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Senate File 376 - EnrolledAn Actrelating to disclosure of asbestos bankruptcy trust
claims in civil asbestos actions, asbestos and silica claims
prioritization, and successor corporation asbestos-related
liability, and including applicability provisions.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF IOWA:
Section 1. NEW SECTION. 686A.1 Title.
This chapter shall be known and may be cited as the “Asbestos
Bankruptcy Trust Claims Transparency Act”.
Sec. 2. NEW SECTION. 686A.2 Definitions.
As used in this chapter, unless the context otherwise
requires:
1. “Asbestos” means chrysotile, amosite, crocidolite,
tremolite asbestos, anthophyllite asbestos, actinolite
asbestos, asbestiform winchite, asbestiform richterite,
asbestiform amphibole minerals, and any of these minerals that
have been chemically treated or altered, including all minerals
defined as asbestos in 29 C.F.R. pt.1910, at the time the
asbestos action is filed.
2. “Asbestos action” means a claim for damages or other
civil or equitable relief presented in a civil action arising
out of, based on, or related to the health effects of exposure
to asbestos, including loss of consortium, wrongful death,
mental or emotional injury, risk or fear of disease or other
injury, costs of medical monitoring or surveillance, and any
other derivative claim made by or on behalf of a person exposed
to asbestos or a representative, spouse, parent, child, or
other relative of that person.
3. “Asbestos trust” means a government-approved or
court-approved trust, qualified settlement fund, compensation
fund, or claims facility created as a result of an
administrative or legal action, a court-approved bankruptcy,
or pursuant to 11 U.S.C. §524(g) or 11 U.S.C. §1121(a) or
other applicable provision of law, that is intended to provide
compensation to claimants arising out of, based on, or related
to the health effects of exposure to asbestos.
4. “Plaintiff” means the person bringing an asbestos action,
including a personal representative if the asbestos action is
brought by an estate, or a conservator or next friend if the
asbestos action is brought on behalf of a minor or legally
incapacitated individual.
-1- 5. “Trust claims materials” means a final executed proof
of claim and all other documents and information related to a
claim against an asbestos trust, including claims forms and
supplementary materials, affidavits, depositions and trial
testimony, work history, and medical and health records,
documents reflecting the status of a claim against an asbestos
trust, and if the trust claim has settled, all documents
relating to the settlement of the trust claim.
6. “Trust governance documents” means all documents that
relate to eligibility and payment levels, including claims
payment matrices, trust distribution procedures, or plans for
reorganization, for an asbestos trust.
Sec. 3. NEW SECTION. 686A.3 Required disclosures by
plaintiff.
1. Within ninety days after an asbestos action is filed,
or within ninety days after the effective date of this
Act, whichever is later, the plaintiff shall do all of the
following:
a. Provide the court and parties with a sworn statement
signed by the plaintiff and the plaintiff’s counsel, under
penalty of perjury, indicating that an investigation of all
asbestos trust claims has been conducted and that all asbestos
trust claims that may be made by the plaintiff or any person on
the plaintiff’s behalf have been filed. The sworn statement
must indicate whether there has been a request to defer, delay,
suspend, or toll any asbestos trust claim, and provide the
disposition of each asbestos trust claim.
b. Provide all parties with all trust claims materials,
including trust claims materials that relate to conditions
other than those that are the basis for the asbestos action
and including all trust claims materials from all attorneys
connected to the plaintiff in relation to exposure to asbestos,
including any attorney involved in the asbestos action, any
referring attorney, and any other attorney who has filed an
asbestos trust claim for the plaintiff or on the plaintiff’s
-2-behalf.
c. If the plaintiff’s asbestos trust claim is based on
exposure to asbestos through another individual, the plaintiff
shall produce all trust claims materials submitted by the
other individual to any asbestos trusts if the materials are
available to the plaintiff or the plaintiff’s counsel.
2. The plaintiff shall supplement the information and
materials required under subsection 1 within thirty days after
the plaintiff or a person on the plaintiff’s behalf supplements
an existing asbestos trust claim, receives additional
information or materials related to an asbestos trust claim, or
files an additional asbestos trust claim.
3. The court may dismiss the asbestos action if the
plaintiff fails to comply with this section.
4. An asbestos action shall not be set for trial until
at least one hundred eighty days after the requirements of
subsection 1 are met.
Sec. 4. NEW SECTION. 686A.4 Identification of additional or
alternative asbestos trusts by defendant.
1. A defendant may file a motion requesting a stay of
the proceedings on or before the later of the sixtieth day
before the date trial in the action is set to commence or the
fifteenth day after the defendant first obtains information
that could support additional trust claims by the plaintiff.
The motion shall identify the asbestos trust claims the
defendant believes the plaintiff can file and include
information supporting the asbestos trust claims.
2. Within ten days of receiving the defendant’s motion, the
plaintiff shall do one of the following:
a. File the asbestos trust claims.
b. File a written response with the court stating the reason
there is insufficient evidence for the plaintiff to file the
asbestos trust claims.
c. File a written response with the court requesting a
determination that the cost to file the asbestos trust claims
-3-exceeds the plaintiff’s reasonably anticipated recovery.
3. a. If the court determines that there is a sufficient
basis for the plaintiff to file an asbestos trust claim
identified in the motion to stay, the court shall stay the
asbestos action until the plaintiff files the asbestos trust
claim and produces all related trust claims materials.
b. If the court determines that the cost of submitting
an asbestos trust claim exceeds the plaintiff’s reasonably
anticipated recovery, the court shall stay the asbestos action
until the plaintiff files with the court and provides all
parties with a verified statement of the plaintiff’s history
of exposure, usage, or other connection to asbestos covered by
that asbestos trust.
4. An asbestos action shall not be set for trial until at
least sixty days after the plaintiff provides the documentation
required by this section.
Sec. 5. NEW SECTION. 686A.5 Discovery — use of materials.
1. Trust claims materials and trust governance documents
are presumed to be relevant and authentic, and are admissible
in evidence in an asbestos action. Notwithstanding any other
provision of law to the contrary, a claim of privilege does
not apply to any trust claims materials or trust governance
documents.
2. A defendant in an asbestos action may seek discovery
from an asbestos trust. Notwithstanding any other provision
of law to the contrary, the plaintiff may not claim privilege
or confidentiality to bar discovery and shall provide consent
or other expression of permission that may be required by the
asbestos trust to release information and materials sought by a
defendant.
3. Trust claim materials that are sufficient to entitle
a claim to consideration for payment under the applicable
trust governance documents may be sufficient to support a jury
finding that the plaintiff may have been exposed to products
for which the trust was established to provide compensation and
-4-that, under applicable law, such exposure may be a substantial
contributing factor in causing the plaintiff’s injury that is
at issue in the asbestos action.
Sec. 6. NEW SECTION. 686A.6 Trust record — valuation of
asbestos trust claims — judicial notice.
1. Not less than thirty days before trial in an asbestos
action, the court shall enter into the record a document that
identifies every asbestos trust claim made by the plaintiff or
on the plaintiff’s behalf.
2. If a plaintiff proceeds to trial in an asbestos
action before an asbestos trust claim is resolved, there is
a rebuttable presumption that the plaintiff is entitled to,
and will receive, the compensation specified in the trust
governance document applicable to the plaintiff’s claim at the
time of trial. The court shall take judicial notice that the
trust governance document specifies compensation amounts and
payment percentages and shall establish an attributed value to
the plaintiff’s asbestos trust claims.
Sec. 7. NEW SECTION. 686A.7 Setoff — credit.
In any asbestos action in which damages are awarded and
setoffs are permitted under applicable law, a defendant is
entitled to a setoff or credit in the amount the plaintiff
has been awarded from an asbestos trust identified in
section 686A.6, subsection 1, and the amount of the valuation
established under section 686A.6, subsection 2. If multiple
defendants are found liable for damages, the court shall
distribute the amount of setoff or credit proportionally
between the defendants, according to the liability of each
defendant.
Sec. 8. NEW SECTION. 686A.8 Failure to provide information
— sanctions.
1. On the motion of a defendant or judgment debtor seeking
sanctions or other relief in an asbestos action, the court
may impose any sanction provided by court rule or a law of
this state, including but not limited to vacating a judgment
-5-rendered in the action, for a plaintiff’s failure to comply
with the disclosure requirements of this chapter.
2. If the plaintiff or a person on the plaintiff’s behalf
files an asbestos trust claim after the plaintiff obtains a
judgment in an asbestos action, and that asbestos trust was
in existence at the time the plaintiff obtained the judgment,
the trial court, on motion by a defendant or judgment debtor
seeking sanctions or other relief, has jurisdiction to reopen
the judgment in the asbestos action and adjust the judgment by
the amount of any subsequent asbestos trust payments obtained
by the plaintiff and order any other relief to the parties that
the court considers just and proper.
3. A defendant or judgment debtor shall file any motion
under this section within a reasonable time and not more than
one year after the judgment was entered.
Sec. 9. NEW SECTION. 686A.9 Application.
1. This chapter applies to all asbestos actions filed on or
after the effective date of this Act.
2. This chapter applies to all pending asbestos actions in
which trial has not commenced as of the effective date of this
Act unless the court finds that the application of a provision
in this chapter would unconstitutionally affect a vested right.
