07 LC 14
9585
Senate
Bill 182
By:
Senators Wiles of the 37th, Unterman of the 45th and Hill of the 32nd
A
BILL TO BE ENTITLED
AN ACT
AN ACT
To
amend Title 51 of the Official Code of Georgia Annotated, relating to torts, so
as to change provisions relating to asbestos claims and silica claims; to state
legislative findings and purpose; to provide for applicability; to provide
definitions; to provide that physical impairment shall be an essential element
of an asbestos claim or a silica claim; to provide for a limitations period for
filing a claim; to provide for dismissal of pending claims under certain
conditions; to provide for general rules applicable to new filings; to provide
for forum non conveniens; to provide for venue; to provide for joinder and
consolidation of claims; to clarify Georgia law and to create provisions
relating to asbestos claims and successor corporations; to provide for
legislative findings and intent; to provide definitions; to provide that
limitations of liabilities for asbestos claims apply to a corporation that is a
successor and became a successor corporation before January 1, 1972; to provide
for exceptions to the limitations; to provide for other exceptions; to provide
for methods by which to establish fair market value of total gross assets; to
provide for the fair market value of total gross assets at the time of a merger
or consolidation to increase annually; to provide for adjustments; to provide a
methodology by which the fair market value of the assets is increased; to
require that the courts liberally construe this Act; to provide for other
matters relative to the foregoing; to provide for severability; to provide an
effective date and applicability; to repeal conflicting laws; and for other
purposes.
BE
IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:
SECTION
1.
Title
51of the Official Code of Georgia Annotated, relating to torts, is amended by
striking in its entirety Chapter 14, relating to asbestos and silica claims, and
inserting in its place a new Chapter 14 to read as follows:
"CHAPTER
14
51-14-1.
(a)
The General Assembly finds that:
(1)
Asbestos is a mineral that was widely used prior to the 1980´s for
insulation, fireproofing, and other purposes;
(2)
Many American workers were exposed to asbestos, especially during World War
II;
(3)
Exposure to asbestos has been causally associated with mesothelioma and lung
cancer, as well as nonmalignant conditions such as asbestosis, pleural plaques,
and diffuse pleural thickening;
(4)
The United States Supreme Court in
Amchem Prods. Inc. v.
Windsor, 521 U.S. 591, 597 (1997), stated
that this country is in the midst of an 'asbestos-litigation
crisis';
(5)
The vast majority of new asbestos claims are filed by individuals who allege
exposure to asbestos but have only minimal or no physical evidence of exposure
and who suffer no present asbestos related impairment. In
Amchem,
United States Supreme Court Justice Stephen Breyer observed that 'up to one-half
of asbestos claims are now filed by people who have little or no physical
impairment.' That number may be conservative. Recent reports indicate that as
many as 90 percent of new asbestos related claims are filed by plaintiffs with
no impairment;
(6)
Concerns about statutes of limitations can force claimants who have been exposed
to asbestos but who have no current injury to bring premature lawsuits in order
to protect against losing their rights to future compensation should they become
impaired;
(7)
X-ray screenings of workers at occupational locations are used to amass large
numbers of claimants. Frequently, a complaint is filed on behalf of anyone who
shows any evidence of asbestos or silica exposure, even though most claimants
are functionally asymptomatic when the suit is filed;
(8)
In federal multidistrict litigation
proceedings, In re
Silica Products Liability Litigation, MDL
No. 1553 (S.D. Tex.), U.S. District Judge Janis Graham Jack documented the
abuses this chapter is designed to address in silica cases involving many of the
same physicians involved in the troublesome asbestos screenings. Discovery and
Daubert
hearings in that litigation raise serious questions regarding the validity of
the silicosis diagnoses of the more than 10,000 plaintiffs involved in those
actions. Proceedings in the litigation also revealed that a significant number
of the silica plaintiffs are 'recycled' asbestos plaintiffs who previously made
asbestos claims to recover for the same respiratory injuries that they now claim
to be the result of silica exposure. Judge Jack found 'that in every case
involving a screening company, the diagnoses were essentially manufactured on an
assembly line.' In re
Silica Products Liability Litigation, 398
F. Supp. 2d 563, 633 (S.D. Tex. 2005). Judge Jack also stated:
The
word 'litigation' implies (or should imply) the search for truth and the quest
for justice. But it is apparent that truth and justice had very little to do
with these diagnoses–otherwise more effort would have been devoted to
ensuring they were accurate. Instead, these diagnoses were driven by neither
health nor justice: they were manufactured for money.
Id.
at 635;
(9)
The questionable screening practices that generated the diagnoses in the federal
silica cases, which have also been employed in asbestos litigation, are now the
subject of a federal criminal investigation. See 'Civil Suits Over Silica in
Texas Become a Criminal Matter in New York';
New York
Times, May 18, 2005; Roger Parloff,
'Diagnosing for Dollars';
Fortune,
June 13, 2005; 'Grand Jury Convened in New York to Look Into Silica, Asbestos
Fraud'; Mealey´s
Publications, June 1, 2005;
(10)
These screenings and mass filings have contributed to the bankruptcy of at least
78 companies, including nearly all manufacturers of asbestos textile and
insulation products;
(11)
Bankruptcies resulting from asbestos litigation have led plaintiffs and their
lawyers to expand their search for new solvent defendants, including many
defendants with only a tenuous connection to asbestos. The number of asbestos
defendants now includes over 8,400 companies, touching firms in industries that
span 85 percent of the United States economy. Some of these defendants are
large companies, but others are firms with as few as 20 employees and just a few
million dollars in annual revenues;
(12)
The cost of compensating exposed individuals who are not sick and legal costs
spent on their claims jeopardize recoveries by people with cancer or other
serious asbestos related injuries; threaten the savings, retirement benefits,
and jobs of current and retired employees of the defendants; and adversely
affect the communities in which the defendants operate;
(13)
In February, 2003, in light of the problem of claimants pursuing recoveries
without proof of impairment, the American Bar Association Commission on Asbestos
Litigation, with input from ten of the nation´s most prominent physicians
in the area of pulmonary function, adopted the 'ABA Standard For Non-Malignant
Asbestos-Related Disease Claims,' which sets forth medical criteria for
demonstrating asbestos related impairment that provide the underlying framework
for the criteria set forth in this chapter and in similar legislation adopted in
several other states;
(14)
Ohio, Florida, Texas, Kansas, South Carolina, and Tennessee have enacted
legislation similar to this chapter that, among other things, sets medical
criteria governing asbestos or silica claims or both, tolls statutes of
limitations, and requires persons alleging nonmalignant disease claims to
demonstrate physical impairment as a prerequisite to filing or maintaining such
claims;
(15)
Several jurisdictions have adopted inactive dockets, also called 'pleural
registries' or 'deferred dockets,' or issued case management orders to control
the unlimited filing of asbestos claims by persons who are not impaired; other
courts have decided that only sick claimants are entitled to
compensation;
(16)
Reports indicate that efforts to improve the asbestos litigation environment may
lead to a proliferation in silica related claims as personal injury attorneys
seek to build new inventories of claimants and find new defendants to target in
lawsuits;
(17)
Sound public policy requires deferring the claims of persons exposed to asbestos
or silica who are not presently impaired in order to give priority to those
cases that involve claims of actual and current conditions of impairment;
preserve compensation for people with cancer and other serious injuries; and
safeguard the jobs, benefits, and savings of workers;
(18)
During the last several years, a large majority of the asbestos and silica
claims filed in Georgia involve plaintiffs who do not reside in this state and
whose exposure did not occur in this state, at a time when the resources of the
Georgia courts should be conserved to address the claims of Georgia residents or
the claims of persons who were injured in Georgia; and
(19)
In light of the foregoing findings, the provisions of this chapter are
reasonably related to the goal of achieving the purposes set forth in subsection
(b) of this Code section, see, e.g.,
Lasseter v. Georgia
Public Service Commission, 253 Ga. 227(2)
(1984). The unique history of the asbestos litigation and problems therein, and
similar abuses recently documented in the silica litigation, warrant the
adoption of statutory remedies and procedures to reduce the prospects for abuse
and accomplish the purposes of this chapter.
