HOUSE OF REPRESENTATIVES STAFF ANALYSIS
BILL #: HB 1367 Asbestos and Silica Claims
SPONSOR(S): Brackett
TIED BILLS: IDEN./SIM. BILLS: SB 720
REFERENCE ACTION ANALYST STAFF DIRECTOR or
BUDGET/POLICY CHIEF
1) Civil Justice Subcommittee 14 Y, 3 N Mathews Jones
2) Judiciary Committee 15 Y, 6 N Mathews Kramer
SUMMARY ANALYSIS
Asbestos is the name given to six naturally-occurring fibrous minerals resistant to chemical, thermal, and
electricity damage historically used in construction, manufacturing, and fireproofing. When handled, asbestos
separates into microscopic particles, exposure to which may cause cancer and other diseases, including lung
cancer, mesothelioma, and asbestosis, which can take 20 to 40 years to develop following initial exposure.
Lawsuits against asbestos manufacturers and distributors began in the 1970s, and by the 1990s, these
corporations began filing for reorganization under Chapter 11 of the United States Bankruptcy Code in the
hopes of escaping their asbestos injury liability. In 1994, Congress enacted 11 U.S.C. s. 524(g) to create a
comprehensive, statutory mechanism for addressing asbestos liabilities in bankruptcy reorganization
proceedings.
Florida’s Asbestos and Silica Compensation Fairness Act (Act) allows the filing of an asbestos lawsuit against
a solvent defendant in the state if the claimant is domiciled in Florida or the asbestos exposure that
substantially contributed to the exposed person’s physical impairment occurred in the state. The statute of
limitations to file an asbestos lawsuit does not begin to run until the exposed person discovers, or through
exercising reasonable diligence should have discovered, his or her asbestos-related physical impairment.
Under current law, a claimant must file a sworn information form providing certain specified details about his or
her condition and alleged exposure.
HB 1367 amends s. 774.205, F.S., to require that all asbestos or silica related claims filed on or after July 1,
2024, include additional information on the sworn information form. The sworn information form must include
the specific evidence that provides the basis for each claim against each named defendant. However, the bill
shields the information provided in the sworn information form from being admissible at trial. The bill provides
additional specified information, which must be included in the sworn information form, the failure of which to
include may result in a dismissal of the case without prejudice.
The bill is unlikely to have any fiscal impact on state or local governments.
The bill has an effective date of July 1, 2024.
This docum ent does not reflect the intent or official position of the bill sponsor or House of Representatives .
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DATE: 2/14/2024
FULL ANALYSIS
I. SUBSTANTIVE ANALYSIS
A. EFFECT OF PROPOSED CHANGES:
Background
Asbestos
Asbestos is the commercial name given to six naturally-occurring fibrous minerals resistant to chemical,
thermal, and electricity damage historically used in consumer goods including textiles, paper, toys,
brake pads, shoes, and home appliances, and used by the construction and ship-building industries as
roofing, flooring, wallboard, insulation, and fireproofing.1 When handled, asbestos separates into
microscopic, circulating particles, exposure2 to which may cause cancer and other diseases, including
lung cancer, mesothelioma,3 and asbestosis,4 which can take 20 to 40 years to develop following initial
exposure.5
As early as the 1930s, some asbestos industry executives apparently knew of the occupational hazard
that asbestos exposure posed.6 However, given the prolonged latency period of asbestos-related
diseases and the fact that the average working-class American of the day would not expect to live past
60 years of age, the executives did not give the risks serious attention. 7 Further, given the legal
standards of the day,8 the executives had little reason to contemplate corporate liability for harms
occurring decades into the future, and thus did not advertise what they knew.9
By 1970, however, published medical evidence conclusively showed that some workers exposed to
asbestos would, over time, contract asbestosis, lung cancer, or mesothelioma and be increasingly
disabled by these conditions.10 After 1973, asbestos use declined sharply as knowledge of the
exposure risks spread and the new Occupational Safety and Health Administration (“OSHA”) 11 called
for its removal. Despite the decline in use, a leading epidemiological study found that, by 1979, at least
27.5 million Americans had suffered asbestos exposure. 12
Asbestos Litigation
1 Centers for Disease Control and Prevention: National Institute for Occupational Safety and Health (NIOSH), Asb estos,
https://www.cdc.gov/niosh/topics/asbestos/default.html (last visited Jan. 25, 2024).
2 Asbestos exposure can be occupational or non-occupational. Non-occupational exposure includes domestic exposure, common in
family members of a person occupationally exposed. See Nonhlanhla Tlotleng, et al., The Significance of Non-Occupational Asb estos
Exposure in Women with Mesolthelioma, Respirology Case Reports, Vol. 7 (2020),
https://www.ncbi.nlm.nih.gov/pmc/articles/PMC6246071/ (last visited Jan. 25, 2024).
3 Mesothelioma is an aggressive cancer occurring in the thin tissue layer covering the majority of the internal organs, known as the
mesothelium. Mesothelioma most often affects the tissue surrounding the lungs. See Mayo Clinic, Mesothelioma,
https://www.mayoclinic.org/diseases-conditions/mesothelioma/symptoms-causes/syc-20375022 (last visited Jan. 25, 2024).