In that case, the provision does not apply and the court shall
apply prior law.
Sec. 10. NEW SECTION. 686B.1 Title.
This chapter shall be known and may be cited as the “Asbestos
and Silica Claims Priorities Act”.
Sec. 11. NEW SECTION. 686B.2 Definitions.
As used in this chapter, unless the context otherwise
requires:
1. “AMA guides” means the American medical association’s
guides to the evaluation of permanent impairment in effect at
the time of the performance of any examination or test on the
exposed person required under this chapter.
2. “Asbestos” means the same as defined in section 686A.2.
-6- 3. “Asbestos action” means the same as defined in section
686A.2.
4. “Asbestosis” means bilateral diffuse interstitial
fibrosis of the lungs caused by inhalation of asbestos fibers.
5. “Board-certified in internal medicine” means certified
by the American board of internal medicine or the American
osteopathic board of internal medicine at the time of the
performance of an examination and rendition of a report
required by this chapter.
6. “Board-certified in occupational medicine” means
certified in the specialty of occupational medicine by the
American board of preventive medicine or the specialty of
occupational/environmental medicine by the American osteopathic
board of preventive medicine at the time of the performance
of an examination and rendition of a report required by this
chapter.
7. “Board-certified in pathology” means holding primary
certification in anatomic pathology or clinical pathology from
the American board of pathology or the American osteopathic
board of pathology at the time of the performance of an
examination and rendition of a report required by this chapter,
and practicing principally in the field of pathology including
regular evaluation of pathology materials obtained from
surgical or postmortem specimens.
8. “Board-certified in pulmonary medicine” means certified in
the specialty of pulmonary medicine by the American board of
internal medicine or the American osteopathic board of internal
medicine at the time of the performance of an examination and
rendition of a report required by this chapter.
9. “Certified B-reader” means an individual who has
qualified as a national institute for occupational safety and
health final or B-reader of X rays under 42 C.F.R. §37.51(b),
whose certification was current at the time of any readings
required under this chapter, and whose B-reads comply with
the national institute for occupational safety and health
-7-B-reader’s code of ethics, issues in classification of chest
radiographs, and classification of chest radiographs in
contested proceedings.
10. “Exposed person” means a person whose exposure to
asbestos or silica or to asbestos-containing products or
silica-containing products is the basis for an asbestos action
or silica action.
11. “FEV1” means forced expiratory volume in the first
second, which is the maximal volume of air expelled in one
second during the performance of simple spirometric tests.
12. “FEV1/FVC” means the ratio between the actual values for
FEV1 over FVC.
13. “FVC” means forced vital capacity, which is the maximal
volume of air expired with maximum effort from a position of
full inspiration.
14. “ILO system” and “ILO scale” mean the radiological
ratings and system for the classification of chest X rays of
the international labour office provided in guidelines for
the use of ILO international classification of radiographs of
pneumoconioses in effect on the day any X rays of the exposed
person were reviewed by a certified B-reader.
15. “Nonmalignant condition” means any condition that can be
caused by asbestos or silica other than a diagnosed cancer.
16. “Official statements of the American thoracic society”
means lung function testing standards set forth in statements
from the American thoracic society, including standardizations
of spirometry, standardizations of lung volume testing,
standardizations of diffusion capacity testing or single-breath
determination of carbon monoxide uptake in the lung, and
interpretive strategies for lung function tests, which are in
effect on the day of the pulmonary function testing of the
exposed person.
17. “Pathological evidence of asbestosis” means a statement
by a physician who is board-certified in pathology that more
than one representative section of lung tissue uninvolved
-8-with any other disease process demonstrates a pattern of
peribronchiolar or parenchymal scarring in the presence of
characteristic asbestos bodies graded 1(B) or higher under the
criteria published in asbestos-associated diseases, 106 Archive
of Pathology and Laboratory Medicine 11, appendix 3 (October
8, 1982), or grade one or higher in pathology of asbestosis,
134 Archive of Pathology and Laboratory Medicine 462-80 (March
2010) (tables 2 and 3), as amended at the time of the exam, and
there is no other more likely explanation for the presence of
the fibrosis.
18. “Pathological evidence of silicosis” means a statement by
a physician who is board-certified in pathology that more than
one representative section of lung tissue uninvolved with any
other disease process demonstrates complicated silicosis with
characteristic confluent silicotic nodules or lesions equal
to or greater than one centimeter and birefringent crystals
or other demonstration of crystal structures consistent with
silica, well-organized concentric whorls of collagen surrounded
by inflammatory cells, in the lung parenchyma and no other
more likely explanation for the presence of the fibrosis
exists, or acute silicosis with characteristic pulmonary edema,
interstitial inflammation, and the accumulation within the
alveoli of proteinaceous fluid rich in surfactant.
19. “Plaintiff” means the person bringing an asbestos action
or silica action, including a personal representative if the
asbestos action or silica action is brought by an estate, or
a conservator or next friend if the asbestos action or silica
action is brought on behalf of a minor or legally incapacitated
individual.
20. “Predicted lower limit of normal” means the test
value that is the calculated standard convention lying at
the fifth percentile, below the upper ninety-five percent of
the reference population, based on age, height, and gender,
according to the recommendations by the American thoracic
society and as referenced in the applicable AMA guides,
-9-primarily national health and nutrition examination survey
predicted values, or as amended.
21. “Pulmonary function test” means spirometry, lung volume
testing, and diffusion capacity testing, including appropriate
measurements, quality control data, and graphs, performed in
accordance with the methods of calibration and techniques
provided in the applicable AMA guides and all standards
provided in the official statements of the American thoracic
society in effect on the day pulmonary function testing of the
exposed person was conducted.
22. “Qualified physician” means a physician who is
board-certified in internal medicine, board-certified
in pathology, board-certified in pulmonary medicine, or
board-certified in occupational medicine, as may be appropriate
to the actual diagnostic specialty in question, and for whom
all of the following are true:
a. The physician conducted a physical examination of
the exposed person and has taken a detailed occupational,
exposure, medical, smoking, and social history from the exposed
person, or if the exposed person is deceased, has reviewed the
pathology material and has taken a detailed history from the
person most knowledgeable about the information forming the
basis of the asbestos action or silica action.
b. The physician treated or is treating the exposed person,
and has or had a doctor-patient relationship with the exposed
person at the time of the physical examination, or in the case
of a physician who is board-certified in pathology, examined
tissue samples or pathological slides of the exposed person at
the request of the treating physician.
c. The physician spends no more than twenty-five percent of
the physician’s professional practice time providing consulting
or expert services in actual or potential civil actions, and
whose medical group, professional corporation, clinic, or other
affiliated group earns not more than twenty-five percent of its
revenue providing such services.
-10- d. The physician was licensed to practice on the date any
examination or pulmonary function testing was conducted, and
actively practices or practiced in the state where the exposed
person resides or resided at the time of the examination or
pulmonary function testing, or the state where the asbestos
action or silica action was filed.
e. The physician received or is receiving payment for the
treatment of the exposed person from the exposed person, a
member of the exposed person’s family, or the exposed person’s
health care plan and not from the exposed person’s attorney.
f. The physician prepared or directly supervised the
preparation and final review of any medical report under this
chapter.
g. The physician has not relied on any examinations, tests,
radiographs, reports, or opinions of any physician, clinic,
laboratory, or testing company that performed an examination,
test, radiograph, or screening of the exposed person in
violation of any law, regulation, licensing requirement, or
medical code of practice of the state in which the examination,
test, or screening was conducted, or that was conducted without
establishing a physician-patient relationship with the exposed
person or medical personnel involved in the examination, test,
or screening process, or that required the exposed person to
agree to retain the service of an attorney.
23. “Radiological evidence of asbestosis” means a quality 1
chest X ray under the ILO system, or a quality 2 chest X ray
in a death case when no pathology or quality 1 chest X ray is
available, showing bilateral small, irregular opacities (s, t,
or u) occurring primarily in the lower lung zones graded by a
certified B-reader as at least 1/1 on the ILO scale.
24. “Radiological evidence of diffuse bilateral pleural
thickening” means a quality 1 chest X ray under the ILO system,
or a quality 2 chest X ray in a death case when no pathology or
quality 1 chest X ray is available, showing diffuse bilateral
pleural thickening of at least b2 on the ILO scale and blunting
-11-of at least one costophrenic angle as classified by a certified
B-reader.
25. “Radiological evidence of silicosis” means a quality
1 chest X ray under the ILO system, or a quality 2 chest X
ray in a death case when no pathology or quality 1 chest X
ray is available, showing bilateral predominantly nodular
or rounded opacities (p, q, or r) occurring primarily in
the upper lung fields graded by a certified B-reader as at
least 1/1 on the ILO scale or A, B, or C sized opacities
representing complicated silicosis or acute silicosis with
characteristic pulmonary edema, interstitial inflammation, and
the accumulation within the alveoli of proteinaceous fluid rich
in surfactant.
26. “Silica” means a respirable crystalline form of silicon
dioxide, including quartz, cristobalite, and tridymite.
