Bill Summary – FastDemocracy

Enrolled Copy                                                                           H.B. 328
                         ASBESTOS LITIGATION AMENDMENTS
                                      2023 GENERAL SESSION
                                           STATE OF UTAH
                                Chief Sponsor: Brady Brammer
                               Senate Sponsor: Kirk A. Cullimore
 6
 LONG TITLE
 General Description:
        This bill addresses asbestos litigation.
 Highlighted Provisions:
        This bill:
        < defines terms;
        < recodifies Title 78B, Chapter 6, Part 20, Asbestos Bankruptcy Trust Claims
 Transparency Act, to Title 78B, Chapter 6, Part 24, Asbestos Litigation
 Requirements;
        < requires certain disclosures after a complaint is filed in an asbestos action;
        < addresses the dismissal of an action for failure to comply with a disclosure
 requirement;
        < requires a prima facie showing of certain evidence in an asbestos action alleging a
 nonmalignant condition;
        < establishes requirements for prima facie evidence in an asbestos action alleging a
 nonmalignant condition, including the disclosure of evidence at trial or to a jury;
        < addresses the dismissal of an asbestos action when a plaintiff fails to make a prima
 facie showing;
        < addresses the accrual of an asbestos action alleging a nonmalignant condition; and
        < makes technical and conforming changes.
 Money Appropriated in this Bill:
        None
 Other Special Clauses:
       H.B. 328                                                                Enrolled Copy
        None
 Utah Code Sections Affected:
 ENACTS:
        78B-6-2402, Utah Code Annotated 1953
        78B-6-2403, Utah Code Annotated 1953
        78B-6-2404, Utah Code Annotated 1953
 RENUMBERS AND AMENDS:
        78B-6-2401, (Renumbered from 78B-6-2003, as last amended by Laws of Utah 2018,
 Chapter 39)
        78B-6-2405, (Renumbered from 78B-6-2004, as enacted by Laws of Utah 2016,
 Chapter 385)
        78B-6-2406, (Renumbered from 78B-6-2007, as enacted by Laws of Utah 2016,
 Chapter 385)
        78B-6-2407, (Renumbered from 78B-6-2005, as enacted by Laws of Utah 2016,
 Chapter 385)
        78B-6-2408, (Renumbered from 78B-6-2009, as enacted by Laws of Utah 2016,
 Chapter 385)
 REPEALS:
        78B-6-2001, as enacted by Laws of Utah 2016, Chapter 385
        78B-6-2002, as enacted by Laws of Utah 2016, Chapter 385
        78B-6-2006, as enacted by Laws of Utah 2016, Chapter 385
        78B-6-2008, as enacted by Laws of Utah 2016, Chapter 385
        78B-6-2010, as enacted by Laws of Utah 2016, Chapter 385
53
 Be it enacted by the Legislature of the state of Utah:
        Section 1. Section 78B-6-2401, which is renumbered from Section 78B-6-2003 is
 renumbered and amended to read:
                              Part 24. Asbestos Litigation Requirements
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       Enrolled Copy                                                                            H.B. 328
         [78B-6-2003].            78B-6-2401. Definitions.
         As used in this part:
         (1) "AMA guides" means the edition of the American Medical Association's Guides to
 the Evaluation of Permanent Impairment in effect at the time of the performance of an
 examination or test on an exposed individual.
         [(1)] (2) "Asbestos" means chrysotile, amosite, crocidolite, tremolite asbestos,
 anthophyllite asbestos, actinolite asbestos, asbestiform winchite, asbestiform richterite,
 asbestiform amphibole minerals, and any of these minerals that have been chemically treated or
 altered, including all minerals defined as asbestos in 29 C.F.R. Sec. 1910 at the time the
 asbestos action is filed.
         (3) "Asbestosis" means bilateral diffuse interstitial fibrosis of the lungs caused by the
 inhalation of asbestos fibers.
         [(2)] (4) (a) "Asbestos action" means a claim for damages or other civil or equitable
 relief presented in a civil action resulting from, based on, or related to:
         (i) the health effects of exposure to asbestos, including:
         (A) loss of consortium;
         (B) wrongful death;
         (C) mental or emotional injury;
         (D) risk or fear of disease or other injury; and
         (E) costs of medical monitoring or surveillance; and
         (ii) any other derivative claim made by or on behalf of [a person] an individual
 exposed to asbestos or a representative, spouse, parent, child, or other relative of that [person]
 individual.
         (b) "Asbestos action" does not include a claim for workers' compensation or veterans
 benefits.