4 Asbestosis is a chronic lung disease caused by inhaling asbestos fi bers characterized by lung tissue scarring and shortness of breath.
As asbestosis progresses, lung tissue scarring prevents lungs from contracting and expanding normally. See Mayo Clinic, Asb estosis,
https://www.mayoclinic.org/diseases-conditions/asbestosis/symptoms-causes/syc-20354637 (last visited Jan. 25, 2024).
5 CDC, supra note 1.
6 Paul D. Carrington, Asb estos Lessons: The Unattended Consequences of Asb estos Litigation, The Review of Litigation, Vol. 26
(2007), https://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=2343&context=faculty_scholarship (last visited Jan. 25, 2024).
7
Id.
8 Tort law was not yet recognized as the primary means of discouraging management from consciously taking employee health and
safety risks, and courts interpreted applicable statutes of limitation as starting to run when the harm occurred. It was only after 1960 that
tort law began to predominantly govern the relationship between employees and corporations, and courts began to interpret sta tutes of
limitation to start running only when the victim discovers the harm. Id.
9 Carrington, supra note 6.
10 Id.
11 Congress created the Occupational Safety and Health Administration (OSHA) with the Occupational Safety and Health Act of 1970 to
ensure safe working conditions for American workers by setting and enforcing workplace standards and providing training, outreach,
education, and assistance. See United States Department of Labor, Occupational Safety and Health Administration, Ab out OSHA,
https://www.osha.gov/aboutosha (last visited Jan. 25, 2024).
12 See Carrington, supra note 6, citing William Nicholson, et al., Occupational Exposure to Asb estos: Population at Risk and Projected
Mortality 1980-2030, 3 Am. Jur. Indus. Med. 259 (1982).
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In 1972, an insulation worker disabled by asbestosis and mesothelioma sued his employer, a building
materials manufacturer, for failing to warn him of asbestos exposure risks.13 The evidence showed that
the defendant knew of the risks but had not informed the claimant, and the jury awarded the claimant a
$68,000 verdict, finding the defendant strictly liable on the basis of s. 402A of the Restatement
(Second) of Torts.14 The Fifth Circuit affirmed the trial court’s opinion, finding that the defendant’s failure
to give “adequate warnings of the known or knowable dangers involved [in asbestos exposure]” made
asbestos an “unreasonably dangerous” product.15
Asbestos Bankruptcy Trusts
In 1982, the Johns-Manville Corporation filed an asbestos-related bankruptcy petition, and five years
later, the Manville Personal Injury Settlement Trust was the first asbestos bankruptcy trust
established.16 A dramatic surge in asbestos manufacturing corporations filing for bankruptcy followed
the creation of the Manville Trust, but bankruptcy courts lacked express statutory authority for the trust
scheme.17 In 1994, Congress enacted 11 U.S.C. s. 524(g) to create a comprehensive, statutory
mechanism for addressing asbestos liabilities in bankruptcy reorganization proceedings. 18 This section
authorizes bankruptcy courts to transfer a debtor corporation’s asbestos liability to an independent trust
funded by the reorganized company, allowing the reorganized company to operate free from present
and future asbestos liability claims.19 Since 1994, over 60 such asbestos bankruptcy trusts have been
established, paying over $17.5 billion on millions of asbestos injury claims.20
Generally, a claimant seeking compensation from an asbestos trust must file a claim form with an injury
statement and information establishing asbestos exposure linked to the trust’s predecessor. 21 A
claimant must also submit asbestos exposure evidence, such as employment and social security
records, deposition testimony, and medical reports or records supporting a diagnosis of the specific
disease claimed.22 A trust claim is then reviewed by a trust committee and paid when the claimant
meets exposure requirements and suffers from an asbestos-related injury linked to such exposure.23
Payment schedules established by each trust determine the amount of compensation a claimant will
receive for a specific medical condition, and claimants may make claims from multiple trusts for a single
injury as each trust operates independently.24
Florida Asbestos Litigation Law
Initiating a Lawsuit
Florida’s Asbestos and Silica Compensation Fairness Act 25 (“the Act”) allows the filing of an asbestos
lawsuit against a solvent defendant in the state if the claimant is domiciled in Florida26 or the asbestos
13 Borel v. Fib reb oard Paper Prods. Corp., 493 F.2d 1076 (5th Cir. 1973).
14 Id.; Restatement (Second) Of Torts § 402A (1965) (“One who sells any product in a defective condition unreasonably dangerous to
the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer…”).
15
Borel, supra note 13.
16 Lloyd Dixon, et al., Asb estos Bankruptcy Trusts: An Overview of Trust Structure and Activity with Detailed Reports on the Largest
Trusts, Rand Institute for Civil Justice, https://www.rand.org/content/dam/rand/pubs/technical_reports/2010/RAND_TR872.pdf (last
visited Jan. 25, 2024).
17 Id.
18 United States Department of Justice, Office of Public Affairs, Justice Department Files Statement of Interest in New Asb estos Trust
Proposal (Sept. 13, 2018), https://www.justice.gov/opa/pr/justice-department-files-statement-interest-new-asbestos-trust-proposal (last
visited Jan. 25, 2024).