(b)
It is the purpose of this chapter to:
(1)
Give priority to claimants who can demonstrate actual physical harm or illness
caused by asbestos or silica;
(2)
Preserve the rights of claimants to pursue asbestos or silica claims if an
exposed person becomes sick in the future;
(3)
Enhance the ability of the courts to supervise and control asbestos litigation
and silica litigation; and
(4)
Conserve resources to allow compensation of claimants who have cancer and others
who are impaired as a result of exposure to asbestos or silica while securing
the right to similar compensation for those who may suffer physical impairment
in the future.
51-14-2.
This
chapter applies to any claim defined in this chapter as an asbestos claim or as
a silica claim.
51-14-3.
As
used in this chapter, the term:
(1)
'Asbestos' means chrysotile, amosite, crocidolite, tremolite asbestos,
anthophyllite asbestos, actinolite asbestos, and any of these minerals that have
been chemically treated or altered, including but not limited to all minerals
defined as asbestos in 29 C.F.R. 1910, as amended from time to
time.
(2)(A)
'Asbestos claim' means any claim, wherever or whenever made, for damages,
losses, indemnification, contribution, loss of consortium, or other relief
arising out of, based on, or in any way related to the health effects of
exposure to asbestos, including, but not limited to:
(i)
Any claim, to the extent recognized by applicable state law now or in the
future, for:
(I)
Personal injury or death;
(II)
Mental or emotional injury;
(III)
Risk or fear of disease or other injury;
(IV)
The costs of medical monitoring or surveillance; or
(V)
Damage or loss caused by the installation, presence, or removal of asbestos;
and
(ii)
Any claim made by or on behalf of an exposed person or based on that exposed
person´s exposure to asbestos, including a representative, spouse, parent,
child, or other relative of the exposed person.
(B)
'Asbestos claim' shall not mean a claim brought under:
(i)
A workers´ compensation law administered by this state to provide benefits,
funded by a responsible employer or its insurance carrier, for occupational
diseases or injuries or for disability or death caused by occupational diseases
or injuries;
(ii)
The Act of April 22, 1908, known as the Federal Employers´ Liability Act,
45 U.S.C. Section 51, et seq., as may be amended from time to time;
(iii)
The Longshore and Harbor Workers´ Compensation Act, 33 U.S.C. Sections
901-944, 948-950, as may be amended from time to time; or
(iv)
The Federal Employees Compensation Act, 5 U.S.C. Chapter 81, as may be amended
from time to time.
(3)
'Asbestosis' means bilateral diffuse interstitial fibrosis of the lungs caused
by inhalation of asbestos.
(4)
'Board certified internist' means a qualified physician licensed to practice
medicine who is currently certified by the American Board of Internal
Medicine.
(5)
'Board certified occupational medicine physician' means a qualified physician
licensed to practice medicine who is currently certified in the subspecialty of
occupational medicine by the American Board of Preventive Medicine.
(6)
'Board certified oncologist' means a qualified physician licensed to practice
medicine who is currently certified in the subspecialty of medical oncology by
the American Board of Internal Medicine.
(7)
'Board certified pathologist' means a qualified physician licensed to practice
medicine who holds primary certification in anatomic pathology or combined
anatomic or clinical pathology from the American Board of Pathology and whose
professional practice is principally in the field of pathology and involves
regular evaluation of pathology materials obtained from surgical or post-mortem
specimens.
(8)
'Board certified pulmonologist' means a qualified physician licensed to practice
medicine who is currently certified in the subspecialty of pulmonary medicine by
the American Board of Internal Medicine.
(9)
'Certified B-reader' means a qualified physician who has successfully passed the
B-reader certification examination for X-ray interpretation sponsored by the
National Institute for Occupational Safety and Health and whose certification
was current at the time of any readings required by this chapter.
(10)
'Chest X-rays' means films taken in two views (PA and Lateral) for reading in
accordance with the radiological standards established by the International
Labor Office, as interpreted by a certified B-reader.
(11)
'Claimant' means a party seeking recovery of damages for an asbestos claim or
silica claim, including the exposed person, any other plaintiff making a claim
as a result of the exposed person´s exposure to asbestos or silica,
counterclaimant, cross-claimant, or third-party plaintiff. If a claim is
brought through or on behalf of an estate, the term includes the claimant´s
decedent; if a claim is brought through or on behalf of a minor or incompetent,
the term includes the claimant´s parent or guardian.
(12)
'Exposed person' means any person whose exposure to asbestos or silica is the
basis for an asbestos claim or a silica claim.
(13)
'FEV-1' 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)
'FVC' means forced vital capacity, which is the maximal volume of air expired
with maximum effort from a position of full inspiration.
(15)
'ILO system' means the radiological ratings of the International Labor Office
set forth in
Guidelines for the Use
of ILO International Classification of Radiographs of
Pneumoconioses, revised edition, as
amended from time to time by the International Labor Office.
(16)
'Lower limit of normal' means the fifth percentile of healthy populations based
on age, height, and gender, as referenced in the American Medical
Association´s
Guides to the
Evaluation of Permanent Impairment, fifth
edition, as amended from time to time by the American Medical
Association.
