Bill Text: TX HB2545 | 2013-2014 | 83rd Legislature | Introduced

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Bill Title: Relating to settlement credits in asbestos and silica cases.

Sponsorship: Partisan Bill (Republican 1)

Status: (Introduced - Dead) 2013-03-14 - Referred to Judiciary & Civil Jurisprudence [HB2545 Detail]

Download: Texas-2013-HB2545-Introduced.html

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By: Miller of Comal H.B. No. 2545

A BILL TO BE ENTITLED
AN ACT
relating to settlement credits in asbestos and silica cases.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 90.001, Civil Practice and Remedies
Code, is amended to read as follows:
Sec. 90.001. DEFINITIONS. In this chapter:
(1) "Asbestos" means chrysotile, amosite,
crocidolite, tremolite asbestos, anthophyllite asbestos,
actinolite asbestos, and any of these minerals that have been
chemically treated or altered.
(2) "Asbestos-related injury" means personal injury
or death allegedly caused, in whole or in part, by inhalation or
ingestion of asbestos.
(3) "Asbestos tort action" means a tort action based
on an allegation that the claimant is has an asbestos-related
injury.
(4) "Asbestos trust" means and encompasses all trust
entities, claims agents, or claims processing facilities that are
created pursuant to the jurisdiction of a United States bankruptcy
court and section 524(g) of Chapter 11 of the United States
Bankruptcy Code, 11 U.S.C. 524(g), or other applicable provision of
law, that are formed for the purpose of compensating claimants
asserting eligible asbestos claims, and that are in existence on
the date initially set for trial in the asbestos tort action.
(5) "Asbestos trust claim" means any claim for
compensation by an exposed person or the exposed person's
representative against any asbestos trust.
(6) "Asbestosis" means bilateral diffuse interstitial
fibrosis of the lungs caused by inhalation of asbestos fibers.
(7) "Cancer" means a malignant condition.
(8) [(4)] "Certified B-reader" means a person who has
successfully completed the x-ray interpretation course sponsored
by the National Institute for Occupational Safety and Health
(NIOSH) and passed the B-reader certification examination for x-ray
interpretation and whose NIOSH certification is current at the time
of any readings required by this chapter.
(9) [(5)] "Chest x-ray" means chest films that are
taken in accordance with all applicable state and federal
regulatory standards and in the posterior-anterior view.
(10) [(6)] "Claimant" means an exposed person and any
person who is seeking recovery of damages for or arising from the
injury or death of an exposed person.
(11) [(7)] "Defendant" means a person against whom a
claim arising from an asbestos-related injury or a silica-related
injury is made.
(12) [(8)] "Exposed person" means a person who is
alleged to have suffered an asbestos-related injury or a
silica-related injury.
(13) [(9)] "FEV1" means forced expiratory volume in
the first second, which is the maximal volume of air expelled in one
second during performance of simple spirometric tests.
(14) [(10)] "FVC" means forced vital capacity, which
is the maximal volume of air expired with maximum effort from a
position of full inspiration.
(15) [(11)] "ILO system of classification" means the
radiological rating system of the International Labor Office in
"Guidelines for the Use of ILO International Classification of
Radiographs of Pneumoconioses" (2000), as amended.
(16) [(12)] "MDL pretrial court" means the district
court to which related cases are transferred for consolidated or
coordinated pretrial proceedings under Rule 13, Texas Rules of
Judicial Administration.
(17) [(13)] "MDL rules" means the rules adopted by the
supreme court under Subchapter H, Chapter 74, Government Code.
(18) [(14)] "Mesothelioma" means a rare form of cancer
allegedly caused in some instances by exposure to asbestos in which
the cancer invades cells in the membrane lining:
(A) the lungs and chest cavity (the pleural
region);
(B) the abdominal cavity (the peritoneal
region); or
(C) the heart (the pericardial region).
(19) "Noncancer" means a nonmalignant condition.