27. “Silica action” means a claim for damages or other civil
or equitable relief presented in a civil action arising out
of, based on, or related to the health effects of exposure to
silica, including loss of consortium, wrongful death, mental
or emotional injury, risk or fear of disease or other injury,
costs of medical monitoring or surveillance, and any other
derivative claim made by or on behalf of a person exposed to
silica or a representative, spouse, parent, child, or other
relative of that person.
28. “Silicosis” means simple silicosis, acute silicosis,
accelerated silicosis, or chronic silicosis caused by the
inhalation of respirable silica.
29. “Supporting test results” means copies of the B-reading;
pulmonary function tests, including printouts of the flow
volume loops, volume time curves, diffusing capacity of the
lung for carbon monoxide graphs, lung volume tests and graphs,
quality control data and other pertinent data for all trials
and all other elements required to demonstrate compliance with
the equipment, quality, interpretation, and reporting standards
set forth in this chapter; B-reader reports; reports of X
-12-ray examinations; diagnostic imaging of the chest; pathology
reports; and all other tests reviewed by the diagnosing
physician or a qualified physician in reaching the physician’s
conclusions.
Sec. 12. NEW SECTION. 686B.3 Filing claims — establishment
of prima facie case — individual actions to be filed.
1. A plaintiff in an asbestos action involving a
nonmalignant condition or a silica action involving silicosis
shall file with the complaint or other initial pleading a
detailed narrative medical report and diagnosis, signed under
oath by a qualified physician and accompanied by supporting
test results, which constitute prima facie evidence that the
exposed person meets the requirements of this chapter. The
report shall not be prepared by an attorney or person working
for or on behalf of an attorney.
2. A plaintiff shall include with the detailed narrative
medical report a sworn information form containing all of the
following:
a. The name, address, date of birth, social security
number, marital status, occupation, and employer of the exposed
person, and any person through whom the exposed person alleges
exposure.
b. The plaintiff’s relationship to the exposed person or
person through whom the exposure is alleged.
c. The specific location and manner of each alleged
exposure, including the specific location and manner of
exposure for any person through whom the exposed person alleges
exposure.
d. The beginning and ending dates of each alleged exposure.
e. The identity of the manufacturer of the specific asbestos
or silica product for each exposure.
f. The identity of the defendant or defendants against whom
the plaintiff asserts a claim.
g. The specific asbestos-related or silica-related disease
claimed to exist.
-13- h. Any supporting documentation relating to the information
required under this subsection.
3. For an asbestos action or silica action pending as of
the effective date of this Act, the detailed narrative medical
report and supporting test results and sworn information form
described in subsections 1 and 2 shall be provided to all
parties not later than ninety days after the effective date of
this Act or not later than ninety days before trial, whichever
is earlier.
4. A defendant shall be afforded a reasonable opportunity
to challenge the adequacy of the prima facie evidence before
trial.
5. The court shall dismiss the asbestos action or silica
action without prejudice on finding that the plaintiff has
failed to make the prima facie showing required by this chapter
or failed to comply with the requirements of this section.
6. An asbestos action or silica action must be individually
filed and shall not be filed on behalf of a group or class of
plaintiffs.
Sec. 13. NEW SECTION. 686B.4 Asbestos claims involving
nonmalignant conditions — elements of proof.
An asbestos action involving a nonmalignant condition shall
not be brought or maintained in the absence of prima facie
evidence that the exposed person has a physical impairment for
which asbestos exposure was a substantial contributing factor.
The prima facie showing shall be made as to each defendant
and include a detailed narrative medical report and diagnosis
signed under oath by a qualified physician that includes all
of the following:
1. Radiological or pathological evidence of asbestosis or
radiological evidence of diffuse bilateral pleural thickening
or a high-resolution computed tomography scan showing evidence
of asbestosis or diffuse bilateral pleural thickening.
2. A detailed occupational and exposure history from
the exposed person or, if that person is deceased, from the
-14-person most knowledgeable about the exposures that form the
basis of the action, including identification of all of the
exposed person’s principal places of employment and exposures
to airborne contaminants and whether each place of employment
involved exposures to airborne contaminants, including asbestos
fibers or other disease-causing dusts or fumes, that may cause
pulmonary impairment and the nature, duration, and level of any
exposure.
3. A detailed medical, social, and smoking history from the
exposed person or, if that person is deceased, from the person
most knowledgeable, including a thorough review of the past and
present medical problems of the exposed person and the most
probable cause of such medical problems.
4. Evidence verifying that at least fifteen years have
elapsed between the exposed person’s date of first exposure to
asbestos and the date of diagnosis.
5. Evidence based upon a personal medical examination
and pulmonary function testing of the exposed person or,
if the exposed person is deceased, based upon the person’s
medical records, that the exposed person has or the deceased
person had a permanent respiratory impairment rating of at
least class 2 as defined by and evaluated pursuant to the
AMA guides or reported significant changes year to year in
lung function for FVC, FEV1, or diffusing capacity of the
lung for carbon monoxide as defined by the American thoracic
society’s interpretative strategies for lung function tests, 26
European Respiratory Journal 948-68, 961-62, table 12 (2005),
as updated.
6. Evidence that asbestosis or diffuse bilateral pleural
thickening, rather than chronic obstructive pulmonary disease,
is a substantial contributing factor to the exposed person’s
physical impairment, based on a determination that the exposed
person has any of the following:
a. FVC below the predicted lower limit of normal and
FEV1/FVC ratio, using actual values, at or above the predicted
-15-lower limit of normal.
b. Total lung capacity, by plethysmography or timed gas
dilution, below the predicted lower limit of normal.
c. A chest X ray showing bilateral small, irregular
opacities (s, t, or u) graded by a certified B-reader as at
least 2/1 on the ILO scale.
7. The qualified physician signing the detailed narrative
medical report has concluded that exposure to asbestos was
a substantial contributing factor to the exposed person’s
physical impairment and not more probably the result of other
causes. An opinion that the medical findings and impairment
are consistent with or compatible with exposure to asbestos,
or similar opinion, does not satisfy the requirements of this
subsection.
Sec. 14. NEW SECTION. 686B.5 Silica claims involving
silicosis — elements of proof.
A silica action involving silicosis shall not be brought
or maintained in the absence of prima facie evidence that the
exposed person has a physical impairment for which exposure
to silica was a substantial contributing factor. The prima
facie showing shall be made as to each defendant and include
a detailed narrative medical report and diagnosis signed
under oath by a qualified physician that includes all of the
following:
1. Radiological or pathological evidence of silicosis or a
high-resolution computed tomography scan showing evidence of
silicosis.
2. A detailed occupational and exposure history from the
exposed person or, if that person is deceased, from the person
most knowledgeable about the exposures that form the basis of
the action, including identification of all principal places
of employment and exposures to airborne contaminants and
whether each place of employment involved exposures to airborne
contaminants, including silica or other disease-causing dusts
or fumes, that may cause pulmonary impairment and the nature,
-16-duration, and level of any exposure.
3. A detailed medical, social, and smoking history from the
exposed person or, if that person is deceased, from the person
most knowledgeable, including a thorough review of the past and
present medical problems of the exposed person and the most
probable cause of such medical problems.
4. Evidence that a sufficient latency period has elapsed
between the exposed person’s date of first exposure to silica
and the day of diagnosis.
5. Evidence based upon a personal medical examination
and pulmonary function testing of the exposed person or,
if the exposed person is deceased, based upon the person’s
medical records, that the exposed person has or the deceased
person had a permanent respiratory impairment rating of at
least class 2 as defined by and evaluated pursuant to the
AMA guides or reported significant changes year to year in
lung function for FVC, FEV1, or diffusing capacity of the
lung for carbon monoxide as defined by the American thoracic
society’s interpretative strategies for lung function tests, 26
European Respiratory Journal 948-68, 961-62, table 12 (2005),
as updated.
6. The qualified physician signing the detailed narrative
medical report has concluded that exposure to silica was
a substantial contributing factor to the exposed person’s
physical impairment and not more probably the result of other
causes. An opinion stating that the medical findings and
impairment are consistent with or compatible with exposure to
silica, or similar opinion, does not satisfy the requirements
of this subsection.
Sec. 15. NEW SECTION. 686B.6 Evidence of physical
impairment.
Evidence relating to physical impairment, including
pulmonary function testing and diffusing studies, offered in
an action governed by this chapter, must satisfy all of the
following requirements:
-17- 1. The evidence must comply with the quality controls,
equipment requirements, methods of calibration, and techniques
set forth in the AMA guides and all standards set forth in the
official statements of the American thoracic society which are
in effect on the date of any examination or pulmonary function
testing of the exposed person required by this chapter.
2. The evidence must not be obtained by or based on testing
or examinations that violate any law, regulation, licensing
requirement, or medical code of practice of the state in which
the examination, test, or screening was conducted, or of this
state.
3. The evidence must not be obtained under the condition
that the plaintiff or exposed person retains the legal services
of the attorney sponsoring the examination, test, or screening.
Sec. 16. NEW SECTION. 686B.7 Procedures — limitation.
1. Evidence relating to the prima facie showings required
under this chapter shall not create any presumption that the
exposed person has an asbestos-related or silica-related injury
or impairment, and shall not be conclusive as to the liability
of any defendant.