19 See Dixon, supra note 16.
20 Id.
21 Mark A. Behrens, Asb estos Trust Transparency, 81 Fordham. L Rev. 107 (2018),
https://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?article=5540&context=flr (last visited Jan. 25, 2024).
22 Id.
23 See Dixon, supra note 16.
24 Id; See Behrens, supra note 21.
25 Ch. 774, Part II, F.S.
26 A person domiciled in Florida has his or her true, principal, and permanent home in this state. Such a person physically live s in the
state, regards it as home, and intends to return even if currently residing elsewhere. See Legal Information Institute, Domicile,
https://www.law.cornell.edu/wex/domicile (last visited Jan. 25, 2024).
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exposure that substantially contributed to the exposed person’s 27 physical impairment28 occurred in the
state.29 The statute of limitations 30 to file an asbestos lawsuit does not begin to run until the exposed
person discovers, or through exercising reasonable diligence should have discovered, his or her
asbestos-related physical impairment.31 An asbestos lawsuit alleging a non-cancerous injury is a
separate cause of action from an asbestos lawsuit alleging asbestos-related cancer, and settlement of
a non-cancerous asbestos injury claim may not require as a condition of settlement the release of any
future asbestos-related cancer claim, meaning that a claimant who sues for a non-cancerous injury may
sue the same defendant again if he or she develops asbestos-related cancer in the future.32
Discovery
A claimant bringing an asbestos lawsuit must include a written report and supporting test results with
the complaint constituting prima facie evidence33 of the exposed person’s asbestos-related
impairment.34 The defendant has an opportunity to challenge the evidence’s adequacy, and the court
must dismiss the asbestos lawsuit without prejudice35 if the claimant fails to make the required prima
facie showing.36 In addition to the written report, a claimant must file a sworn information form
containing:
The claimant’s name, date of birth, and marital status; 37
The name, address, date of birth, and marital status of each index person;38
The specific exposure locations;39
The alleged exposure’s beginning and ending dates; 40
The exposed person’s occupation and employer name at the time of the alleged exposure; 41
The specific asbestos-related condition alleged;42 and
Any supporting documentation related to the asbestos lawsuit. 43
Effect of Proposed Changes
HB 1367 amends s. 774.205, F.S., to require that the sworn information form for all asbestos or silica
related claims filed on or after July 1, 2024, must specify the specific evidence that provides the basis
for each claim against each named defendant. Further, the sworn information must include all of the
following, in addition to current requirements:
The exposed person’s smoking history;
The name and address of each person who is knowledgeable regarding the exposed person’s
exposure to asbestos or silica;
27 “Exposed person” means a person whose asbestos exposure is the basis for an asbes tos lawsuit or trust claim. S. 774.203(13), F.S.
28 Physical impairment, to which asbestos exposure was a substantial contributing factor, is an essential element of an asbestos
lawsuit. A prima facie showing of physical impairment must include evidence verifying that a qualified physician took the exposed
person’s detailed occupational and exposure history, including identification of all of the exposed person’s principal employment places
and exposures to airborne contaminants, and a detailed medical and s moking history, including a thorough review of the exposed
person’s past and present medical problems and their most likely cause. S. 774.204(2)(a) and (b), F.S.
29 S. 774.205(1), F.S.
30 A statute of limitations bars the filing of a civil or criminal ca use of action after a certain period of time following an injury or offense.
See Legal Information Institute, Statute of Limitations, https://www.law.cornell.edu/wex/statute_of_limitations (last visited Jan. 25,
2024).
31 S. 774.206(1), F.S.
32 S. 774.206(2), F.S.
33 Prima facie evidence is evidence sufficient to establish a fact or raise a presumption unless disproved or rebutted. See Legal
Information Institute, Prima Facie, https://www.law.cornell.edu/wex/prima_facie (last visited Jan. 25, 2024).
34
S. 774.205(2), F.S.
35 When a case is dismissed without prejudice, the plaintiff is free to file another lawsuit based on the same grounds. See Legal
Information Institute, Dismissal Without Prejudice, https://www.law.cornell.edu/wex/dismissal_without_prejudice (last visited Jan. 25,
2024).
36 S. 774.205(1), F.S.
37 S. 774.205(3)(a), F.S.
38 An index person is the person by which a plaintiff claims asbestos exposure if alleging such exposure through anothe r’s testimony or
by other than direct or bystander exposure to a product. S. 774.205(3)(b), F.S.
39 S. 774.205(3)(c), F.S.
40 S. 774.205(3)(d), F.S.
41 S. 774.205(3)(e), F.S.
42 S. 774.205(3)(f), F.S.
43 S. 774.205(3)(g), F.S.
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The specific type of product, such as insulation, asbestos fiber, or an automotive friction
product, and specific location of each alleged exposure for each defendant;
The occupation and employer of the exposed person and each index person at the time of the
alleged exposure; and
Any supporting documentation of the condition claimed to exist in the possession of the
claimant at the time the sworn information is filed.
The bill provides that the contents of the sworn information form are not admissible as evidence at trial
and may not