1     
ASBESTOS LITIGATION TRANSPARENCY ACT

2     
2016 GENERAL SESSION

3     
STATE OF UTAH

4     
Chief Sponsor: Brad R. Wilson

5     
Senate Sponsor: ____________

6     

7     LONG TITLE
8     General Description:
9           This bill enacts transparency requirements with respect to asbestos bankruptcy trust
10     claims in civil asbestos actions and establishes medical criteria and procedures for
11     asbestos- and silica-related claims.
12     Highlighted Provisions:
13          This bill:
14          ▸      requires asbestos plaintiffs to investigate and file all asbestos bankruptcy trust
15     claims and provide parties with all trust claims materials after commencement of an
16     asbestos-related lawsuit;
17          ▸     gives priority to asbestos and silica claimants who can demonstrate physical
18     impairment caused by exposure to asbestos or silica; and
19          ▸     tolls the running of statutes of limitations for persons who have been exposed to
20     asbestos or silica, but have no present physical impairment caused by the exposure.
21     Money Appropriated in this Bill:
22          None
23     Other Special Clauses:
24          None
25     Utah Code Sections Affected:
26     ENACTS:
27          78B-6-2001, Utah Code Annotated 1953

28          78B-6-2002, Utah Code Annotated 1953
29          78B-6-2003, Utah Code Annotated 1953
30          78B-6-2004, Utah Code Annotated 1953
31          78B-6-2005, Utah Code Annotated 1953
32          78B-6-2006, Utah Code Annotated 1953
33          78B-6-2007, Utah Code Annotated 1953
34          78B-6-2008, Utah Code Annotated 1953
35          78B-6-2101, Utah Code Annotated 1953
36          78B-6-2102, Utah Code Annotated 1953
37          78B-6-2103, Utah Code Annotated 1953
38          78B-6-2104, Utah Code Annotated 1953
39          78B-6-2105, Utah Code Annotated 1953
40          78B-6-2106, Utah Code Annotated 1953
41          78B-6-2107, Utah Code Annotated 1953
42          78B-6-2108, Utah Code Annotated 1953
43          78B-6-2109, Utah Code Annotated 1953
44          78B-6-2110, Utah Code Annotated 1953
45          78B-6-2111, Utah Code Annotated 1953
46          78B-6-2112, Utah Code Annotated 1953
47          78B-6-2113, Utah Code Annotated 1953
48          78B-6-2114, Utah Code Annotated 1953
49     

50     Be it enacted by the Legislature of the state of Utah:
51          Section 1. Section 78B-6-2001 is enacted to read:
52     
Part 20. Asbestos Bankruptcy Trust Claims Transparency Act

53          78B-6-2001. Title.
54          This part is referred to as the "Asbestos Bankruptcy Trust Claims Transparency Act."
55          Section 2. Section 78B-6-2002 is enacted to read:
56          78B-6-2002. Legislative findings -- Purpose.
57          (1) The Legislature finds that:
58          (a) approximately 100 employers have declared bankruptcy at least partially due to

59     asbestos-related liability;
60          (b) these bankruptcies have resulted in a search for more solvent companies by
61     claimants, resulting in over 10,000 companies being named as asbestos defendants, including
62     many small- and medium-sized companies, in industries that cover 85% of the United States
63     economy;
64          (c) scores of trusts have been established in asbestos-related bankruptcy proceedings to
65     form a multi-billion dollar asbestos bankruptcy trust compensation system outside of the tort
66     system, and new asbestos trusts continue to be formed;
67          (d) asbestos claimants often seek compensation from solvent defendants in civil
68     actions and trusts or claims facilities formed in asbestos-related bankruptcy proceedings;
69          (e) there is limited coordination and transparency between these two paths to recovery,
70     which has resulted in the suppression of evidence in asbestos actions and potential fraud; and
71          (f) justice is promoted by transparency with respect to asbestos bankruptcy trust claims
72     in civil asbestos actions.
73          (2) This part is enacted to:
74          (a) provide transparency with respect to asbestos bankruptcy trust claims in civil
75     asbestos actions; and
76          (b) reduce the opportunity for fraud or suppression of evidence in asbestos actions.
77          Section 3. Section 78B-6-2003 is enacted to read:
78          78B-6-2003. Definitions.
79          As used in this part:
80          (1) "Asbestos" means chrysotile, amosite, crocidolite, tremolite asbestos, anthophyllite
81     asbestos, actinolite asbestos, asbestiform winchite, asbestiform richterite, asbestiform
82     amphibole minerals, and any of these minerals that have been chemically treated or altered,
83     including all minerals defined as asbestos in 29 C.F.R. Sec. 1910 at the time the asbestos action
84     is filed.
85          (2) (a) "Asbestos action" means a claim for damages or other civil or equitable relief
86     presented in a civil action resulting from, based on, or related to:
87          (i) the health effects of exposure to asbestos, including:
88          (A) loss of consortium;
89          (B) wrongful death;

90          (C) mental or emotional injury;
91          (D) risk or fear of disease or other injury; and
92          (E) costs of medical monitoring or surveillance; and
93          (ii) any other derivative claim made by or on behalf of a person exposed to asbestos or
94     a representative, spouse, parent, child, or other relative of that person.
95          (b) "Asbestos action" does not include a claim for workers' compensation or veterans'
96     benefits.
97          (3) "Asbestos trust" means a:
98          (a) government-approved or court-approved trust that is intended to provide
99     compensation to claimants arising out of, based on, or related to the health effects of exposure
100     to asbestos or asbestos-containing products;
101          (b) qualified settlement fund that is intended to provide compensation to claimants
102     arising out of, based on, or related to the health effects of exposure to asbestos or
103     asbestos-containing products;
104          (c) compensation fund or claims facility created as a result of an administrative or legal
105     action that is intended to provide compensation to claimants arising out of, based on, or related
106     to the health effects of exposure to asbestos or asbestos-containing products;
107          (d) court-approved bankruptcy that is intended to provide compensation to claimants
108     arising out of, based on, or related to the health effects of exposure to asbestos or
109     asbestos-containing products; or
110          (e) plan of reorganization or trust pursuant to 11 U.S.C. Sec. 524(g) or 11 U.S.C. Sec.
111     1121(a) or other applicable provision of law that is intended to provide compensation to
112     claimants arising out of, based on, or related to the health effects of exposure to asbestos or
113     asbestos-containing products.
114          (4) "Plaintiff" means:
115          (a) the person bringing the asbestos action, including a personal representative if the
116     asbestos action is brought by an estate; or
117          (b) a conservator or next friend if the asbestos action is brought on behalf of a minor or
118     legally incapacitated individual.
119          (5) "Trust claims materials" means a final executed proof of claim and all other
120     documents and information related to a claim against an asbestos trust, including:

