II

106TH CONGRESS

1ST SESSION S. 758

To establish legal standards and procedures for the fair, prompt, inexpensive,

and efficient resolution of personal injury claims arising out of asbestos

exposure, and for other purposes.

IN THE SENATE OF THE UNITED STATES

MARCH 25, 1999

Mr. ASHCROFT (for himself, Mr. HATCH, Mr. DODD, Mr. SESSIONS, Mr.

LIEBERMAN, Mr. GRASSLEY, Mr. TORRICELLI, Mr. SMITH of New Hampshire, and Mr. SCHUMER) introduced the following bill; which was read

twice and referred to the Committee on the Judiciary

A BILL

To establish legal standards and procedures for the fair,

prompt, inexpensive, and efficient resolution of personal

injury claims arising out of asbestos exposure, and for

other purposes.

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled,

3 SECTION 1. SHORT TITLE; TABLE OF CONTENTS.

4 (a) SHORT TITLE.—This Act may be cited as the

5 ‘‘Fairness in Asbestos Compensation Act of 1999’’.

6 (b) TABLE OF CONTENTS.—The table of contents for

7 this Act is as follows:
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Sec. 1. Short title; table of contents.

Sec. 2. Findings.

Sec. 3. Definitions.

TITLE I—ASBESTOS RESOLUTION CORPORATION

Sec. 101. Establishment.

Sec. 102. Powers of the Corporation.

Sec. 103. Board of Directors.

Sec. 104. Officers.

Sec. 105. Medical Advisory Board.

Sec. 106. Avoidance of conflict of interest.

Sec. 107. Annual reports.

TITLE II—MEDICAL ELIGIBILITY DETERMINATIONS

Sec. 201. Medical criteria—nonmalignant conditions.

Sec. 202. Medical criteria—mesothelioma.

Sec. 203. Medical criteria—lung cancer.

Sec. 204. Medical criteria—other cancer.

Sec. 205. Procedure for certificate of eligibility.

Sec. 206. Exceptional medical claims.

Sec. 207. Confidentiality.

Sec. 208. Judicial review.

TITLE III—ALTERNATIVE DISPUTE RESOLUTION

Sec. 301. Rules of procedure.

Sec. 302. Motions officers.

Sec. 303. Notice to respondents.

Sec. 304. Additional respondents.

Sec. 305. Grace period.

Sec. 306. Mediation.

Sec. 307. Arbitration.

Sec. 308. Subpoena powers of motions officers and arbitrators.

TITLE IV—CIVIL ACTIONS

Sec. 401. Prerequisites for civil action.

Sec. 402. Individual trials.

Sec. 403. Certificate of medical eligibility presumed correct.

Sec. 404. Penalty for inadequate offer in mediation.

TITLE V—RULES APPLICABLE TO ARBITRATIONS AND CIVIL

ACTIONS

Sec. 501. Elements of proof; relief.

Sec. 502. Timeliness defenses abolished.

Sec. 503. Attorneys’ fees.

Sec. 504. Certain prior litigation defenses abolished.

TITLE VI—FUNDING

Sec. 601. Costs of medical review and overhead and administration.

Sec. 602. Cost of mediation and arbitration.

Sec. 603. Informal dispute resolution.

Sec. 604. Judicial review; enforcement.

Sec. 605. Penalties.
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Sec. 606. Asbestos Resolution Corporation Trust Fund.

TITLE VII—APPLICABILITY; PENDING CIVIL ACTIONS

Sec. 701. Applicability.

Sec. 702. Pending civil actions.

TITLE VIII—MISCELLANEOUS PROVISIONS

Sec. 801. Applicability of other Federal laws.

Sec. 802. Obligations of the Corporation not obligations of the United States.

Sec. 803. Application to existing asbestos trusts.

Sec. 804. Settlements unaffected.

Sec. 805. Severability.

1 SEC. 2. FINDINGS.

2 Congress finds the following:

3 (1) Asbestos personal injury litigation is unfair

4 and inefficient, and imposes a crushing burden on

5 litigants and taxpayers alike.

6 (2) Asbestos litigation has already led to the

7 bankruptcy of more than 15 companies, representing

8 the great majority of the former asbestos industry.

9 (3) The extraordinary volume of asbestos litiga10 tion is straining Federal and State courts at enor11 mous taxpayer expense, with more than 150,000

12 such lawsuits currently pending in the tort system

13 and tens of thousands of new cases filed every year.

14 (4) Asbestos litigation has resulted in arbitrary

15 verdicts, with individuals receiving widely varying re16 coveries despite similar medical conditions.

17 (5) Asbestos litigation is a mature tort. The

18 legal, medical, and scientific issues have been repeat19 edly tried and retried in the courts for many years.
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1 (6) Currently, statutes of limitations can force

2 claimants to bring premature lawsuits in order to

3 avoid losing their claim for compensation. Moreover,

4 in order to obtain compensation for nonmalignant

5 disease, claimants often must give up their right to

6 obtain compensation later on, if they develop an as7 bestos-related cancer.

8 (7) Litigation has not been able to provide com9 pensation to claimants swiftly. On the contrary, ac10 cording to the Ad Hoc Committee on Asbestos Liti11 gation of the United States Judicial Conference, the

12 volume and complexity of asbestos cases have re13 sulted in the violation of a basic tenet of American

14 justice; which is the speedy and inexpensive resolu15 tion of cases.

