Bill Text: IA HF476 | 2017-2018 | 87th General Assembly | Introduced
Bill Title: A bill for an act relating to disclosure of asbestos bankruptcy trust claims in civil asbestos actions, asbestos and silica claims prioritization, and successor corporation asbestos-related liability, and including applicability provisions. (Formerly HSB 104.)
Spectrum: Committee Bill
Status: (Introduced - Dead) 2017-03-13 - Withdrawn. H.J. 623. [HF476 Detail]
Download: Iowa-2017-HF476-Introduced.html
House File 476 - Introduced HOUSE FILE BY COMMITTEE ON JUDICIARY (SUCCESSOR TO HSB 104) A BILL FOR 1 An Act relating to disclosure of asbestos bankruptcy trust 2 claims in civil asbestos actions, asbestos and silica claims 3 prioritization, and successor corporation asbestos=related 4 liability, and including applicability provisions. 5 BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF IOWA: TLSB 1990HV (1) 87 jh/nh PAG LIN 1 1 Section 1. NEW SECTION. 686A.1 Title. 1 2 This chapter shall be known and may be cited as the "Asbestos 1 3 Bankruptcy Trust Claims Transparency Act". 1 4 Sec. 2. NEW SECTION. 686A.2 Definitions. 1 5 As used in this chapter, unless the context otherwise 1 6 requires: 1 7 1. "Asbestos" means chrysotile, amosite, crocidolite, 1 8 tremolite asbestos, anthophyllite asbestos, actinolite 1 9 asbestos, asbestiform winchite, asbestiform richterite, 1 10 asbestiform amphibole minerals, and any of these minerals that 1 11 have been chemically treated or altered, including all minerals 1 12 defined as asbestos in 29 C.F.R. pt. 1910, at the time the 1 13 asbestos action is filed. 1 14 2. "Asbestos action" means a claim for damages or other 1 15 civil or equitable relief presented in a civil action arising 1 16 out of, based on, or related to the health effects of exposure 1 17 to asbestos, including loss of consortium, wrongful death, 1 18 mental or emotional injury, risk or fear of disease or other 1 19 injury, costs of medical monitoring or surveillance, and any 1 20 other derivative claim made by or on behalf of a person exposed 1 21 to asbestos or a representative, spouse, parent, child, or 1 22 other relative of that person. 1 23 3. "Asbestos trust" means a government=approved or 1 24 court=approved trust, qualified settlement fund, compensation 1 25 fund, or claims facility created as a result of an 1 26 administrative or legal action, a court=approved bankruptcy, 1 27 or pursuant to 11 U.S.C. {524(g) or 11 U.S.C. {1121(a) or 1 28 other applicable provision of law, that is intended to provide 1 29 compensation to claimants arising out of, based on, or related 1 30 to the health effects of exposure to asbestos. 1 31 4. "Plaintiff" means the person bringing an asbestos action, 1 32 including a personal representative if the asbestos action is 1 33 brought by an estate, or a conservator or next friend if the 1 34 asbestos action is brought on behalf of a minor or legally 1 35 incapacitated individual. 2 1 5. "Trust claims materials" means a final executed proof 2 2 of claim and all other documents and information related to a 2 3 claim against an asbestos trust, including claims forms and 2 4 supplementary materials, affidavits, depositions and trial 2 5 testimony, work history, and medical and health records, 2 6 documents reflecting the status of a claim against an asbestos 2 7 trust, and if the trust claim has settled, all documents 2 8 relating to the settlement of the trust claim. 2 9 6. "Trust governance documents" means all documents that 2 10 relate to eligibility and payment levels, including claims 2 11 payment matrices, trust distribution procedures, or plans for 2 12 reorganization, for an asbestos trust. 2 13 Sec. 3. NEW SECTION. 686A.3 Required disclosures by 2 14 plaintiff. 2 15 1. Within thirty days after an asbestos action is filed, 2 16 or within thirty days after the effective date of this 2 17 Act, whichever is later, the plaintiff shall do all of the 2 18 following: 2 19 a. Provide the court and parties with a sworn statement 2 20 signed by the plaintiff and the plaintiff's counsel, under 2 21 penalty of perjury, indicating that an investigation of all 2 22 asbestos trust claims has been conducted and that all asbestos 2 23 trust claims that may be made by the plaintiff or any person on 2 24 the plaintiff's behalf have been filed. The sworn statement 2 25 must indicate whether there has been a request to defer, delay, 2 26 suspend, or toll any asbestos trust claim, and provide the 2 27 disposition of each asbestos trust claim. 2 28 b. Provide all parties with all trust claims materials, 2 29 including trust claims materials that relate to conditions 2 30 other than those that are the basis for the asbestos action 2 31 and including all trust claims materials from all attorneys 2 32 connected to the plaintiff in relation to exposure to asbestos, 2 33 including any attorney involved in the asbestos action, any 2 34 referring attorney, and any other attorney who has filed an 2 35 asbestos trust claim for the plaintiff or on the plaintiff's 3 1 behalf. 3 2 c. If the plaintiff's asbestos trust claim is based on 3 3 exposure to asbestos through another individual, the plaintiff 3 4 shall produce all trust claims materials submitted by the 3 5 other individual to any asbestos trusts if the materials are 3 6 available to the plaintiff or the plaintiff's counsel. 3 7 2. The plaintiff shall supplement the information and 3 8 materials required under subsection 1 within thirty days after 3 9 the plaintiff or a person on the plaintiff's behalf supplements 3 10 an existing asbestos trust claim, receives additional 3 11 information or materials related to an asbestos trust claim, or 3 12 files an additional asbestos trust claim. 3 13 3. The court may dismiss the asbestos action if the 3 14 plaintiff fails to comply with this section. 3 15 4. An asbestos action shall not be set for trial until 3 16 at least one hundred eighty days after the requirements of 3 17 subsection 1 are met. 3 18 Sec. 4. NEW SECTION. 686A.4 Identification of additional or 3 19 alternative asbestos trusts by defendant. 3 20 1. A defendant may file a motion requesting a stay of 3 21 the proceedings on or before the later of the sixtieth day 3 22 before the date trial in the action is set to commence or the 3 23 fifteenth day after the defendant first obtains information 3 24 that could support additional trust claims by the plaintiff. 3 25 The motion shall identify the asbestos trust claims the 3 26 defendant believes the plaintiff can file and include 3 27 information supporting the asbestos trust claims. 3 28 2. Within ten days of receiving the defendant's motion, the 3 29 plaintiff shall do one of the following: 3 30 a. File the asbestos trust claims. 3 31 b. File a written response with the court stating the reason 3 32 there is insufficient evidence for the plaintiff to file the 3 33 asbestos trust claims. 3 34 c. File a written response with the court requesting a 3 35 determination that the cost to file the asbestos trust claims 4 1 exceeds the plaintiff's reasonably anticipated recovery. 4 2 3. a. If the court determines that there is a sufficient 4 3 basis for the plaintiff to file an asbestos trust claim 4 4 identified in the motion to stay, the court shall stay the 4 5 asbestos action until the plaintiff files the asbestos trust 4 6 claim and produces all related trust claims materials. 