(20) [(15)] "Nonmalignant asbestos-related injury"
means an asbestos-related injury other than mesothelioma or other
cancer.
(21) [(16)] "Nonmalignant silica-related injury"
means a silica-related injury other than cancer.
(22) [(17)] "Physician board certified in internal
medicine" means a physician who is certified by the American Board
of Internal Medicine or the American Osteopathic Board of Internal
Medicine.
(23) [(18)] "Physician board certified in
occupational medicine" means a physician who is certified in the
subspecialty of occupational medicine by the American Board of
Preventive Medicine or the American Osteopathic Board of Preventive
Medicine.
(24) [(19)] "Physician board certified in oncology"
means a physician who is certified in the subspecialty of medical
oncology by the American Board of Internal Medicine or the American
Osteopathic Board of Internal Medicine.
(25) [(20)] "Physician board certified in pathology"
means a physician who holds primary certification in anatomic
pathology or clinical pathology from the American Board of
Pathology or the American Osteopathic Board of Internal Medicine
and whose professional practice:
(A) is principally in the field of pathology; and
(B) involves regular evaluation of pathology
materials obtained from surgical or postmortem specimens.
(26) [(21)] "Physician board certified in pulmonary
medicine" means a physician who is certified in the subspecialty of
pulmonary medicine by the American Board of Internal Medicine or
the American Osteopathic Board of Internal Medicine.
(27) [(22)] "Plethysmography" means the test for
determining lung volume, also known as "body plethysmography," in
which the subject of the test is enclosed in a chamber that is
equipped to measure pressure, flow, or volume change.
(28) "Proof of claim" means any form of documentation
that a potential claimant against an asbestos trust submits or
provides to the asbestos trust that attests to or asserts the
existence of any liquidated or unliquidated asbestos claim that the
claimant may have against the asbestos trust or its predecessors
under any theory of law.
(29) [(23)] "Pulmonary function testing" means
spirometry, lung volume, and diffusion capacity testing performed
in accordance with Section 90.002 using equipment, methods of
calibration, and techniques that meet:
(A) the criteria incorporated in the American
Medical Association Guides to the Evaluation of Permanent
Impairment and reported in 20 C.F.R. Part 404, Subpart P, Appendix
1, Part (A), Sections 3.00(E) and (F)(2003); and
(B) the interpretative standards in the Official
Statement of the American Thoracic Society entitled "Lung Function
Testing: Selection of Reference Values and Interpretative
Strategies," as published in 144 American Review of Respiratory
Disease 1202-1218 (1991).
(30) [(24)] "Report" means a report required by
Section 90.003, 90.004, or 90.010(f)(1).
(31) [(25)] "Respirable," with respect to silica,
means particles that are less than 10 microns in diameter.
(32) [(26)] "Serve" means to serve notice on a party
in compliance with Rule 21a, Texas Rules of Civil Procedure.
(33) [(27)] "Silica" means a respirable form of
crystalline silicon dioxide, including alpha quartz, cristobalite,
and tridymite.
(34) [(28)] "Silica-related injury" means personal
injury or death allegedly caused, in whole or in part, by inhalation
of silica.
(35) [(29)] "Silicosis" means interstitial fibrosis
of the lungs caused by inhalation of silica, including:
(A) acute silicosis, which may occur after
exposure to very high levels of silica within a period of months to
five years after the initial exposure;
(B) accelerated silicosis; and
(C) chronic silicosis.
(36) "Trust claims material" means documents
constituting an asbestos trust claim, including, but not limited
to, claim forms, proofs of claim, and informational material
required by an asbestos trust to be submitted by a claimant in order
to have the claim evaluated by the asbestos trust and relied upon by
the asbestos trust in making its compensation determination.