16 (8) Litigation has also proved to be an extraor17 dinarily costly means of resolving claims of asbestos18 related disease. Less than 50 percent of the total

19 cost of asbestos litigation actually goes to com20 pensate claimants, while the remainder is eaten up

21 in attorneys’ fees and other litigation costs.

22 (9) In many courts, the vast majority of pend23 ing asbestos claims are filed by individuals who suf24 fer no present asbestos-related impairment. These

25 claims divert the resources of defendants from com-
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1 pensating individuals who are suffering from serious

2 asbestos-related disease.

3 (10) Punitive damages also divert the resources

4 of defendants from compensating impaired claim5 ants. Moreover, punitive damages give a few claim6 ants huge windfalls in addition to compensatory

7 damages.

8 (11) In an effort to cope with the overwhelming

9 tide of asbestos cases, a few courts have resorted to

10 mass consolidated trials and other aggregative meth11 ods of dealing with asbestos claims. Unfortunately,

12 mass consolidations only serve to magnify the irra13 tionality of a litigation system that awards massive

14 amounts to the unimpaired, while threatening the

15 ability of seriously ill people to obtain compensation

16 in the future.

17 SEC. 3. DEFINITIONS.

18 In this Act:

19 (1) ALTERNATIVE DISPUTE RESOLUTION PROC20 ESS.—The term ‘‘alternative dispute resolution proc21 ess’’ means the mediation and voluntary arbitration

22 process established under title III of this Act.

23 (2) ASBESTOS.—The term ‘‘asbestos’’ means

24 any number of naturally occurring silicates with the

25 common properties of great resistance to destruction
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1 by physical or chemical means and a fibrous configu2 ration, including asbestiform varieties of chrysotile,

3 crocidolite, amosite, anthophyllite, tremolite, or ac4 tinolite.

5 (3) ASBESTOS CLAIM.—The term ‘‘asbestos

6 claim’’ means any claim for damages or other relief,

7 arising out of, based on, or related to the health ef8 fects of exposure to asbestos, including any claim for

9 personal injury, death, mental or emotional injury,

10 risk of disease or other injury, or the costs of med11 ical monitoring or surveillance, and including any

12 claim made by or on behalf of any exposed person

13 or any representative, spouse, parent, child, or other

14 relative of any exposed person.

15 (4) ASBESTOS TRUST.—The term ‘‘asbestos

16 trust’’ means a court-supervised trust established to

17 resolve asbestos claims arising directly or indirectly

18 from exposure to asbestos or asbestos-containing

19 products, including a trust created under the bank20 ruptcy laws of the United States or rule 23 of the

21 Federal Rules of Civil Procedure.

22 (5) BASILAR CRACKLES.—The term ‘‘basilar

23 crackles’’, sometimes referred to as ‘‘rales’’, means

24 those sounds described in American Thoracic Soci25 ety, ‘‘The Diagnosis of Nonmalignant Diseases Re-
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1 lated to Asbestos’’, 134 American Review of Res2 piratory Disease, 363, 366 (1986).

3 (6) BOARD.—The term ‘‘Board’’ means the

4 Board of Directors of the Asbestos Resolution Cor5 poration.

6 (7) BOARD-CERTIFIED INTERNIST.—The term

7 ‘‘board-certified internist’’ means a physician who is

8 currently certified by the American Board of Inter9 nal Medicine in internal medicine.

10 (8) BOARD-CERTIFIED ONCOLOGIST.—The term

11 ‘‘board-certified oncologist’’ means a physician who

12 is currently certified by the American Board of In13 ternal Medicine in the subspecialty of medical oncol14 ogy.

15 (9) BOARD-CERTIFIED PATHOLOGIST.—The

16 term ‘‘board-certified pathologist’’ means a physician

17 who currently holds primary certification in ana18 tomic pathology, or combined anatomic and clinical

19 pathology, from the American Board of Pathology.

20 (10) BOARD-CERTIFIED PULMONARY SPE21 CIALIST.—The term ‘‘board-certified pulmonary spe22 cialist’’ means a physician who is currently certified

23 by the American Board of Internal Medicine in the

24 subspecialty of pulmonary disease.
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1 (11) BOARD-CERTIFIED RADIOLOGIST.—The

2 term ‘‘board-certified radiologist’’ means a physician

3 who is currently certified by the American Board of

4 Radiology.

5 (12) BYLAWS.—The term ‘‘bylaws’’ means the

6 code or codes of rules adopted for the regulation or

7 management of the affairs of the Corporation. By8 laws shall be consistent with the requirements of this

9 Act and, to the extent consistent with this Act, with

10 the requirements of the District of Columbia Non11 profit Corporation Act (D.C. Code section 29–501 et

12 seq.).

13 (13) CANCER.—The term ‘‘cancer’’ means any

14 of the various malignant neoplasms marked by the

15 proliferation of anaplastic cells that tend to invade

16 surrounding tissue and metastasize to new body

17 sites and the pathological condition characterized by

18 such growths.

