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LEGISLATURE OF NEBRASKA
ONE HUNDRED EIGHTH LEGISLATURE
FIRST SESSION
LEGISLATIVE BILL 95
Introduced by Slama, 1.
Read first time January 06, 2023
Committee: Judiciary
1 A BILL FOR AN ACT relating to asbestos; to amend section 25-224, Reissue
2 Revised Statutes of Nebraska; to adopt the Asbestos Trust Claims
3 Transparency Act and the Asbestos Claims Priorities and Claims
4 Legitimacy Act; to change provisions relating to a statute of
5 limitations; and to repeal the original section.
6 Be it enacted by the people of the State of Nebraska,
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1 Section 1. Sections 1 to 7 of this act shall be known and may be
2 cited as the Asbestos Trust Claims Transparency Act.
3 Sec. 2. For purposes of the Asbestos Trust Claims Transparency Act:
4 (1)(a) Asbestos action means a claim for damages or other relief
5 presented in a civil action arising out of, based on, or related to the
6 health effects of exposure to asbestos and any derivative claim made by
7 or on behalf of a person exposed to asbestos or a representative, spouse,
8 parent, child, or other relative of such person.
9 (b) Asbestos action does not include a claim for benefits under the
10 Nebraska Workers' Compensation Act;
11 (2) Asbestos trust means a government-approved or court-approved
12 trust, qualified settlement fund, compensation fund, or claims facility
13 that is:
14 (a) Created as a result of an administrative or legal action, a
15 court-approved bankruptcy, or pursuant to 11 U.S.C. 524(g) or 11 U.S.C.
16 1121(a) or other applicable provision of law; and
17 (b) Intended to provide compensation for claims arising out of,
18 based on, or related to the health effects of exposure to asbestos;
19 (3) Trust claim materials means a final executed proof of claim and
20 documents or information submitted to or received from an asbestos trust,
21 including:
22 (a) Claim forms and supplementary materials, proofs of claim,
23 affidavits, depositions, medical and health records, trial testimony,
24 work history, and exposure allegations; and
25 (b) Documents that reflect the status of a claim against an asbestos
26 trust and, if the trust claim has been resolved, documents relating to
27 the resolution of the trust claim; and
28 (4) Trust governance documents means documents that relate to
29 eligibility and payment levels for an asbestos trust, including claims
30 payment matrices, trust distribution procedures, or plans for
31 reorganization.
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1 Sec. 3. (1) Within thirty days after filing an asbestos action, the
2 claimant shall submit all available asbestos trust claims, produce all
3 trust claims materials, and file and provide all parties with an
4 affidavit indicating that all asbestos trust claims that can be made by
5 the claimant have been filed and that all trust claims materials produced
6 by the claimant are true and complete. A deferral or placeholder claim
7 that is missing necessary documentation for the asbestos trust to pay the
8 claim does not meet the requirements of this section. The claimant shall
9 produce all trust claims filed by a person other than the claimant if the
10 asbestos action is based on exposure to asbestos through that person and
11 the materials are available to the claimant or claimant's counsel.
12 (2) A claimant shall supplement the information and materials
13 required under subsection (1) of this section after supplementing an
14 asbestos trust claim, receiving additional information or materials
15 related to an asbestos trust claim, or filing an additional trust claim.
16 Sec. 4. (1) Not less than sixty days before trial of an asbestos
17 action, if a defendant believes the claimant has not filed all asbestos
18 trust claims as required by section 3 of this act, the defendant may move
19 the court for an order to require the claimant to file the additional
20 trust claims the defendant believes the claimant is eligible to file.
21 (2) If the court determines there is a sufficient basis for the
22 claimant to file an asbestos trust claim identified by the defendant, the
23 court shall order the claimant to file the asbestos trust claim, produce
24 all related trust claim materials, and produce an affidavit stating that
25 all such materials are true and complete. The court shall not set the
26 asbestos action for trial earlier than ninety days after the claimant
27 complies with this section.
28 Sec. 5. (1) Trust claim materials and trust governance documents
29 are admissible as evidence in an asbestos action and are presumed to be
30 relevant and authentic. No claims of privilege apply to trust claim
31 materials or trust governance documents.
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1 (2) A defendant in an asbestos action may seek discovery from an
2 asbestos trust. The claimant may not claim privilege or confidentiality
3 to bar discovery and shall provide consent or other expression of
4 permission that may be required by the asbestos trust to release
5 information and materials sought by a defendant.