2. No evidence shall be offered at trial, and the jury shall
not be informed, of any of the following:
a. The grant or denial of a motion to dismiss an asbestos
action or silica action under the provisions of this chapter.
b. The provisions of this chapter with respect to what
constitutes a prima facie showing of asbestos-related
impairment or silica-related impairment.
3. Until a court enters an order determining that the
exposed person has established prima facie evidence of
impairment, an asbestos action or silica action shall not be
subject to discovery, except discovery related to establishing
or challenging the prima facie evidence or by order of the
trial court upon motion of one of the parties and for good
cause shown.
4. a. A court may consolidate for trial any number and
-18-type of asbestos actions or silica actions with the consent of
all the parties. In the absence of such consent, the court may
consolidate for trial only asbestos actions or silica actions
relating to the exposed person and members of that person’s
household.
b. This subsection does not preclude the consolidation of
cases by court order for pretrial or discovery purposes.
5. A defendant in an asbestos action or silica action shall
not be liable for exposures from a product or component part
made or sold by a third party.
Sec. 17. NEW SECTION. 686B.8 Statute of limitations —
two-disease rule.
1. With respect to an asbestos action or silica action not
barred by limitations as of the effective date of this Act, an
exposed person’s cause of action shall not accrue, nor shall
the running of limitations commence, prior to the earliest of
the following:
a. The exposed person received a medical diagnosis of an
asbestos-related impairment or silica-related impairment.
b. The exposed person discovered facts that would have
led a reasonable person to obtain a medical diagnosis with
respect to the existence of an asbestos-related impairment or
silica-related impairment.
c. The date of death of the exposed person having an
asbestos-related impairment or silica-related impairment.
2. This section shall not be construed to revive or extend
limitations with respect to any claim for asbestos-related
impairment or silica-related impairment that was otherwise
time-barred as of the effective date of this Act.
3. An asbestos action or silica action arising out of a
nonmalignant condition shall be a distinct cause of action from
an action for an asbestos-related cancer or silica-related
cancer. Where otherwise permitted under state law, no damages
shall be awarded for fear or increased risk of future disease
in an asbestos action or silica action.
-19- Sec. 18. NEW SECTION. 686B.9 Application.
1. This chapter applies to all asbestos actions and silica
actions filed on or after the effective date of this Act.
2. This chapter applies to all pending asbestos actions
and silica actions in which trial has not commenced as
of the effective date of this Act unless the court finds
that the application of a provision in this chapter would
unconstitutionally affect a vested right. In that case, the
provision does not apply and the court shall apply prior law.
Sec. 19. NEW SECTION. 686C.1 Title.
This chapter shall be known and may be cited as the
“Successor Corporation Asbestos-Related Liability Fairness Act”.
Sec. 20. NEW SECTION. 686C.2 Definitions.
As used in this chapter, unless the context otherwise
requires:
1. “Asbestos action” means the same as defined in section
686A.2, but also includes any claim for damage or loss caused
by the installation, presence, or removal of asbestos.
2. “Corporation” means any corporation established under
either domestic or foreign charter and includes a corporate
subsidiary and any business entity in which a corporation
participates or is a stockholder, a partner, or a joint
venture.
3. “Successor” means a corporation that assumes or incurs or
has assumed or incurred successor asbestos-related liabilities
through operation of law, including but not limited to a
merger or consolidation or plan of merger or consolidation
related to such consolidation or merger or by appointment as
an administrator or as a trustee in bankruptcy, debtor in
possession, liquidation, or receivership and that became a
successor before January 1, 1972. “Successor” includes any of
that successor corporation’s successors.
4. “Successor asbestos-related liability” means any
liabilities, whether known or unknown, asserted or unasserted,
absolute or contingent, accrued or unaccrued, liquidated or
-20-unliquidated, or due or to become due, which are related in
any way to an asbestos action and were assumed or incurred by
a corporation as a result of or in connection with a merger
or consolidation, or the plan of merger or consolidation
related to the merger or consolidation with or into another
corporation, or that are related in any way to an asbestos
action based on the exercise of control or the ownership of
stock of the corporation before the merger or consolidation.
“Successor asbestos-related liability” includes liabilities
that, after the time of the merger or consolidation for which
the fair market value of total gross assets is determined under
section 686C.4, were or are paid or otherwise discharged, or
committed to be paid or otherwise discharged, by or on behalf
of the corporation, or by a successor of the corporation, or by
or on behalf of a transferor, in connection with settlements,
judgments, or other discharges in this state or another
jurisdiction.
5. “Transferor” means a corporation from which successor
asbestos-related liabilities are or were assumed or incurred.
Sec. 21. NEW SECTION. 686C.3 Limitations on successor
asbestos-related liabilities.
1. Except as provided in subsection 2, the cumulative
successor asbestos-related liabilities of a successor are
limited to the fair market value of the total gross assets
of the transferor determined as of the time of the merger
or consolidation. A successor shall not have responsibility
for successor asbestos-related liabilities in excess of this
limitation.
2. If the transferor had assumed or incurred successor
asbestos-related liabilities in connection with a prior
merger or consolidation with a prior transferor, then the
fair market value of the total gross assets of the prior
transferor determined as of the time of the earlier merger or
consolidation shall be substituted for the limitation set forth
in subsection 1 for purposes of determining the limitation of
-21-liability of a successor.
3. The limitations in this section shall apply to any
successor but shall not apply to any of the following:
a. Workers’ compensation benefits paid by or on behalf of
an employer to an employee under the provisions of chapter 85
or 85A, or a comparable workers’ compensation law of another
jurisdiction.
b. Any claim against a corporation that does not constitute
a successor asbestos-related liability.
c. Any obligation under the federal National Labor
Relations Act, 29 U.S.C. §151 et seq., as amended, or under any
collective bargaining agreement.
d. A successor that, after a merger or consolidation,
continued in the business of mining asbestos or in the
business of selling or distributing asbestos fibers or
in the business of manufacturing, distributing, removing,
or installing asbestos-containing products which were the
same or substantially the same as those products previously
manufactured, distributed, removed, or installed by the
transferor.
Sec. 22. NEW SECTION. 686C.4 Establishing fair market value
of total gross assets.
1. A successor may establish the fair market value of
total gross assets, which include intangible assets, for the
purpose of the limitations under section 686C.3, through any
method reasonable under the circumstances, including any of the
following:
a. By reference to the going concern value of the assets or
to the purchase price attributable to or paid for the assets
in an arms-length transaction.
b. In the absence of other readily available information
from which the fair market value can be determined, by
reference to the value of the assets recorded on a balance
sheet.
2. To the extent total gross assets include any liability
-22-insurance that was issued to the transferor whose assets are
being valued for purposes of this section, the applicability,
terms, conditions, and limits of such insurance shall not be
affected by this chapter, nor shall this chapter otherwise
affect the rights and obligations of an insurer, transferor,
or successor under any insurance contract or any related
agreement, including, without limitation, preenactment
settlements resolving coverage-related disputes, and the rights
of an insurer to seek payment for applicable deductibles,
retrospective premiums, or self-insured retentions or to seek
contribution from a successor for uninsured or self-insured
periods or periods where insurance is uncollectible or
otherwise unavailable. Without limiting the foregoing, to the
extent total gross assets include any such liability insurance,
a settlement of a dispute concerning any such liability
insurance coverage entered into by a transferor or successor
with the insurers of the transferor before the effective date
of this Act shall be determinative of the total coverage of
such liability insurance to be included in the calculation of
the transferor’s total gross assets.
Sec. 23. NEW SECTION. 686C.5 Adjustment.
1. Except as provided in subsections 2, 3, and 4, the fair
market value of total gross assets at the time of a merger or
consolidation shall increase annually at a rate equal to the
sum of the prime rate as listed in the first edition of the
Wall street journal published for each calendar year since the
merger or consolidation, unless the prime rate is not published
in that edition of the Wall street journal, in which case any
reasonable determination of the prime rate on the first day of
the year may be used, plus one percent.
2. The rate determined under subsection 1 shall not be
compounded.
3. The adjustment of the fair market value of total
gross assets shall continue as provided in subsection 1
until the date the adjusted value is first exceeded by the
-23-cumulative amounts of successor asbestos-related liabilities
paid or committed to be paid by or on behalf of the successor
corporation or a predecessor or by or on behalf of a transferor
after the time of the merger or consolidation for which the
fair market value of total gross assets is determined.
4. No adjustment of the fair market value of total gross
assets shall be applied to any liability insurance that may be
included in the total gross assets pursuant to section 686C.4,
subsection 2.
Sec. 24. NEW SECTION. 686C.6 Scope of chapter —
application.
1. This chapter shall be liberally construed with regard to
successors.
2. This chapter applies to all asbestos claims filed against
a successor on or after the effective date of this Act.
3. This chapter applies to all pending asbestos actions in
which trial has not commenced as of the effective date of this
Act unless the court finds that the application of a provision
in this chapter would unconstitutionally affect a vested right.
In that case, the provision does not apply and the court shall
apply prior law.
______________________________
JACK WHITVERPresident of the Senate______________________________
LINDA UPMEYERSpeaker of the House I hereby certify that this bill originated in the Senate and is known as Senate File 376, Eighty-seventh General Assembly.______________________________
W. CHARLES SMITHSONSecretary of the SenateApproved _______________, 2017______________________________
TERRY E. BRANSTADGovernorjh/nh/bs
claims in civil asbestos actions, asbestos and silica claims
prioritization, and successor corporation asbestos-related
liability, and including applicability provisions.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF IOWA:
Section 1. NEW SECTION. 686A.1 Title.