19 (14) CERTIFICATE OF MEDICAL ELIGIBILITY.—

20 The term ‘‘certificate of medical eligibility’’ means a

21 certificate issued by the Corporation to a claimant

22 under this Act certifying that an exposed person

23 meets the requirements of 1 or more eligible medical

24 categories (or qualifies as an exceptional medical

25 claim with respect to an eligible medical category).
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1 (15) CERTIFIED B-READER.—The term ‘‘cer2 tified B-reader’’ means an individual qualified as a

3 ‘‘final’’ or ‘‘B-reader’’ under section 37.51(b) of title

4 42, Code of Federal Regulations (and any subse5 quent revisions thereof) whose certification is cur6 rent.

7 (16) CHEST X-RAYS.—The term ‘‘chest x-rays’’

8 means chest radiographs taken in 4 views (posterior9 anterior, lateral, and left and right obliques) and

10 graded quality 1 for reading according to the criteria

11 established by the ILO (except that, in situations

12 where the claimant is unable to provide quality 1

13 chest x-rays because of death or because of an in14 ability to have new chest x-rays taken, chest x-rays

15 graded quality 2 shall be acceptable).

16 (17) CIVIL ACTION.—The term ‘‘civil action’’

17 means any action, lawsuit, or proceeding in any Fed18 eral, State, or tribal court, but does not include—

19 (A) a criminal action; or

20 (B) an action relating to Federal or State

21 worker’s compensation laws.

22 (18) CLAIMANT.—The term ‘‘claimant’’ means

23 any exposed person or the legal representative of

24 that exposed person, and any parent, child, or other

25 relative of an exposed person, or the legal represent-
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1 ative of that exposed person, who applies to the Cor2 poration for a certificate of medical eligibility or who

3 invokes the alternative dispute resolution services of4 fered by the Corporation.

5 (19) CLINICAL EVIDENCE OF ASBESTOSIS.—

6 The term ‘‘clinical evidence of asbestosis’’ means a

7 diagnosis of pulmonary asbestosis by a board-cer8 tified internist or board-certified pulmonary spe9 cialist based on the following minimum objective cri10 teria:

11 (A) Chest x-rays which, in the opinion of

12 a certified B-reader, show small irregular opac13 ities of ILO grade 1/0 and pulmonary function

14 testing and physical examination that show

15 either—

16 (i) FVC<80percent of predicted value

17 with FEV1/FVC≥75 percent (actual value);

18 or

19 (ii) TLC<80 percent of predicted

20 value, with either DLCO≤76 percent of

21 predicted value or bilateral basilar crack22 les, and also the absence of any probable

23 explanation for this DLCO result or crack24 les finding other than the presence of lung

25 disease.
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1 (B) Chest x-rays which, in the opinion of

2 a certified B-reader, show small irregular opac3 ities of ILO grade 1/1 or greater; and pul4 monary function testing that shows either—

5 (i) FVC<80 percent of predicted

6 value with FEV1/FVC≥72 percent (actual

7 value) or, if the individual tested is at least

8 68 years old at the time of the testing,

9 with FEV1/FVC≥65 percent (actual value);

10 or

11 (ii) TLC<80 percent of predicted

12 value.

13 (20) COMPENSATORY DAMAGES.—The term

14 ‘‘compensatory damages’’ means damages awarded

15 for economic and noneconomic loss.

16 (21) CORPORATION.—The term ‘‘Corporation’’

17 means the Asbestos Resolution Corporation estab18 lished in section 101.

19 (22) DEFENDANT.—The term ‘‘defendant’’

20 means any party in a civil action that is alleged to

21 be legally responsible for the claimant’s injury.

22 (23) DLCO.—The term ‘‘DLCO’’ means dif23 fusing capacity of the lung (carbon monoxide), which

24 is a measure of the volume of carbon monoxide

25 transferred from the alveoli to blood in the pul-
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1 monary capillaries for each unit of driving pressure

2 of the carbon monoxide.

3 (24) ECONOMIC LOSS.—The term ‘‘economic

4 loss’’ means any pecuniary loss resulting from harm

5 (including the loss of earnings or other benefits re6 lated to employment, medical expense loss, replace7 ment service loss, loss due to death, burial costs, and

8 loss of business or employment opportunities) to the

9 extent that recovery for such loss is allowed under

10 applicable law.

11 (25) ELIGIBLE MEDICAL CATEGORY.—The term

12 ‘‘eligible medical category’’ means mesothelioma,

13 lung cancer, other cancer, and nonmalignant condi14 tions.

15 (26) EVIDENCE OF BILATERAL PLEURAL

16 THICKENING WITH IMPAIRMENT.—The term ‘‘evi17 dence of bilateral pleural thickening with impair18 ment’’ means a diagnosis of bilateral pleural thick19 ening with impairment by a board-certified internist

20 or board-certified pulmonary specialist based on the

21 following minimum objective criteria:

22 (A) Chest x-rays which, in the opinion of

23 a certified B-reader, show bilateral pleural

24 thickening of ILO Grade B2, and which in25 cludes blunting of at least 1 costophrenic angle
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1 and is not explained by any other condition in

2 the subject’s history; and pulmonary function

3 testing that shows—

4 (i) if TLC is available, TLC<75 per5 cent of predicted value; or

6 (ii) if TLC is not available, VC or

7 FVC<75 percent of predicted value with

8 FEV1/FVC≥75 percent (actual value); and

9 in either case

10 (iii) a statement by the board-certified

11 internist or board-certified pulmonary spe12 cialist that the asbestos-related changes

13 are a substantial contributing factor in

14 causing the pulmonary function changes.

