HB 1019

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

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