4 7 b. If the court determines that the cost of submitting 4 8 an asbestos trust claim exceeds the plaintiff's reasonably 4 9 anticipated recovery, the court shall stay the asbestos action 4 10 until the plaintiff files with the court and provides all 4 11 parties with a verified statement of the plaintiff's history 4 12 of exposure, usage, or other connection to asbestos covered by 4 13 that asbestos trust. 4 14 4. An asbestos action shall not be set for trial until at 4 15 least sixty days after the plaintiff provides the documentation 4 16 required by this section. 4 17 Sec. 5. NEW SECTION. 686A.5 Discovery ==== use of materials. 4 18 1. Trust claims materials and trust governance documents 4 19 are presumed to be relevant and authentic, and are admissible 4 20 in evidence in an asbestos action. Notwithstanding any other 4 21 provision of law to the contrary, a claim of privilege does 4 22 not apply to any trust claims materials or trust governance 4 23 documents. 4 24 2. A defendant in an asbestos action may seek discovery 4 25 from an asbestos trust. Notwithstanding any other provision 4 26 of law to the contrary, the plaintiff may not claim privilege 4 27 or confidentiality to bar discovery and shall provide consent 4 28 or other expression of permission that may be required by the 4 29 asbestos trust to release information and materials sought by a 4 30 defendant. 4 31 3. Trust claim materials that are sufficient to entitle 4 32 a claim to consideration for payment under the applicable 4 33 trust governance documents may be sufficient to support a jury 4 34 finding that the plaintiff may have been exposed to products 4 35 for which the trust was established to provide compensation and 5 1 that, under applicable law, such exposure may be a substantial 5 2 contributing factor in causing the plaintiff's injury that is 5 3 at issue in the asbestos action. 5 4 Sec. 6. NEW SECTION. 686A.6 Trust record ==== valuation of 5 5 asbestos trust claims ==== judicial notice. 5 6 1. Not less than thirty days before trial in an asbestos 5 7 action, the court shall enter into the record a document that 5 8 identifies every asbestos trust claim made by the plaintiff or 5 9 on the plaintiff's behalf. 5 10 2. If a plaintiff proceeds to trial in an asbestos 5 11 action before an asbestos trust claim is resolved, there is 5 12 a rebuttable presumption that the plaintiff is entitled to, 5 13 and will receive, the compensation specified in the trust 5 14 governance document applicable to the plaintiff's claim at the 5 15 time of trial. The court shall take judicial notice that the 5 16 trust governance document specifies compensation amounts and 5 17 payment percentages and shall establish an attributed value to 5 18 the plaintiff's asbestos trust claims. 5 19 Sec. 7. NEW SECTION. 686A.7 Setoff ==== credit. 5 20 In any asbestos action in which damages are awarded and 5 21 setoffs are permitted under applicable law, a defendant is 5 22 entitled to a setoff or credit in the amount the plaintiff 5 23 has been awarded from an asbestos trust identified in 5 24 section 686A.6, subsection 1, and the amount of the valuation 5 25 established under section 686A.6, subsection 2. If multiple 5 26 defendants are found liable for damages, the court shall 5 27 distribute the amount of setoff or credit proportionally 5 28 between the defendants, according to the liability of each 5 29 defendant. 5 30 Sec. 8. NEW SECTION. 686A.8 Failure to provide information 5 31 ==== sanctions. 5 32 1. On the motion of a defendant or judgment debtor seeking 5 33 sanctions or other relief in an asbestos action, the court 5 34 may impose any sanction provided by court rule or a law of 5 35 this state, including but not limited to vacating a judgment 6 1 rendered in the action, for a plaintiff's failure to comply 6 2 with the disclosure requirements of this chapter. 6 3 2. If the plaintiff or a person on the plaintiff's behalf 6 4 files an asbestos trust claim after the plaintiff obtains a 6 5 judgment in an asbestos action, and that asbestos trust was 6 6 in existence at the time the plaintiff obtained the judgment, 6 7 the trial court, on motion by a defendant or judgment debtor 6 8 seeking sanctions or other relief, has jurisdiction to reopen 6 9 the judgment in the asbestos action and adjust the judgment by 6 10 the amount of any subsequent asbestos trust payments obtained 6 11 by the plaintiff and order any other relief to the parties that 6 12 the court considers just and proper. 6 13 3. A defendant or judgment debtor shall file any motion 6 14 under this section within a reasonable time and not more than 6 15 one year after the judgment was entered. 6 16 Sec. 9. NEW SECTION. 686A.9 Application. 6 17 1. This chapter applies to all asbestos actions filed on or 6 18 after the effective date of this Act. 6 19 2. This chapter applies to all pending asbestos actions in 6 20 which trial has not commenced as of the effective date of this 6 21 Act unless the court finds that the application of a provision 6 22 in this chapter would unconstitutionally affect a vested right. 6 23 In that case, the provision does not apply and the court shall 6 24 apply prior law. 6 25 Sec. 10. NEW SECTION. 686B.1 Title. 6 26 This chapter shall be known and may be cited as the "Asbestos 6 27 and Silica Claims Priorities Act". 6 28 Sec. 11. NEW SECTION. 686B.2 Definitions. 6 29 As used in this chapter, unless the context otherwise 6 30 requires: 6 31 1. "AMA guides" means the American medical association's 6 32 guides to the evaluation of permanent impairment in effect at 6 33 the time of the performance of any examination or test on the 6 34 exposed person required under this chapter. 6 35 2. "Asbestos" means the same as defined in section 686A.2. 7 1 3. "Asbestos action" means the same as defined in section 7 2 686A.2. 7 3 4. "Asbestosis" means bilateral diffuse interstitial 7 4 fibrosis of the lungs caused by inhalation of asbestos fibers. 7 5 5. "Board=certified in internal medicine" means certified 7 6 by the American board of internal medicine or the American 7 7 osteopathic board of internal medicine at the time of the 7 8 performance of an examination and rendition of a report 7 9 required by this chapter. 7 10 6. "Board=certified in occupational medicine" means 7 11 certified in the specialty of occupational medicine by the 7 12 American board of preventive medicine or the specialty of 7 13 occupational/environmental medicine by the American osteopathic 7 14 board of preventive medicine at the time of the performance 7 15 of an examination and rendition of a report required by this 7 16 chapter. 7 17 7. "Board=certified in pathology" means holding primary 7 18 certification in anatomic pathology or clinical pathology from 7 19 the American board of pathology or the American osteopathic 7 20 board of pathology at the time of the performance of an 7 21 examination and rendition of a report required by this chapter, 7 22 and practicing principally in the field of pathology including 7 23 regular evaluation of pathology materials obtained from 7 24 surgical or postmortem specimens. 7 25 8. "Board=certified in pulmonary medicine" means certified in 7 26 the specialty of pulmonary medicine by the American board of 7 27 internal medicine or the American osteopathic board of internal 7 28 medicine at the time of the performance of an examination and 7 29 rendition of a report required by this chapter. 