This chapter shall be known and may be cited as the “Asbestos
Bankruptcy Trust Claims Transparency Act”.
Sec. 2. NEW SECTION. 686A.2 Definitions.
As used in this chapter, unless the context otherwise
requires:
1. “Asbestos” means chrysotile, amosite, crocidolite,
tremolite asbestos, anthophyllite asbestos, actinolite
asbestos, asbestiform winchite, asbestiform richterite,
asbestiform amphibole minerals, and any of these minerals that
have been chemically treated or altered, including all minerals
defined as asbestos in 29 C.F.R. pt.1910, at the time the
asbestos action is filed.
2. “Asbestos action” means a claim for damages or other
civil or equitable relief presented in a civil action arising
out of, based on, or related to the health effects of exposure
to asbestos, including loss of consortium, wrongful death,
mental or emotional injury, risk or fear of disease or other
injury, costs of medical monitoring or surveillance, and any
other derivative claim made by or on behalf of a person exposed
to asbestos or a representative, spouse, parent, child, or
other relative of that person.
3. “Asbestos trust” means a government-approved or
court-approved trust, qualified settlement fund, compensation
fund, or claims facility created as a result of an
administrative or legal action, a court-approved bankruptcy,
or pursuant to 11 U.S.C. §524(g) or 11 U.S.C. §1121(a) or
other applicable provision of law, that is intended to provide
compensation to claimants arising out of, based on, or related
to the health effects of exposure to asbestos.
4. “Plaintiff” means the person bringing an asbestos action,
including a personal representative if the asbestos action is
brought by an estate, or a conservator or next friend if the
asbestos action is brought on behalf of a minor or legally
incapacitated individual.
-1- 5. “Trust claims materials” means a final executed proof
of claim and all other documents and information related to a
claim against an asbestos trust, including claims forms and
supplementary materials, affidavits, depositions and trial
testimony, work history, and medical and health records,
documents reflecting the status of a claim against an asbestos
trust, and if the trust claim has settled, all documents
relating to the settlement of the trust claim.
6. “Trust governance documents” means all documents that
relate to eligibility and payment levels, including claims
payment matrices, trust distribution procedures, or plans for
reorganization, for an asbestos trust.
Sec. 3. NEW SECTION. 686A.3 Required disclosures by
plaintiff.
1. Within ninety days after an asbestos action is filed,
or within ninety days after the effective date of this
Act, whichever is later, the plaintiff shall do all of the
following:
a. Provide the court and parties with a sworn statement
signed by the plaintiff and the plaintiff’s counsel, under
penalty of perjury, indicating that an investigation of all
asbestos trust claims has been conducted and that all asbestos
trust claims that may be made by the plaintiff or any person on
the plaintiff’s behalf have been filed. The sworn statement
must indicate whether there has been a request to defer, delay,
suspend, or toll any asbestos trust claim, and provide the
disposition of each asbestos trust claim.
b. Provide all parties with all trust claims materials,
including trust claims materials that relate to conditions
other than those that are the basis for the asbestos action
and including all trust claims materials from all attorneys
connected to the plaintiff in relation to exposure to asbestos,
including any attorney involved in the asbestos action, any
referring attorney, and any other attorney who has filed an
asbestos trust claim for the plaintiff or on the plaintiff’s
-2-behalf.
c. If the plaintiff’s asbestos trust claim is based on
exposure to asbestos through another individual, the plaintiff
shall produce all trust claims materials submitted by the
other individual to any asbestos trusts if the materials are
available to the plaintiff or the plaintiff’s counsel.
2. The plaintiff shall supplement the information and
materials required under subsection 1 within thirty days after
the plaintiff or a person on the plaintiff’s behalf supplements
an existing asbestos trust claim, receives additional
information or materials related to an asbestos trust claim, or
files an additional asbestos trust claim.
3. The court may dismiss the asbestos action if the
plaintiff fails to comply with this section.
4. An asbestos action shall not be set for trial until
at least one hundred eighty days after the requirements of
subsection 1 are met.
Sec. 4. NEW SECTION. 686A.4 Identification of additional or
alternative asbestos trusts by defendant.
1. A defendant may file a motion requesting a stay of
the proceedings on or before the later of the sixtieth day
before the date trial in the action is set to commence or the
fifteenth day after the defendant first obtains information
that could support additional trust claims by the plaintiff.
The motion shall identify the asbestos trust claims the
defendant believes the plaintiff can file and include
information supporting the asbestos trust claims.
2. Within ten days of receiving the defendant’s motion, the
plaintiff shall do one of the following:
a. File the asbestos trust claims.
b. File a written response with the court stating the reason
there is insufficient evidence for the plaintiff to file the
asbestos trust claims.
c. File a written response with the court requesting a
determination that the cost to file the asbestos trust claims
-3-exceeds the plaintiff’s reasonably anticipated recovery.
3. a. If the court determines that there is a sufficient
basis for the plaintiff to file an asbestos trust claim
identified in the motion to stay, the court shall stay the
asbestos action until the plaintiff files the asbestos trust
claim and produces all related trust claims materials.
b. If the court determines that the cost of submitting
an asbestos trust claim exceeds the plaintiff’s reasonably
anticipated recovery, the court shall stay the asbestos action
until the plaintiff files with the court and provides all
parties with a verified statement of the plaintiff’s history
of exposure, usage, or other connection to asbestos covered by
that asbestos trust.
4. An asbestos action shall not be set for trial until at
least sixty days after the plaintiff provides the documentation
required by this section.
Sec. 5. NEW SECTION. 686A.5 Discovery — use of materials.
1. Trust claims materials and trust governance documents
are presumed to be relevant and authentic, and are admissible
in evidence in an asbestos action. Notwithstanding any other
provision of law to the contrary, a claim of privilege does
not apply to any trust claims materials or trust governance
documents.
2. A defendant in an asbestos action may seek discovery
from an asbestos trust. Notwithstanding any other provision
of law to the contrary, the plaintiff may not claim privilege
or confidentiality to bar discovery and shall provide consent
or other expression of permission that may be required by the
asbestos trust to release information and materials sought by a
defendant.
3. Trust claim materials that are sufficient to entitle
a claim to consideration for payment under the applicable
trust governance documents may be sufficient to support a jury
finding that the plaintiff may have been exposed to products
for which the trust was established to provide compensation and
-4-that, under applicable law, such exposure may be a substantial
contributing factor in causing the plaintiff’s injury that is
at issue in the asbestos action.
Sec. 6. NEW SECTION. 686A.6 Trust record — valuation of
asbestos trust claims — judicial notice.
1. Not less than thirty days before trial in an asbestos
action, the court shall enter into the record a document that
identifies every asbestos trust claim made by the plaintiff or
on the plaintiff’s behalf.
2. If a plaintiff proceeds to trial in an asbestos
action before an asbestos trust claim is resolved, there is
a rebuttable presumption that the plaintiff is entitled to,
and will receive, the compensation specified in the trust
governance document applicable to the plaintiff’s claim at the
time of trial. The court shall take judicial notice that the
trust governance document specifies compensation amounts and
payment percentages and shall establish an attributed value to
the plaintiff’s asbestos trust claims.
Sec. 7. NEW SECTION. 686A.7 Setoff — credit.
In any asbestos action in which damages are awarded and
setoffs are permitted under applicable law, a defendant is
entitled to a setoff or credit in the amount the plaintiff
has been awarded from an asbestos trust identified in
section 686A.6, subsection 1, and the amount of the valuation
established under section 686A.6, subsection 2. If multiple
defendants are found liable for damages, the court shall
distribute the amount of setoff or credit proportionally
between the defendants, according to the liability of each
defendant.
Sec. 8. NEW SECTION. 686A.8 Failure to provide information
— sanctions.
1. On the motion of a defendant or judgment debtor seeking
sanctions or other relief in an asbestos action, the court
may impose any sanction provided by court rule or a law of
this state, including but not limited to vacating a judgment
-5-rendered in the action, for a plaintiff’s failure to comply
with the disclosure requirements of this chapter.
2. If the plaintiff or a person on the plaintiff’s behalf
files an asbestos trust claim after the plaintiff obtains a
judgment in an asbestos action, and that asbestos trust was
in existence at the time the plaintiff obtained the judgment,
the trial court, on motion by a defendant or judgment debtor
seeking sanctions or other relief, has jurisdiction to reopen
the judgment in the asbestos action and adjust the judgment by
the amount of any subsequent asbestos trust payments obtained
by the plaintiff and order any other relief to the parties that
the court considers just and proper.
3. A defendant or judgment debtor shall file any motion
under this section within a reasonable time and not more than
one year after the judgment was entered.
Sec. 9. NEW SECTION. 686A.9 Application.
1. This chapter applies to all asbestos actions filed on or
after the effective date of this Act.
2. This chapter applies to all pending asbestos actions in
which trial has not commenced as of the effective date of this
Act unless the court finds that the application of a provision
in this chapter would unconstitutionally affect a vested right.