(17)
In the context of an asbestos claim, 'prima-facie evidence of physical
impairment' means:
(A)
For an asbestos claim that accrued before April 12, 2005:
(i)
For an asbestos claim alleging mesothelioma: that a claimant alleges
mesothelioma caused by exposure to asbestos, and no further prima-facie evidence
of physical impairment shall be required;
(ii)
For an asbestos claim alleging cancer other than mesothelioma: that a physician
licensed to practice medicine (who need not be a 'qualified physician' as
defined in this Code section) has signed a medical report certifying to a
reasonable degree of medical probability that the exposed person´s exposure
to asbestos was a contributing factor to the diagnosed cancer other than
mesothelioma and attaching whatever evidence the physician relied upon in
determining that the exposed person has or had an asbestos related cancer;
and
(iii)
For an asbestos claim alleging nonmalignant injury: that a physician licensed
to practice medicine (who need not be a 'qualified physician' as defined in this
Code section) has signed a medical report certifying to a reasonable degree of
medical probability that the exposed person´s exposure to asbestos was a
contributing factor to the diagnosed nonmalignant asbestos injury and attaching
whatever evidence the physician relied upon in determining that the exposed
person has or had a nonmalignant asbestos injury;
(B)
For an asbestos claim that accrued on or after May 1, 2007:
(i)
For an asbestos claim alleging mesothelioma: that a claimant alleges
mesothelioma caused by exposure to asbestos, and no further prima-facie evidence
of physical impairment shall be required;
(ii)
For an asbestos claim alleging cancer other than mesothelioma: that a board
certified internist, board certified pulmonologist, board certified pathologist,
board certified occupational medicine physician, or board certified oncologist
has signed a medical report certifying to a reasonable degree of medical
probability that the exposed person has or had a cancer other than mesothelioma;
that the cancer is a primary cancer; that exposure to asbestos was a substantial
contributing factor to the diagnosed cancer; and that other potential causes
(such as smoking) were not the sole or most likely cause of the injury at
issue;
(iii)
For an asbestos claim alleging nonmalignant injury: that a board certified
internist, board certified pulmonologist, board certified pathologist, board
certified occupational medicine physician, or board certified oncologist has
signed a medical report stating that the exposed person suffers or suffered from
a nonmalignant asbestos injury and:
(I)
Verifying that the doctor signing the medical report or a medical professional
or professionals employed by and under the direct supervision and control of
that doctor has taken histories as defined below or, alternatively, confirming
that the signing doctor is relying on such histories taken or obtained by
another physician or physicians who actually treated the exposed person or who
had a doctor-patient relationship with the exposed person or by a medical
professional or professionals employed by and under the direct supervision and
control of such other physician or physicians, with such histories to consist of
the following:
(a)
A detailed occupational and exposure history from the exposed person or, if the
exposed person is deceased or incapable of providing such history, from the
person or persons most knowledgeable about the exposures that form the basis for
the asbestos claim. The history shall include all of the exposed person´s
principal employments and his or her exposures to airborne contaminants that can
cause pulmonary impairment, including, but not limited to, asbestos, silica, and
other disease-causing dusts, and the nature, duration, and level of any such
exposure; and
(b)
A detailed medical and smoking history from the exposed person or, if the
exposed person is deceased or incapable of providing such history, from the
person or persons most knowledgeable about the exposed person´s medical and
smoking history, or the exposed person´s medical records, or both, that
includes a thorough review of the exposed person´s past and present medical
problems and their most probable cause;
(II)
Setting out the details of the exposed person´s occupational, medical, and
smoking histories and verifying that at least 15 years have elapsed between the
exposed person´s first exposure to asbestos and the time of
diagnosis;
(III)
Verifying that the exposed person has:
(a)
An ILO quality 1 chest X-ray taken in accordance with all applicable state and
federal regulatory standards, and that the X-ray has been read by a certified
B-reader according to the ILO system of classification as showing bilateral
small irregular opacities (s, t, or u) graded 1/1 or higher or bilateral diffuse
pleural thickening graded b2 or higher including blunting of the costophrenic
angle; provided, however, that in a death case where no pathology is available,
the necessary radiologic findings may be made with a quality 2 film if a quality
1 film is not available; or
(b)
Pathological asbestosis graded 1(B) or higher under the criteria published in
the Asbestos-Associated Diseases, Special Issue of the
Archives of
Pathological and Laboratory Medicine,
Volume 106, Number 11, Appendix 3, as amended from time to time;
(IV)
Verifying that the exposed person has pulmonary impairment related to asbestos
as demonstrated by pulmonary function testing, performed using equipment,
methods of calibration, and techniques that meet the criteria incorporated in
the American Medical Association´s
Guides to the
Evaluation of Permanent Impairment, fifth
edition, and reported as set forth in 20 C.F.R. 404, Subpt. P. App 1, Part (A)
Section 3.00 (E) and (F), as amended from time to time by the American Medical
Association, and the interpretative standards of the American Thoracic Society,
Lung Function Testing:
Selection of Reference Values and Interpretive
Strategies, 144 Am. Rev. Resp. Dis.
1202-1218 (1991), as amended from time to time by the American Thoracic Society,
that shows:
(a)
Forced vital capacity below the lower limit of normal and FEV1/FVC ratio, using
actual values, at or above the lower limit of normal; or
(b)
Total lung capacity, by plethysmography or timed gas dilution, below the lower
limit of normal,
except
that this subdivision (17)(B)(iii)(IV) shall not apply if the medical report
includes the pathological evidence set forth in clause (17)(B)(iii)(III)(b) of
this Code section;
(V)(a)
Exception to pulmonary function test requirement in subdivision (17)(B)(iii)(IV)
of this Code section: If the doctor signing the medical report states in the
medical report that the exposed person´s medical condition or process
prevents the pulmonary function test described in subdivision (17)(B)(iii)(IV)
of this Code section from being performed or makes the results of such test an
unreliable indicator of physical impairment, a board certified internist, board
certified pulmonologist, board certified pathologist, board certified
occupational medicine physician, or board certified oncologist (none of whom
need be a 'qualified physician' as defined in this Code section), independent
from the physician signing the report required in this subdivision, must provide
a report which states to a reasonable degree of medical probability that the
exposed person has or had a nonmalignant asbestos related condition causing
physical impairment equivalent to that required in subdivision (17)(B)(iii)(IV)
of this Code section and states the reasons why the pulmonary function test
could not be performed or would be an unreliable indicator of physical
impairment.
(b)
Exception to X-ray requirement in clause (17)(B)(iii)(III)(a) of this Code
section: Alternatively and not to be used in conjunction with clause
(17)(B)(iii)(V)(a) of this Code section, if the doctor signing the medical
report states in the medical report that the exposed person´s medical
condition or process prevents a physician from being able to diagnose or
evaluate that exposed person sufficiently to make a determination as to whether
that exposed person meets the requirements of clause (17)(B)(iii)(III)(a) of
this Code section, the claimant may serve on each defendant a report by a board
certified internist, board certified pulmonologist, board certified pathologist,
board certified occupational medicine physician, or board certified oncologist
(none of whom need be a 'qualified physician' as defined in this Code section)
that:
(1)
Verifies that the physician has or had a doctor patient relationship with the
exposed person;
(2)
Verifies that the exposed person has or had asbestos related pulmonary
impairment as demonstrated by pulmonary function testing showing:
(A)
Forced vital capacity below the lower limit of normal and total lung capacity,
by plethysmography, below the lower limit of normal; or
(B)
Forced vital capacity below the lower limit of normal and FEV1/FVC ratio (using
actual values) at or above the lower limit of normal; and
(3)
Verifies that the exposed person has a chest X-ray and computed tomography scan
or high resolution computed tomography scan read by the physician or a board
certified internist, board certified pulmonologist, board certified pathologist,
board certified occupational medicine physician, board certified oncologist, or
board certified radiologist (none of whom need be a 'qualified physician' as
defined in this Code section) showing either bilateral pleural disease or
bilateral parenchymal disease diagnosed and reported as being a consequence of
asbestos exposure; and
(VI)
Verifies that the doctor signing the medical report has concluded to a
reasonable degree of medical probability that exposure to asbestos was a
substantial contributing factor to the exposed person´s physical
impairment.