7 30 9. "Certified B=reader" means an individual who has 7 31 qualified as a national institute for occupational safety and 7 32 health final or B=reader of X rays under 42 C.F.R. {37.51(b), 7 33 whose certification was current at the time of any readings 7 34 required under this chapter, and whose B=reads comply with 7 35 the national institute for occupational safety and health 8 1 B=reader's code of ethics, issues in classification of chest 8 2 radiographs, and classification of chest radiographs in 8 3 contested proceedings. 8 4 10. "Exposed person" means a person whose exposure to 8 5 asbestos or silica or to asbestos=containing products or 8 6 silica=containing products is the basis for an asbestos action 8 7 or silica action. 8 8 11. "FEV1" means forced expiratory volume in the first 8 9 second, which is the maximal volume of air expelled in one 8 10 second during the performance of simple spirometric tests. 8 11 12. "FEV1/FVC" means the ratio between the actual values for 8 12 FEV1 over FVC. 8 13 13. "FVC" means forced vital capacity, which is the maximal 8 14 volume of air expired with maximum effort from a position of 8 15 full inspiration. 8 16 14. "ILO system" and "ILO scale" mean the radiological 8 17 ratings and system for the classification of chest X rays of 8 18 the international labour office provided in guidelines for 8 19 the use of ILO international classification of radiographs of 8 20 pneumoconioses in effect on the day any X rays of the exposed 8 21 person were reviewed by a certified B=reader. 8 22 15. "Nonmalignant condition" means any condition that can be 8 23 caused by asbestos or silica other than a diagnosed cancer. 8 24 16. "Official statements of the American thoracic society" 8 25 means lung function testing standards set forth in statements 8 26 from the American thoracic society, including standardizations 8 27 of spirometry, standardizations of lung volume testing, 8 28 standardizations of diffusion capacity testing or single=breath 8 29 determination of carbon monoxide uptake in the lung, and 8 30 interpretive strategies for lung function tests, which are in 8 31 effect on the day of the pulmonary function testing of the 8 32 exposed person. 8 33 17. "Pathological evidence of asbestosis" means a statement 8 34 by a physician who is board=certified in pathology that more 8 35 than one representative section of lung tissue uninvolved 9 1 with any other disease process demonstrates a pattern of 9 2 peribronchiolar or parenchymal scarring in the presence of 9 3 characteristic asbestos bodies graded 1(B) or higher under the 9 4 criteria published in asbestos=associated diseases, 106 Archive 9 5 of Pathology and Laboratory Medicine 11, appendix 3 (October 9 6 8, 1982), or grade one or higher in pathology of asbestosis, 9 7 134 Archive of Pathology and Laboratory Medicine 462=80 (March 9 8 2010) (tables 2 and 3), as amended at the time of the exam, and 9 9 there is no other more likely explanation for the presence of 9 10 the fibrosis. 9 11 18. "Pathological evidence of silicosis" means a statement by 9 12 a physician who is board=certified in pathology that more than 9 13 one representative section of lung tissue uninvolved with any 9 14 other disease process demonstrates complicated silicosis with 9 15 characteristic confluent silicotic nodules or lesions equal 9 16 to or greater than one centimeter and birefringent crystals 9 17 or other demonstration of crystal structures consistent with 9 18 silica, well=organized concentric whorls of collagen surrounded 9 19 by inflammatory cells, in the lung parenchyma and no other 9 20 more likely explanation for the presence of the fibrosis 9 21 exists, or acute silicosis with characteristic pulmonary edema, 9 22 interstitial inflammation, and the accumulation within the 9 23 alveoli of proteinaceous fluid rich in surfactant. 9 24 19. "Plaintiff" means the person bringing an asbestos action 9 25 or silica action, including a personal representative if the 9 26 asbestos action or silica action is brought by an estate, or 9 27 a conservator or next friend if the asbestos action or silica 9 28 action is brought on behalf of a minor or legally incapacitated 9 29 individual. 9 30 20. "Predicted lower limit of normal" means the test 9 31 value that is the calculated standard convention lying at 9 32 the fifth percentile, below the upper ninety=five percent of 9 33 the reference population, based on age, height, and gender, 9 34 according to the recommendations by the American thoracic 9 35 society and as referenced in the applicable AMA guides, 10 1 primarily national health and nutrition examination survey 10 2 predicted values, or as amended. 10 3 21. "Pulmonary function test" means spirometry, lung volume 10 4 testing, and diffusion capacity testing, including appropriate 10 5 measurements, quality control data, and graphs, performed in 10 6 accordance with the methods of calibration and techniques 10 7 provided in the applicable AMA guides and all standards 10 8 provided in the official statements of the American thoracic 10 9 society in effect on the day pulmonary function testing of the 10 10 exposed person was conducted. 10 11 22. "Qualified physician" means a physician who is 10 12 board=certified in internal medicine, board=certified 10 13 in pathology, board=certified in pulmonary medicine, or 10 14 board=certified in occupational medicine, as may be appropriate 10 15 to the actual diagnostic specialty in question, and for whom 10 16 all of the following are true: 10 17 a. The physician conducted a physical examination of 10 18 the exposed person and has taken a detailed occupational, 10 19 exposure, medical, smoking, and social history from the exposed 10 20 person, or if the exposed person is deceased, has reviewed the 10 21 pathology material and has taken a detailed history from the 10 22 person most knowledgeable about the information forming the 10 23 basis of the asbestos action or silica action. 10 24 b. The physician treated or is treating the exposed person, 10 25 and has or had a doctor=patient relationship with the exposed 10 26 person at the time of the physical examination, or in the case 10 27 of a physician who is board=certified in pathology, examined 10 28 tissue samples or pathological slides of the exposed person at 10 29 the request of the treating physician. 10 30 c. The physician spends no more than twenty=five percent of 10 31 the physician's professional practice time providing consulting 10 32 or expert services in actual or potential civil actions, and 10 33 whose medical group, professional corporation, clinic, or other 10 34 affiliated group earns not more than twenty=five percent of its 10 35 revenue providing such services. 11 1 d. The physician was licensed to practice on the date any 11 2 examination or pulmonary function testing was conducted, and 11 3 actively practices or practiced in the state where the exposed 11 4 person resides or resided at the time of the examination or 11 5 pulmonary function testing, or the state where the asbestos 11 6 action or silica action was filed. 11 7 e. The physician received or is receiving payment for the 11 8 treatment of the exposed person from the exposed person, a 11 9 member of the exposed person's family, or the exposed person's 11 10 health care plan and not from the exposed person's attorney. 