121          (a) claims forms and supplementary materials;
122          (b) affidavits;
123          (c) depositions and trial testimony;
124          (d) work history;
125          (e) medical and health records;
126          (f) documents reflecting the status of a claim against an asbestos trust; and
127          (g) all documents relating to the settlement of the trust claim if the trust claim has
128     settled.
129          (6) "Trust governance documents" means all documents that relate to eligibility and
130     payment levels, including:
131          (a) claims payment matrices; and
132          (b) trust distribution procedures or plans for reorganization for an asbestos trust.
133          (7) "Veterans' benefits" means a program for benefits in connection with military
134     service administered by the Veterans' Administration under United States Code, Title 38,
135     Veterans' Benefits.
136          (8) (a) "Workers' compensation" means a program administered by the United States or
137     a state to provide benefits, funded by a responsible employer or the employer's insurance
138     carrier, for occupational diseases or injuries or for disability or death caused by occupational
139     diseases or injuries.
140          (b) "Workers' compensation" includes the Longshore and Harbor Workers'
141     Compensation Act, 33 U.S.C. Sec. 901 et seq., and Federal Employees' Compensation Act, 5
142     U.S.C. Sec. 8101 et seq.
143          (c) "Workers' compensation" does not include the Federal Employers' Liability Act, 45
144     U.S.C. Sec. 51 et seq.
145          Section 4. Section 78B-6-2004 is enacted to read:
146          78B-6-2004. Required disclosures by plaintiff.
147          (1) Within 30 days after an asbestos action is filed, or within 30 days after May 10,
148     2016, whichever is later, and before any evidence is preserved by deposition in the asbestos
149     action, the plaintiff shall do all of the following:
150          (a) provide the court and parties with a sworn statement signed by the plaintiff and the
151     plaintiff's counsel, under penalties of perjury, indicating:

152          (i) that an investigation of all asbestos trust claims has been conducted, and that all
153     asbestos trust claims that can be made by the plaintiff or any person on the plaintiff's behalf
154     have been filed;
155          (ii) whether there has been a request to defer, delay, suspend, or toll any asbestos trust
156     claim; and
157          (iii) the disposition of each asbestos trust claim;
158          (b) provide all parties with all trust claims materials, including:
159          (i) trust claims materials that relate to conditions other than those that are the basis for
160     the asbestos action; and
161          (ii) all trust claims materials from all law firms connected to the plaintiff in relation to
162     exposure to asbestos, including anyone at a law firm involved in the asbestos action, any
163     referring law firm, and any other firm that has filed an asbestos trust claim for the plaintiff or
164     on the plaintiff's behalf; and
165          (c) produce all trust claims materials submitted by another individual to any asbestos
166     trusts if:
167          (i) the plaintiff's asbestos trust claim is based on exposure to asbestos through the other
168     individual; and
169          (ii) the materials are available to the plaintiff or the plaintiff's counsel.
170          (2) The plaintiff shall supplement the information and materials required under
171     Subsection (1) within 30 days after the plaintiff or a person on the plaintiff's behalf:
172          (a) supplements an existing asbestos trust claim;
173          (b) receives additional information or materials related to an asbestos trust claim; or
174          (c) files an additional asbestos trust claim.
175          (3) The court may dismiss the asbestos action if the plaintiff fails to comply with this
176     section.
177          (4) An asbestos action may not proceed to trial until at least 180 days after the
178     requirements of Subsection (1) are met.
179          Section 5. Section 78B-6-2005 is enacted to read:
180          78B-6-2005. Identification of additional asbestos trust claims by defendant.
181          (1) (a) A defendant may file a motion requesting a stay of the proceedings on or before
182     the later of 60 days before the date that the trial in the action is set to commence or 15 days

183     after the defendant first obtains information that could support additional trust claims by the
184     plaintiff.
185          (b) The motion described in Subsection (1)(a) shall identify the additional asbestos
186     trust claims the defendant believes the plaintiff can file and include information supporting the
187     additional asbestos trust claims.
188          (2) Within 10 days of receiving the defendant's motion described in Subsection (1)(a),
189     the plaintiff shall:
190          (a) file the asbestos trust claims;
191          (b) file a written response with the court stating why there is insufficient evidence for
192     the plaintiff to file the asbestos trust claims; or
193          (c) file a written response with the court requesting a determination that the cost to file
194     the asbestos trust claims exceeds the plaintiff's reasonably anticipated recovery.
195          (3) (a) If the court determines that there is a sufficient basis for the plaintiff to file an
196     asbestos trust claim identified in the motion to stay, the court shall stay the asbestos action until
197     the plaintiff files the asbestos trust claim and produces all related trust claims materials.
198          (b) If the court determines that the cost of submitting an asbestos trust claim exceeds
199     the plaintiff's reasonable anticipated recovery, the court shall stay the asbestos action until the
200     plaintiff files with the court and provides all parties with a verified statement of the plaintiff's
201     history of exposure, usage, or other connection to asbestos covered by that asbestos trust.
202          (4) Not less than 60 days after the plaintiff provides the documentation required under
203     this section, the court may schedule the asbestos action for trial.
204          Section 6. Section 78B-6-2006 is enacted to read:
205          78B-6-2006. Discovery -- Use of materials -- Trust record.
206          (1) (a) Trust claims materials and trust governance documents are presumed to be
207     relevant and authentic and are admissible in evidence in an asbestos action.
208          (b) A claim of privilege does not apply to any trust claims materials or trust governance
209     documents.
210          (2) (a) A defendant in an asbestos action may seek discovery from an asbestos trust.
211          (b) The plaintiff may not claim privilege or confidentiality to bar discovery and shall
212     provide consent or other expression of permission that may be required by the asbestos trust to
213     release information and materials sought by a defendant.