Copies
of the B-reading, the pulmonary function tests, including printouts of the flow
volume loops and all other elements required to demonstrate compliance with the
equipment, quality, interpretation, and reporting standards set forth in this
paragraph (17), the medical report (in the form of an affidavit as required by
subparagraph (A) of paragraph (2) of Code Section 51-14-6), and all other
required reports shall be submitted as required by this chapter. All such
reports, as well as all other evidence used to establish prima-facie evidence of
physical impairment, must comply, to the extent applicable, with the technical
recommendations for examinations, testing procedures, quality assurance, quality
controls, and equipment in the American Medical Association´s
Guides to the
Evaluation of Permanent Impairment, fifth
edition, as amended from time to time by the American Medical Association, and
the most current version of the Official Statements of the American Thoracic
Society regarding lung function testing. Testing performed in a hospital or
other medical facility that is fully licensed and accredited by all appropriate
regulatory bodies in the state in which the facility is located is presumed to
meet the requirements of this chapter. This presumption may be rebutted by
evidence demonstrating that the accreditation or licensing of the hospital or
other medical facility has lapsed or by providing specific facts demonstrating
that the technical recommendations for examinations, testing procedures, quality
assurance, quality control, and equipment have not been followed. All such
reports, as well as all other evidence used to establish prima-facie evidence of
physical impairment, must not be obtained through testing or examinations that
violate any applicable law, regulation, licensing requirement, or medical code
of practice and must not be obtained under the condition that the exposed person
retain legal services in exchange for the examination, testing, or screening.
Failure to attach the required reports or demonstration by any party that the
reports do not satisfy the standards set forth in this paragraph (17) shall
result in the dismissal of the asbestos claim, without prejudice, upon motion of
any party.
(18)
In the context of a silica claim, 'prima-facie evidence of physical impairment'
means:
(A)
For a silica claim that accrued before April 12, 2005, that a physician licensed
to practice medicine (who need not be a 'qualified physician' as defined in this
Code section) has signed a medical report certifying to a reasonable degree of
medical probability that the exposed person´s exposure to silica was a
contributing factor to the claimed injury and attached whatever evidence the
physician relied upon in determining that the exposed person has or had a silica
related injury; and
(B)
For a silica claim that accrued on or after May 1, 2007:
(i)
A medical report asserting that the exposed person has or had a silica related
lung cancer and:
(I)
Certifying to a reasonable degree of medical probability that the cancer is a
primary lung cancer; and
(II)
Signed by a board certified internist, board certified pulmonologist, board
certified pathologist, board certified occupational medicine physician, or board
certified oncologist stating to a reasonable degree of medical probability that
exposure to silica was a substantial contributing factor to the lung cancer with
underlying silicosis demonstrated by an X-ray that has been read by a certified
B-reader according to the ILO system of classification as showing bilateral
nodular opacities (p, q, or r) occurring primarily in the upper lung fields,
graded 1/1 or higher, and that the lung cancer was not more probably the sole
result of causes other than the silica exposure revealed by the exposed
person´s occupational, silica exposure, medical, and smoking
histories;
(ii)
A medical report asserting that the exposed person has or had silica related
progressive massive fibrosis or acute silicoproteinosis, or silicosis
complicated by documented tuberculosis, signed by a board certified internist,
board certified pulmonologist, board certified pathologist, board certified
occupational medicine physician, or board certified oncologist; or
(iii)
A medical report signed by a board certified internist, board certified
pulmonologist, board certified pathologist, board certified occupational
medicine physician, or board certified oncologist stating that the exposed
person suffers from other stages of nonmalignant disease related to silicosis
other than those set forth in divisions (i) and (ii) of this paragraph,
and:
(I)
Verifying that the doctor signing the medical report or a medical professional
or professionals employed by and under the direct supervision and control of
that doctor has taken histories as defined below or, alternatively, confirming
that the signing doctor is relying on such histories taken or obtained by
another physician or physicians who actually treated the exposed person or who
had a doctor-patient relationship with the exposed person or by a medical
professional or professionals employed by and under the direct supervision and
control of such other physician or physicians, with such histories to consist of
the following:
(a)
A detailed occupational and exposure history from the exposed person or, if the
exposed person is deceased or incapable of providing such history, from the
person or persons most knowledgeable about the exposures that form the basis for
the silica claim. The history shall include all of the exposed person´s
principal employments and his or her exposures to airborne contaminants that can
cause pulmonary impairment, including, but not limited to, asbestos, silica, and
other disease-causing dusts, and the nature, duration, and level of any such
exposure; and
(b)
A detailed medical and smoking history from the exposed person or, if the
exposed person is deceased or incapable of providing such history, from the
person or persons most knowledgeable about the exposed person´s medical and
smoking history, or the exposed person´s medical records, or both, that
includes a thorough review of the exposed person´s past and present medical
problems and their most probable cause;
(II)
Setting out the details of the exposed person´s occupational, medical, and
smoking histories and verifying a sufficient latency period for the applicable
stage of silicosis;
(III)
Verifying that the exposed person has at least Class 2 or higher impairment due
to silicosis, as set forth in the American Medical Association´s
Guides to the
Evaluation of Permanent Impairment, fifth
edition, as amended from time to time by the American Medical Association
and:
(a)
Has an ILO quality 1 chest X-ray taken in accordance with all applicable state
and federal regulatory standards, and that the X-ray has been read by a
certified B-reader according to the ILO system of classification as showing
bilateral nodular opacities (p, q, or r) occurring primarily in the upper lung
fields, graded 1/1 or higher; provided, however, that in a death case where no
pathology is available, the necessary radiologic findings may be made with a
quality 2 film if a quality 1 film is not available; or
(b)
Has pathological demonstration of classic silicotic nodules exceeding 1
centimeter in diameter as set forth in 112
Archives of
Pathological & Laboratory Medicine 7
(July 1988), as amended from time to time; and
(IV)
Verifying that the doctor signing the medical report has concluded to a
reasonable degree of medical probability that the exposure to silica was a
substantial contributing factor to the exposed person´s physical
impairment.
Copies
of the B-reading, the pulmonary function tests, including printouts of the flow
volume loops and all other elements required to demonstrate compliance with the
equipment, quality, interpretation, and reporting standards set forth in this
paragraph (18), and the medical report (in the form of an affidavit as required
by subparagraph (A) of paragraph (2) of Code Section 51-14-6), and all other
required reports shall be submitted as required by this chapter. All such
reports, as well as all other evidence used to establish prima-facie evidence of
physical impairment, must comply, to the extent applicable, with the technical
recommendations for examinations, testing procedures, quality assurance, quality
controls, and equipment in the American Medical Association´s
Guides to the
Evaluation of Permanent Impairment, fifth
edition, as amended from time to time by the American Medical Association, and
the most current version of the Official Statements of the American Thoracic
Society regarding lung function testing. Testing performed in a hospital or
other medical facility that is fully licensed and accredited by all appropriate
regulatory bodies in the state in which the facility is located is presumed to
meet the requirements of this chapter. This presumption may be rebutted by
evidence demonstrating that the accreditation or licensing of the hospital or
other medical facility has lapsed or by providing specific facts demonstrating
that the technical recommendations for examinations, testing procedures, quality
assurance, quality control, and equipment have not been followed. All such
reports, as well as all other evidence used to establish prima-facie evidence of
physical impairment, must not be obtained through testing or examinations that
violate any applicable law, regulation, licensing requirement, or medical code
of practice, and must not be obtained under the condition that the exposed
person retain legal services in exchange for the examination, testing, or
screening. Failure to attach the required reports or demonstration by any party
that the reports do not satisfy the standards set forth in this paragraph (18)
shall result in the dismissal of the silica claim, without prejudice, upon
motion of any party.