11 11 f. The physician prepared or directly supervised the 11 12 preparation and final review of any medical report under this 11 13 chapter. 11 14 g. The physician has not relied on any examinations, tests, 11 15 radiographs, reports, or opinions of any physician, clinic, 11 16 laboratory, or testing company that performed an examination, 11 17 test, radiograph, or screening of the exposed person in 11 18 violation of any law, regulation, licensing requirement, or 11 19 medical code of practice of the state in which the examination, 11 20 test, or screening was conducted, or that was conducted without 11 21 establishing a physician=patient relationship with the exposed 11 22 person or medical personnel involved in the examination, test, 11 23 or screening process, or that required the exposed person to 11 24 agree to retain the service of an attorney. 11 25 23. "Radiological evidence of asbestosis" means a quality 1 11 26 chest X ray under the ILO system, or a quality 2 chest X ray 11 27 in a death case when no pathology or quality 1 chest X ray is 11 28 available, showing bilateral small, irregular opacities (s, t, 11 29 or u) occurring primarily in the lower lung zones graded by a 11 30 certified B=reader as at least 1/1 on the ILO scale. 11 31 24. "Radiological evidence of diffuse bilateral pleural 11 32 thickening" means a quality 1 chest X ray under the ILO system, 11 33 or a quality 2 chest X ray in a death case when no pathology or 11 34 quality 1 chest X ray is available, showing diffuse bilateral 11 35 pleural thickening of at least b2 on the ILO scale and blunting 12 1 of at least one costophrenic angle as classified by a certified 12 2 B=reader. 12 3 25. "Radiological evidence of silicosis" means a quality 12 4 1 chest X ray under the ILO system, or a quality 2 chest X 12 5 ray in a death case when no pathology or quality 1 chest X 12 6 ray is available, showing bilateral predominantly nodular 12 7 or rounded opacities (p, q, or r) occurring primarily in 12 8 the upper lung fields graded by a certified B=reader as at 12 9 least 1/1 on the ILO scale or A, B, or C sized opacities 12 10 representing complicated silicosis or acute silicosis with 12 11 characteristic pulmonary edema, interstitial inflammation, and 12 12 the accumulation within the alveoli of proteinaceous fluid rich 12 13 in surfactant. 12 14 26. "Silica" means a respirable crystalline form of silicon 12 15 dioxide, including quartz, cristobalite, and tridymite. 12 16 27. "Silica action" means a claim for damages or other civil 12 17 or equitable relief presented in a civil action arising out 12 18 of, based on, or related to the health effects of exposure to 12 19 silica, including loss of consortium, wrongful death, mental 12 20 or emotional injury, risk or fear of disease or other injury, 12 21 costs of medical monitoring or surveillance, and any other 12 22 derivative claim made by or on behalf of a person exposed to 12 23 silica or a representative, spouse, parent, child, or other 12 24 relative of that person. 12 25 28. "Silicosis" means simple silicosis, acute silicosis, 12 26 accelerated silicosis, or chronic silicosis caused by the 12 27 inhalation of respirable silica. 12 28 29. "Supporting test results" means copies of the B=reading; 12 29 pulmonary function tests, including printouts of the flow 12 30 volume loops, volume time curves, diffusing capacity of the 12 31 lung for carbon monoxide graphs, lung volume tests and graphs, 12 32 quality control data and other pertinent data for all trials 12 33 and all other elements required to demonstrate compliance with 12 34 the equipment, quality, interpretation, and reporting standards 12 35 set forth in this chapter; B=reader reports; reports of X 13 1 ray examinations; diagnostic imaging of the chest; pathology 13 2 reports; and all other tests reviewed by the diagnosing 13 3 physician or a qualified physician in reaching the physician's 13 4 conclusions. 13 5 Sec. 12. NEW SECTION. 686B.3 Filing claims ==== establishment 13 6 of prima facie case ==== individual actions to be filed. 13 7 1. A plaintiff in an asbestos action involving a 13 8 nonmalignant condition or a silica action involving silicosis 13 9 shall file with the complaint or other initial pleading a 13 10 detailed narrative medical report and diagnosis, signed under 13 11 oath by a qualified physician and accompanied by supporting 13 12 test results, which constitute prima facie evidence that the 13 13 exposed person meets the requirements of this chapter. The 13 14 report shall not be prepared by an attorney or person working 13 15 for or on behalf of an attorney. 13 16 2. A plaintiff shall include with the detailed narrative 13 17 medical report a sworn information form containing all of the 13 18 following: 13 19 a. The name, address, date of birth, social security 13 20 number, marital status, occupation, and employer of the exposed 13 21 person, and any person through whom the exposed person alleges 13 22 exposure. 13 23 b. The plaintiff's relationship to the exposed person or 13 24 person through whom the exposure is alleged. 13 25 c. The specific location and manner of each alleged 13 26 exposure, including the specific location and manner of 13 27 exposure for any person through whom the exposed person alleges 13 28 exposure. 13 29 d. The beginning and ending dates of each alleged exposure. 13 30 e. The identity of the manufacturer of the specific asbestos 13 31 or silica product for each exposure. 13 32 f. The identity of the defendant or defendants against whom 13 33 the plaintiff asserts a claim. 13 34 g. The specific asbestos=related or silica=related disease 13 35 claimed to exist. 14 1 h. Any supporting documentation relating to the information 14 2 required under this subsection. 14 3 3. For an asbestos action or silica action pending as of 14 4 the effective date of this Act, the detailed narrative medical 14 5 report and supporting test results and sworn information form 14 6 described in subsections 1 and 2 shall be provided to all 14 7 parties not later than ninety days after the effective date of 14 8 this Act or not later than ninety days before trial, whichever 14 9 is earlier. 14 10 4. A defendant shall be afforded a reasonable opportunity 14 11 to challenge the adequacy of the prima facie evidence before 14 12 trial. 14 13 5. The court shall dismiss the asbestos action or silica 14 14 action without prejudice on finding that the plaintiff has 14 15 failed to make the prima facie showing required by this chapter 14 16 or failed to comply with the requirements of this section. 14 17 6. An asbestos action or silica action must be individually 14 18 filed and shall not be filed on behalf of a group or class of 14 19 plaintiffs. 14 20 Sec. 13. NEW SECTION. 686B.4 Asbestos claims involving 14 21 nonmalignant conditions ==== elements of proof. 14 22 An asbestos action involving a nonmalignant condition shall 14 23 not be brought or maintained in the absence of prima facie 14 24 evidence that the exposed person has a physical impairment for 14 25 which asbestos exposure was a substantial contributing factor. 