or reported significant changes year to year in
17lung function for FVC, FEV1, or diffusing capacity of the
18lung for carbon monoxide as defined by the American thoracic
19society’s interpretative strategies for lung function tests, 26
20European Respiratory Journal 948-68, 961-62, table 12 (2005),
21as updated.
226. The qualified physician signing the detailed narrative
23medical report has concluded that exposure to silica was
24a substantial contributing factor to the exposed person’s
25physical impairment and not more probably the result of other
26causes. An opinion stating that the medical findings and
27impairment are consistent with or compatible with exposure to
28silica, or similar opinion, does not satisfy the requirements
29of this subsection.
30 Sec. 15. NEW SECTION. 686B.6 Evidence of physical
31impairment.
32Evidence relating to physical impairment, including
33pulmonary function testing and diffusing studies, offered in
34an action governed by this chapter, must satisfy all of the
35following requirements:
-17- 11. The evidence must comply with the quality controls,
2equipment requirements, methods of calibration, and techniques
3set forth in the AMA guides and all standards set forth in the
4official statements of the American thoracic society which are
5in effect on the date of any examination or pulmonary function
6testing of the exposed person required by this chapter.
72. The evidence must not be obtained by or based on testing
8or examinations that violate any law, regulation, licensing
9requirement, or medical code of practice of the state in which
10the examination, test, or screening was conducted, or of this
11state.
123. The evidence must not be obtained under the condition
13that the plaintiff or exposed person retains the legal services
14of the attorney sponsoring the examination, test, or screening.
15 Sec. 16. NEW SECTION. 686B.7 Procedures — limitation.
161. Evidence relating to the prima facie showings required
17under this chapter shall not create any presumption that the
18exposed person has an asbestos-related or silica-related injury
19or impairment, and shall not be conclusive as to the liability
20of any defendant.
212. No evidence shall be offered at trial, and the jury shall
22not be informed, of any of the following:
23a. The grant or denial of a motion to dismiss an asbestos
24action or silica action under the provisions of this chapter.
25b. The provisions of this chapter with respect to what
26constitutes a prima facie showing of asbestos-related
27impairment or silica-related impairment.
283. Until a court enters an order determining that the
29exposed person has established prima facie evidence of
30impairment, an asbestos action or silica action shall not be
31subject to discovery, except discovery related to establishing
32or challenging the prima facie evidence or by order of the
33trial court upon motion of one of the parties and for good
34cause shown.
354. a. A court may consolidate for trial any number and
-18-1type of asbestos actions or silica actions with the consent of
2all the parties. In the absence of such consent, the court may
3consolidate for trial only asbestos actions or silica actions
4relating to the exposed person and members of that person’s
5household.
6b. This subsection does not preclude the consolidation of
7cases by court order for pretrial or discovery purposes.
85. A defendant in an asbestos action or silica action shall
9not be liable for exposures from a product or component part
10made or sold by a third party.
11 Sec. 17. NEW SECTION. 686B.8 Statute of limitations —
12two-disease rule.
131. With respect to an asbestos action or silica action not
14barred by limitations as of the effective date of this Act, an
15exposed person’s cause of action shall not accrue, nor shall
16the running of limitations commence, prior to the earliest of
17the following:
18a. The exposed person received a medical diagnosis of an
19asbestos-related impairment or silica-related impairment.
20b. The exposed person discovered facts that would have
21led a reasonable person to obtain a medical diagnosis with
22respect to the existence of an asbestos-related impairment or
23silica-related impairment.
24c. The date of death of the exposed person having an
25asbestos-related impairment or silica-related impairment.
262. This section shall not be construed to revive or extend
27limitations with respect to any claim for asbestos-related
28impairment or silica-related impairment that was otherwise
29time-barred as of the effective date of this Act.
303. An asbestos action or silica action arising out of a
31nonmalignant condition shall be a distinct cause of action from
32an action for an asbestos-related cancer or silica-related
33cancer. Where otherwise permitted under state law, no damages
34shall be awarded for fear or increased risk of future disease
35in an asbestos action or silica action.
-19-1 Sec. 18. NEW SECTION. 686B.9 Application.
21. This chapter applies to all asbestos actions and silica
3actions filed on or after the effective date of this Act.
42. This chapter applies to all pending asbestos actions
5and silica actions in which trial has not commenced as
6of the effective date of this Act unless the court finds
7that the application of a provision in this chapter would
8unconstitutionally affect a vested right. In that case, the
9provision does not apply and the court shall apply prior law.
10 Sec. 19. NEW SECTION. 686C.1 Title.
11This chapter shall be known and may be cited as the
12“Successor Corporation Asbestos-Related Liability Fairness Act”.
13 Sec. 20. NEW SECTION. 686C.2 Definitions.
14As used in this chapter, unless the context otherwise
15requires:
161. “Asbestos action” means the same as defined in section
17686A.2, but also includes any claim for damage or loss caused
18by the installation, presence, or removal of asbestos.
192. “Corporation” means any corporation established under
20either domestic or foreign charter and includes a corporate
21subsidiary and any business entity in which a corporation
22participates or is a stockholder, a partner, or a joint
23venture.
243. “Successor” means a corporation that assumes or incurs or
25has assumed or incurred successor asbestos-related liabilities
26through operation of law, including but not limited to a
27merger or consolidation or plan of merger or consolidation
28related to such consolidation or merger or by appointment as
29an administrator or as a trustee in bankruptcy, debtor in
30possession, liquidation, or receivership and that became a
31successor before January 1, 1972. “Successor” includes any of
32that successor corporation’s successors.