In that case, the provision does not apply and the court shall
apply prior law.
Sec. 10. NEW SECTION. 686B.1 Title.
This chapter shall be known and may be cited as the “Asbestos
and Silica Claims Priorities Act”.
Sec. 11. NEW SECTION. 686B.2 Definitions.
As used in this chapter, unless the context otherwise
requires:
1. “AMA guides” means the American medical association’s
guides to the evaluation of permanent impairment in effect at
the time of the performance of any examination or test on the
exposed person required under this chapter.
2. “Asbestos” means the same as defined in section 686A.2.
-6- 3. “Asbestos action” means the same as defined in section
686A.2.
4. “Asbestosis” means bilateral diffuse interstitial
fibrosis of the lungs caused by inhalation of asbestos fibers.
5. “Board-certified in internal medicine” means certified
by the American board of internal medicine or the American
osteopathic board of internal medicine at the time of the
performance of an examination and rendition of a report
required by this chapter.
6. “Board-certified in occupational medicine” means
certified in the specialty of occupational medicine by the
American board of preventive medicine or the specialty of
occupational/environmental medicine by the American osteopathic
board of preventive medicine at the time of the performance
of an examination and rendition of a report required by this
chapter.
7. “Board-certified in pathology” means holding primary
certification in anatomic pathology or clinical pathology from
the American board of pathology or the American osteopathic
board of pathology at the time of the performance of an
examination and rendition of a report required by this chapter,
and practicing principally in the field of pathology including
regular evaluation of pathology materials obtained from
surgical or postmortem specimens.
8. “Board-certified in pulmonary medicine” means certified in
the specialty of pulmonary medicine by the American board of
internal medicine or the American osteopathic board of internal
medicine at the time of the performance of an examination and
rendition of a report required by this chapter.
9. “Certified B-reader” means an individual who has
qualified as a national institute for occupational safety and
health final or B-reader of X rays under 42 C.F.R. §37.51(b),
whose certification was current at the time of any readings
required under this chapter, and whose B-reads comply with
the national institute for occupational safety and health
-7-B-reader’s code of ethics, issues in classification of chest
radiographs, and classification of chest radiographs in
contested proceedings.
10. “Exposed person” means a person whose exposure to
asbestos or silica or to asbestos-containing products or
silica-containing products is the basis for an asbestos action
or silica action.
11. “FEV1” means forced expiratory volume in the first
second, which is the maximal volume of air expelled in one
second during the performance of simple spirometric tests.
12. “FEV1/FVC” means the ratio between the actual values for
FEV1 over FVC.
13. “FVC” means forced vital capacity, which is the maximal
volume of air expired with maximum effort from a position of
full inspiration.
14. “ILO system” and “ILO scale” mean the radiological
ratings and system for the classification of chest X rays of
the international labour office provided in guidelines for
the use of ILO international classification of radiographs of
pneumoconioses in effect on the day any X rays of the exposed
person were reviewed by a certified B-reader.
15. “Nonmalignant condition” means any condition that can be
caused by asbestos or silica other than a diagnosed cancer.
16. “Official statements of the American thoracic society”
means lung function testing standards set forth in statements
from the American thoracic society, including standardizations
of spirometry, standardizations of lung volume testing,
standardizations of diffusion capacity testing or single-breath
determination of carbon monoxide uptake in the lung, and
interpretive strategies for lung function tests, which are in
effect on the day of the pulmonary function testing of the
exposed person.
17. “Pathological evidence of asbestosis” means a statement
by a physician who is board-certified in pathology that more
than one representative section of lung tissue uninvolved
-8-with any other disease process demonstrates a pattern of
peribronchiolar or parenchymal scarring in the presence of
characteristic asbestos bodies graded 1(B) or higher under the
criteria published in asbestos-associated diseases, 106 Archive
of Pathology and Laboratory Medicine 11, appendix 3 (October
8, 1982), or grade one or higher in pathology of asbestosis,
134 Archive of Pathology and Laboratory Medicine 462-80 (March
2010) (tables 2 and 3), as amended at the time of the exam, and
there is no other more likely explanation for the presence of
the fibrosis.
18. “Pathological evidence of silicosis” means a statement by
a physician who is board-certified in pathology that more than
one representative section of lung tissue uninvolved with any
other disease process demonstrates complicated silicosis with
characteristic confluent silicotic nodules or lesions equal
to or greater than one centimeter and birefringent crystals
or other demonstration of crystal structures consistent with
silica, well-organized concentric whorls of collagen surrounded
by inflammatory cells, in the lung parenchyma and no other
more likely explanation for the presence of the fibrosis
exists, or acute silicosis with characteristic pulmonary edema,
interstitial inflammation, and the accumulation within the
alveoli of proteinaceous fluid rich in surfactant.
19. “Plaintiff” means the person bringing an asbestos action
or silica action, including a personal representative if the
asbestos action or silica action is brought by an estate, or
a conservator or next friend if the asbestos action or silica
action is brought on behalf of a minor or legally incapacitated
individual.
20. “Predicted lower limit of normal” means the test
value that is the calculated standard convention lying at
the fifth percentile, below the upper ninety-five percent of
the reference population, based on age, height, and gender,
according to the recommendations by the American thoracic
society and as referenced in the applicable AMA guides,
-9-primarily national health and nutrition examination survey
predicted values, or as amended.
21. “Pulmonary function test” means spirometry, lung volume
testing, and diffusion capacity testing, including appropriate
measurements, quality control data, and graphs, performed in
accordance with the methods of calibration and techniques
provided in the applicable AMA guides and all standards
provided in the official statements of the American thoracic
society in effect on the day pulmonary function testing of the
exposed person was conducted.
22. “Qualified physician” means a physician who is
board-certified in internal medicine, board-certified
in pathology, board-certified in pulmonary medicine, or
board-certified in occupational medicine, as may be appropriate
to the actual diagnostic specialty in question, and for whom
all of the following are true:
a. The physician conducted a physical examination of
the exposed person and has taken a detailed occupational,
exposure, medical, smoking, and social history from the exposed
person, or if the exposed person is deceased, has reviewed the
pathology material and has taken a detailed history from the
person most knowledgeable about the information forming the
basis of the asbestos action or silica action.
b. The physician treated or is treating the exposed person,
and has or had a doctor-patient relationship with the exposed
person at the time of the physical examination, or in the case
of a physician who is board-certified in pathology, examined
tissue samples or pathological slides of the exposed person at
the request of the treating physician.
c. The physician spends no more than twenty-five percent of
the physician’s professional practice time providing consulting
or expert services in actual or potential civil actions, and
whose medical group, professional corporation, clinic, or other
affiliated group earns not more than twenty-five percent of its
revenue providing such services.
-10- d. The physician was licensed to practice on the date any
examination or pulmonary function testing was conducted, and
actively practices or practiced in the state where the exposed
person resides or resided at the time of the examination or
pulmonary function testing, or the state where the asbestos
action or silica action was filed.
e. The physician received or is receiving payment for the
treatment of the exposed person from the exposed person, a
member of the exposed person’s family, or the exposed person’s
health care plan and not from the exposed person’s attorney.
f. The physician prepared or directly supervised the
preparation and final review of any medical report under this
chapter.
g. The physician has not relied on any examinations, tests,
radiographs, reports, or opinions of any physician, clinic,
laboratory, or testing company that performed an examination,
test, radiograph, or screening of the exposed person in
violation of any law, regulation, licensing requirement, or
medical code of practice of the state in which the examination,
test, or screening was conducted, or that was conducted without
establishing a physician-patient relationship with the exposed
person or medical personnel involved in the examination, test,
or screening process, or that required the exposed person to
agree to retain the service of an attorney.
23. “Radiological evidence of asbestosis” means a quality 1
chest X ray under the ILO system, or a quality 2 chest X ray
in a death case when no pathology or quality 1 chest X ray is
available, showing bilateral small, irregular opacities (s, t,
or u) occurring primarily in the lower lung zones graded by a
certified B-reader as at least 1/1 on the ILO scale.
24. “Radiological evidence of diffuse bilateral pleural
thickening” means a quality 1 chest X ray under the ILO system,
or a quality 2 chest X ray in a death case when no pathology or
quality 1 chest X ray is available, showing diffuse bilateral
pleural thickening of at least b2 on the ILO scale and blunting
-11-of at least one costophrenic angle as classified by a certified
B-reader.
25. “Radiological evidence of silicosis” means a quality
1 chest X ray under the ILO system, or a quality 2 chest X
ray in a death case when no pathology or quality 1 chest X
ray is available, showing bilateral predominantly nodular
or rounded opacities (p, q, or r) occurring primarily in
the upper lung fields graded by a certified B-reader as at
least 1/1 on the ILO scale or A, B, or C sized opacities
representing complicated silicosis or acute silicosis with
characteristic pulmonary edema, interstitial inflammation, and
the accumulation within the alveoli of proteinaceous fluid rich
in surfactant.
26. “Silica” means a respirable crystalline form of silicon
dioxide, including quartz, cristobalite, and tridymite.
27. “Silica action” means a claim for damages or other civil
or equitable relief presented in a civil action arising out
of, based on, or related to the health effects of exposure to
silica, including loss of consortium, wrongful death, mental
or emotional injury, risk or fear of disease or other injury,
costs of medical monitoring or surveillance, and any other
derivative claim made by or on behalf of a person exposed to
silica or a representative, spouse, parent, child, or other
relative of that person.