14 26 The prima facie showing shall be made as to each defendant 14 27 and include a detailed narrative medical report and diagnosis 14 28 signed under oath by a qualified physician that includes all 14 29 of the following: 14 30 1. Radiological or pathological evidence of asbestosis or 14 31 radiological evidence of diffuse bilateral pleural thickening 14 32 or a high=resolution computed tomography scan showing evidence 14 33 of asbestosis or diffuse bilateral pleural thickening. 14 34 2. A detailed occupational and exposure history from 14 35 the exposed person or, if that person is deceased, from the 15 1 person most knowledgeable about the exposures that form the 15 2 basis of the action, including identification of all of the 15 3 exposed person's principal places of employment and exposures 15 4 to airborne contaminants and whether each place of employment 15 5 involved exposures to airborne contaminants, including asbestos 15 6 fibers or other disease=causing dusts or fumes, that may cause 15 7 pulmonary impairment and the nature, duration, and level of any 15 8 exposure. 15 9 3. A detailed medical, social, and smoking history from the 15 10 exposed person or, if that person is deceased, from the person 15 11 most knowledgeable, including a thorough review of the past and 15 12 present medical problems of the exposed person and the most 15 13 probable cause of such medical problems. 15 14 4. Evidence verifying that at least fifteen years have 15 15 elapsed between the exposed person's date of first exposure to 15 16 asbestos and the date of diagnosis. 15 17 5. Evidence based upon a personal medical examination 15 18 and pulmonary function testing of the exposed person or, 15 19 if the exposed person is deceased, based upon the person's 15 20 medical records, that the exposed person has or the deceased 15 21 person had a permanent respiratory impairment rating of at 15 22 least class 2 as defined by and evaluated pursuant to the 15 23 AMA guides or reported significant changes year to year in 15 24 lung function for FVC, FEV1, or diffusing capacity of the 15 25 lung for carbon monoxide as defined by the American thoracic 15 26 society's interpretative strategies for lung function tests, 26 15 27 European Respiratory Journal 948=68, 961=62, table 12 (2005), 15 28 as updated. 15 29 6. Evidence that asbestosis or diffuse bilateral pleural 15 30 thickening, rather than chronic obstructive pulmonary disease, 15 31 is a substantial contributing factor to the exposed person's 15 32 physical impairment, based on a determination that the exposed 15 33 person has any of the following: 15 34 a. FVC below the predicted lower limit of normal and 15 35 FEV1/FVC ratio, using actual values, at or above the predicted 16 1 lower limit of normal. 16 2 b. Total lung capacity, by plethysmography or timed gas 16 3 dilution, below the predicted lower limit of normal. 16 4 c. A chest X ray showing bilateral small, irregular 16 5 opacities (s, t, or u) graded by a certified B=reader as at 16 6 least 2/1 on the ILO scale. 16 7 7. The qualified physician signing the detailed narrative 16 8 medical report has concluded that exposure to asbestos was 16 9 a substantial contributing factor to the exposed person's 16 10 physical impairment and not more probably the result of other 16 11 causes. An opinion that the medical findings and impairment 16 12 are consistent with or compatible with exposure to asbestos, 16 13 or similar opinion, does not satisfy the requirements of this 16 14 subsection. 16 15 Sec. 14. NEW SECTION. 686B.5 Silica claims involving 16 16 silicosis ==== elements of proof. 16 17 A silica action involving silicosis shall not be brought 16 18 or maintained in the absence of prima facie evidence that the 16 19 exposed person has a physical impairment for which exposure 16 20 to silica was a substantial contributing factor. The prima 16 21 facie showing shall be made as to each defendant and include 16 22 a detailed narrative medical report and diagnosis signed 16 23 under oath by a qualified physician that includes all of the 16 24 following: 16 25 1. Radiological or pathological evidence of silicosis or a 16 26 high=resolution computed tomography scan showing evidence of 16 27 silicosis. 16 28 2. A detailed occupational and exposure history from the 16 29 exposed person or, if that person is deceased, from the person 16 30 most knowledgeable about the exposures that form the basis of 16 31 the action, including identification of all principal places 16 32 of employment and exposures to airborne contaminants and 16 33 whether each place of employment involved exposures to airborne 16 34 contaminants, including silica or other disease=causing dusts 16 35 or fumes, that may cause pulmonary impairment and the nature, 17 1 duration, and level of any exposure. 17 2 3. A detailed medical, social, and smoking history from the 17 3 exposed person or, if that person is deceased, from the person 17 4 most knowledgeable, including a thorough review of the past and 17 5 present medical problems of the exposed person and the most 17 6 probable cause of such medical problems. 17 7 4. Evidence that a sufficient latency period has elapsed 17 8 between the exposed person's date of first exposure to silica 17 9 and the day of diagnosis. 17 10 5. Evidence based upon a personal medical examination 17 11 and pulmonary function testing of the exposed person or, 17 12 if the exposed person is deceased, based upon the person's 17 13 medical records, that the exposed person has or the deceased 17 14 person had a permanent respiratory impairment rating of at 17 15 least class 2 as defined by and evaluated pursuant to the 17 16 AMA guides or reported significant changes year to year in 17 17 lung function for FVC, FEV1, or diffusing capacity of the 17 18 lung for carbon monoxide as defined by the American thoracic 17 19 society's interpretative strategies for lung function tests, 26 17 20 European Respiratory Journal 948=68, 961=62, table 12 (2005), 17 21 as updated. 17 22 6. The qualified physician signing the detailed narrative 17 23 medical report has concluded that exposure to silica was 17 24 a substantial contributing factor to the exposed person's 17 25 physical impairment and not more probably the result of other 17 26 causes. An opinion stating that the medical findings and 17 27 impairment are consistent with or compatible with exposure to 17 28 silica, or similar opinion, does not satisfy the requirements 17 29 of this subsection. 17 30 Sec. 15. NEW SECTION. 686B.6 Evidence of physical 17 31 impairment. 17 32 Evidence relating to physical impairment, including 17 33 pulmonary function testing and diffusing studies, offered in 17 34 an action governed by this chapter, must satisfy all of the 17 35 following requirements: 18 1 1. The evidence must comply with the quality controls, 18 2 equipment requirements, methods of calibration, and techniques 18 3 set forth in the AMA guides and all standards set forth in the 18 4 official statements of the American thoracic society which are 18 5 in effect on the date of any examination or pulmonary function 18 6 testing of the exposed person required by this chapter. 18 7 2. The evidence must not be obtained by or based on testing 18 8 or examinations that violate any law, regulation, licensing 18 9 requirement, or medical code of practice of the state in which 18 10 the examination, test, or screening was conducted, or of this 18 11 state. 18 12 3. The evidence must not be obtained under the condition 18 13 that the plaintiff or exposed person retains the legal services 18 14 of the attorney sponsoring the examination, test, or screening. 