SECTION 2. Section 90.010, Civil Practice and Remedies
Code, is amended to read as follows:
Sec. 90.010. MULTIDISTRICT LITIGATION PROCEEDINGS. (a) The
MDL rules apply to any action pending on the date this chapter
becomes law in which the claimant alleges personal injury or death
from exposure to asbestos or silica unless:
(1) the action was filed before September 1, 2003, and
trial has commenced or is set to commence on or before the 90th day
after the date this chapter becomes law, except that the MDL rules
shall apply to the action if the trial does not commence on or
before the 90th day after the date this chapter becomes law;
(2) the action was filed before September 1, 2003, and
the claimant serves a report that complies with Section 90.003 or
90.004 on or before the 90th day after the date this chapter becomes
law; or
(3) the action was filed before September 1, 2003, and
the exposed person has been diagnosed with malignant mesothelioma,
other malignant asbestos-related cancer, or malignant
silica-related cancer.
(b) If the claimant fails to serve a report complying with
Section 90.003 or 90.004 on or before the 90th day after the date
this chapter becomes law under Subsection (a)(2), the defendant may
file a notice of transfer to the MDL pretrial court. If the MDL
pretrial court determines that the claimant served a report that
complies with Section 90.003 or 90.004 on or before the 90th day
after the date this chapter becomes law, the MDL pretrial court
shall remand the action to the court in which the action was filed.
If the MDL pretrial court determines that the report was not served
on or before the 90th day after the date this chapter becomes law or
that the report served does not comply with Section 90.003 or
90.004, the MDL pretrial court shall retain jurisdiction over the
action pursuant to the MDL rules.
(c) In an action transferred to an MDL pretrial court in
which the exposed person is living and has been diagnosed with
malignant mesothelioma, other malignant asbestos-related cancer,
malignant silica-related cancer, or acute silicosis, the MDL
pretrial court shall expedite the action in a manner calculated to
provide the exposed person with a trial or other disposition in the
shortest period that is fair to all parties and consistent with the
principles of due process. The MDL pretrial court should, as far as
reasonably possible, ensure that such action is brought to trial or
final disposition within six months from the date the action is
transferred to the MDL pretrial court, provided that all discovery
and case management requirements of the MDL pretrial court have
been satisfied.
(d) In an action pending on the date this chapter becomes
law that is transferred to or pending in an MDL pretrial court and
in which the claimant does not serve a report that complies with
Section 90.003 or 90.004, the MDL pretrial court shall not dismiss
the action pursuant to this chapter but shall retain jurisdiction
over the action under the MDL rules. The MDL pretrial court shall
not remand such action for trial unless:
(1) the claimant serves a report complying with
Section 90.003 or 90.004; or
(2)(A) the claimant does not serve a report that
complies with Section 90.003 or 90.004;
(B) the claimant serves a report complying with
Subsection (f)(1); and
(C) the court, on motion and hearing, makes the
findings required by Subsection (f)(2).
(e) In an action filed on or after the date this chapter
becomes law that is transferred to an MDL pretrial court and in
which the claimant does not serve on a defendant a report that
complies with Section 90.003 or 90.004, the MDL pretrial court
shall, on motion by a defendant, dismiss the action under Section
90.007 unless:
(1) the claimant serves a report that complies with
Subsection (f)(1); and
(2) the court, on motion and hearing, makes the
findings required by Subsection (f)(2).