28. “Silicosis” means simple silicosis, acute silicosis,
accelerated silicosis, or chronic silicosis caused by the
inhalation of respirable silica.
29. “Supporting test results” means copies of the B-reading;
pulmonary function tests, including printouts of the flow
volume loops, volume time curves, diffusing capacity of the
lung for carbon monoxide graphs, lung volume tests and graphs,
quality control data and other pertinent data for all trials
and all other elements required to demonstrate compliance with
the equipment, quality, interpretation, and reporting standards
set forth in this chapter; B-reader reports; reports of X
-12-ray examinations; diagnostic imaging of the chest; pathology
reports; and all other tests reviewed by the diagnosing
physician or a qualified physician in reaching the physician’s
conclusions.
Sec. 12. NEW SECTION. 686B.3 Filing claims — establishment
of prima facie case — individual actions to be filed.
1. A plaintiff in an asbestos action involving a
nonmalignant condition or a silica action involving silicosis
shall file with the complaint or other initial pleading a
detailed narrative medical report and diagnosis, signed under
oath by a qualified physician and accompanied by supporting
test results, which constitute prima facie evidence that the
exposed person meets the requirements of this chapter. The
report shall not be prepared by an attorney or person working
for or on behalf of an attorney.
2. A plaintiff shall include with the detailed narrative
medical report a sworn information form containing all of the
following:
a. The name, address, date of birth, social security
number, marital status, occupation, and employer of the exposed
person, and any person through whom the exposed person alleges
exposure.
b. The plaintiff’s relationship to the exposed person or
person through whom the exposure is alleged.
c. The specific location and manner of each alleged
exposure, including the specific location and manner of
exposure for any person through whom the exposed person alleges
exposure.
d. The beginning and ending dates of each alleged exposure.
e. The identity of the manufacturer of the specific asbestos
or silica product for each exposure.
f. The identity of the defendant or defendants against whom
the plaintiff asserts a claim.
g. The specific asbestos-related or silica-related disease
claimed to exist.
-13- h. Any supporting documentation relating to the information
required under this subsection.
3. For an asbestos action or silica action pending as of
the effective date of this Act, the detailed narrative medical
report and supporting test results and sworn information form
described in subsections 1 and 2 shall be provided to all
parties not later than ninety days after the effective date of
this Act or not later than ninety days before trial, whichever
is earlier.
4. A defendant shall be afforded a reasonable opportunity
to challenge the adequacy of the prima facie evidence before
trial.
5. The court shall dismiss the asbestos action or silica
action without prejudice on finding that the plaintiff has
failed to make the prima facie showing required by this chapter
or failed to comply with the requirements of this section.
6. An asbestos action or silica action must be individually
filed and shall not be filed on behalf of a group or class of
plaintiffs.
Sec. 13. NEW SECTION. 686B.4 Asbestos claims involving
nonmalignant conditions — elements of proof.
An asbestos action involving a nonmalignant condition shall
not be brought or maintained in the absence of prima facie
evidence that the exposed person has a physical impairment for
which asbestos exposure was a substantial contributing factor.
The prima facie showing shall be made as to each defendant
and include a detailed narrative medical report and diagnosis
signed under oath by a qualified physician that includes all
of the following:
1. Radiological or pathological evidence of asbestosis or
radiological evidence of diffuse bilateral pleural thickening
or a high-resolution computed tomography scan showing evidence
of asbestosis or diffuse bilateral pleural thickening.
2. A detailed occupational and exposure history from
the exposed person or, if that person is deceased, from the
-14-person most knowledgeable about the exposures that form the
basis of the action, including identification of all of the
exposed person’s principal places of employment and exposures
to airborne contaminants and whether each place of employment
involved exposures to airborne contaminants, including asbestos
fibers or other disease-causing dusts or fumes, that may cause
pulmonary impairment and the nature, duration, and level of any
exposure.
3. A detailed medical, social, and smoking history from the
exposed person or, if that person is deceased, from the person
most knowledgeable, including a thorough review of the past and
present medical problems of the exposed person and the most
probable cause of such medical problems.
4. Evidence verifying that at least fifteen years have
elapsed between the exposed person’s date of first exposure to
asbestos and the date of diagnosis.
5. Evidence based upon a personal medical examination
and pulmonary function testing of the exposed person or,
if the exposed person is deceased, based upon the person’s
medical records, that the exposed person has or the deceased
person had a permanent respiratory impairment rating of at
least class 2 as defined by and evaluated pursuant to the
AMA guides or reported significant changes year to year in
lung function for FVC, FEV1, or diffusing capacity of the
lung for carbon monoxide as defined by the American thoracic
society’s interpretative strategies for lung function tests, 26
European Respiratory Journal 948-68, 961-62, table 12 (2005),
as updated.
6. Evidence that asbestosis or diffuse bilateral pleural
thickening, rather than chronic obstructive pulmonary disease,
is a substantial contributing factor to the exposed person’s
physical impairment, based on a determination that the exposed
person has any of the following:
a. FVC below the predicted lower limit of normal and
FEV1/FVC ratio, using actual values, at or above the predicted
-15-lower limit of normal.
b. Total lung capacity, by plethysmography or timed gas
dilution, below the predicted lower limit of normal.
c. A chest X ray showing bilateral small, irregular
opacities (s, t, or u) graded by a certified B-reader as at
least 2/1 on the ILO scale.
7. The qualified physician signing the detailed narrative
medical report has concluded that exposure to asbestos was
a substantial contributing factor to the exposed person’s
physical impairment and not more probably the result of other
causes. An opinion that the medical findings and impairment
are consistent with or compatible with exposure to asbestos,
or similar opinion, does not satisfy the requirements of this
subsection.
Sec. 14. NEW SECTION. 686B.5 Silica claims involving
silicosis — elements of proof.
A silica action involving silicosis shall not be brought
or maintained in the absence of prima facie evidence that the
exposed person has a physical impairment for which exposure
to silica was a substantial contributing factor. The prima
facie showing shall be made as to each defendant and include
a detailed narrative medical report and diagnosis signed
under oath by a qualified physician that includes all of the
following:
1. Radiological or pathological evidence of silicosis or a
high-resolution computed tomography scan showing evidence of
silicosis.
2. A detailed occupational and exposure history from the
exposed person or, if that person is deceased, from the person
most knowledgeable about the exposures that form the basis of
the action, including identification of all principal places
of employment and exposures to airborne contaminants and
whether each place of employment involved exposures to airborne
contaminants, including silica or other disease-causing dusts
or fumes, that may cause pulmonary impairment and the nature,
-16-duration, and level of any exposure.
3. A detailed medical, social, and smoking history from the
exposed person or, if that person is deceased, from the person
most knowledgeable, including a thorough review of the past and
present medical problems of the exposed person and the most
probable cause of such medical problems.
4. Evidence that a sufficient latency period has elapsed
between the exposed person’s date of first exposure to silica
and the day of diagnosis.
5. Evidence based upon a personal medical examination
and pulmonary function testing of the exposed person or,
if the exposed person is deceased, based upon the person’s
medical records, that the exposed person has or the deceased
person had a permanent respiratory impairment rating of at
least class 2 as defined by and evaluated pursuant to the
AMA guides or reported significant changes year to year in
lung function for FVC, FEV1, or diffusing capacity of the
lung for carbon monoxide as defined by the American thoracic
society’s interpretative strategies for lung function tests, 26
European Respiratory Journal 948-68, 961-62, table 12 (2005),
as updated.
6. The qualified physician signing the detailed narrative
medical report has concluded that exposure to silica was
a substantial contributing factor to the exposed person’s
physical impairment and not more probably the result of other
causes. An opinion stating that the medical findings and
impairment are consistent with or compatible with exposure to
silica, or similar opinion, does not satisfy the requirements
of this subsection.
Sec. 15. NEW SECTION. 686B.6 Evidence of physical
impairment.
Evidence relating to physical impairment, including
pulmonary function testing and diffusing studies, offered in
an action governed by this chapter, must satisfy all of the
following requirements:
-17- 1. The evidence must comply with the quality controls,
equipment requirements, methods of calibration, and techniques
set forth in the AMA guides and all standards set forth in the
official statements of the American thoracic society which are
in effect on the date of any examination or pulmonary function
testing of the exposed person required by this chapter.
2. The evidence must not be obtained by or based on testing
or examinations that violate any law, regulation, licensing
requirement, or medical code of practice of the state in which
the examination, test, or screening was conducted, or of this
state.
3. The evidence must not be obtained under the condition
that the plaintiff or exposed person retains the legal services
of the attorney sponsoring the examination, test, or screening.
Sec. 16. NEW SECTION. 686B.7 Procedures — limitation.
1. Evidence relating to the prima facie showings required
under this chapter shall not create any presumption that the
exposed person has an asbestos-related or silica-related injury
or impairment, and shall not be conclusive as to the liability
of any defendant.
2. No evidence shall be offered at trial, and the jury shall
not be informed, of any of the following:
a. The grant or denial of a motion to dismiss an asbestos
action or silica action under the provisions of this chapter.
b. The provisions of this chapter with respect to what
constitutes a prima facie showing of asbestos-related
impairment or silica-related impairment.