15 (B) Chest x-rays which, in the opinion of

16 a certified B-reader, show bilateral pleural

17 thickening of ILO grade C2 or greater, and

18 which includes the blunting of at least 1

19 costophrenic angle and is not explained by any

20 other condition in the subject’s history; and pul21 monary function testing that shows—

22 (i) FVC<80 percent of predicted

23 value with FEV1/FVC≥75 percent (actual

24 value), or, if the individual tested is at

25 least 68 years old at the time of the test-
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1 ing, with FEV1/FVC≥65 percent (actual

2 value); or

3 (ii) TLC<80 percent of predicted

4 value; and in either case

5 (iii) a statement by the board-certified

6 internist or board-certified pulmonary spe7 cialist that the asbestos-related changes

8 are a substantial contributing factor in

9 causing the pulmonary function changes.

10 (27) EXCEPTIONAL MEDICAL CLAIM.—The term

11 ‘‘exceptional medical claim’’ means a claim identified

12 as such under the procedures in section 206.

13 (28) EXPOSED PERSON.—The term ‘‘exposed

14 person’’ means any person who has been exposed in

15 any State (or while working aboard a United States

16 vessel outside the United States) to asbestos or to

17 asbestos-containing products.

18 (29) FEV1.—The term ‘‘FEV1’’ means forced

19 expiratory volume (1 second), which is the maximal

20 volume of air expelled in 1 second during perform21 ance of the spirometric test for forced vital capacity

22 (FVC). FEV1 shall be measured using standard spi23 rometric methods.

24 (30) FINAL CERTIFICATE OF ELIGIBILITY.—

25 The term ‘‘final certificate of eligibility’’ means a
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1 certificate of eligibility that is not subject to further

2 review or modification by the Corporation, whether

3 on reconsideration under section 205 by action of

4 an exceptional medical claims panel under section

5 206.

6 (31) FVC.—The term ‘‘FVC’’ means forced

7 vital capacity, which is the maximal volume of air

8 expired with a maximally forced effort from a posi9 tion of maximal inspiration. FVC shall be measured

10 using standard spirometric methods.

11 (32) GOOD FAITH OFFER OR GOOD FAITH DE12 MAND.—The terms ‘‘good faith offer’’ or ‘‘good faith

13 demand’’ means a settlement offer or demand which

14 reflects an evaluation of relevant factors of tradi15 tional tort principles of damages.

16 (33) GRACE PERIOD.—The term ‘‘grace period’’

17 means the period allowed for voluntary settlements

18 in section 305.

19 (34) ILO.—The term ‘‘ILO’’ means the Inter20 national Labour Office.

21 (35) ILO GRADE.—The term ‘‘ILO grade’’

22 means the radiological ratings for the presence of

23 lung changes by chest x-rays as established from

24 time to time by the ILO.
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1 (36) LATENCY PERIOD.—The term ‘‘latency pe2 riod’’ means the period from the date of the exposed

3 person’s first significant exposure to asbestos or an

4 asbestos-containing product to the date of mani5 festation of the condition claimed.

6 (37) MANIFESTATION.—The term ‘‘manifesta7 tion’’ means either the date of the actual diagnosis

8 of the condition claimed, or the date upon which the

9 clinical records and available tests indicate that the

10 condition could reasonably have been diagnosed by a

11 competent practicing physician.

12 (38) MEDICAL ADVISORY BOARD.—The term

13 ‘‘Medical Advisory Board’’ means the board estab14 lished under section 105 to provide medical advice to

15 the board of directors of the Corporation.

16 (39) MESOTHELIOMA.—The term ‘‘mesothe17 lioma’’ means a malignant tumor of the mesothelial

18 tissue.

19 (40) MOTIONS OFFICER.—The term ‘‘motions

20 officer’’ means an official of the Corporation respon21 sible for resolving procedural and discovery disputes

22 during the alternative dispute resolution process in

23 the absence of an arbitrator. Motions officers shall

24 be members in good standing of the bar of a State.
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1 (41) NONECONOMIC LOSS.—The term ‘‘non2 economic loss’’ means subjective, nonmonetary loss

3 resulting from harm, including pain, suffering, in4 convenience, mental suffering, emotional distress,

5 loss of society and companionship, loss of consor6 tium, injury to reputation, and humiliation.

7 (42) OSHA.—The term ‘‘OSHA’’ means the

8 Occupational Safety and Health Administration of

9 the Department of Labor.

10 (43) OCCUPATIONAL HISTORY.—The term ‘‘oc11 cupational history’’ means a listing of all employ12 ment positions, providing for the dates and place of

13 employment, the employer, and a description of job

14 responsibilities and activities.

15 (44) OPERATIONAL DATE.—The term ‘‘oper16 ational date’’ means the date on which the Board

17 certifies that the Corporation is operational.