(f) In an action in which the claimant seeks remand for
trial under Subsection (d)(2) or denial of a motion to dismiss under
Subsection (e):
(1) the claimant shall serve on each defendant a
report that:
(A) complies with the requirements of Sections
90.003(a)(2)(A), (B), (E), and (F) and 90.003(b) or Sections
90.004(a)(1), (2), and (4) and 90.004(e); and
(B) verifies that:
(i) the physician making the report has a
physician-patient relationship with the exposed person;
(ii) pulmonary function testing has been
performed on the exposed person and the physician making the report
has interpreted the pulmonary function testing;
(iii) the physician making the report has
concluded, to a reasonable degree of medical probability, that the
exposed person has radiographic, pathologic, or computed
tomography evidence establishing bilateral pleural disease or
bilateral parenchymal disease caused by exposure to asbestos or
silica; and
(iv) the physician has concluded that the
exposed person has asbestos-related or silica-related physical
impairment comparable to the impairment the exposed person would
have had if the exposed person met the criteria set forth in Section
90.003 or 90.004; and
(2) the MDL pretrial court shall determine whether:
(A) the report and medical opinions offered by
the claimant are reliable and credible;
(B) due to unique or extraordinary physical or
medical characteristics of the exposed person, the medical criteria
set forth in Sections 90.003 and 90.004 do not adequately assess the
exposed person's physical impairment caused by exposure to asbestos
or silica; and
(C) the claimant has produced sufficient
credible evidence for a finder of fact to reasonably find that the
exposed person is physically impaired as the result of exposure to
asbestos or silica to a degree comparable to the impairment the
exposed person would have had if the exposed person met the criteria
set forth in Section 90.003 or 90.004.
(g) A court's determination under Subsection (f) shall be
made after conducting an evidentiary hearing at which the claimant
and any defendant to the action may offer supporting or
controverting evidence. The parties shall be permitted a reasonable
opportunity to conduct discovery before the evidentiary hearing.
(h) The court shall state its findings under Subsection
(f)(2) in writing and shall address in its findings:
(1) the unique or extraordinary physical or medical
characteristics of the exposed person that justify the application
of this section; and
(2) the reasons the criteria set forth in Sections
90.003 and 90.004 do not adequately assess the exposed person's
physical impairment caused by exposure to asbestos or silica.
(i) Any findings made by a court under Subsection (f) are
not admissible for any purpose at a trial on the merits.
(j) Subsections (d)(2) and (e)-(i) apply only in
exceptional and limited circumstances in which the exposed person
does not satisfy the medical criteria of Section 90.003 or 90.004
but can demonstrate meaningful asbestos-related or silica-related
physical impairment that satisfies the requirements of Subsection
(f). Subsections (d)(2) and (e)-(i) have limited application and
shall not be used to negate the requirements of this chapter.
[(k) On or before September 1, 2010, each MDL pretrial court
having jurisdiction over cases to which this chapter applies shall
deliver a report to the governor, lieutenant governor, and the
speaker of the house of representatives stating:
(1) the number of cases on the court's multidistrict
litigation docket as of August 1, 2010;
(2) the number of cases on the court's multidistrict
litigation docket as of August 1, 2010, that do not meet the
criteria of Section 90.003 or 90.004, to the extent known;
(3) the court's evaluation of the effectiveness of the
medical criteria established by Sections 90.003 and 90.004;
(4) the court's recommendation, if any, as to how
medical criteria should be applied to the cases on the court's
multidistrict litigation docket as of August 1, 2010; and
(5) any other information regarding the
administration of cases in the MDL pretrial courts that the court
deems appropriate.]
(k) The following provisions apply to an asbestos tort
action pending in any MDL pretrial court:
(1) Within thirty days after the commencement of
discovery in the action or within thirty days of the effective date
of this section with respect to an asbestos tort action that is
pending on that effective date of this Act and in which discovery
has commenced, a claimant shall serve on all parties a sworn
statement by the claimant identifying all existing asbestos trust
claims made by or on behalf of the claimant and all trust claims
material pertaining to each identified asbestos trust claim. The
sworn statement shall disclose the date on which each asbestos
trust claim against the relevant asbestos trust was made and
whether any request for a deferral, delay, suspension, or tolling
of the asbestos trust claims process has been submitted.
(2) The providing of a sworn statement under
subsection (k)(1) shall be in addition to any disclosure
requirements otherwise imposed by law, rule of procedure, court
order or ruling, applicable agreement or stipulation, local rule,
or case management order.