214          (3) Trust claim materials that are sufficient to entitle a claim to consideration for
215     payment under the applicable trust governance documents may be sufficient to support a jury
216     finding that the plaintiff was exposed to products for which the trust was established to provide
217     compensation and that the exposure may be a substantial factor in causing the plaintiff's injury
218     that is at issue in the asbestos action.
219          (4) Not less than 30 days before trial in an asbestos action, the court shall enter into the
220     record a document that identifies every asbestos trust claim made by the plaintiff or on the
221     plaintiff's behalf.
222          Section 7. Section 78B-6-2007 is enacted to read:
223          78B-6-2007. Failure to provide information -- Sanctions.
224          (1) On the motion of a defendant or judgment debtor seeking sanctions or other relief
225     in an asbestos action, the court may impose any sanction provided by court rule or a law of this
226     state, including vacating a judgment rendered in the action, for a plaintiff's failure to comply
227     with the disclosure requirements of this part.
228          (2) The trial court, on motion by a defendant or judgment debtor seeking sanctions or
229     other relief, has jurisdiction to reopen the judgment in an asbestos action, adjust the judgment
230     by the amount of any subsequent asbestos trust payments obtained by the plaintiff, and order
231     any other relief to the parties that the court considers just and proper if:
232          (a) the plaintiff or a person on the plaintiff's behalf files an asbestos trust claim after
233     the plaintiff obtains a judgment in an asbestos action; and
234          (b) the asbestos trust was in existence at the time the plaintiff obtained the judgment.
235          (3) A defendant or judgment debtor shall file any motion under this section within a
236     reasonable time, not to exceed 3 years after the judgment was entered.
237          Section 8. Section 78B-6-2008 is enacted to read:
238          78B-6-2008. Application.
239          (1) This part applies to asbestos actions filed on or after May 10, 2016, as well as any
240     pending asbestos actions in which trial has not commenced as of May 10, 2016.
241          (2) This part may only be applied prospectively if the application of a provision in this
242     part would unconstitutionally affect a vested right.
243          Section 9. Section 78B-6-2101 is enacted to read:
244     
Part 21. Asbestos and Silica Claims Priorities Act


245          78B-6-2101. Title.
246          This part is known as the "Asbestos and Silica Claims Priorities Act."
247          Section 10. Section 78B-6-2102 is enacted to read:
248          78B-6-2102. Findings and purpose.
249          (1) The Legislature finds that:
250          (a) asbestos is a mineral that was widely used before the 1980s for insulation,
251     fireproofing, and other purposes;
252          (b) millions of American workers and others were exposed to asbestos, especially
253     during and after World War II, and before the issuance of regulations by the Occupational
254     Safety and Health Administration in the early 1970s;
255          (c) long-term exposure to asbestos has been associated with various types of cancer,
256     including mesothelioma and lung cancer, as well as nonmalignant conditions such as asbestosis
257     and diffuse pleural thickening;
258          (d) diseases caused by asbestos often have long latency periods;
259          (e) although the use of asbestos has dramatically declined since the 1970s and
260     workplace exposures have been regulated since 1971 by the Occupational Safety and Health
261     Administration, past exposures will continue to result in significant claims of death and
262     disability as a result of the exposure;
263          (f) the United States Supreme Court in Amchem Products, Inc. v. Windsor, 521 U.S.
264     591, 598 (1997), described the asbestos litigation as a "crisis";
265          (g) attorney-sponsored x-ray screenings have been used to amass large numbers of
266     claims by unimpaired plaintiffs;
267          (h) approximately 100 employers have declared bankruptcy at least partially because of
268     asbestos-related liability;
269          (i) these bankruptcies have resulted in a search for more solvent companies by
270     claimants, resulting in over 10,000 companies being named as asbestos defendants, including
271     many small- and medium-sized companies, in industries that cover 85% of the United States
272     economy;
273          (j) silica is a naturally occurring mineral and is the basic component of sand, quartz,
274     and granite;
275          (k) silica-related illness, including silicosis, can develop from the prolonged inhalation

276     of respirable silica particles;
277          (l) silica claims, like asbestos claims, have involved individuals with no demonstrable
278     physical impairment, and plaintiffs have been identified through for-profit screening
279     companies;
280          (m) silica screening processes have been found subject to substantial abuse and
281     potential fraud;
282          (n) the cost of compensating plaintiffs who have no present asbestos-related or
283     silica-related physical impairment, and the cost of litigating their claims, jeopardizes the ability
284     of defendants to compensate plaintiffs with cancer and adversely affects defendant companies;
285          (o) concerns about statutes of limitations and available funds can prompt unimpaired
286     plaintiffs to bring asbestos and silica actions to protect their rights to future compensation
287     should they become impaired; and
288          (p) the public interest requires giving priority to the claims of exposed individuals who
289     are sick in order to help preserve, now and for the future, defendants' ability to compensate
290     people who develop cancer and other serious asbestos-related diseases, as well as silica-related
291     injuries, and to safeguard the jobs, benefits, and savings of workers in this state and the
292     well-being of this state's economy.
293          (2) This part is enacted to:
294          (a) give priority to asbestos and silica claimants who can demonstrate physical
295     impairment caused by exposure to asbestos or silica;
296          (b) toll the running of statutes of limitations for persons who have been exposed to
297     asbestos or to silica, but who have no present physical impairment caused by the exposure;
298          (c) enhance the ability of the courts to supervise and manage asbestos and silica cases;
299          (d) reduce the opportunity for fraud in asbestos and silica litigation; and
300          (e) conserve defendants' resources to allow compensation to present and future
301     claimants with physical impairment caused by exposure to asbestos or silica.
302          Section 11. Section 78B-6-2103 is enacted to read:
303          78B-6-2103. Definitions.
304          As used in this part:
305          (1) "AMA Guides to the Evaluation of Permanent Impairment" means the American
306     Medical Association's Guides to the Evaluation of Permanent Impairment in effect at the time