18 15 Sec. 16. NEW SECTION. 686B.7 Procedures ==== limitation. 18 16 1. Evidence relating to the prima facie showings required 18 17 under this chapter shall not create any presumption that the 18 18 exposed person has an asbestos=related or silica=related injury 18 19 or impairment, and shall not be conclusive as to the liability 18 20 of any defendant. 18 21 2. No evidence shall be offered at trial, and the jury shall 18 22 not be informed, of any of the following: 18 23 a. The grant or denial of a motion to dismiss an asbestos 18 24 action or silica action under the provisions of this chapter. 18 25 b. The provisions of this chapter with respect to what 18 26 constitutes a prima facie showing of asbestos=related 18 27 impairment or silica=related impairment. 18 28 3. Until a court enters an order determining that the 18 29 exposed person has established prima facie evidence of 18 30 impairment, an asbestos action or silica action shall not be 18 31 subject to discovery, except discovery related to establishing 18 32 or challenging the prima facie evidence or by order of the 18 33 trial court upon motion of one of the parties and for good 18 34 cause shown. 18 35 4. a. A court may consolidate for trial any number and 19 1 type of asbestos actions or silica actions with the consent of 19 2 all the parties. In the absence of such consent, the court may 19 3 consolidate for trial only asbestos actions or silica actions 19 4 relating to the exposed person and members of that person's 19 5 household. 19 6 b. This subsection does not preclude the consolidation of 19 7 cases by court order for pretrial or discovery purposes. 19 8 5. A defendant in an asbestos action or silica action shall 19 9 not be liable for exposures from a product or component part 19 10 made or sold by a third party. 19 11 Sec. 17. NEW SECTION. 686B.8 Statute of limitations ==== 19 12 two=disease rule. 19 13 1. With respect to an asbestos action or silica action not 19 14 barred by limitations as of the effective date of this Act, an 19 15 exposed person's cause of action shall not accrue, nor shall 19 16 the running of limitations commence, prior to the earliest of 19 17 the following: 19 18 a. The exposed person received a medical diagnosis of an 19 19 asbestos=related impairment or silica=related impairment. 19 20 b. The exposed person discovered facts that would have 19 21 led a reasonable person to obtain a medical diagnosis with 19 22 respect to the existence of an asbestos=related impairment or 19 23 silica=related impairment. 19 24 c. The date of death of the exposed person having an 19 25 asbestos=related impairment or silica=related impairment. 19 26 2. This section shall not be construed to revive or extend 19 27 limitations with respect to any claim for asbestos=related 19 28 impairment or silica=related impairment that was otherwise 19 29 time=barred as of the effective date of this Act. 19 30 3. An asbestos action or silica action arising out of a 19 31 nonmalignant condition shall be a distinct cause of action from 19 32 an action for an asbestos=related cancer or silica=related 19 33 cancer. Where otherwise permitted under state law, no damages 19 34 shall be awarded for fear or increased risk of future disease 19 35 in an asbestos action or silica action. 20 1 Sec. 18. NEW SECTION. 686B.9 Application. 20 2 1. This chapter applies to all asbestos actions and silica 20 3 actions filed on or after the effective date of this Act. 20 4 2. This chapter applies to all pending asbestos actions 20 5 and silica actions in which trial has not commenced as 20 6 of the effective date of this Act unless the court finds 20 7 that the application of a provision in this chapter would 20 8 unconstitutionally affect a vested right. In that case, the 20 9 provision does not apply and the court shall apply prior law. 20 10 Sec. 19. NEW SECTION. 686C.1 Title. 20 11 This chapter shall be known and may be cited as the 20 12 "Successor Corporation Asbestos=Related Liability Fairness Act". 20 13 Sec. 20. NEW SECTION. 686C.2 Definitions. 20 14 As used in this chapter, unless the context otherwise 20 15 requires: 20 16 1. "Asbestos action" means the same as defined in section 20 17 686A.2, but also includes any claim for damage or loss caused 20 18 by the installation, presence, or removal of asbestos. 20 19 2. "Corporation" means any corporation established under 20 20 either domestic or foreign charter and includes a corporate 20 21 subsidiary and any business entity in which a corporation 20 22 participates or is a stockholder, a partner, or a joint 20 23 venture. 20 24 3. "Successor" means a corporation that assumes or incurs or 20 25 has assumed or incurred successor asbestos=related liabilities 20 26 through operation of law, including but not limited to a 20 27 merger or consolidation or plan of merger or consolidation 20 28 related to such consolidation or merger or by appointment as 20 29 an administrator or as a trustee in bankruptcy, debtor in 20 30 possession, liquidation, or receivership and that became a 20 31 successor before January 1, 1972. "Successor" includes any of 20 32 that successor corporation's successors. 20 33 4. "Successor asbestos=related liability" means any 20 34 liabilities, whether known or unknown, asserted or unasserted, 20 35 absolute or contingent, accrued or unaccrued, liquidated or 21 1 unliquidated, or due or to become due, which are related in 21 2 any way to an asbestos action and were assumed or incurred by 21 3 a corporation as a result of or in connection with a merger 21 4 or consolidation, or the plan of merger or consolidation 21 5 related to the merger or consolidation with or into another 21 6 corporation, or that are related in any way to an asbestos 21 7 action based on the exercise of control or the ownership of 21 8 stock of the corporation before the merger or consolidation. 21 9 "Successor asbestos=related liability" includes liabilities 21 10 that, after the time of the merger or consolidation for which 21 11 the fair market value of total gross assets is determined under 21 12 section 686C.4, were or are paid or otherwise discharged, or 21 13 committed to be paid or otherwise discharged, by or on behalf 21 14 of the corporation, or by a successor of the corporation, or by 21 15 or on behalf of a transferor, in connection with settlements, 21 16 judgments, or other discharges in this state or another 21 17 jurisdiction. 21 18 5. "Transferor" means a corporation from which successor 21 19 asbestos=related liabilities are or were assumed or incurred. 21 20 Sec. 21. NEW SECTION. 686C.3 Limitations on successor 21 21 asbestos=related liabilities. 21 22 1. Except as provided in subsection 2, the cumulative 21 23 successor asbestos=related liabilities of a successor are 21 24 limited to the fair market value of the total gross assets 21 25 of the transferor determined as of the time of the merger 21 26 or consolidation. A successor shall not have responsibility 21 27 for successor asbestos=related liabilities in excess of this 21 28 limitation. 21 29 2. If the transferor had assumed or incurred successor 21 30 asbestos=related liabilities in connection with a prior 21 31 merger or consolidation with a prior transferor, then the 21 32 fair market value of the total gross assets of the prior 21 33 transferor determined as of the time of the earlier merger or 21 34 consolidation shall be substituted for the limitation set forth 21 35 in subsection 1 for purposes of determining the limitation of 22 1 liability of a successor. 