         [(3)] (5) "Asbestos trust" means a:
         (a) government-approved or court-approved trust that is intended to provide
 compensation to claimants arising out of, based on, or related to the health effects of exposure
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        H.B. 328                                                                         Enrolled Copy
 to asbestos or asbestos-containing products;
         (b) qualified settlement fund that is intended to provide compensation to claimants
 arising out of, based on, or related to the health effects of exposure to asbestos or
 asbestos-containing products;
         (c) compensation fund or claims facility created as a result of an administrative or legal
 action that is intended to provide compensation to claimants arising out of, based on, or related
 to the health effects of exposure to asbestos or asbestos-containing products;
         (d) court-approved bankruptcy that is intended to provide compensation to claimants
 arising out of, based on, or related to the health effects of exposure to asbestos or
 asbestos-containing products; or
         (e) plan of reorganization or trust pursuant to 11 U.S.C. Sec. 524(g) or 11 U.S.C. Sec.
 1121(a) or other applicable provision of law that is intended to provide compensation to
 claimants arising out of, based on, or related to the health effects of exposure to asbestos or
 asbestos-containing products.
         (6) "ATS testing standards" means the official technical statements from the American
 Thoracic Society for pulmonary function testing in effect at the time of the performance of an
 examination or test on an exposed individual.
         (7) "Board-certified physician in internal medicine" means a licensed physician who is
 certified by the American Board of Internal Medicine or the American Osteopathic Board of
 Internal Medicine.
         (8) "Board-certified physician in occupational medicine" means a licensed physician
 who is certified in the specialty of:
         (a) occupational medicine by the American Board of Preventative Medicine; or
         (b) occupational and environmental medicine by the American Osteopathic Board of
 Preventative Medicine.
         (9) "Board-certified physician in pathology" means a licensed physician:
         (a) who holds primary certification in anatomic pathology or clinical pathology from
 the American Board of Pathology or the American Osteopathic Board of Pathology; and
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        Enrolled Copy                                                                         H.B. 328
         (b) whose professional practice is principally in the field of pathology involving regular
 evaluation of pathology materials obtained from surgical or postmortem specimens.
         (10) "Board-certified physician in pulmonary medicine" means a licensed physician
 who is certified in the specialty of pulmonary medicine by the American Board of Internal
 Medicine or the American Osteopathic Board of Internal Medicine.
         (11) "Certified B reader" means a physician who is certified as a B reader by the
 National Institute for Occupational Safety and Health.
         (12) "Chest x-ray" means a chest film taken in accordance with applicable state and
 federal laws and taken in the posterior-anterior view.
         (13) "Exposed individual" means an individual whose exposure to asbestos is the basis
 for the asbestos action.
         (14) "FEV1" means the maximal volume of air expelled in the first second during
 performance of spirometry.
         (15) "FEV1/FVC ratio" means the ratio that is calculated from FEV1 divided by FVC.
         (16) "FVC" means the maximal volume of air expired with maximum effort from a
 position of full inspiration.
         (17) "ILO system" means the system for the classification of chest x-rays provided in
 the International Labour Office's Guidelines for the Use of ILO International Classification of
 Radiographs of Pneumoconioses in effect at the time of the performance of an examination or
 test on an exposed individual.
         (18) "Law firm" means a person that employs a lawyer.
         (19) "Lawyer" means an individual who is authorized to provide legal services in any
 state or territory of the United States.
         (20) (a) "Nonmalignant condition" means a condition that may be caused by asbestos
 other than a diagnosed cancer.
         (b) "Nonmalignant condition" does not include asbestos-related lung cancer
 accompanied by asbestosis.
         (21) "Pathological evidence of asbestosis" means a statement by a board-certified
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        H.B. 328                                                                       Enrolled Copy
 physician in pathology that more than one representative section of lung tissue demonstrates a
 pattern of peribronchiolar or parenchymal scarring in the presence of characteristic asbestos
 bodies and there is no other more likely explanation for the presence of the fibrosis.
        [(4)] (22) "Plaintiff" means:
        (a) the person bringing the asbestos action, including a personal representative if the
 asbestos action is brought by an estate; or
        (b) a conservator or next friend if the asbestos action is brought on behalf of a minor or
 legally incapacitated individual.
        (23) "Plethysmography" means the test for determining lung volume in which the
 exposed individual is enclosed in a chamber equipped to measure pressure, flow, or volume
 change.
        (24) "Predicted lower limit of normal" means the fifth percentile of healthy populations
 based on age, height, and gender as referenced in the AMA guides.
        (25) "Pulmonary function testing" means spirometry, lung volume testing, and
 diffusion capacity testing, including appropriate measurements, quality control data, and
 graphs, that are performed in accordance with the methods of calibration and techniques
 provided in the AMA guides and the ATS testing standards in effect at the time of the
 performance of a test on an exposed individual.