307     of the performance of any examination or test on the exposed person required under this part.
308          (2) "Asbestos" means the same as that term is defined in Section 78B-6-2003.
309          (3) "Asbestos action" means the same as that term is defined in Section 78B-6-2003.
310          (4) "Asbestosis" means bilateral diffuse interstitial fibrosis of the lungs caused by
311     inhalation of asbestos fibers.
312          (5) "Board-certified in occupational medicine" means a physician who is certified in
313     the specialty of occupational medicine by the American Board of Preventive Medicine or the
314     specialty of occupational/environmental medicine by the American Osteopathic Board of
315     Preventive Medicine and whose certification was current at the time of the performance of an
316     examination and rendition of a report required by this part.
317          (6) "Board-certified in oncology" means a physician who is certified in the specialty of
318     medical oncology by the American Board of Internal Medicine or specialty of oncology by the
319     American Osteopathic Board of Internal Medicine and whose certification was current at the
320     time of the performance of an examination and rendition of a report required by this part.
321          (7) "Board-certified in pathology" means a physician who holds primary certification in
322     anatomic pathology or clinical pathology from the American Board of Pathology or the
323     American Osteopathic Board of Pathology, whose certification was current at the time of the
324     performance of an examination and rendition of a report required by this part, and whose
325     professional practice is principally in the field of pathology involving regular evaluation of
326     pathology materials obtained from surgical or postmortem specimens.
327          (8) "Board-certified in pulmonary medicine" means a physician who is certified in the
328     specialty of pulmonary medicine by the American Board of Internal Medicine or the American
329     Osteopathic Board of Internal Medicine and whose certification was current at the time of the
330     performance of an examination and rendition of a report required by this part.
331          (9) "Certified B-reader" means an individual who has qualified as a National Institute
332     for Occupational Safety and Health (NIOSH) final or B-reader of x-rays under 42 C.F.R. Sec.
333     37.51(b), whose certification was current at the time of any readings required under this part,
334     and whose B-reads comply with the NIOSH B-reader's Code of Ethics, Issues in Classification
335     of Chest Radiographs, and Classification of Chest Radiographs in Contested Proceedings.
336          (10) "Chest x-ray" means chest films taken in accordance with all applicable state and
337     federal regulatory standards and taken in the posterior-anterior view.

338          (11) "DLCO" means diffusing capacity of the lung for carbon monoxide, which is the
339     measurement of carbon monoxide transfer from inspired gas to pulmonary capillary blood.
340          (12) "Exposed person" means a person whose exposure to asbestos or silica or to
341     asbestos-containing or silica-containing products is the basis for an asbestos or silica action.
342          (13) "FEV1" means forced expiratory volume in the first second, which is the maximal
343     volume of air expelled in one second during performance of simple spirometric tests.
344          (14) "FEV1/FVC" means the ratio of the actual values of FEV1 over FVC.
345          (15) "FVC" means forced vital capacity, which is the maximal volume of air expired
346     with maximum effort from a position of full inspiration.
347          (16) "ILO system" and "ILO scale" mean the radiological ratings and system for the
348     classification of chest x-rays of the International Labor Office provided in "Guidelines for the
349     Use of ILO International Classification of Radiographs of Pneumoconioses" in effect on the
350     day any x-rays of the exposed person were reviewed by a certified B-reader.
351          (17) "Mesothelioma" means a malignant tumor with a primary site of origin in the
352     pleura, peritoneum, or pericardium that has been diagnosed by a board-certified pathologist or
353     oncologist using standardized and accepted criteria of microscopic morphology or appropriate
354     immunohistochemical staining techniques.
355          (18) "Nonmalignant condition" means any condition that can be caused by asbestos or
356     silica other than a diagnosed cancer.
357          (19) "Official statements of the American Thoracic Society" means lung function
358     testing standards set forth in statements from the American Thoracic Society including
359     standardizations of spirometry, standardizations of lung volume testing, standardizations of
360     diffusion capacity testing or single-breath determination of carbon monoxide uptake in the
361     lung, and interpretive strategies for lung function tests, which are in effect on the day of the
362     pulmonary function testing of the exposed person.
363          (20) "Pathological evidence of asbestosis" means a statement by a board-certified
364     pathologist that more than one representative section of lung tissue uninvolved with any other
365     disease process demonstrates a pattern of peribronchiolar or parenchymal scarring in the
366     presence of characteristic asbestos bodies graded 1(B) or higher under the criteria published in
367     Asbestos-Associated Diseases, 106 Archive of Pathology and Laboratory Medicine 11,
368     Appendix 3 (October 8, 1982), or grade one or higher in pathology of asbestosis, 134 Archive

