21.0434.02000
Sixty-seventh
Legislative Assembly HOUSE BILL NO. 1207
of North Dakota
Introduced by
Representatives K. Koppelman, Jones, Magrum
Senators Dwyer, Larson
1 A BILL for an Act to create and enact chapter 32-46.2 of the North Dakota Century Code,
2 relating to civil actions involving asbestos; to amend and reenact subsection 2 of section
3 28-01.3-04 of the North Dakota Century Code, relating to liability of nonmanufacturing sellers;
4 and to provide for application.
5 BE IT ENACTED BY THE LEGISLATIVE ASSEMBLY OF NORTH DAKOTA:
6 SECTION 1. AMENDMENT. Subsection 2 of section 28-01.3-04 of the North Dakota
7 Century Code is amended and reenacted as follows:
8 2. After the plaintiff has filed a complaint against the manufacturer and the manufacturer
9 has or is required to have answered or otherwise pleaded, theThe court shall order the
10 dismissal of the claim against the certifying seller, unless the plaintiff can show any of
11 the following:
12 a. That the certifying seller exercised some significant control over the design or
13 manufacture of the product, or provided instructions or warnings to the
14 manufacturer relative to the alleged defect in the product which caused the
15 personal injury, death, or damage to property.
16 b. That the certifying seller had actual knowledge of the defect in the product which
17 caused the personal injury, death, or damage to property.
18 c. That the certifying seller created the defect in the product which caused the
19 personal injury, death, or damage to property.
20 SECTION 2. Chapter 32-46.2 of the North Dakota Century Code is created and enacted as
21 follows:
22 32-46.2-01. Definitions.
23 In this chapter, unless the context otherwise requires:
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1 1. "AMA guides" means the sixth edition of the American medical association's "Guides
2 to the Evaluation of Permanent Impairment".
3 2. "Asbestos action" means the same as that term is defined in section 32-46.1-01.
4 3. "Asbestosis" means bilateral diffuse interstitial fibrosis of the lungs caused by
5 inhalation of asbestos fibers.
6 4. "Board-certified in internal medicine" means a licensed physician who is certified by
7 the American board of internal medicine or the American osteopathic board of internal
8 medicine.
9 5. "Board-certified in occupational medicine" means a licensed physician who is certified
10 in the specialty of occupational medicine by the American board of preventive
11 medicine or the specialty of occupational/environmental medicine by the American
12 osteopathic board of preventive medicine.
13 6. "Board-certified in oncology" means a licensed physician who is certified in the
14 subspecialty of medical oncology by the American board of internal medicine or the
15 American osteopathic board of internal medicine.
16 7. "Board-certified in pathology" means a licensed physician who holds primary
17 certification in anatomic pathology or clinical pathology from the American board of
18 pathology or the American osteopathic board of pathology and whose professional
19 practice is principally in the field of pathology and involves regular evaluation of
20 pathology materials obtained from surgical or postmortem specimens.
21 8. "Board-certified in pulmonary medicine" means a licensed physician who is certified in
22 the specialty of pulmonary medicine by the American board of internal medicine or the
23 American osteopathic board of internal medicine.
24 9. "Certified B-reader" means an individual who is certified as a national institute for
25 occupational safety and health final or B-reader of x-rays under title 42, Code of
26 Federal Regulations, part 37.51(b).
27 10. "Chest x-ray" means chest films taken in accordance with all applicable state and
28 federal regulatory standards and taken in the posterior-anterior view.
29 11. "DLCO" means diffusing capacity of the lung for carbon monoxide, which is the
30 measurement of carbon monoxide transfer from inspired gas to pulmonary capillary
31 blood.
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1 12. "Exposed individual" means an individual whose exposure to asbestos is the basis for
2 an asbestos action.
3 13. "FEV1" means forced expiratory volume in the first second, which is the maximal
4 volume of air expelled in one second during performance of simple spirometric tests.
5 14. "FEV1/FVC" means the ratio between the actual values for FEV1 over FVC.
6 15. "FVC" means forced vital capacity, which is the maximal volume of air expired with
7 maximum effort from a position of full inspiration.
8 16. "ILO system" and "ILO scale" mean the radiological ratings and system for the
9 classification of chest x-rays of the international labour office provided in "Guidelines
10 for the Use of ILO International Classification of Radiographs of Pneumoconioses"
11 (2011).
12 17. "Nonmalignant condition" means any condition that may be caused by asbestos other
13 than a diagnosed cancer.