6 Sec. 6. In an asbestos action in which damages are awarded and
7 setoffs are permitted under applicable law, a defendant is entitled to a
8 setoff in the amount the claimant has received from an asbestos trust
9 and, for trust claims not yet paid as of the date of entry of judgment,
10 the amount the claimant will receive as specified in the applicable trust
11 governance documents. If multiple defendants are found liable for
12 damages, the court shall distribute the amount of setoff proportionally
13 between the defendants, according to the liability of each defendant.
14 Sec. 7. The Asbestos Trust Claims Transparency Act applies to
15 asbestos actions filed on or after the effective date of this act.
16 Sec. 8. Sections 8 to 18 of this act shall be known and may be
17 cited as the Asbestos Claims Priorities and Claims Legitimacy Act.
18 Sec. 9. For purposes of the Asbestos Claims Priorities and Claims
19 Legitimacy Act:
20 (1) AMA Guides means the sixth edition of the American Medical
21 Association's Guides to the Evaluation of Permanent Impairment;
22 (2)(a) Asbestos action means a claim for damages or other relief
23 presented in a civil action arising out of, based on, or related to the
24 health effects of exposure to asbestos and any derivative claim made by
25 or on behalf of a person exposed to asbestos or a representative, spouse,
26 parent, child, or other relative of such person.
27 (b) Asbestos action does not include a claim for benefits under the
28 Nebraska Workers' Compensation Act;
29 (3) Asbestosis means bilateral diffuse interstitial fibrosis of the
30 lungs caused by inhalation of asbestos fibers;
31 (4) Board-certified in internal medicine means a licensed physician
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1 who is certified by the American Board of Internal Medicine or the
2 American Osteopathic Board of Internal Medicine;
3 (5) Board-certified in occupational medicine means a licensed
4 physician who is certified in the specialty of occupational medicine by
5 the American Board of Preventive Medicine or the specialty of
6 occupational/environmental medicine by the American Osteopathic Board of
7 Preventive Medicine;
8 (6) Board-certified in oncology means a licensed physician who is
9 certified in the subspecialty of medical oncology by the American Board
10 of Internal Medicine or the American Osteopathic Board of Internal
11 Medicine;
12 (7) Board-certified in pathology means a licensed physician who
13 holds primary certification in anatomic pathology or clinical pathology
14 from the American Board of Pathology or the American Osteopathic Board of
15 Pathology and whose professional practice is principally in the field of
16 pathology and involves regular evaluation of pathology materials obtained
17 from surgical or postmortem specimens;
18 (8) Board-certified in pulmonary medicine means a licensed physician
19 who is certified in the specialty of pulmonary medicine by the American
20 Board of Internal Medicine or the American Osteopathic Board of Internal
21 Medicine;
22 (9) Certified B Reader means a National Institute for Occupational
23 Safety and Health (NIOSH) certified B Reader of X-rays who complies with
24 the NIOSH B Reader's Code of Ethics, Issues in Classification of Chest
25 Radiographs, and Classification of Chest Radiographs: Contested
26 Proceedings;
27 (10) Chest X-ray means chest films taken in accordance with
28 applicable state and federal regulatory standards and taken in the
29 posterior-anterior view;
30 (11) DLCO means diffusing capacity of the lung for carbon monoxide,
31 which is the measurement of carbon monoxide transfer from inspired gas to
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1 pulmonary capillary blood;
2 (12) FEV1 means forced expiratory volume in the first second, which
3 is the maximal volume of air expelled in one second during performance of
4 simple spirometric tests;
5 (13) FEV1/FVC means the ratio between the actual values for FEV1
6 over FVC;
7 (14) FVC means forced vital capacity, which is the maximal volume of
8 air expired with maximum effort from a position of full inspiration;
9 (15) ILO system and ILO scale mean the radiological ratings and
10 system for the classification of chest X-rays of the International Labour
11 Organization provided in Guidelines for the Use of ILO International
12 Classification of Radiographs of Pneumoconioses (2011);
13 (16) Official statements of the American Thoracic Society means the
14 lung function testing standards set forth in the technical standards of
15 the American Thoracic Society, including Standardization of Spirometry
16 (2019), Standardization of the Measurement of Lung Volumes (2005),
17 Standards for Single-breath Carbon Monoxide Uptake in the Lung (2017),
18 and Interpretive Strategies for Lung Function Tests (2005);
19 (17) Pathological evidence of asbestosis means a statement by a