(3) If the claimant, subsequent to service of the
sworn statement under subsection (k)(1) files with or submits to
any asbestos trust additional asbestos trust claims not previously
disclosed, the claimant shall service on all parties an amendment
updating the sworn statement and identifying the additional
asbestos trust claims. The claimant shall serve any such amendment
within thirty days of filing an additional asbestos trust claim
with, or submitting an additional asbestos trust claim to, any
asbestos trust.
(4) With respect to any asbestos trust claim that a
claimant discloses in an amendment to the claimant's sworn
statement provided under subsection (k)(1), the claimant shall
serve on all parties all trust claims material pertaining to each
additional asbestos trust claim identified in that amendment. The
claimant shall serve the trust claims materials as required by this
subsection within thirty days of filing or submitting each
additional asbestos trust claim.
(5) Failure to serve on all parties all trust claims
material as required by this subsection in a timely manner shall
constitute grounds for the MDL pretrial court to decline to remand
the case for trial to court in which the action was filed.
(6) Nothing in this subsection prevents a court of
competent jurisdiction from requiring any disclosures in addition
to the disclosures required under this subsection.
(7) Not less than seventy-five days prior to the
commencement of trial, any defendant in an asbestos tort action may
file a motion with the MDL pretrial court for an order to stay the
proceedings setting forth credible evidence demonstrating all of
the following:
(A) The identities of all asbestos trusts not
previously disclosed by the claimant, against which the claimant
has not made any asbestos trust claims, and against which the
defendant in good faith believes the claimant may make a successful
asbestos trust claim;
(B) The information that the defendant believes
supports the additional asbestos trust claims;
(C) A description of the information sufficient
to meet the asbestos trust claim requirements of the asbestos
trusts described in subsection (k)(7)(A).
(8) Notwithstanding any other provision in this
subsection, if the claimant produces additional asbestos exposure
information that supports the filing of an additional asbestos
trust claim, the defendant may file a motion to stay the proceedings
as provided in subsection (k)(7) within seven days of receiving the
additional asbestos exposure information.
(9) Within fourteen days after the filing of the
defendant's motion for an order to stay the proceedings under
subsection (k)(7), the claimant may do any of the following:
(A) File the asbestos trust claims with or submit
them to the asbestos trusts identified in the defendant's motion
for an order to stay the proceedings. The submission to the court
and to all of the parties in the asbestos tort action of proof
demonstrating that the asbestos trust claims identified in the
defendant's motion to stay the proceedings have been filed with or
submitted to the appropriate asbestos trusts is dispositive of the
defendant's motion for an order to stay the proceedings.
(B) File with the court a response to the
defendant's motion requesting a determination by the court that the
information supporting the asbestos trust claims against the
asbestos trusts identified in the defendant's motion should be
modified prior to the filing of an asbestos trust claim with, or the
submission of an asbestos trust claim to, an asbestos trust or that
there is insufficient information to file or submit the asbestos
trust claim identified in the defendant's motion.
(C) File with the court a response to the
defendant's motion requesting a determination by the court that the
claimant's or attorney's fees and expenses to prepare the asbestos
claim form and file or submit the asbestos trust claim identified in
the defendant's motion exceed the claimant's reasonably anticipated
recovery from the asbestos trust claim.
(10) If the defendant files a motion to stay the
proceedings and if the claimant files a response pursuant to
subsection (k)(9)(C), the court shall determine if the claimant's
or attorney's fees and expenses to prepare the asbestos claim form
and file or submit the asbestos trust claim identified in the
defendant's motion exceed the claimant's reasonably anticipated
recovery from the asbestos trust claim. If the court determines
that the claimant's or attorney's fees and expenses exceed the
claimant's reasonably anticipated recovery from the asbestos trust
claim, the court shall require the claimant to file with the court a
verified statement of the claimant's exposure history to the
asbestos products covered by that asbestos trust.
(11) If the court determines that there is a good faith
basis for filing an asbestos trust claim with, or submitting an
asbestos trust claim to, an asbestos trust identified in the
defendant's motion brought under subsection (k)(7), the court shall
stay the proceedings until the claimant files the asbestos trust
claims with or submits them to the asbestos trusts identified in the
defendant's motion and has otherwise met the obligations set forth
in this Chapter.