22 2 3. The limitations in this section shall apply to any 22 3 successor but shall not apply to any of the following: 22 4 a. Workers' compensation benefits paid by or on behalf of 22 5 an employer to an employee under the provisions of chapter 85 22 6 or 85A, or a comparable workers' compensation law of another 22 7 jurisdiction. 22 8 b. Any claim against a corporation that does not constitute 22 9 a successor asbestos=related liability. 22 10 c. Any obligation under the federal National Labor 22 11 Relations Act, 29 U.S.C. {151 et seq., as amended, or under any 22 12 collective bargaining agreement. 22 13 d. A successor that, after a merger or consolidation, 22 14 continued in the business of mining asbestos or in the 22 15 business of selling or distributing asbestos fibers or 22 16 in the business of manufacturing, distributing, removing, 22 17 or installing asbestos=containing products which were the 22 18 same or substantially the same as those products previously 22 19 manufactured, distributed, removed, or installed by the 22 20 transferor. 22 21 Sec. 22. NEW SECTION. 686C.4 Establishing fair market value 22 22 of total gross assets. 22 23 1. A successor may establish the fair market value of 22 24 total gross assets, which include intangible assets, for the 22 25 purpose of the limitations under section 686C.3, through any 22 26 method reasonable under the circumstances, including any of the 22 27 following: 22 28 a. By reference to the going concern value of the assets or 22 29 to the purchase price attributable to or paid for the assets 22 30 in an arms=length transaction. 22 31 b. In the absence of other readily available information 22 32 from which the fair market value can be determined, by 22 33 reference to the value of the assets recorded on a balance 22 34 sheet. 22 35 2. To the extent total gross assets include any liability 23 1 insurance that was issued to the transferor whose assets are 23 2 being valued for purposes of this section, the applicability, 23 3 terms, conditions, and limits of such insurance shall not be 23 4 affected by this chapter, nor shall this chapter otherwise 23 5 affect the rights and obligations of an insurer, transferor, 23 6 or successor under any insurance contract or any related 23 7 agreement, including, without limitation, preenactment 23 8 settlements resolving coverage=related disputes, and the rights 23 9 of an insurer to seek payment for applicable deductibles, 23 10 retrospective premiums, or self=insured retentions or to seek 23 11 contribution from a successor for uninsured or self=insured 23 12 periods or periods where insurance is uncollectible or 23 13 otherwise unavailable. Without limiting the foregoing, to the 23 14 extent total gross assets include any such liability insurance, 23 15 a settlement of a dispute concerning any such liability 23 16 insurance coverage entered into by a transferor or successor 23 17 with the insurers of the transferor before the effective date 23 18 of this Act shall be determinative of the total coverage of 23 19 such liability insurance to be included in the calculation of 23 20 the transferor's total gross assets. 23 21 Sec. 23. NEW SECTION. 686C.5 Adjustment. 23 22 1. Except as provided in subsections 2, 3, and 4, the fair 23 23 market value of total gross assets at the time of a merger or 23 24 consolidation shall increase annually at a rate equal to the 23 25 sum of the prime rate as listed in the first edition of the 23 26 Wall street journal published for each calendar year since the 23 27 merger or consolidation, unless the prime rate is not published 23 28 in that edition of the Wall street journal, in which case any 23 29 reasonable determination of the prime rate on the first day of 23 30 the year may be used, plus one percent. 23 31 2. The rate determined under subsection 1 shall not be 23 32 compounded. 23 33 3. The adjustment of the fair market value of total 23 34 gross assets shall continue as provided in subsection 1 23 35 until the date the adjusted value is first exceeded by the 24 1 cumulative amounts of successor asbestos=related liabilities 24 2 paid or committed to be paid by or on behalf of the successor 24 3 corporation or a predecessor or by or on behalf of a transferor 24 4 after the time of the merger or consolidation for which the 24 5 fair market value of total gross assets is determined. 24 6 4. No adjustment of the fair market value of total gross 24 7 assets shall be applied to any liability insurance that may be 24 8 included in the total gross assets pursuant to section 686C.4, 24 9 subsection 2. 24 10 Sec. 24. NEW SECTION. 686C.6 Scope of chapter ==== 24 11 application. 24 12 1. This chapter shall be liberally construed with regard to 24 13 successors. 24 14 2. This chapter applies to all asbestos claims filed against 24 15 a successor on or after the effective date of this Act. 24 16 3. This chapter applies to all pending asbestos actions in 24 17 which trial has not commenced as of the effective date of this 24 18 Act unless the court finds that the application of a provision 24 19 in this chapter would unconstitutionally affect a vested right. 24 20 In that case, the provision does not apply and the court shall 24 21 apply prior law. 24 22 EXPLANATION 24 23 The inclusion of this explanation does not constitute agreement with 24 24 the explanation's substance by the members of the general assembly. 24 25 This bill relates to disclosure of asbestos bankruptcy trust 24 26 claims in civil asbestos actions, asbestos and silica claims 24 27 prioritization, and successor corporation asbestos=related 24 28 liability, and includes applicability provisions. 24 29 ASBESTOS BANKRUPTCY TRUST CLAIMS. The bill enacts new 24 30 Code chapter 686A, which requires a plaintiff in an asbestos 24 31 action to disclose documents and information related to claims 24 32 against an asbestos trust to a defendant within the later of 30 24 33 days of filing an asbestos action or 30 days of the effective 24 34 date of the bill. If the plaintiff fails to comply with these 24 35 requirements, the court may dismiss the action. 25 1 The bill provides that a defendant may file a motion 25 2 requesting a stay of the proceedings on or before the later 25 3 of the 60th day before the date trial in the action is set to 25 4 commence or the 15th day after the defendant first obtains 25 5 information that could support additional trust claims by the 25 6 plaintiff. The motion shall identify the asbestos trust claims 25 7 the defendant believes the plaintiff can file and include 25 8 information supporting the asbestos trust claims. 25 9 The bill provides that trust claims materials and trust 25 10 governance documents are presumed to be relevant and authentic, 25 11 and are admissible in evidence in an asbestos action. A claim 25 12 of privilege does not apply to any trust claims materials or 25 13 trust governance documents. The bill provides that trust 25 14 claim materials that are sufficient to entitle a claim to 25 15 consideration for payment under the applicable trust governance 25 16 documents may be sufficient to support a jury finding that 25 17 the plaintiff may have been exposed to products for which the 25 18 trust was established to provide compensation and that, under 25 19 applicable law, such exposure may be a substantial contributing 25 20 factor in causing the plaintiff's injury that is at issue in 25 21 the asbestos action. 