20 board-certified pathologist that more than one representative section of
21 lung tissue uninvolved with any other disease process demonstrates a
22 pattern of peribronchiolar or parenchymal scarring in the presence of
23 characteristic asbestos bodies:
24 (a) That is graded:
25 (i) 1(B) or higher under the criteria published in Asbestos-
26 Associated Diseases, 106 Archive of Pathology and Laboratory Medicine 11,
27 Appendix 3 (October 8, 1982); or
28 (ii) One or higher in pathology of asbestosis, 134 Archive of
29 Pathology and Laboratory Medicine 462-80 (March 2010) (tables 2 and 3);
30 and
31 (b) For which there is no other more likely explanation for the
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1 presence of the fibrosis;
2 (18) Plethysmography means the test for determining lung volume in
3 which the exposed person is enclosed in a chamber equipped to measure
4 pressure, flow, or volume change;
5 (19) Predicted lower limit of normal means the test value that is
6 the calculated standard convention lying at the fifth percentile, below
7 the upper ninety-five percent of the reference population, based on age,
8 height, and gender, according to the recommendations by the American
9 Thoracic Society and as referenced in the AMA Guides, primarily National
10 Health and Nutrition Examination Survey predicted values;
11 (20) Pulmonary function test means spirometry, lung volume testing,
12 and diffusion capacity testing, including appropriate measurements,
13 quality control data, and graphs, performed in accordance with the
14 methods of calibration and techniques provided in the AMA Guides and
15 standards provided in the official statements of the American Thoracic
16 Society;
17 (21) Qualified physician means a licensed physician who is board-
18 certified in internal medicine, occupational medicine, oncology,
19 pathology, or pulmonary medicine, as appropriate to the diagnostic
20 specialty in question, and who:
21 (a) Conducted a physical examination of the exposed person and took
22 a detailed occupational, exposure, medical, smoking, and social history
23 or, if the exposed person is deceased, reviewed the pathology material
24 and took a detailed history from the person most knowledgeable about the
25 information forming the basis of the asbestos action;
26 (b) Treated or is treating the exposed person, and has a doctor-
27 patient relationship with the exposed person at the time of the physical
28 examination, or in the case of a board-certified pathologist, examined
29 tissue samples or pathological slides of the exposed person at the
30 request of the treating physician;
31 (c) Has not relied on any examinations, tests, radiographs, reports,
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1 or opinions of any doctor, clinic, laboratory, or testing company that
2 performed an examination, test, radiograph, or screening of the exposed
3 person in violation of a law, regulation, licensing requirement, or
4 medical code of practice of the state in which the examination, test, or
5 screening was conducted; and
6 (d) Prepared or directly supervised the preparation and final review
7 of a medical report under the Asbestos Claims Priorities and Claims
8 Legitimacy Act;
9 (22) Radiological evidence of asbestosis means a quality 1 chest X-
10 ray under the ILO system, or a quality 2 chest X-ray in a death case when
11 no pathology or quality 1 chest X-ray is available, showing bilateral
12 small, irregular opacities (s, t, or u) occurring primarily in the lower
13 lung zones graded by a certified B Reader as at least 1/1 on the ILO
14 scale;
15 (23) Radiological evidence of diffuse bilateral pleural thickening
16 means a quality 1 chest X-ray under the ILO system, or a quality 2 chest
17 X-ray in a death case when no pathology or quality 1 chest X-ray is
18 available, showing diffuse bilateral pleural thickening of at least b2 on
19 the ILO scale and blunting of at least one costophrenic angle as
20 classified by a certified B Reader;
21 (24) Spirometry means a test of air capacity of the lung through a
22 spirometer to measure the volume of air inspired and expired;
23 (25) Supporting test results means B-reading and B Reader reports,
24 reports of X-ray examinations, diagnostic imaging of the chest, pathology
25 reports, pulmonary function tests, and other tests reviewed by the
26 diagnosing physician or a qualified physician in reaching the physician's
27 conclusions;
28 (26) Timed gas dilution means a method for measuring total lung
29 capacity in which the subject breathes into a spirometer containing a
30 known concentration of an inert and insoluble gas for a specific time,
31 and the concentration of that inert and insoluble gas in the lung is
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1 compared to the concentration of that type of gas in the spirometer; and
2 (27) Total lung capacity means