HB 1019

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

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