14 18. "Official statements of the American thoracic society" means the lung function testing
15 standards set forth in the technical standards of the American thoracic society,
16 including "Standardization of Spirometry" (2019), "Standardisation of the
17 Measurement of Lung Volumes" (2005), "Standards for Single-breath Carbon
18 Monoxide Uptake in the Lung" (2017), and "Interpretive Strategies for Lung Function
19 Tests" (2005).
20 19. "Pathological evidence of asbestosis" means a statement by a board-certified
21 pathologist that more than one representative section of lung tissue uninvolved with
22 any other disease process demonstrates a pattern of peribronchiolar or parenchymal
23 scarring in the presence of characteristic asbestos bodies graded 1(B) or higher under
24 the criteria published in "Asbestos-Associated Diseases", 106 Archive of Pathology
25 and Laboratory Medicine 11, Appendix 3 (October 8, 1982).
26 20. "Plaintiff" means the same as that term is defined in section 32-46.1-01.
27 21. "Plethysmography" means the test for determining lung volume in which the exposed
28 individual is enclosed in a chamber equipped to measure pressure, flow, or volume
29 change.
30 22. "Predicted lower limit of normal" means the test value that is the calculated standard
31 convention lying at the fifth percentile, below the upper ninety-five percent of the
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1 reference population, based on age, height, and gender, according to the
2 recommendations by the American thoracic society and as referenced in the
3 AMA Guides.
4 23. "Product liability action" means the same as defined in section 28-01.3-01.
5 24. "Pulmonary function test" means spirometry, lung volume testing, and diffusion
6 capacity testing, including appropriate measurements, quality control data, and
7 graphs, performed in accordance with the methods of calibration and techniques
8 provided in the AMA Guides and all standards provided in the official statements of the
9 American thoracic society.
10 25. "Qualified physician" means a licensed physician who is board-certified in internal
11 medicine, pathology, pulmonary medicine, occupational medicine, or oncology, as may
12 be appropriate to the diagnostic specialty in question, and who:
13 a. Conducted a physical examination of the exposed individual and has taken a
14 detailed occupational, exposure, medical, smoking, and social history from the
15 exposed individual, or if the exposed individual is deceased, has reviewed the
16 pathology material and has taken a detailed history from the individual most
17 knowledgeable about the information forming the basis of the asbestos action;
18 b. Treated or is treating the exposed individual, and has a doctor-patient
19 relationship with the exposed individual at the time of the physical examination,
20 or in the case of a board-certified pathologist, examined tissue samples or
21 pathological slides of the exposed individual at the request of the treating
22 physician;
23 c. Spends no more than twenty-five percent of the physician's professional practice
24 time providing consulting or expert services in civil actions, and whose medical
25 group, professional corporation, clinic, or other affiliated group earns no more
26 than twenty-five percent of its revenue providing such services;
27 d. Has not relied on any examinations, tests, radiographs, reports, or opinions of
28 any doctor, clinic, laboratory, or testing company that performed an examination,
29 test, radiograph, or screening of the exposed individual in violation of any law,
30 regulation, licensing requirement, or medical code of practice of the state in
31 which the examination, test, or screening was conducted; and
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1 e. Prepared or directly supervised the preparation and final review of any medical
2 report under this chapter.
3 26. "Radiological evidence of asbestosis" means a quality 1 chest x-ray under the
4 ILO system, or a quality 2 chest x-ray in a death case when no pathology or quality 1
5 chest x-ray is available, showing bilateral small, irregular opacities (s, t, or u) occurring
6 primarily in the lower lung zones graded by a certified B-reader as at least 1/1 on the
7 ILO scale.
8 27. "Radiological evidence of diffuse bilateral pleural thickening" means a quality 1 chest
9 x-ray under the ILO system, or a quality 2 chest x-ray in a death case when no
10 pathology or quality 1 chest x-ray is available, showing diffuse bilateral pleural
11 thickening of at least b2 on the ILO scale and blunting of at least one costophrenic
12 angle as classified by a certified B-reader.
13 28. "Spirometry" means a test of air capacity of the lung through a spirometer to measure
14 the volume of air inspired and expired.
15 29. "Supporting test results" means B-reading and B-reader reports, reports of x-ray
16 examinations, diagnostic imaging of the chest, pathology reports, pulmonary function
17 tests, and all other tests reviewed by the diagnosing physician or a qualified physician
18 in reaching the physician's conclusions.