18 (45) PATHOLOGICAL EVIDENCE OF ASBES19 TOSIS.—The term ‘‘pathological evidence of asbes20 tosis’’ means diagnosis of pulmonary asbestosis by a

21 board-certified pathologist based on a finding that

22 more than 1 representative section of lung tissue

23 otherwise uninvolved with any other process (such as

24 cancer or emphysema) demonstrates a pattern of

25 peribronchiolar or parenchymal scarring in the pres-
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1 ence of characteristic asbestos bodies, and also that

2 there is no other more likely explanation for the

3 presence of the fibrosis.

4 (46) PERSON.—The term ‘‘person’’ means an

5 individual, trust, firm, corporation, association, part6 nership, joint venture, the United States, and any

7 State or political subdivisions thereof. The term does

8 not include an asbestos trust in existence as of the

9 date of enactment unless the trust elects to be cov10 ered by this Act under section 803.

11 (47) PRACTICING PHYSICIAN.—The term ‘‘prac12 ticing physician’’ means a medical doctor currently

13 licensed to practice medicine in any State who has

14 not, within the 5-year period before the date of enactment of the Act, spent more than 1 15 ⁄2 of that individual’s professional time, or derived more than 1 16 ⁄2

17 of that individual’s professional income, either annu18 ally or in total, either reviewing or testifying in any

19 forum on medical-legal issues related to asbestos.

20 (48) PREDICTED VALUE.—

21 (A) IN GENERAL.—The term ‘‘predicted

22 value’’ for spirometry and lung volumes shall be

23 the relevant value published by Morris, Clinical

24 Pulmonary Function Testing, 2d Edition, Inter25 mountain Thoracic Society (1984). ‘‘Predicted
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1 Value’’ for diffusing capacity shall be the rel2 evant value published by Miller, et al., ‘‘Single

3 Breath Diffusing Capacity in a Representative

4 Sample of the Population of Michigan, a Large

5 Industrial State’’, 127 American Review of Res6 piratory Disease, 270–77 (1983).

7 (B) CORRECTIONS.—Predicted value in all

8 pulmonary function tests shall be corrected for

9 race, ethnic origin, and other relevant factors.

10 (49) PULMONARY FUNCTION TESTING.—

11 (A) IN GENERAL.—The term ‘‘pulmonary

12 function testing’’ means spirometry, lung vol13 ume, and diffusing capacity (‘‘DLCO’’) testing.

14 (B) METHODS.—

15 (i) SPIROMETRY.—All spirometry

16 shall use standard spirometric methods.

17 (ii) PULMONARY FUNCTION TESTING

18 OTHER THAN SPIROMETRY.—Pulmonary

19 function testing other than spirometry

20 shall use methods, quality criteria, and

21 standards approved by the Board, upon

22 the recommendation of the Medical Advi23 sory Board. Such methods, quality criteria,

24 and standards shall be generally recognized

25 by authoritative professional bodies as ap-
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1 propriate, giving due consideration to the

2 reliability where obstructive lung disease

3 may be present.

4 (C) BACKUP DATA.—For purposes of sub5 mitting results of pulmonary function testing to

6 the Corporation under this Act, all backup data

7 for those results (including flow volume loops,

8 spirographs, and other tracings), necessary to

9 ensure compliance with the methods, quality

10 criteria, and standards approved by the Board

11 shall be submitted to the Corporation.

12 (50) PUNITIVE DAMAGES.—The term ‘‘punitive

13 damages’’ means damages that are awarded against

14 any person and that are—

15 (A) designated as punitive or exemplary

16 damages under applicable law; or

17 (B) primarily designed to punish or deter

18 such person, or any other person, from engag19 ing in similar behavior in the future.

20 (51) RESPONDENT.—

21 (A) IN GENERAL.—The term ‘‘respondent’’

22 means any person who is or may be responsible

23 for a claimant’s asbestos-related condition and

24 who is so notified by the Corporation under sec25 tion 303 or 304.
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1 (B) EXCLUSION.—The term does not in2 clude an asbestos trust in existence as of the

3 date of enactment of this Act unless the trust

4 elects to be covered by this Act under section

5 803.

6 (52) STANDARD SPIROMETRIC METHODS.—

7 (A) IN GENERAL.—The term ‘‘standard

8 spirometric methods’’ means spirometric meth9 ods and equipment that substantially conform

10 to American Thoracic Society standards for

11 technical quality and instrumentation, as set

12 forth in section 718.103 of title 20, Code of

13 Federal Regulations, and appendix B thereto or

14 in guidelines established by the American Tho15 racic Society, as set forth in ‘‘Standardization

16 of Spirometry—1994 Update’’, 152 American

17 Review of Respiratory Disease 1107–36 (1995)

18 and any revisions thereof.

19 (B) TESTING.—For the purposes of testing

20 with standard spirometric methods under this

21 Act, each subject shall be required to be tested

22 with and without inhaled bronchodilators, with

23 best values taken.

24 (C) BACKUP DATA.—For purposes of sub25 mitting results of testing with standard spiro-
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1 metric methods to the Corporation under this

2 Act, all backup data for those results (including

3 flow volume loops, spirographs, and other trac4 ings), necessary to ensure that the quality cri5 teria and standards under subparagraphs (A)

6 and (B) have been satisfied shall be submitted

7 to the Corporation.