(19)
'Qualified physician' means a medical doctor, who:
(A)
Spends no more than 35 percent of his or her professional practice time in
providing consulting or expert services in connection with actual or potential
civil actions, and whose medical group, professional corporation, clinic, or
other affiliated group earns not more than 50 percent of its revenues from
providing such services; provided, however, that the trial court, in its
discretion, may allow a physician who meets the other requirements of this
chapter but does not meet the time and revenue requirements of this subparagraph
to submit a report required by this chapter if the trial court first makes an
evidentiary finding (after all parties have had a reasonable opportunity to
present evidence) that it would be manifestly unjust not to allow the physician
at issue to submit the report and makes specific and detailed findings, setting
forth the bases therefor, that the physician´s opinions appear to be
reliable medical opinions in that they are supported by documented, reliable
medical evidence that was obtained through testing or examinations that comply
with and do not violate any applicable law, regulation, licensing requirement,
or medical code of practice and that the opinions are not the product of bias or
the result of financial influence due to his or her role as a paid expert. The
cost of retaining another physician who is qualified pursuant to this
subparagraph for the purpose of submitting a report required by this chapter may
not be considered in determining manifest injustice, but the availability or
unavailability of other physicians who meet the time and revenue requirements of
this subparagraph shall be considered as a relevant factor; and
(B)
Does not require as a condition of diagnosing, examining, testing, screening, or
treating the exposed person that legal services be retained by the exposed
person or any other person pursuing an asbestos or silica claim based on the
exposed person´s exposure to asbestos or silica.
The
board certified internist, board certified pulmonologist, board certified
pathologist, board certified occupational medicine physician, or board certified
oncologist who submits a report under this chapter may be an expert witness
retained by counsel for the exposed person or claimant, so long as the physician
otherwise meets the requirements of this chapter and any other applicable Code
sections governing the qualifications of expert witnesses.
(20)
'Silica' means a group of naturally occurring crystalline forms of silicon
dioxide, including, but not limited to, quartz and silica sand, whether in the
form of respirable free silica or any quartz-containing or crystalline
silica-containing dust, in the form of a quartz-containing by-product or
crystalline silica-containing by-product, or dust released from individual or
commercial use, release, or disturbance of silica sand, silicon dioxide, or
crystalline-silica containing media, consumables, or materials.
(21)(A)
'Silica claim' means any claim, wherever or whenever made, for damages, losses,
indemnification, contribution, loss of consortium, or other relief arising out
of, based on, or in any way related to the health effects of exposure to silica,
including, but not limited to:
(i)
Any claim, to the extent recognized by applicable state law now or in the
future, for:
(I)
Personal injury or death;
(II)
Mental or emotional injury;
(III)
Risk or fear of disease or other injury; or
(IV)
The costs of medical monitoring or surveillance; and
(ii)
Any claim made by or on behalf of an exposed person or based on that exposed
person´s exposure to silica, including a representative, spouse, parent,
child, or other relative of the exposed person.
(B)
'Silica claim' shall not mean a claim brought under:
(i)
A workers´ compensation law administered by this state to provide benefits,
funded by a responsible employer or its insurance carrier, for occupational
diseases or injuries or for disability or death caused by occupational diseases
or injuries;
(ii)
The Act of April 22, 1908, known as the Federal Employers´ Liability Act,
45 U.S.C. Section 51, et seq., as may be amended from time to time;
(iii)
The Longshore and Harbor Workers´ Compensation Act, 33 U.S.C. Sections
901-944, 948-950, as may be amended from time to time; or
(iv)
The Federal Employees Compensation Act, 5 U.S.C. Chapter 81, as may be amended
from time to time.
(22)
'Silicosis' means nodular interstitial fibrosis of the lung produced by
inhalation of silica.
(23)
'Substantial contributing factor' means that exposure to asbestos or silica took
place on a regular basis over an extended period of time and in close proximity
to the exposed person and was a factor without which the physical impairment in
question would not have occurred.
(24)
'Total lung capacity' means the volume of gas contained in the lungs at the end
of a maximal inspiration.
51-14-4.
(a)
Prima-facie evidence of physical impairment of the exposed person as defined in
paragraph (17) or (18) of Code Section 51-14-3 shall be an essential element of
an asbestos claim or silica claim.
(b)
In order to bring or maintain an asbestos claim or silica claim, the claimant
shall submit prima-facie evidence of physical impairment in accordance with the
requirements of this chapter.
51-14-5.
Notwithstanding
any other provision of law, with respect to any asbestos claim or silica claim
not barred as of May 1, 2007, the limitations period shall not begin to run
until the exposed person, or any plaintiff making an asbestos claim or silica
claim based on the exposed person´s exposure to asbestos or silica,
obtains, or through the exercise of reasonable diligence should have obtained,
prima-facie evidence of physical impairment, as defined in paragraph (17) or
(18) of Code Section 51-14-3.
51-14-6.
Subject
to the provisions of Code Section 51-14-12:
(1)
Any asbestos claim or silica claim pending in this state on May 1, 2007, shall
be dismissed within 180 days after May 1, 2007, without prejudice
unless:
(A)
All parties stipulate by no less than 60 days prior to the commencement of trial
that the plaintiff has established prima-facie evidence of physical impairment
with respect to an asbestos claim or silica claim; or
(B)
The trial court in which the complaint was initially filed issues an order that
the plaintiff has established prima-facie evidence of physical impairment with
respect to an asbestos claim or silica claim. Such an order shall be issued
only if the following conditions and procedures are met:
(i)
By no less than 60 days prior to the commencement of trial, the plaintiff files
with the trial court and serves on each defendant named in the complaint or on
counsel designated by each defendant the medical documentation necessary to
establish prima-facie evidence of physical impairment;
(ii)
Within 30 days of service of plaintiff´s documentation establishing
prima-facie evidence of physical impairment, any defendant may file an
opposition with the trial court challenging plaintiff´s prima-facie
evidence of physical impairment. To the extent any such opposition is based
upon the medical opinion of a licensed physician, that physician shall be a
qualified physician, as that term is defined in subparagraph (A) of paragraph
(19) of Code Section 51-14-3, and shall be either a board certified internist, a
board certified pathologist, a board certified pulmonologist, a board certified
occupational medicine physician, a board certified oncologist, or a certified
B-reader. Defendant´s opposition shall be filed with the trial court and
served on plaintiff´s counsel and each defendant;
(iii)
If a defendant does not file an opposition within the time permitted, the trial
court shall determine if the plaintiff has established prima-facie evidence of
physical impairment in a timely manner based on the papers and documentation
submitted to the trial court;
(iv)
If a defendant files an objection, then within ten days of service of
defendant´s opposition, the plaintiff may file a reply with the trial
court. The reply must be served on each defendant; and
(v)
The trial court shall determine if the plaintiff has established prima-facie
evidence of physical impairment in a timely manner based on the papers and
documentation submitted to the trial court. A hearing will be conducted only if
the trial court so orders on its own motion or if, in the exercise of
discretion, the trial court grants a party´s request for a hearing. No
testimony shall be taken at the hearing. A decision of the trial court not to
grant a request for a hearing may not be appealed and does not constitute
reversible error. If the trial court determines that the plaintiff has failed
to establish prima-facie evidence of physical impairment, it shall dismiss the
plaintiff´s complaint without prejudice;
In
the event a trial is scheduled to commence in less than 60 days after May 1,
2007, a trial court can shorten the deadlines contained in this paragraph as
necessary in order to make a determination regarding the prima-facie evidence of
physical impairment before trial commences; and
(2)(A)
The plaintiff in any asbestos claim or silica claim filed in this state on or
after May 1, 2007, shall file together with the complaint a medical report
(which shall be in the form of an affidavit) and accompanying documentation
setting forth the medical findings necessary to establish prima-facie evidence
of physical impairment as provided in paragraph (17) or (18) of Code Section
51-14-3. In addition, the plaintiff´s complaint shall allege with
specificity that the plaintiff satisfies the prima-facie evidence of physical
impairment with respect to an asbestos claim or silica claim.