19 30. "Timed gas dilution" means a method for measuring total lung capacity in which the
20 subject breathes into a spirometer containing a known concentration of an inert and
21 insoluble gas for a specific time, and the concentration of that inert and insoluble gas
22 in the lung is compared to the concentration of that type of gas in the spirometer.
23 31. "Total lung capacity" means the volume of gas contained in the lungs at the end of a
24 maximal inspiration.
25 32-46.2-02. Sworn information form requirement for asbestos action.
26 1. In addition to any requirements for asbestos actions under chapter 32-46.1, a plaintiff
27 in an asbestos action shall file, within thirty days after any complaint is filed in an
28 asbestos action, a sworn information form signed by the plaintiff and plaintiff's counsel
29 specifying the evidence that provides the basis for each claim against each defendant.
30 The sworn information form must include the following with specificity:
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1 a. The name, address, date of birth, marital status, occupation, smoking history,
2 current and past worksites, and current and past employers of the exposed
3 individual, and any person through whom the exposed person was exposed to
4 asbestos;
5 b. Each individual through whom the exposed individual was exposed to asbestos
6 and the exposed individual's relationship to each individual;
7 c. Each asbestos-containing product to which the individual was exposed and each
8 physical location at which the exposed individual was exposed, or if the plaintiff
9 was exposed through another individual, to which that other individual was
10 exposed;
11 d. The specific location and manner of each exposure, including for any individual
12 through whom the exposed individual was exposed to asbestos;
13 e. The beginning and ending dates of each exposure, the frequency and length of
14 each exposure, and the proximity of the asbestos-containing product or its use to
15 the exposed person and any person through whom the exposed person was
16 exposed to asbestos;
17 f. The identity of the manufacturer or seller of the specific asbestos product for
18 each exposure;
19 g. The specific asbestos-related disease claimed to exist; and
20 h. Any supporting documentation relating to the information required under this
21 section.
22 2. The plaintiff shall provide the sworn information form and supporting documentation to
23 all parties within thirty days after the effective date of this section for asbestos actions
24 that are pending on the effective date.
25 3. The plaintiff has a continuing duty to supplement the information required to be
26 disclosed in subsection 1.
27 4. The court shall dismiss the asbestos action without prejudice as to any defendant
28 whose product or premises is not identified in the required disclosures in subsection 1.
29 5. The court shall dismiss the asbestos action without prejudice as to all defendants if the
30 plaintiff and plaintiff's counsel fail to comply with this section.
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1 32-46.2-03. Requirements for asbestos action.
2 1. In addition to any requirements for asbestos actions under chapter 32-46.1 and the
3 required sworn information form required by section 32-46.2-02, a plaintiff in an
4 asbestos action shall include with any complaint a detailed narrative medical report,
5 signed by a qualified physician and accompanied by supporting test results, which
6 constitute prima facie evidence the exposed individual meets the requirements of this
7 chapter. The report may not be prepared by a lawyer or other individual working for or
8 on behalf of a lawyer or law firm.
9 2. The plaintiff shall provide a detailed narrative medical report and supporting test
10 results to all parties within thirty days after the effective date of this section for
11 asbestos actions that are pending on the effective date.
12 3. A defendant shall have a reasonable opportunity to challenge the adequacy of the
13 prima facie evidence. The court shall dismiss the action without prejudice if the plaintiff
14 fails to comply with the requirements of this section or fails to make the prima facie
15 showing required by this section.
16 4. Until a court enters an order determining the exposed individual has established prima
17 facie evidence of impairment, an asbestos action is not subject to discovery, except
18 discovery related to establishing or challenging the prima facie evidence.
19 32-46.2-04. Elements of proof for asbestos action involving nonmalignant conditions.
20 An asbestos action related to an alleged nonmalignant asbestos-related condition may not
21 be brought or maintained in the absence of prima facie evidence the exposed individual has a
22 physical impairment for which asbestos exposure was a substantial contributing factor. The
23 prima facie showing must be made as to each defendant and include a detailed narrative
24 medical report signed by a qualified physician that includes the following:
25 1. Radiological or pathological evidence of asbestosis or radiological evidence of diffuse
26 bilateral pleural thickening or a high-resolution computed tomography scan showing
27 evidence of asbestosis or diffuse pleural thickening;
28 2. A detailed occupational and exposure history from the exposed individual or, if the
29 individual is deceased, from the individual most knowledgeable about the exposures
30 that form the basis of the action, including identification of all of the exposed
31 individual's places of employment a