8 (53) STATE.—The term ‘‘State’’ means any

9 State of the United States, the District of Columbia,

10 Commonwealth of Puerto Rico, the Northern Mar11 iana Islands, the Virgin Islands, Guam, American

12 Samoa, and any other territory or possession of the

13 United States or any political subdivision of any of

14 the foregoing.

15 (54) TLC.—The term ‘‘TLC’’ means total lung

16 capacity, which is the volume of air in the lung after

17 maximal inspiration.

18 (55) WORKERS’ COMPENSATION LAW.—

19 (A) IN GENERAL.—The term ‘‘workers

20 compensation law’’ means a law concerning a

21 program administered by a State or the United

22 States to provide benefits, funded by a respon23 sible employer or its insurance carrier, for occu24 pational diseases or injuries or for disability or
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1 death caused by occupational diseases or inju2 ries.

3 (B) SCOPE.—The term includes the

4 Longshore and Harbor Workers’ Compensation

5 Act (33 U.S.C. 901 through 944, and 948

6 through 950), but does not include the Federal

7 Employers’ Liability Act (45 U.S.C. 51 et seq.).

8 TITLE I—ASBESTOS

9 RESOLUTION CORPORATION

10 SEC. 101. ESTABLISHMENT.

11 There is established a corporation, to be known as

12 the ‘‘Asbestos Resolution Corporation’’.

13 SEC. 102. POWERS OF THE CORPORATION.

14 The Corporation shall have the power to—

15 (1) hire or appoint employees and to retain the

16 services of other entities to provide such employees;

17 (2) contract for services, including the services

18 of practicing physicians and other medical profes19 sionals, hearing examiners, mediators, arbitrators,

20 financial experts or consultants, accountants, and

21 attorneys;

22 (3) receive voluntary contributions of funds,

23 goods, and services in order to carry out its pur24 poses;
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1 (4) appoint 1 or more exceptional medical

2 claims panels, as described in section 206(a);

3 (5) adopt rules, policies, and procedures gov4 erning recovery of costs from and allocation of costs

5 to defendants and respondents;

6 (6) adopt rules, policies, and procedures for the

7 fair and efficient conduct of medical review and al8 ternative dispute resolution;

9 (7) conduct audits of information submitted to

10 it, including inspection of laboratories performing

11 medical tests and verification of quality assurance

12 and quality control procedures; and

13 (8) sue and be sued in its corporate name.

14 SEC. 103. BOARD OF DIRECTORS.

15 (a) MEMBERSHIP.—

16 (1) IN GENERAL.—The Corporation shall be

17 managed by a Board of Directors consisting of 7

18 members appointed by the President, by and with

19 the advice and consent of the Senate.

20 (2) CHAIRPERSON.—The President shall des21 ignate the chairperson of the Board.

22 (3) LIMITATION.—Not more than 4 directors

23 may be members of the same political party.
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1 (4) MEMBERSHIP REQUIREMENT.—The direc2 tors shall be distinguished private citizens of the

3 United States.

4 (5) NOMINATIONS.—The President shall submit

5 7 nominations under this section to the Senate not

6 later than 4 months after the date of the enactment

7 of this Act.

8 (b) TERMS.—

9 (1) IN GENERAL.—Each director shall be ap10 pointed for a term of 6 years beginning on the date

11 of expiration of the term of the predecessor of that

12 director, except that, of the directors first

13 appointed—

14 (A) 3 shall be appointed for a term of 3

15 years,

16 (B) 3 shall be appointed for a term of 6

17 years, and

18 (C) the chairperson shall be appointed for

19 a term of 6 years.

20 (2) PERIOD OF TERMS.—The terms of office of

21 the directors first appointed shall begin on the date

22 of enactment. A director may continue to serve until

23 his successor has been appointed and confirmed.

24 (c) VACANCY.—A vacancy on the Board shall be filled

25 in the same manner as the original appointment. A direc-
26

•S 758 IS

1 tor appointed to fill a vacancy occurring before the expira2 tion of the term for which the predecessor of that director

3 was appointed shall be appointed for the remainder of that

4 term. A vacancy shall not affect the power of the Board.

5 (d) REMOVAL.—Directors may be removed for cause

6 by the President.

7 (e) COMPENSATION; EXPENSES.—

8 (1) The compensation of directors other than

9 the chairperson shall not exceed $50,000 per year,

10 and the compensation of the chairperson shall not

11 exceed $75,000 per year.

12 (2) Directors may be reimbursed for reasonable

13 travel and other expenses incurred in connection

14 with their services to the Corporation under policies

15 adopted by the Board.

16 (f) PERSONAL LIABILITY OF DIRECTORS.—A direc17 tor shall not be personally liable for any act or omission

18 within the scope of the director’s service as a member of

19 the Board. The liability of a director shall not be limited

20 as provided in this subsection if the director engaged in

21 willful misconduct or a knowing violation of the criminal

22 law.

23 (g) AUDIT COMMITTEE.—The Board shall establish

24 an Audit Committee, which shall conduct an annual audit

25 of the finances of the Corporation and provide an annual
27

•S 758 IS

1 report to the Board regarding the financial condition of

2 the Corporation.