(B)
Within 90 days of service of plaintiff´s complaint, any defendant may file
an opposition with the trial court challenging plaintiff´s prima-facie
evidence of physical impairment. To the extent any such opposition is based
upon the medical opinion of a licensed physician, that physician shall be a
qualified physician, as that term is defined in subparagraph (A) of paragraph
(19) of Code Section 51-14-3, and shall be either a board certified internist, a
board certified pathologist, a board certified pulmonologist, a board certified
occupational medicine physician, a board certified oncologist, or a certified
B-reader. Defendant´s opposition shall be filed with the trial court and
served on plaintiff´s counsel and each defendant.
(C)
If the defendant does not file an opposition challenging plaintiff´s
prima-facie evidence of physical impairment within the time permitted, the trial
court shall determine if the plaintiff has established prima-facie evidence of
physical impairment based on the papers and documentation submitted to the trial
court. The trial court´s decision shall be made in a timely
manner.
(D)
If the defendant files an objection, the plaintiff may file a reply with the
trial court within ten days of service of defendant´s opposition. The
reply must be served on each defendant.
(E)
The trial court shall determine if the plaintiff has established prima-facie
evidence of physical impairment with respect to an asbestos claim or silica
claim in a timely manner based on the papers and documentation submitted to the
trial court. A hearing will be conducted only if the trial court so orders on
its own motion, or if, in the exercise of discretion, the trial court grants a
party´s request for a hearing. No testimony shall be taken at the hearing.
A decision of the trial court not to grant a request for a hearing may not be
appealed and does not constitute reversible error. If the trial court
determines that the plaintiff has failed to establish prima-facie evidence of
physical impairment, it shall dismiss the plaintiff´s complaint without
prejudice.
51-14-7.
(a)
All asbestos claims and silica claims filed in this state on or after May 1,
2007, shall include with the complaint a sworn information form containing the
following information:
(1)
The exposed person´s name, address, date of birth, social security number,
and marital status;
(2)
If the exposed person alleges exposure to asbestos or silica through the
testimony of another person or other than by direct or bystander exposure to a
product or products, the name, address, date of birth, social security number,
and marital status for each person by which claimant alleges exposure, hereafter
the 'index person,' and the claimant´s relationship to each such
person;
(3)
The specific location of each alleged exposure;
(4)
The specific asbestos-containing product or silica-containing product to which
the exposed person was exposed and the manufacturer of each
product;
(5)
The beginning and ending dates of each alleged exposure as to each
asbestos-containing product or silica-containing product for each location at
which exposure allegedly took place for plaintiff and for each index
person;
(6)
The occupation and name of employer of the exposed person at the time of each
alleged exposure;
(7)
The specific condition related to asbestos or silica claimed to exist;
(8)
Any supporting documentation of the condition claimed to exist; and
(9)
The identity of any bankruptcy trust to which a claim has been submitted
concerning any asbestos or silica injury of the exposed person, attaching any
claim form or other information submitted to such trust or trusts with respect
to the exposed person. Plaintiff must also identify any bankruptcy trust that
the plaintiff believes is or may be liable for all or part of the injury at
issue, even if a claim has not been submitted to that trust at the time the
complaint is filed.
(b)
If a plaintiff filing an asbestos claim or silica claim fails to file with the
complaint a sworn information form or files a sworn information form that is
allegedly defective or incomplete, and one or more defendants allege, with
specificity, by motion to dismiss filed on or before the close of discovery,
that said sworn information form is missing, defective, or incomplete, the
plaintiff´s complaint shall be dismissed without prejudice for failure to
state a claim, except that the plaintiff may file the sworn information form or
cure the alleged defect or omission any time between service of the motion to
dismiss and 30 days after any order of dismissal identifying the defective or
missing item or items. The trial court may, in the exercise of its discretion,
extend the time for filing the missing information as it shall determine justice
requires.
(c)
All asbestos claims and silica claims along with sworn information forms must be
individually filed in separate civil actions except that claims relating to the
exposure to asbestos or silica for the same exposed person whose alleged injury
is the basis for the civil action may be joined in a single action. Otherwise,
no claims on behalf of a group or class of persons shall be joined in single
civil action.
51-14-8.
(a)
Until such time as the trial court enters an order determining that the
plaintiff has established prima-facie evidence of physical impairment, no
asbestos claim or silica claim shall be subject to discovery, except discovery
related to establishing or challenging the prima-facie evidence of physical
impairment or by order of the trial court upon motion of one of the parties and
for good cause shown.
(b)
The medical criteria set forth in this chapter to establish prima-facie evidence
of physical impairment are solely for the purpose of determining whether a claim
meets the criteria to proceed in court. The fact that a plaintiff satisfies the
criteria necessary to establish prima-facie evidence of physical impairment for
an asbestos claim or silica claim shall not be construed as an admission or
determination that the exposed person in fact has a condition related to
exposure to asbestos or silica and shall not be cited, referred to, or otherwise
used at trial.
(c)
Unless stipulated to by the parties, an expert report submitted for the purpose
of establishing or challenging prima-facie evidence of physical impairment is
inadmissible for any other purpose.
51-14-9.
(a)
Notwithstanding Code Section 1-2-6 or 1-2-10, a civil action alleging an
asbestos claim or silica claim may only be brought or maintained in the courts
of Georgia if the plaintiff, whether a citizen of Georgia or a citizen of some
other state, is a resident of Georgia at the time of filing the action or the
exposure to asbestos or silica on which the claim is based occurred in Georgia;
provided, however, nothing contained in this chapter shall preclude a
nonresident of Georgia who currently has a case pending in this state that was
filed before April 12, 2005 from maintaining that asbestos claim or silica claim
if that nonresident can establish prima-facie evidence of physical impairment
with respect to an asbestos claim or silica claim as provided in paragraph (17)
or (18) of Code Section 51-14-3. Civil actions alleging an asbestos claim or
silica claim filed on or after May 1, 2007, must comply with the forum
provisions set forth in this Code section. Civil actions alleging an asbestos
claim or silica claim filed on or after April 12, 2005 and before May 1, 2007,
must comply with the forum provisions of Code Section 51-14-8, as enacted on
April 12, 2005, by 2005 Act No. 29 (Ga. L. 2005, p. 145) as they existed prior
to May 1, 2007.
(b)
The trial court, on motion of a defendant, shall dismiss each asbestos claim or
silica claim that is subject to this chapter against the defendant unless the
plaintiff files a written statement with the trial court electing to abate the
plaintiff´s claim against the defendant for a period of 180 days from the
date the trial court disposes of the defendant´s motions in order to afford
the plaintiff an opportunity to file a new action on the claims in another state
of the United States.