369     of Pathology and Laboratory Medicine 462-80 (March 2010) (tables 2 and 3), or as amended at
370     the time of the exam, and there is no other more likely explanation for the presence of the
371     fibrosis.
372          (21) "Pathological evidence of silicosis" means a statement by a board-certified
373     pathologist that more than one representative section of lung tissue uninvolved with any other
374     disease process demonstrates complicated silicosis with characteristic confluent silicotic
375     nodules or lesions equal to or greater than one centimeter and birefringent crystals or other
376     demonstration of crystal structures consistent with silica (well-organized concentric whorls of
377     collagen surrounded by inflammatory cells) in the lung parenchyma and no other more likely
378     explanation for the presence of the fibrosis exists, or acute silicosis with characteristic
379     pulmonary edema, interstitial inflammation, and the accumulation within the alveoli of
380     proteinaceous fluid rich in surfactant.
381          (22) "Plaintiff" means the person bringing the asbestos or silica action, including a
382     personal representative if the asbestos or silica action is brought by an estate, or a conservator
383     or next friend if the asbestos or silica action is brought on behalf of a minor or legally
384     incapacitated individual.
385          (23) "Plethysmography or body (box) plethysmography" means the test for determining
386     lung volume in which the exposed person is enclosed in a chamber equipped to measure
387     pressure, flow, or volume change.
388          (24) "Predicted lower limit of normal" means the test value that is the calculated
389     standard convention lying at the fifth percentile, below the upper 95% of the reference
390     population, based on age, height, and gender, according to the recommendations by the
391     American Thoracic Society and as referenced in the applicable AMA Guides to the Evaluation
392     of Permanent Impairment, primarily National Health and Nutrition Examination Survey
393     (NHANES) predicted values, or as amended.
394          (25) "Premises owner" means a person, firm, or organization that owns, in whole or in
395     part, leases, rents, maintains, or controls privately owned land or water, or a building and
396     structure on the land or water, or that leases state-owned land or water, including a building or
397     other structure on the land or water.
398          (26) "Pulmonary function test" means spirometry, lung volume testing, and diffusion
399     capacity testing, including appropriate measurements, quality control data, and graphs,

400     performed in accordance with the methods of calibration and techniques provided in the
401     applicable AMA Guides to the Evaluation of Permanent Impairment and all standards provided
402     in the official statements of the American Thoracic Society in effect on the day pulmonary
403     function testing of the exposed person was conducted.
404          (27) "Qualified physician" means a physician board-certified in oncology, pathology,
405     pulmonary medicine, or occupational medicine, as may be appropriate to the actual diagnostic
406     specialty in question, that meets all of the following requirements:
407          (a) (i) if the exposed person is alive at the time of examination, the physician
408     conducted a physical examination and has taken, or has directed to be taken under the
409     physician's supervision, direction, and control, a detailed occupational, exposure, medical,
410     smoking, and social history from the exposed person; or
411          (ii) if the exposed person is deceased, the physician has reviewed the pathology
412     material and has taken, or has directed to be taken under the physician's supervision, direction,
413     and control, a detailed history from the person most knowledgeable about the information
414     forming the basis of the asbestos or silica action;
415          (b) the physician treated or is treating the exposed person, and had or has a
416     doctor-patient relationship with the exposed person at the time of the physical examination, or
417     in the case of a board-certified pathologist, examined tissue samples or pathological slides of
418     the exposed person at the request of the treating physician;
419          (c) the physician spends no more than 25% of the physician's professional practice time
420     providing consulting or expert services in actual or potential civil actions, and whose medical
421     group, professional corporation, clinic, or other affiliated group earns not more than 25% of the
422     medical group's revenue providing such services;
423          (d) the physician was licensed to practice on the date any examination or pulmonary
424     function testing was conducted, and the physician actively practices or practiced in the state
425     where the exposed person resides, or resided at the time of the examination or pulmonary
426     function testing, or the state where the asbestos or silica action was filed;
427          (e) the physician received or is receiving payment for the treatment of the exposed
428     person from the exposed person, a member of the exposed person's family, or the exposed
429     person's health care plan and not from the exposed person's lawyer or law firm;
430          (f) the physician prepared or directly supervised the preparation and final review of any

431     medical report under this part; and
432          (g) the physician has not relied on any examination, test, radiograph, report, or opinion
433     of any doctor, clinic, laboratory, or testing company that performed an examination, test,
434     radiograph, or screening of the exposed person in violation of any law, regulation, licensing
435     requirement, or medical code of practice of the state in which the examination, test, or
436     screening was conducted, or that was conducted without establishing a doctor-patient
437     relationship with the exposed person or medical personnel involved in the examination, test, or
438     screening process, or that required the exposed person to agree to retain the legal service of a
439     law firm.
440          (28) "Radiological evidence of asbestosis" means a quality 1 chest x-ray under the ILO
441     system, or a quality 2 chest x-ray in a death case when no pathology or quality 1 chest x-ray is
442     available, showing bilateral small, irregular opacities (s, t, or u) occurring primarily in the
443     lower lung zones graded by a certified B-reader as at least 1/1 on the ILO scale.
444          (29) "Radiological evidence of diffuse bilateral pleural thickening" means a quality 1
445     chest x-ray under the ILO system, or a quality 2 chest x-ray in a death case when no pathology
446     or quality 1 chest x-ray is available, showing diffuse bilateral pleural thickening of at least b2
447     on the ILO scale and blunting of at least one costophrenic angle as classified by a certified
448     B-reader.
449          (30) "Radiological evidence of silicosis" means a quality 1 chest x-ray under the ILO
450     system, or a quality 2 chest x-ray in a death case when no pathology or quality 1 chest x-ray is
451     available, showing bilateral predominantly nodular or rounded opacities (p, q, or r) occurring
452     primarily in the upper lung fields graded by a certified B-reader as at least 1/1 on the ILO scale
453     or A, B, or C sized opacities representing complicated silicosis or acute silicosis with
454     characteristic pulmonary edema, interstitial inflammation, and the accumulation within the
455     alveoli of proteinaceous fluid rich in surfactant.
456          (31) "Silica" means a respirable crystalline form of silicon dioxide, including quartz,
457     cristobalite, and tridymite.
458          (32) (a) "Silica action" means a claim for damages or other civil or equitable relief
459     presented in a civil action arising out of, based on, or related to:
460          (i) the health effects of exposure to silica, including:
461          (A) loss of consortium;