334. “Successor asbestos-related liability” means any
34liabilities, whether known or unknown, asserted or unasserted,
35absolute or contingent, accrued or unaccrued, liquidated or
-20-1unliquidated, or due or to become due, which are related in
2any way to an asbestos action and were assumed or incurred by
3a corporation as a result of or in connection with a merger
4or consolidation, or the plan of merger or consolidation
5related to the merger or consolidation with or into another
6corporation, or that are related in any way to an asbestos
7action based on the exercise of control or the ownership of
8stock of the corporation before the merger or consolidation.
9“Successor asbestos-related liability” includes liabilities
10that, after the time of the merger or consolidation for which
11the fair market value of total gross assets is determined under
12section 686C.4, were or are paid or otherwise discharged, or
13committed to be paid or otherwise discharged, by or on behalf
14of the corporation, or by a successor of the corporation, or by
15or on behalf of a transferor, in connection with settlements,
16judgments, or other discharges in this state or another
17jurisdiction.
185. “Transferor” means a corporation from which successor
19asbestos-related liabilities are or were assumed or incurred.
20 Sec. 21. NEW SECTION. 686C.3 Limitations on successor
21asbestos-related liabilities.
221. Except as provided in subsection 2, the cumulative
23successor asbestos-related liabilities of a successor are
24limited to the fair market value of the total gross assets
25of the transferor determined as of the time of the merger
26or consolidation. A successor shall not have responsibility
27for successor asbestos-related liabilities in excess of this
28limitation.
292. If the transferor had assumed or incurred successor
30asbestos-related liabilities in connection with a prior
31merger or consolidation with a prior transferor, then the
32fair market value of the total gross assets of the prior
33transferor determined as of the time of the earlier merger or
34consolidation shall be substituted for the limitation set forth
35in subsection 1 for purposes of determining the limitation of
-21-1liability of a successor.
23. The limitations in this section shall apply to any
3successor but shall not apply to any of the following:
4a. Workers’ compensation benefits paid by or on behalf of
5an employer to an employee under the provisions of chapter 85
6or 85A, or a comparable workers’ compensation law of another
7jurisdiction.
8b. Any claim against a corporation that does not constitute
9a successor asbestos-related liability.
10c. Any obligation under the federal National Labor
11Relations Act, 29 U.S.C. §151 et seq., as amended, or under any
12collective bargaining agreement.
13d. A successor that, after a merger or consolidation,
14continued in the business of mining asbestos or in the
15business of selling or distributing asbestos fibers or
16in the business of manufacturing, distributing, removing,
17or installing asbestos-containing products which were the
18same or substantially the same as those products previously
19manufactured, distributed, removed, or installed by the
20transferor.
21 Sec. 22. NEW SECTION. 686C.4 Establishing fair market value
22of total gross assets.
231. A successor may establish the fair market value of
24total gross assets, which include intangible assets, for the
25purpose of the limitations under section 686C.3, through any
26method reasonable under the circumstances, including any of the
27following:
28a. By reference to the going concern value of the assets or
29to the purchase price attributable to or paid for the assets
30in an arms-length transaction.
31b. In the absence of other readily available information
32from which the fair market value can be determined, by
33reference to the value of the assets recorded on a balance
34sheet.
352. To the extent total gross assets include any liability
-22-1insurance that was issued to the transferor whose assets are
2being valued for purposes of this section, the applicability,
3terms, conditions, and limits of such insurance shall not be
4affected by this chapter, nor shall this chapter otherwise
5affect the rights and obligations of an insurer, transferor,
6or successor under any insurance contract or any related
7agreement, including, without limitation, preenactment
8settlements resolving coverage-related disputes, and the rights
9of an insurer to seek payment for applicable deductibles,
10retrospective premiums, or self-insured retentions or to seek
11contribution from a successor for uninsured or self-insured
12periods or periods where insurance is uncollectible or
13otherwise unavailable. Without limiting the foregoing, to the
14extent total gross assets include any such liability insurance,
15a settlement of a dispute concerning any such liability
16insurance coverage entered into by a transferor or successor
17with the insurers of the transferor before the effective date
18of this Act shall be determinative of the total coverage of
19such liability insurance to be included in the calculation of
20the transferor’s total gross assets.
21 Sec. 23. NEW SECTION. 686C.5 Adjustment.
221. Except as provided in subsections 2, 3, and 4, the fair
23market value of total gross assets at the time of a merger or
24consolidation shall increase annually at a rate equal to the
25sum of the prime rate as listed in the first edition of the
26Wall street journal published for each calendar year since the
27merger or consolidation, unless the prime rate is not published
28in that edition of the Wall street journal, in which case any
29reasonable determination of the prime rate on the first day of
30the year may be used, plus one percent.
312. The rate determined under subsection 1 shall not be
32compounded.
333. The adjustment of the fair market value of total
34gross assets shall continue as provided in subsection 1
35until the date the adjusted value is first exceeded by the
-23-1cumulative amounts of successor asbestos-related liabilities
2paid or committed to be paid by or on behalf of the successor
3corporation or a predecessor or by or on behalf of a transferor
4after the time of the merger or consolidation for which the
5fair market value of total gross assets is determined.
64. No adjustment of the fair market value of total gross
7assets shall be applied to any liability insurance that may be
8included in the total gross assets pursuant to section 686C.4,
9subsection 2.
10 Sec. 24. NEW SECTION. 686C.6 Scope of chapter —
11application.
121. This chapter shall be liberally construed with regard to
13successors.
142. This chapter applies to all asbestos claims filed against
15a successor on or after the effective date of this Act.
163. This chapter applies to all pending asbestos actions in
17which trial has not commenced as of the effective date of this
18Act unless the court finds that the application of a provision
19in this chapter would unconstitutionally affect a vested right.
20In that case, the provision does not apply and the court shall
21apply prior law.
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