(c)(1)
A trial court may not abate or dismiss a claim under this Code section until the
defendant files with the trial court or with the clerk of the court a written
stipulation that, with respect to a new action on the claim commenced by the
plaintiff, the defendant waives the right to assert a statute of limitations
defense in all other states of the United States in which the claim was not
barred by limitations at the time the claim was filed in this state as necessary
to effect a tolling of the limitations periods in those states beginning on the
date the claim was filed in this state and ending on the date the claim is
dismissed or the period of abatement ends. The fact that a claim subject to
this Code section was barred by the statute of limitations in all other states
of the United States at the time it was filed in this state shall not prevent
the claim from being dismissed pursuant to this Code section and such claim
shall be dismissed even if it can not be filed in another state. The trial
court may not abate or dismiss a claim under this Code section until the
defendant files with the trial court or with the clerk of the court a written
stipulation that, with respect to a new action on the claim commenced by the
plaintiff in another state of the United States, the plaintiff may elect that
the plaintiff and the defendant may rely on responses to discovery already
provided under Georgia law, plus any additional discovery that may be conducted
under the rules of civil procedure in another state, or use responses to
discovery already provided and conduct additional discovery as permitted under
the rules of civil procedure in such other state.
(2)
If less than all of the defendants agree to provide the stipulations set forth
in paragraph (1) of this subsection, then the court shall dismiss the claims
against those defendants who so stipulate.
(d)
To comply with this Code section in relation to an action that involves both
claims that arose in this state and claims that arose outside this state, a
trial court shall consider each claim individually and shall sever from the
action the claims that are subject to this Code section.
(e)
If a plaintiff alleges that the exposed person was exposed to asbestos or silica
while located in more than one jurisdiction, the trial court shall determine,
for purposes of this Code section, which of the jurisdictions is the most
appropriate forum for the claim, considering the relative amounts and lengths of
the exposed person´s exposure to asbestos or silica in each
jurisdiction.
51-14-10.
Notwithstanding
any other provision of law, an asbestos claim or silica claim that meets the
requirements of this chapter permitting a claim to be filed in this state may
only be filed in the county where the plaintiff resides or a county in which the
exposure to asbestos or silica on which the claim is based occurred. If a
plaintiff alleges that an exposed person was exposed to asbestos or silica while
located in more than one county, the trial court shall determine which of the
counties is the most appropriate forum for the claim, considering the relative
amounts and lengths of the exposed person´s exposure to asbestos or silica
in each of those counties.
51-14-11.
A
trial court may consolidate for trial any number and type of asbestos claims or
silica claims with the consent of all the parties. In the absence of such
consent, the trial court may consolidate for trial only asbestos claims or
silica claims relating to the same exposed person and members of his or her
household.
51-14-12.
(a)
Asbestos claims and silica claims that accrued before April 12, 2005, or that
will accrue on or after May 1, 2007, shall be governed by this chapter, as it
exists on May 1, 2007. Asbestos claims and silica claims that accrued on or
after April 12, 2005, and before May 1, 2007, shall be governed by Chapter 14 of
Title 51, as enacted on April 12, 2005, by 2005 Act No. 29 (Ga. L. 2005, p.
145).
(b)
Notwithstanding the foregoing, all asbestos claims and silica claims filed on or
after April 12, 2005, and before May 1, 2007, shall be subject to and comply
with the provisions of Code Sections 51-14-6, 51-14-7, 51-14-8, 51-14-9, and
51-14-10, as enacted on April 12, 2005, by 2005 Act No. 29 (Ga. L. 2005, p 145).
All asbestos claims and silica claims filed on or after May 1, 2007, shall be
subject to and comply with Code Sections 51-14-7, 51-14-8, 51-14-9, 51-14-10,
and 51-14-11, as they exist on May 1, 2007.
54-14-13.
In
the event any part, portion, section, subsection, paragraph, sentence, clause,
phrase, or word of this chapter shall be declared or adjudged invalid or
unconstitutional, such adjudication shall in no manner affect the other parts,
portions, sections, subsections, paragraphs, sentences, clauses, phrases, or
words of this chapter which shall remain of full force and effect as if the
part, portion, section, subsection, paragraph, sentence, clause, phrase, or word
so declared or adjudged invalid or unconstitutional were not originally a part
hereof. For example, if a court determines that a particular word renders any
portion or application of this chapter unconstitutional, in that event, the
court shall strike that word and apply this chapter as if it were enacted
without that word. The General Assembly declares that it would have passed the
remaining parts of this chapter if it had known that such part or parts hereof
would be declared or adjudged invalid or unconstitutional. The General Assembly
does not intend for this chapter to make any substantive change in the law
governing claims that accrued before April 12, 2005, and has only included
procedural provisions that govern where such claims can be filed and what early
reports must be filed in such cases. This chapter shall be interpreted
consistently with the General Assembly´s intention not to make any
substantive changes in the law applicable to cases that accrued before April 12,
2005. The General Assembly expressly declares its intent that Code Section
51-14-9 remain in full force and effect if any other part or parts of this
chapter shall be declared or adjudged invalid or unconstitutional. The General
Assembly further expressly declares its intent that, in the event any part,
portion, section, subsection, paragraph, sentence, clause, phrase, or word of
this chapter shall be declared or adjudged invalid or unconstitutional as
applied to asbestos claims or silica claims that accrued before April 12, 2005,
such adjudication shall in no manner affect the applicability of any part,
portion, section, subsection, paragraph, sentence, clause, phrase, or word of
this chapter to asbestos claims or silica claims that accrued or may accrue on
or after May 1, 2007."
SECTION
2.
Said
Title 51 of the Official Code of Georgia Annotated, relating to torts, is
further amended by inserting at the end thereof a new Chapter 15 to read as
follows:
"CHAPTER
15
51-15-1.
The
General Assembly finds that the number of asbestos related claims has increased
significantly in recent years and threatens the continued viability of a number
of uniquely situated companies that have not ever manufactured, sold, or
distributed asbestos or asbestos products and are argued to be liable only as
successor corporations. This liability has created an overpowering public
necessity to provide an immediate, clarifying, and remedial legislative
solution. The General Assembly intends that the cumulative recovery by all
asbestos claimants from innocent successors be limited, and intends to simply
clarify and fix the form of asbestos claimants´ remedies without impairing
their substantive rights and finds that there are no alternative means to meet
this public necessity. The General Assembly finds that Pennsylvania, Ohio,
Texas, Mississippi, Florida, and South Carolina have enacted legislation similar
to this chapter that, among other things, provides limitations of liabilities
for asbestos claims for innocent successors. The General Assembly finds the
public interest as a whole is best served by providing relief to these innocent
successors so that they may remain viable and continue to contribute to this
state. The General Assembly further finds that Georgia´s successor
liability statutes were never intended or contemplated to impose liability on
successors in the situation covered by this chapter.
51-15-2.
As
used in this chapter, the term:
(1)(A)
'Asbestos claim' means any claim, wherever or whenever made, for damages,
losses, indemnification, contribution, loss of consortium, or other relief
arising out of, based on, or in any way related to the health effects of
exposure to asbestos, including, but not limited to:
(i)
Any claim, to the extent recognized by applicable state law now or in the
future, for:
(I)
Personal injury or death;
(II)
Mental or emotional injury;
(III)
Risk or fear of disease or other injury;
(IV)
The costs of medical monitoring or surveillance; or
(V)
Damage or loss caused by the installation, presence, or removal of asbestos;
and
(ii)
Any claim made by or on behalf of an exposed person or based on that exposed
person´s exposure to asbestos, including a representative, spouse, parent,
child, or other relative of the exposed person.