462          (B) wrongful death;
463          (C) mental or emotional injury;
464          (D) risk or fear of disease or other injury; and
465          (E) costs of medical monitoring or surveillance; and
466          (ii) any other derivative claim made by or on behalf of a person exposed to silica or a
467     representative, spouse, parent, child, or other relative of that person.
468          (b) "Silica action" does not include a claim under workers' compensation law or
469     veterans' benefits.
470          (33) "Silicosis" means simple silicosis, acute silicosis, accelerated silicosis, or chronic
471     silicosis caused by the inhalation of respirable silica.
472          (34) "Spirometry" means a test of air capacity of the lung through a spirometer to
473     measure the volume of air inspired and expired.
474          (35) "Supporting test results" means copies of the following documents and images:
475          (a) pulmonary function tests, including printouts of the flow volume loops, volume
476     time curves, DLCO graphs, lung volume tests and graphs, quality control data, and other
477     pertinent data for all trials and all other elements required to demonstrate compliance with the
478     equipment, quality, interpretation, and reporting standards set forth in this part;
479          (b) B-reading and B-reader reports;
480          (c) reports of x-ray examinations;
481          (d) diagnostic imaging of the chest;
482          (e) pathology reports; and
483          (f) all other tests reviewed by the diagnosing physician or a qualified physician in
484     reaching the physician's conclusions.
485          (36) "Timed gas dilution" means a method for measuring total lung capacity in which
486     the subject breathes into a spirometer containing a known concentration of an inert and
487     insoluble gas for a specific time, and the concentration of that inert and insoluble gas in the
488     lung is compared to the concentration of that type of gas in the spirometer.
489          (37) "Total lung capacity" means the volume of gas contained in the lungs at the end of
490     a maximal inspiration.
491          (38) "Veterans' benefits" means the same as that term is defined in Section
492     78B-6-2003.

493          (39) "Workers' compensation law" means the same as that term is defined in Section
494     78B-6-2003.
495          Section 12. Section 78B-6-2104 is enacted to read:
496          78B-6-2104. Filing claims -- Establishment of prima facie case -- Additional
497     required information for new claims -- Individual actions to be filed.
498          (1) A plaintiff in an asbestos or silica action shall file with the complaint or other initial
499     pleading a detailed narrative medical report and diagnosis, signed under oath by a qualified
500     physician and accompanied by supporting test results, which constitute prima facie evidence
501     that the exposed person meets the requirements of this part.
502          (2) The report described in Subsection (1) may not be prepared by a lawyer or person
503     working for or on behalf of a lawyer or law firm.
504          (3) For an asbestos or silica action pending on May 10, 2016, the detailed narrative
505     medical report, diagnosis, and supporting test results described in Subsection (1) shall be
506     provided to all parties not later than 90 days after May 10, 2016, or not later than 90 days
507     before trial, whichever is earlier.
508          (4) A defendant shall be afforded a reasonable opportunity to challenge the adequacy of
509     the prima facie evidence before trial.
510          (5) The court in an asbestos or silica action shall dismiss the action without prejudice
511     on finding that the plaintiff has failed to make the prima facie showing required by this part.
512          (6) A plaintiff in an asbestos or silica action filed on or after May 10, 2016, shall
513     include a sworn information form containing all of the following:
514          (a) the name, address, date of birth, social security number, marital status, occupation,
515     and employer of the exposed person, and any person through which the exposed person alleges
516     exposure;
517          (b) the plaintiff's relationship to the exposed person or person through which the
518     exposure is alleged;
519          (c) the specific location and manner of each alleged exposure, including the specific
520     location and manner of exposure for any person through which the exposed person alleges
521     exposure;
522          (d) the beginning and ending dates of each alleged exposure;
523          (e) the identity of the manufacturer of the specific asbestos or silica product for each

524     exposure;
525          (f) the identity of the defendant or defendants against whom the plaintiff asserts a
526     claim;
527          (g) the specific asbestos-related or silica-related disease claimed to exist; and
528          (h) any supporting documentation relating to Subsections (6)(a) through (g).
529          (7) Asbestos and silica actions shall be individually filed and may not be filed on
530     behalf of a group or class of plaintiffs.
531          Section 13. Section 78B-6-2105 is enacted to read:
532          78B-6-2105. Elements of proof for asbestos actions alleging a nonmalignant
533     asbestos-related condition.
534          (1) An asbestos action related to an alleged nonmalignant asbestos-related condition
535     may not be brought or maintained in the absence of prima facie evidence that the exposed
536     person has a physical impairment for which asbestos exposure was a substantial contributing
537     factor.
538          (2) The prima facie showing shall be made as to each defendant and include a detailed
539     narrative medical report and diagnosis signed under oath by a qualified physician that includes:
540          (a) radiological or pathological evidence of asbestosis or radiological evidence of
541     diffuse bilateral pleural thickening or a high-resolution computed tomography scan showing
542     evidence of asbestosis or diffuse pleural thickening;
543          (b) a detailed occupational and exposure history from the exposed person or, if that
544     person is deceased, from the person most knowledgeable about the exposures that form the
545     basis of the action, including identification of all of the exposed person's principal places of
546     employment and exposures to airborne contaminants and whether each place of employment
547     involved exposures to airborne contaminants, including asbestos fibers or other disease causing
548     dusts or fumes, that may cause pulmonary impairment and the nature, duration, and level of
549     any exposure;
550          (c) a detailed medical, social, and smoking history from the exposed person or, if that
551     person is deceased, from the person most knowledgeable about the exposures that form the
552     basis of the action, including a thorough review of the past and present medical problems of the
553     exposed person and the most probable cause of the medical problems;
554          (d) evidence verifying that at least 15 years have elapsed between the exposed person's