3 (h) EXCLUSIVE AUTHORITY.—The Board shall have

4 the exclusive authority to—

5 (1) adopt rules, consistent with this Act, re6 garding the assessment and recovery of costs, the

7 qualifications of practicing physicians, the organiza8 tion and operation of the Medical Advisory Board,

9 and the conduct of the alternative dispute resolution

10 process;

11 (2) adopt guidelines, upon the recommendation

12 of the Medical Advisory Board, for implementing the

13 provisions of this Act regarding exceptional medical

14 cases;

15 (3) recommend the inclusion of new diseases in

16 the eligible medical category known as ‘‘other can17 cer’’ if the Board finds, upon the recommendation of

18 the Medical Advisory Board and at a meeting ex19 pressly called for that purpose, that there is a med20 ical consensus that the disease is caused by exposure

21 to asbestos; and

22 (4) adopt and amend bylaws.

23 SEC. 104. OFFICERS.

24 The Corporation shall have a chief executive officer

25 and such other officers as may be named and appointed
28

•S 758 IS

1 by the Board at rates of compensation and terms of serv2 ice fixed by the Board. Officers of the Corporation may

3 not simultaneously serve on the Board.

4 SEC. 105. MEDICAL ADVISORY BOARD.

5 (a) IN GENERAL.—The Board shall appoint a Med6 ical Advisory Board to provide advice on medical matters,

7 including—

8 (1) retention, supervision, and removal of prac9 ticing physicians; establishment of guidelines regard10 ing exceptional medical claims;

11 (2) the appropriateness of adding new diseases

12 to the ‘‘other cancer’’ eligible medical category des13 ignated as ‘‘other cancer’’; and

14 (3) such other medical matters as may be re15 ferred to the Medical Advisory Board by the Board.

16 (b) COMPOSITION; RULES AND POLICIES.—

17 (1) NUMBER OF MEMBERS.—The Medical Advi18 sory Board shall have no fewer than 5 or more than

19 9 members.

20 (2) QUALIFICATIONS.—Members of the Medical

21 Advisory Board shall be practicing physicians with a

22 demonstrated expertise in asbestos-related condi23 tions. The Medical Advisory Board shall include at

24 least 1 of each of the following:

25 (A) A board-certified pulmonary specialist.
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•S 758 IS

1 (B) A board-certified radiologist.

2 (C) A board-certified oncologist.

3 (D) A board-certified pathologist.

4 (3) RULES AND POLICIES.—The Board shall

5 adopt such rules and policies regarding the composi6 tion and operation of the Medical Advisory Board as

7 may be necessary for its efficient operation, includ8 ing rules governing—

9 (A) the appointment and removal of mem10 bers;

11 (B) terms of office;

12 (C) the filling of vacancies;

13 (D) notice and conduct of meetings (in14 cluding quorum requirements); and

15 (E) compensation.

16 (c) APPLICABILITY OF FEDERAL ADVISORY COM17 MITTEE ACT.—The Medical Advisory Board shall be sub18 ject to the Federal Advisory Committee Act (5 U.S.C.

19 App.).

20 SEC. 106. AVOIDANCE OF CONFLICT OF INTEREST.

21 (a) IN GENERAL.—No director, officer, member of

22 the Medical Advisory Board, employee, contract employee,

23 contractor, or consultant to the Corporation may rep24 resent any person in any manner in any proceeding before

25 the Corporation.
30

•S 758 IS

1 (b) POLICIES AND PROCEDURES.—In addition, the

2 Board shall adopt policies and procedures to guard against

3 both actual and apparent conflicts of interest.

4 SEC. 107. ANNUAL REPORTS.

5 The Corporation shall submit an annual report to the

6 President and the Committee on the Judiciary of the Sen7 ate and the Committee on the Judiciary of the House of

8 Representatives with respect to the operations, activities,

9 and financial condition of the Corporation on or before

10 December 31 of each year.

11 TITLE II—MEDICAL ELIGIBILITY

12 DETERMINATIONS

13 SEC. 201. MEDICAL CRITERIA—NONMALIGNANT CONDI14 TIONS.

15 In order to meet the requirements for the nonmalig16 nant conditions eligible medical category, a claimant shall

17 be required to submit medical information or testimonial

18 information sufficient to demonstrate—

19 (1) a latency period of at least 12 years; and

20 (2)(A) clinical evidence of asbestosis;

21 (B) pathological evidence of asbestosis; or

22 (C) evidence of bilateral pleural thickening with

23 impairment.
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•S 758 IS

1 SEC. 202. MEDICAL CRITERIA—MESOTHELIOMA.

2 In order to meet the requirements for the mesothe3 lioma eligible medical category, a claimant shall be re4 quired to submit—

5 (1) a diagnosis of malignant mesothelioma with

6 a primary site in the pleura or peritoneum, that—

7 (A) is derived from appropriate tissue, and

8 verified using standardized and accepted cri9 teria of microscopic morphology or a variety of

10 appropriate staining techniques; and

11 (B) is made by either—

12 (i) 2 board-certified pathologists; and

13 (ii) 1 board-certified pathologist who

14 is, at the time that the diagnosis is

15 verified, a member of the United States16 Canadian Mesothelioma Reference Panel;

17 and

18 (2) medical information or testimonial informa19 tion sufficient to demonstrate a latency period of at

20 least 10 years.