(B)
'Asbestos claim' shall not mean a claim brought under:
(i)
A workers´ compensation law administered by this state to provide benefits,
funded by a responsible employer or its insurance carrier, for occupational
diseases or injuries or for disability or death caused by occupational diseases
or injuries;
(ii)
The Act of April 22, 1908, known as the Federal Employers´ Liability Act,
45 U.S.C. Section 51, et seq., as may be amended from time to time;
(C)
The Longshore and Harbor Workers´ Compensation Act, 33 U.S.C. Sections
901-944, 948-950, as may be amended from time to time; or
(D)
The Federal Employees Compensation Act, 5 U.S.C. Chapter 81, as may be amended
from time to time.
(2)
'Corporation' means a corporation for profit, including a domestic corporation
organized under the laws of this state or a foreign corporation organized under
laws other than the laws of this state.
(3)
'Successor' means a corporation that assumes or incurs, or has assumed or
incurred, successor asbestos related liabilities.
(4)
'Successor asbestos related liabilities' means any liabilities, whether known or
unknown, asserted or unasserted, absolute or contingent, accrued or unaccrued,
liquidated or unliquidated, or due or to become due, which are related in any
way to asbestos claims and were assumed or incurred by a corporation as a result
of or in connection with a merger or consolidation, or the plan of merger or
consolidation related to the merger or consolidation, with or into another
corporation, or which are related in any way to asbestos claims based on the
exercise of control or the ownership of stock of the corporation before the
merger or consolidation. The term includes liabilities that, after the time of
the merger or consolidation for which the fair market value of total gross
assets is determined under Code Section 51-15-4, were or are paid or otherwise
discharged, or committed to be paid or otherwise discharged, by or on behalf of
the corporation, or by a successor of the corporation, or by or on behalf of a
transferor, in connection with settlements, judgments, or other discharges in
this state or another jurisdiction.
(5)
'Transferor' means a corporation from which successor asbestos related
liabilities are or were assumed or incurred.
51-15-3.
(a)
The limitations contained in Code Section 51-15-4 apply to a domestic or foreign
corporation that is a successor and became a successor before January 1, 1972,
or is any of that successor corporation´s successor
corporation.
(b)
The limitations contained in Code Section 51-15-4 do not apply to:
(1)
Any claim against a corporation that does not constitute a successor asbestos
related liability;
(2)
An insurance corporation;
(3)
Any obligations under the federal National Labor Relations Act or under any
collective bargaining agreement; or
(4)
A successor that, after a merger or consolidation, continued in the business of
mining asbestos, in the business of selling or distributing asbestos fibers, or
in the business of manufacturing, distributing, removing, or installing
asbestos-containing products that were the same or substantially the same as
those products previously manufactured, distributed, removed, or installed by
the transferor.
51-15-4.
(a)
Except as further limited in subsection (b) of this Code section, the cumulative
successor asbestos related liabilities of a corporation are limited to the fair
market value of the total gross assets of the transferor determined as of the
time of the merger or consolidation. The corporation does not have any
responsibility for successor asbestos related liabilities in excess of this
limitation.
(b)
If the transferor had assumed or incurred successor asbestos related liabilities
in connection with a prior merger or consolidation with a prior transferor, the
fair market value of the total assets of the prior transferor, determined as of
the time of the earlier merger or consolidation, shall be substituted for the
limitation set forth in subsection (a) of this Code section for the purpose of
determining the limitation of liability of a corporation.
51-15-5.
(a)
A corporation may establish the fair market value of total gross assets for the
purpose of the limitations under Code Section 51-15-4 through any method
reasonable under the circumstances, including:
(1)
By reference to the going concern value of the assets or to the purchase price
attributable to or paid for the assets in an arm´s length transaction;
or
(2)
In the absence of other readily available information from which fair market
value can be determined, by reference to the value of the assets recorded on a
balance sheet.
(b)
Total gross assets include intangible assets.
(c)
Total gross assets include the aggregate coverage under any applicable
third-party liability insurance that was issued to the transferor whose assets
are being valued for purposes of this Code section, which insurance has been
collected or is collectable to cover successor asbestos related liabilities
except compensation for liabilities arising from workers´ exposure to
asbestos solely during the course of their employment by the transferor. For
purposes of this subsection, a settlement with an insurance company shall fix
what amount of coverage was collectable.
51-15-6.
(a)
Except as provided in subsections (b), (c), and (d) of this Code section, the
fair market value of total gross assets at the time of a merger or consolidation
shall increase annually at a rate equal to the sum of:
(1)
The prime rate as published by the Board of Governors of the Federal Reserve
System, as published in statistical release H.15 or any publication that may
supersede it, for each calendar year since the merger or consolidation;
and
(2)
One percent.
(b)
The rate provided in subsection (a) of this Code section shall not be
compounded.
(c)
The adjustment of fair market value of total gross assets shall continue as
provided under subsection (a) of this Code section until the date the adjusted
value is first exceeded by the cumulative amounts of successor asbestos related
liabilities paid or committed to be paid by or on behalf of the corporation or a
predecessor, or by or on behalf of a transferor, after the time of the merger or
consolidation for which the fair market value of total gross assets is
determined.
(d)
No adjustment of the fair market value of total gross assets shall be applied to
any liability insurance otherwise included in the definition of total gross
assets by subsection (c) of Code Section 51-15-5.
51-15-7.
The
courts in this state shall apply, to the fullest extent permissible under the
United States Constitution, this state´s substantive law, including the
limitation under this chapter, to the issue of successor asbestos related
liabilities. This chapter shall be construed liberally to accomplish its
remedial purposes.
51-15-8.
If
any part, portion, section, subsection, paragraph, sentence, clause, phrase, or
word of this chapter, or the application thereof to any person or circumstance
is held invalid, the invalidity shall not affect the other parts, portions,
sections, subsections, paragraphs, sentences, clauses, phrases, or words or
applications of this chapter that can be given effect without the invalid part,
portion, section, subsection, paragraph, sentence, clause, phrase, or word or
application, and to this end the parts, portions, sections, subsections,
paragraphs, sentences, clauses, phrases, and words of this chapter are declared
severable."
SECTION
3.
In
the event any part, portion, section, subsection, paragraph, sentence, clause,
phrase, or word of Section 1 of this Act shall be declared or adjudged invalid
or unconstitutional, such adjudication shall in no manner affect the validity or
applicability of any part, portion, section, subsection, paragraph, sentence,
clause, phrase, or word of Section 2 of this Act, which shall remain of full
force and effect as if the part, portion, section, subsection, paragraph,
sentence, clause, phrase, or word so declared or adjudged invalid or
unconstitutional were not originally a part hereof. Likewise, in the event any
part, portion, section, subsection, paragraph, sentence, clause, phrase, or word
of Section 2 of this Act shall be declared or adjudged invalid or
unconstitutional, such adjudication shall in no manner affect the validity or
applicability of any part, portion, section, subsection, paragraph, sentence,
clause, phrase, or word of Section 1 of this Act, which shall remain of full
force and effect as if the part, portion, section, subsection, paragraph,
sentence, clause, phrase, or word so declared or adjudged invalid or
unconstitutional were not originally a part hereof. The General Assembly
declares that it would have passed the remaining parts of this Act if it had
known that any part or parts hereof would be declared or adjudged invalid or
unconstitutional.
SECTION
4.
Section
1 of this Act shall become effective on May 1, 2007, and shall apply to certain
accrued or future accruing asbestos claims or silica claims in which trial has
not commenced as of May 1, 2007, in accordance with its terms. Section 2 of
this Act shall become effective on May 1, 2007, and shall apply to asbestos
claims that accrued or may accrue on or after that date.
SECTION
5.
All
laws and parts of laws in conflict with this Act are repealed.