        (26) "Qualified physician" means a licensed physician who:
        (a) is a board-certified physician in internal medicine, a board-certified physician in
 occupational medicine, a board-certified physician in pathology, or a board-certified physician
 in pulmonary medicine, as is appropriate to the diagnostic specialty in question;
        (b) (i) conducted a physical examination of the exposed individual and took a detailed
 occupational, exposure, medical, smoking, and social history from the exposed individual; or
        (ii) if the exposed individual is deceased, reviewed the pathology material and took a
 detailed history from the individual most knowledgeable about the information forming the
 basis of the asbestos action;
        (c) (i) treated the exposed individual and had a physician-patient relationship with the
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        Enrolled Copy                                                                              H.B. 328
 exposed individual at the time of the physical examination; or
         (ii) if the licensed physician is a board-certified physician in pathology, examined
 tissue samples or pathological slides of the exposed individual;
         (d) prepared or directly supervised the preparation and final review of a medical report
 under this part; and
         (e) has not relied on any examinations, tests, radiographs, reports, or opinions of a
 doctor, clinic, laboratory, or testing company that performed an examination, test, radiograph,
 or screening of the exposed individual in violation of a law, regulation, licensing requirement,
 or medical ethics requirement of the state in which the examination, test, radiograph, or
 screening of the exposed individual was conducted.
         (27) "Radiological evidence of asbestosis" means a quality 1 or 2 chest x-ray showing
 bilateral small, irregular opacities, classified by width as s, t, or u, that occur primarily in the
 lower lung zones graded by a certified B reader as at least 1/0 on the ILO system.
         (28) "Radiological evidence of diffuse bilateral pleural thickening" means a quality 1
 or 2 chest x-ray showing diffuse bilateral pleural thickening of at least b2 on the ILO system
 and blunting of at least one costophrenic angle as classified by a certified B reader.
         (29) "Spirometry" means a test of air capacity of the lung through a spirometer that
 measures the volume of air inspired and expired.
         (30) "Supporting test results" means a report by a certified B reader, x-ray
 examinations, diagnostic imaging of the chest, pathology reports, pulmonary function testing,
 and other tests, which are reviewed by the diagnosing physician or qualified physician in
 reaching the physician's conclusions.
         (31) "Sworn declaration" means the same as that term is defined in Section
 78B-18a-102.
         (32) "Timed gas dilution" means a method for measuring total lung capacity in which
 the individual breaths into a spirometer containing a known concentration of an inert and
 insoluble gas for a specific time and the concentration of that inert and insoluble gas in the lung
 is compared to the concentration of that type of gas in the spirometer.
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        H.B. 328                                                                            Enrolled Copy
            (33) "Total lung capacity" means the volume of gas contained in the lungs at the end of
 the maximal inspiration.
            [(5)] (34) "Trust claims materials" means a final executed proof of claim and all other
 documents and information related to a claim against an asbestos trust, including:
            (a) claims forms and supplementary materials;
            (b) affidavits;
            (c) depositions and trial testimony;
            (d) work history;
            (e) medical and health records;
            (f) documents reflecting the status of a claim against an asbestos trust; and
            (g) all documents relating to the settlement of the trust claim if the trust claim has
 settled.
            [(6)] (35) "Trust governance documents" means all documents that relate to eligibility
 and payment levels, including:
            (a) claims payment matrices; and
            (b) trust distribution procedures or plans for reorganization for an asbestos trust.
            [(7)] (36) " Veterans benefits" means a program for benefits in connection with
 military service administered by the United States Department of Veterans Affairs under
 United States Code, Title 38, Veterans Benefits.
            [(8)] (37) (a) "Workers' compensation" means a program administered by the United
 States or a state to provide benefits, funded by a responsible employer or the employer's
 insurance carrier, for occupational diseases or injuries or for disability or death caused by
 occupational diseases or injuries.
            (b) "Workers' compensation" includes the Longshore and Harbor Workers'
 Compensation Act, 33 U.S.C. Sec. 901 et seq., and Federal Employees' Compensation Act, 5
 U.S.C. Sec. 8101 et seq.
            (c) "Workers' compensation" does not include the Federal Employers' Liability Act, 45
 U.S.C. Sec. 51 et seq.
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        Enrolled Copy                                                                               H.B. 328
           Section 2. Section 78B-6-2402 is enacted to read:
           78B-6-2402. Required disclosures by plaintiff within 21 days of filing asbestos
 action.
           (1) Within 21 days after the day on which the first answer is filed in response to the
 plaintiff's complaint in an asbestos action, the plaintiff shall provide all parties with a sworn
 declaration stating the evidence providing the basis for each claim against each defendant,
 including:
           (a) the name, address, date of birth, marital status, occupation, smoking history, and
 current and past employers and worksites of the exposed individual;
           (b) the name and address of each individual who is knowledgeable about each
 exposure to asbestos and the exposed individual's relationship to that individual;
           (c) the manufacturer or seller and the specific name of each asbestos-containing
 product, including any brand or trade name of that product, to which the exposed individual
 was exposed to asbestos or the other individual was expos