3. Until a court enters an order determining that the
exposed person has established prima facie evidence of
impairment, an asbestos action or silica action shall not be
subject to discovery, except discovery related to establishing
or challenging the prima facie evidence or by order of the
trial court upon motion of one of the parties and for good
cause shown.
4. a. A court may consolidate for trial any number and
-18-type of asbestos actions or silica actions with the consent of
all the parties. In the absence of such consent, the court may
consolidate for trial only asbestos actions or silica actions
relating to the exposed person and members of that person’s
household.
b. This subsection does not preclude the consolidation of
cases by court order for pretrial or discovery purposes.
5. A defendant in an asbestos action or silica action shall
not be liable for exposures from a product or component part
made or sold by a third party.
Sec. 17. NEW SECTION. 686B.8 Statute of limitations —
two-disease rule.
1. With respect to an asbestos action or silica action not
barred by limitations as of the effective date of this Act, an
exposed person’s cause of action shall not accrue, nor shall
the running of limitations commence, prior to the earliest of
the following:
a. The exposed person received a medical diagnosis of an
asbestos-related impairment or silica-related impairment.
b. The exposed person discovered facts that would have
led a reasonable person to obtain a medical diagnosis with
respect to the existence of an asbestos-related impairment or
silica-related impairment.
c. The date of death of the exposed person having an
asbestos-related impairment or silica-related impairment.
2. This section shall not be construed to revive or extend
limitations with respect to any claim for asbestos-related
impairment or silica-related impairment that was otherwise
time-barred as of the effective date of this Act.
3. An asbestos action or silica action arising out of a
nonmalignant condition shall be a distinct cause of action from
an action for an asbestos-related cancer or silica-related
cancer. Where otherwise permitted under state law, no damages
shall be awarded for fear or increased risk of future disease
in an asbestos action or silica action.
-19- Sec. 18. NEW SECTION. 686B.9 Application.
1. This chapter applies to all asbestos actions and silica
actions filed on or after the effective date of this Act.
2. This chapter applies to all pending asbestos actions
and silica actions in which trial has not commenced as
of the effective date of this Act unless the court finds
that the application of a provision in this chapter would
unconstitutionally affect a vested right. In that case, the
provision does not apply and the court shall apply prior law.
Sec. 19. NEW SECTION. 686C.1 Title.
This chapter shall be known and may be cited as the
“Successor Corporation Asbestos-Related Liability Fairness Act”.
Sec. 20. NEW SECTION. 686C.2 Definitions.
As used in this chapter, unless the context otherwise
requires:
1. “Asbestos action” means the same as defined in section
686A.2, but also includes any claim for damage or loss caused
by the installation, presence, or removal of asbestos.
2. “Corporation” means any corporation established under
either domestic or foreign charter and includes a corporate
subsidiary and any business entity in which a corporation
participates or is a stockholder, a partner, or a joint
venture.
3. “Successor” means a corporation that assumes or incurs or
has assumed or incurred successor asbestos-related liabilities
through operation of law, including but not limited to a
merger or consolidation or plan of merger or consolidation
related to such consolidation or merger or by appointment as
an administrator or as a trustee in bankruptcy, debtor in
possession, liquidation, or receivership and that became a
successor before January 1, 1972. “Successor” includes any of
that successor corporation’s successors.
4. “Successor asbestos-related liability” means any
liabilities, whether known or unknown, asserted or unasserted,
absolute or contingent, accrued or unaccrued, liquidated or
-20-unliquidated, or due or to become due, which are related in
any way to an asbestos action and were assumed or incurred by
a corporation as a result of or in connection with a merger
or consolidation, or the plan of merger or consolidation
related to the merger or consolidation with or into another
corporation, or that are related in any way to an asbestos
action based on the exercise of control or the ownership of
stock of the corporation before the merger or consolidation.
“Successor asbestos-related liability” includes liabilities
that, after the time of the merger or consolidation for which
the fair market value of total gross assets is determined under
section 686C.4, were or are paid or otherwise discharged, or
committed to be paid or otherwise discharged, by or on behalf
of the corporation, or by a successor of the corporation, or by
or on behalf of a transferor, in connection with settlements,
judgments, or other discharges in this state or another
jurisdiction.
5. “Transferor” means a corporation from which successor
asbestos-related liabilities are or were assumed or incurred.
Sec. 21. NEW SECTION. 686C.3 Limitations on successor
asbestos-related liabilities.
1. Except as provided in subsection 2, the cumulative
successor asbestos-related liabilities of a successor are
limited to the fair market value of the total gross assets
of the transferor determined as of the time of the merger
or consolidation. A successor shall not have responsibility
for successor asbestos-related liabilities in excess of this
limitation.
2. If the transferor had assumed or incurred successor
asbestos-related liabilities in connection with a prior
merger or consolidation with a prior transferor, then the
fair market value of the total gross assets of the prior
transferor determined as of the time of the earlier merger or
consolidation shall be substituted for the limitation set forth
in subsection 1 for purposes of determining the limitation of
-21-liability of a successor.
3. The limitations in this section shall apply to any
successor but shall not apply to any of the following:
a. Workers’ compensation benefits paid by or on behalf of
an employer to an employee under the provisions of chapter 85
or 85A, or a comparable workers’ compensation law of another
jurisdiction.
b. Any claim against a corporation that does not constitute
a successor asbestos-related liability.
c. Any obligation under the federal National Labor
Relations Act, 29 U.S.C. §151 et seq., as amended, or under any
collective bargaining agreement.
d. A successor that, after a merger or consolidation,
continued in the business of mining asbestos or in the
business of selling or distributing asbestos fibers or
in the business of manufacturing, distributing, removing,
or installing asbestos-containing products which were the
same or substantially the same as those products previously
manufactured, distributed, removed, or installed by the
transferor.
Sec. 22. NEW SECTION. 686C.4 Establishing fair market value
of total gross assets.
1. A successor may establish the fair market value of
total gross assets, which include intangible assets, for the
purpose of the limitations under section 686C.3, through any
method reasonable under the circumstances, including any of the
following:
a. By reference to the going concern value of the assets or
to the purchase price attributable to or paid for the assets
in an arms-length transaction.
b. In the absence of other readily available information
from which the fair market value can be determined, by
reference to the value of the assets recorded on a balance
sheet.
2. To the extent total gross assets include any liability
-22-insurance that was issued to the transferor whose assets are
being valued for purposes of this section, the applicability,
terms, conditions, and limits of such insurance shall not be
affected by this chapter, nor shall this chapter otherwise
affect the rights and obligations of an insurer, transferor,
or successor under any insurance contract or any related
agreement, including, without limitation, preenactment
settlements resolving coverage-related disputes, and the rights
of an insurer to seek payment for applicable deductibles,
retrospective premiums, or self-insured retentions or to seek
contribution from a successor for uninsured or self-insured
periods or periods where insurance is uncollectible or
otherwise unavailable. Without limiting the foregoing, to the
extent total gross assets include any such liability insurance,
a settlement of a dispute concerning any such liability
insurance coverage entered into by a transferor or successor
with the insurers of the transferor before the effective date
of this Act shall be determinative of the total coverage of
such liability insurance to be included in the calculation of
the transferor’s total gross assets.
Sec. 23. NEW SECTION. 686C.5 Adjustment.
1. Except as provided in subsections 2, 3, and 4, the fair
market value of total gross assets at the time of a merger or
consolidation shall increase annually at a rate equal to the
sum of the prime rate as listed in the first edition of the
Wall street journal published for each calendar year since the
merger or consolidation, unless the prime rate is not published
in that edition of the Wall street journal, in which case any
reasonable determination of the prime rate on the first day of
the year may be used, plus one percent.
2. The rate determined under subsection 1 shall not be
compounded.
3. The adjustment of the fair market value of total
gross assets shall continue as provided in subsection 1
until the date the adjusted value is first exceeded by the
-23-cumulative amounts of successor asbestos-related liabilities
paid or committed to be paid by or on behalf of the successor
corporation or a predecessor or by or on behalf of a transferor
after the time of the merger or consolidation for which the
fair market value of total gross assets is determined.
4. No adjustment of the fair market value of total gross
assets shall be applied to any liability insurance that may be
included in the total gross assets pursuant to section 686C.4,
subsection 2.
Sec. 24. NEW SECTION. 686C.6 Scope of chapter —
application.
1. This chapter shall be liberally construed with regard to
successors.
2. This chapter applies to all asbestos claims filed against
a successor on or after the effective date of this Act.
3. This chapter applies to all pending asbestos actions in
which trial has not commenced as of the effective date of this
Act unless the court finds that the application of a provision
in this chapter would unconstitutionally affect a vested right.
In that case, the provision does not apply and the court shall
apply prior law.
______________________________
JACK WHITVERPresident of the Senate______________________________
LINDA UPMEYERSpeaker of the House I hereby certify that this bill originated in the Senate and is known as Senate File 376, Eighty-seventh General Assembly.______________________________
W. CHARLES SMITHSONSecretary of the SenateApproved _______________, 2017______________________________
TERRY E. BRANSTADGovernorjh/nh/bs