555     date of first exposure to asbestos and the date of diagnosis;
556          (e) evidence from a personal medical examination and pulmonary function testing of
557     the exposed person, or if the exposed person is deceased, based upon the person's medical
558     records, that the exposed person has or the deceased person had a permanent respiratory
559     impairment rating of at least Class 2 as defined by and evaluated pursuant to the AMA Guides
560     to the Evaluation of Permanent Impairment or reported significant changes year to year in lung
561     function for FVC, FEV1, or DLCO as defined by the American Thoracic Society's
562     interpretative strategies for lung function tests, 26 European Respiratory Journal 948-68,
563     961-62, table 12 (2005), and as updated;
564          (f) evidence that asbestosis or diffuse bilateral pleural thickening, rather than chronic
565     obstructive pulmonary disease, is a substantial factor to the exposed person's physical
566     impairment, based on a determination the exposed person has:
567          (i) FVC below the predicted lower limit of normal and FEV1/FVC ratio (using actual
568     values) at or above the predicted lower limit of normal;
569          (ii) total lung capacity, by plethysmography or timed gas dilution, below the predicted
570     lower limit of normal; or
571          (iii) a chest x-ray showing bilateral small, irregular opacities (s, t, or u) graded by a
572     certified B-reader as at least 2/1 on the ILO scale; and
573          (g) the qualified physician signing the detailed narrative medical report described in
574     this Subsection (2) has concluded that exposure to asbestos was a substantial contributing
575     factor to the exposed person's physical impairment and not more probably the result of other
576     causes.
577          (3) A qualified physician's opinion that the medical findings and impairment are
578     "consistent with" or "compatible with" exposure to asbestos, or words to that effect, does not
579     satisfy the requirements described in Subsection (2)(g).
580          Section 14. Section 78B-6-2106 is enacted to read:
581          78B-6-2106. Elements of proof for asbestos actions alleging asbestos-related
582     cancer other than mesothelioma.
583          (1) An asbestos action for a mailignant condition other than mesothelioma may not be
584     brought or maintained in the absence of prima facie evidence that the exposed person has a
585     primary cancer for which exposure to asbestos was a substantial contributing factor.

586          (2) The prima facie showing shall be made as to each defendant and include a detailed
587     narrative medical report and diagnosis signed under oath by a qualified physician, who is
588     board-certified in pathology, pulmonary medicine or oncology, that includes:
589          (a) radiological or pathological evidence of asbestosis or radiological evidence of
590     diffuse bilateral pleural thickening or a high-resolution computed tomography scan showing
591     evidence of asbestosis or diffuse bilateral pleural thickening;
592          (b) evidence verifying that at least 15 years have elapsed between the exposed person's
593     date of first exposure to asbestos and the date of diagnosis; and
594          (c) the qualified physician signing the detailed narrative medical report described in
595     this Subsection (2) has concluded that exposure to asbestos was a substantial contributing
596     factor to the cancer of the exposed person and not more probably the result of other causes.
597          (3) A qualified physician's opinion stating that the medical findings and cancer are
598     "consistent with" or "compatible with" exposure to asbestos, or words to that effect, does not
599     satisfy the requirement described in Subsection (2)(c).
600          (4) The court shall hold an evidentiary hearing and determine if the exposed person has
601     established a prima facie showing of cancer to which exposure to asbestos was a substantial
602     contributing factor.
603          Section 15. Section 78B-6-2107 is enacted to read:
604          78B-6-2107. Elements of proof for silica actions alleging silicosis.
605          (1) A silica action related to alleged silicosis may not be brought or maintained in the
606     absence of prima facie evidence that the exposed person has a physical impairment as a result
607     of silicosis.
608          (2) The prima facie showing shall be made as to each defendant and include a detailed
609     narrative medical report and diagnosis signed under oath by a qualified physician that includes:
610          (a) radiological or pathological evidence of silicosis or a high-resolution computed
611     tomography scan showing evidence of silicosis;
612          (b) a detailed occupational and exposure history from the exposed person or, if the
613     exposed person is deceased, from the person most knowledgeable about the exposures that
614     form the basis of the action, including identification of all principal places of employment and
615     exposures to airborne contaminants and whether each place of employment involved exposures
616     to airborne contaminants, including silica or other disease-causing dusts or fumes, that may

617     cause pulmonary impairment and the nature, duration, and level of any exposure;
618          (c) a detailed medical, social, and smoking history from the exposed person or, if the
619     exposed person is deceased, from the person most knowledgeable about the exposures that
620     form the basis of the action, including a thorough review of the past and present medical
621     problems and the most probable cause of the medical problems;
622          (d) evidence that a sufficient latency period has elapsed between the exposed person's
623     date of first exposure to silica and the day of diagnosis;
624          (e) evidence based upon a personal medical examination and pulmonary function
625     testing of the exposed person, or if the exposed person is deceased, based upon the person's
626     medical records, that the exposed person has or the deceased person had a permanent
627     respiratory impairment rating of at least Class 2 as defined by and evaluated pursuant to the
628     AMA Guides to the Evaluation of Permanent Impairment or reported significant changes year
629     to year in lung function for FVC, FEV1, or DLCO as defined by the American Thoracic
630     Society's interpretative strategies for lung function tests, 26 European Respiratory Journal
631     948-68, 961-62, table 12 (2005), and as updated; and
632          (f) the qualified physician signing the detailed narrative medical report in this
633     Subsection (2) has concluded that exposure to silica was a substantial contributing factor to the
634     exposed person's physical impairment and not more probably the result of other causes.
635          (3) A qualified physician's opinion stating that the medical findings and impairment are
636     "consistent with" or "compatible with" exposure to silica, or words to that effect, does not
637     satisfy the requirement in Subsection (2)(f).
638          Section 16. Section 78B-6-2108 is enacted to read:
639          78B-6-2108. Elements of proof for silica actions other than silicosis.
640          (1) A silica action other than silicosis may not be brought or maintained in the absence
641     of prima facie evidence that the exposed person has a primary cancer or physical impairment
642     for which exposure to silica was a substantial contributing factor.
643          (2) The prima facie showing shall be made as to each defendant and include a detailed
644     narrative medical report and diagnosis signed under oath by a qualified physician, who is
645     board-certified in pathology, pulmonary medicine or oncology, that includes:
646          (a) radiological or pathological evidence of silicosis or a high-resolution computed
647     tomography scan showing evidence of silicosis;