(12) A noncancer asbestos trust claim and a cancer
asbestos trust claim are based on distinct injuries caused by a
person's exposure to asbestos. If a claimant filed a noncancer
asbestos trust claim with, or submitted a noncancer asbestos trust
claim to, an asbestos trust and subsequently filed an asbestos tort
action based on a cancer asbestos claim, the claimant has an
obligation to include in the claimant's sworn statement and serve
on the parties to the action the asbestos trust materials related to
both the noncancer asbestos trust claim and the cancer asbestos
claim.
(13) Asbestos trust claims and the information that is
the subject of disclosure under this subsection are presumed to be
authentic, relevant to, and discoverable in an asbestos tort
action. Notwithstanding any agreement or confidentiality
provision, trust claims material are presumed to not be privileged.
The parties in the asbestos tort action may introduce at trial any
trust claims material to prove alternative causation for the
exposed person's claimed injury, death, or loss to person, to prove
a basis to allocate responsibility for the claimant's claimed
injury, death, or loss to person, and to prove issues relevant to an
adjudication of the asbestos claim, unless the exclusion of the
trust claims material is otherwise required by the rules of
evidence.
(14) In addition to the disclosure requirements in
this subsection, the parties to the asbestos tort action may seek
additional disclosure and discovery of information relevant to the
action by any mechanism provided by any applicable order, rule or
law. Nothing in this subsection prevents any defendant in an
asbestos tort action from also seeking discovery of the claimant's
asbestos trust claims directly from the asbestos trusts involved.
(15) In an asbestos tort action, upon the filing by a
defendant or judgment debtor of an appropriate motion seeking
sanctions or other relief, the court may impose any sanction
provided by a law, including, but not limited to, vacating a
judgment rendered in an asbestos tort action, for a claimant's
failure to comply with the disclosure requirements of this
subsection.
(16) If subsequent to obtaining a judgment in an
asbestos tort action in this state a claimant files any additional
asbestos trust claim with, or submits any additional asbestos trust
claim to, an asbestos trust that was in existence at the time the
claimant obtained the judgment, the trial court, upon the filing by
a defendant or judgment debtor of an appropriate motion seeking
sanctions or other relief, has jurisdiction to reopen its judgment
in the asbestos tort action and either adjust the judgment by the
amount of any subsequent asbestos trust payments obtained by the
claimant or order other relief to the parties that the court
considers just and proper. A defendant or judgment debtor shall
file any motion under this subsection within a reasonable time and
not more than one year after the judgment was signed.
SECTION 3. The provisions of this Act shall apply to
asbestos tort actions filed on or after the effective date of this
Act and to pending asbestos tort actions in which trial has not
commenced as of the effective date of this Act.
SECTION 4. (A) If any provision that constitutes the whole
or part of a section of the Civil Practice and Remedies Code enacted
by this act or if any application of any provision that constitutes
the whole or part of a section of the Civil Practice and Remedies
Code enacted by this act is held invalid, the invalidity does not
affect other provisions of the section or applications of other
provisions of the section that can be given effect without the
invalid provision or application. To this end, the provisions that
constitute the whole or part of the sections of the Civil Practice
and Remedies Code enacted by this act and their applications are
independent and severable.
(B) If any provision that constitutes the whole or part of a
section of the Civil Practice and Remedies Code enacted by this act
or if any application of any provision that constitutes the whole or
part of a section of the Civil Practice and Remedies Code enacted by
this act is held to be preempted by federal law, the preemption does
not affect other provisions of the section or applications of other
provisions of the section that can be given effect without the
preempted provision or application. To this end, the provisions
that constitute the whole or part of the sections of the Civil
Practice and Remedies Code enacted by this act and their
applications are independent and severable.
SECTION 5. This Act takes effect September 1, 2013.