25 22 If a plaintiff proceeds to trial in an asbestos action before 25 23 an asbestos trust claim is resolved, there is a rebuttable 25 24 presumption that the plaintiff is entitled to, and will 25 25 receive, the compensation specified in the trust governance 25 26 document applicable to the plaintiff's claim at the time of 25 27 trial. 25 28 In any asbestos action in which damages are awarded and 25 29 setoffs are permitted, a defendant is entitled to a setoff or 25 30 credit in the amount the plaintiff has been awarded from an 25 31 asbestos trust. 25 32 The bill provides that if the plaintiff or a person on 25 33 the plaintiff's behalf files an asbestos trust claim after 25 34 the plaintiff obtains a judgment in an asbestos action, 25 35 and that asbestos trust was in existence at the time the 26 1 plaintiff obtained the judgment, the trial court, on motion 26 2 by a defendant or judgment debtor seeking sanctions or other 26 3 relief, has jurisdiction to reopen the judgment and adjust 26 4 the judgment by the amount of any subsequent asbestos trust 26 5 payments obtained by the plaintiff and order any other relief 26 6 to the parties that the court considers just and proper. 26 7 The bill applies to all asbestos actions filed on or after 26 8 the effective date of the bill, and to all pending asbestos 26 9 actions in which trial has not commenced as of the effective 26 10 date of the bill unless the court finds that the application 26 11 of a provision of the bill would unconstitutionally affect a 26 12 vested right. In that case, the provision does not apply and 26 13 the court shall apply prior law. 26 14 ASBESTOS AND SILICA CLAIMS PRIORITIZATION. The bill enacts 26 15 new Code chapter 686B, which provides that a plaintiff in an 26 16 asbestos action involving a nonmalignant condition or a silica 26 17 action involving silicosis shall file with the complaint or 26 18 other initial pleading a detailed narrative medical report 26 19 and diagnosis, signed under oath by a qualified physician and 26 20 accompanied by supporting test results, which constitute prima 26 21 facie evidence that the exposed person meets the requirements 26 22 of the bill. The report must not be prepared by an attorney. 26 23 For an asbestos or silica action pending as of the effective 26 24 date of the bill, the detailed narrative medical report and 26 25 supporting test results and sworn information shall be provided 26 26 to all parties not later than 90 days after the effective date 26 27 of the bill or not later than 90 days before trial, whichever 26 28 is earlier. The court shall dismiss the asbestos or silica 26 29 action without prejudice on finding that the plaintiff has 26 30 failed to make the prima facie showing required by the bill or 26 31 failed to comply with the requirements of the bill. The bill 26 32 provides that asbestos and silica actions must be individually 26 33 filed and may not be filed on behalf of a group or class of 26 34 plaintiffs. 26 35 The bill provides that an asbestos action involving a 27 1 nonmalignant condition or a silica action involving silicosis 27 2 shall not be brought or maintained in the absence of prima 27 3 facie evidence that the exposed person has a physical 27 4 impairment for which exposure to asbestos or silica was a 27 5 substantial contributing factor. The prima facie showing shall 27 6 be made as to each defendant and include a detailed narrative 27 7 medical report and diagnosis signed under oath by a qualified 27 8 physician that includes certain specified information. The 27 9 bill requires the qualified physician signing the detailed 27 10 narrative medical report to conclude that exposure to asbestos 27 11 or silica was a substantial contributing factor to the exposed 27 12 person's physical impairment and not more probably the result 27 13 of other causes. An opinion that the medical findings and 27 14 impairment are consistent with or compatible with exposure to 27 15 asbestos or silica does not satisfy the requirements of the 27 16 bill. 27 17 The bill provides that evidence relating to the prima 27 18 facie showings required under the bill shall not create any 27 19 presumption that the exposed person has an asbestos=related 27 20 or silica=related injury or impairment, and shall not be 27 21 conclusive as to the liability of any defendant. Until a 27 22 court enters an order determining that the exposed person has 27 23 established prima facie evidence of impairment, no asbestos or 27 24 silica action shall be subject to discovery, except discovery 27 25 related to establishing or challenging the prima facie evidence 27 26 or by order of the trial court upon motion of one of the parties 27 27 and for good cause shown. 27 28 An asbestos or silica action arising out of a nonmalignant 27 29 condition shall be a distinct cause of action from an action 27 30 for an asbestos=related or silica=related cancer. 27 31 The bill applies to all asbestos and silica actions 27 32 filed on or after the effective date of the bill, and to all 27 33 pending asbestos and silica actions in which trial has not 27 34 commenced as of the effective date of the bill unless the court 27 35 finds that the application of a provision in the bill would 28 1 unconstitutionally affect a vested right. In that case, the 28 2 provision does not apply and the court shall apply prior law. 28 3 SUCCESSOR CORPORATION ASBESTOS=RELATED LIABILITY. The 28 4 bill enacts new Code chapter 686C, which limits liability 28 5 related to asbestos actions which were assumed or incurred by a 28 6 corporation as the result of a merger or consolidation. The 28 7 bill provides that the cumulative successor asbestos=related 28 8 liabilities of a successor corporation are limited to the 28 9 fair market value of the total gross assets of the transferor 28 10 determined as of the time of the merger or consolidation. 28 11 The fair market value of the total gross assets may be 28 12 determined by any method reasonable under the circumstances, 28 13 including by reference to the going concern value of the assets 28 14 or to the purchase price attributable to or paid for the assets 28 15 in an arms=length transaction, or, in the absence of other 28 16 readily available information from which the fair market value 28 17 can be determined, by reference to the value of the assets 28 18 recorded on a balance sheet. 28 19 The bill provides that the fair market value of total gross 28 20 assets shall increase annually at a rate equal to the sum of 28 21 the prime rate plus 1 percent. 28 22 The bill is to be liberally construed with regard to 28 23 successor corporations. 28 24 The bill applies to all asbestos and silica actions 28 25 filed on or after the effective date of the bill, and to all 28 26 pending asbestos and silica actions in which trial has not 28 27 commenced as of the effective date of the bill unless the court 28 28 finds that the application of a provision in the bill would 28 29 unconstitutionally affect a vested right. In that case, the 28 30 provision does not apply and the court shall apply prior law. LSB 1990HV (1) 87 jh/nh