648          (b) evidence verifying that at least 15 years have elapsed between the exposed person's
649     date of first exposure to silica and the date of diagnosis; and
650          (c) the qualified physician signing the detailed narrative medical report in this
651     Subsection (2) has concluded that exposure to silica was a substantial contributing factor to the
652     exposed person's primary cancer or physical impairment and not more probably the result of
653     other causes.
654          (3) A qualified physician's opinion stating that the medical findings and primary cancer
655     or physical impairment are "consistent with" or "compatible with" exposure to silica, or words
656     to that effect, does not satisfy the requirement described in Subsection (2)(c).
657          (4) The court shall hold an evidentiary hearing and determine if the exposed person has
658     established a prima facie showing of a primary cancer or physical impairment to which
659     exposure to silica was a substantial contributing factor.
660          Section 17. Section 78B-6-2109 is enacted to read:
661          78B-6-2109. Elements of physical impairment.
662          Evidence relating to physical impairment under this part, including pulmonary function
663     testing and diffusing studies, offered in an action governed by this part, shall satisfy the
664     following requirements:
665          (1) the evidence shall comply with the quality controls, equipment requirements,
666     methods of calibration and techniques set forth in the AMA Guides to the Evaluation of
667     Permanent Impairment, and all standards set forth in the official statements of the American
668     Thoracic Society, which are in effect on the date of any examination or pulmonary function
669     testing of the exposed person required by this part;
670          (2) the evidence may not be obtained by, or based on, testing or examinations that
671     violate any law, regulation, licensing requirement, or medical code of practice of the state in
672     which the examination, test, or screening was conducted, or of this state; and
673          (3) the evidence may not be obtained under the condition that the plaintiff or exposed
674     person retains the legal services of the attorney or law firm sponsoring the examination, test, or
675     screening.
676          Section 18. Section 78B-6-2110 is enacted to read:
677          78B-6-2110. Procedures.
678          (1) The existence of evidence relating to the prima facie showings required in this part

679     does not create a presumption that the exposed person has an asbestos-related or silica-related
680     injury or impairment and may not be conclusive as to the liability of any defendant.
681          (2) Evidence may not be offered at trial, and the jury may not be informed, of:
682          (a) the grant or denial of a motion to dismiss an asbestos or silica action under the
683     provisions of this part; or
684          (b) the provisions of this part with respect to what constitutes a prima facie showing of
685     asbestos or silica-related impairment.
686          (3) Until a court enters an order determining that the exposed person has established
687     prima facie evidence of impairment, an asbestos or silica action may not be subject to
688     discovery, except:
689          (a) discovery related to establishing or challenging the prima facie evidence; or
690          (b) by order of the trial court upon motion of a party and for good cause shown.
691          (4) (a) A court may consolidate for trial any number and type of asbestos or silica
692     actions with the consent of all the parties.
693          (b) In the absence of consent described in Subsection (4)(a), the court may consolidate
694     for trial only asbestos or silica actions relating to the exposed person and members of that
695     person's household.
696          (c) No class action or any other form of mass aggregation relating to more than one
697     exposed person and members of those persons' households may be permitted.
698          (d) The provisions of this Subsection (4) do not preclude consolidation of cases by
699     court order for pretrial or discovery purposes.
700          Section 19. Section 78B-6-2111 is enacted to read:
701          78B-6-2111. Limitations on liability in asbestos and silica actions.
702          (1) A premises owner, or any entity performing operations on a premises, is not liable
703     in an asbestos or silica action for exposures that do not occur on the premises.
704          (2) A defendant in an asbestos or silica action may not be liable for exposures from a
705     product or component part made or sold by a third party, even if the third party is insolvent or
706     otherwise not amenable to suit.
707          (3) Punitive damages may not be awarded in an asbestos or silica action.
708          Section 20. Section 78B-6-2112 is enacted to read:
709          78B-6-2112. Requirements for proof of causation.

710          The following standards for proof of causation apply in any asbestos action involving
711     multiple sources of exposures:
712          (1) proof of "any exposure" to a defendant's product may not suffice and instead the
713     plaintiff shall establish the dose of asbestos fibers to which the exposed person was exposed to
714     from each defendant's product;
715          (2) the dose shall be quantified but need not be established with mathematical
716     precision;
717          (3) the plaintiff shall establish that the defendant's product was a substantial factor in
718     causing the plaintiff's disease;
719          (4) the defendant's product is not a substantial factor in causing the plaintiff's disease if,
720     in light of the evidence of the plaintiff's total exposure to asbestos or other toxins, reasonable
721     persons would not regard the defendant's product as a cause of the disease; and
722          (5) the plaintiff, in the absence of direct evidence of causation, shall prove substantial
723     factor causation with scientifically reliable expert testimony that the plaintiff's exposure to the
724     defendant's product more than doubled the plaintiff's risk of contracting the disease.
725          Section 21. Section 78B-6-2113 is enacted to read:
726          78B-6-2113. Statute of limitations -- Two-disease rule.
727          (1) The period of limitations for an asbestos or silica action that is not barred as of May
728     10, 2016, may not accrue, nor may the running of limitations commence, prior to the earlier of
729     the date the exposed person:
730          (a) received a medical diagnosis of an asbestos-related impairment or silica-related
731     impairment;
732          (b) discovered facts that would have led a reasonable person to obtain a medical
733     diagnosis with respect to the existence of an asbestos-related impairment or silica-related
734     impairment; or
735          (c) died having an asbestos-related or silica-related impairment.
736          (2) Nothing in this section may be construed to revive or extend limitations with
737     respect to any claim for asbestos- or silica-related impairment that was otherwise time-barred
738     as of May 10, 2016.
739          (3) Nothing in this section may be construed to adversely affect, impair, limit, modify,
740     or nullify any settlement or other agreements with respect to an asbestos or silica action entered

741     into before May 10, 2016.
742          (4) An asbestos or silica action arising out of a nonmalignant condition shall be a
743     distinct cause of action from an action for an asbestos-related or silica-related cancer.
744          (5) If otherwise permitted under state law, damages may not be awarded in an asbestos
745     or silica action for fear of increased risk of future disease.
746          Section 22. Section 78B-6-2114 is enacted to read:
747          78B-6-2114. Application.
748          (1) This part applies to asbestos and silica actions filed on or after May 10, 2016, as
749     well as any pending asbestos and silica actions in which trial has not commenced as of May 10,
750     2016.
751          (2) This part may only be applied prospectively if the application of a provision in this
752     part would unconstitutionally affect a vested right.






Legislative Review Note
Office of Legislative Research and General Counsel