21 SEC. 203. MEDICAL CRITERIA—LUNG CANCER.

22 (a) IN GENERAL.—In order to meet the requirements

23 for the lung cancer eligible medical category, a claimant

24 shall be required to submit—
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•S 758 IS

1 (1) a diagnosis by a board-certified pathologist,

2 board-certified pulmonary specialist, or board-cer3 tified oncologist of primary lung carcinoma;

4 (2) medical information or testimonial informa5 tion sufficient to demonstrate a latency period of at

6 least 12 years; and

7 (3) either—

8 (A) evidence of a nonmalignant condition

9 sufficient to meet the requirements of section

10 201; or

11 (B) chest x-rays that, in the opinion of a

12 certified B-reader, demonstrate both asbestos13 related bilateral pleural plaques or asbestos-re14 lated bilateral pleural thickening and evidence

15 of 15 years of exposure to asbestos, to be cal16 culated as specified in subsection (b), in accord17 ance with paragraphs (1) through (4) of that

18 subsection.

19 (b) CALCULATIONS.—The calculations made under

20 subsection (a) shall be based on the following:

21 (1) Each year that an exposed person’s primary

22 occupation, during a substantial portion of a normal

23 work year for that occupation, involved working in

24 areas immediately proximate to where asbestos-con25 taining products were being installed, repaired, or
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•S 758 IS

1 removed under circumstances that involved regular

2 airborne emissions of visible asbestos dust, shall

3 count as 1 year.

4 (2) Each year that an exposed person’s primary

5 occupation, during a substantial portion of a normal

6 work year for that occupation, involved the direct in7 stallation, repair, or removal of asbestos-containing

8 products, shall count as 2 years.

9 (3) Each year that an exposed person’s primary

10 occupation, during a substantial portion of a normal

11 work year for that occupation, involved the direct

12 manufacture of asbestos-containing products using

13 raw asbestos fiber, or the direct installation, repair,

14 or removal of asbestos-containing products in a ship15 yard during World War II, shall count as 4 years.

16 (4)(A) Except as provided in subparagraph (B),

17 for purposes of calculating years of exposure under

18 this subsection—

19 (i) each year of exposure before 1976 shall

20 be counted fully;

21 (ii) each year of exposure from 1976

through 1979 shall be counted 1 22 ⁄2; and

23 (iii) exposures after 1979 shall not be

24 counted.
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•S 758 IS

1 (B)(i) For each year from 1972 through 1975,

2 for which it is demonstrated by a preponderance of

3 the evidence that the exposed person’s exposure to

4 asbestos in the occupation of that person was, dur5 ing a substantial portion of that work year, in com6 pliance with the OSHA 8-hour time-weighted aver7 age airborne concentration for asbestos exposure at

that time, that year shall count 1 8 ⁄2 for purposes of

9 calculating the years of exposure for purposes of this

10 subsection.

11 (ii) For each year from 1976 through 1979 for

12 which a claimant demonstrates, by a preponderance

13 of the evidence, that the exposed person’s exposure

14 to asbestos in the occupation of that person was,

15 during a substantial portion of that work year, in

16 excess of the OSHA 8-hour time-weighted average

17 airborne concentration for asbestos exposure at that

18 time, that year shall count fully for purposes of cal19 culating the years of exposure for purposes of this

20 subsection.

21 (iii) For each year after 1979 for which a

22 claimant demonstrates, by a preponderance of the

23 evidence, that the exposed person’s exposure to as24 bestos in the occupation of that person was, during

25 a substantial portion of that work year, in excess of
35

•S 758 IS

1 the OSHA 8-hour time-weighted average airborne

2 concentration for asbestos exposure at that time,

that year shall count 1 3 ⁄2 for purposes of calculating

4 years of exposure for purposes of this subsection.

5 SEC. 204. MEDICAL CRITERIA—OTHER CANCER.

6 In order to meet the requirements in the other cancer

7 medical eligible category, a claimant shall be required to

8 submit—

9 (1) a diagnosis by a board-certified pathologist,

10 board-certified pulmonary specialist, or board-cer11 tified oncologist (as appropriate for the type of can12 cer claimed) of primary cancer of the colon or rec13 tum, larynx, esophagus, or stomach;

14 (2) medical or testimonial information sufficient

15 to demonstrate a latency period of at least 12 years;

16 and

17 (3) evidence of a nonmalignant condition suffi18 cient to meet the requirements of section 201.

19 SEC. 205. PROCEDURE FOR CERTIFICATE OF ELIGIBILITY.

20 (a) APPLICATION.—A claimant may apply for a cer21 tificate of medical eligibility by submitting to the Corpora22 tion such information as the Corporation may require in

23 a form designated by the Corporation, that includes a

24 statement that the claimant is not required to retain an
36

•S 758 IS

1 attorney in order to file and proceed with a claim and that

2 includes the following:

3 (1) PERSONAL INFORMATION.—The name, ad4 dress, date of birth, and death (if applicable), smok5 ing history, occupational history, and social security

6 number of the exposed person, and the relationship

7 between the exposed person and the claimant if the

8 claimant is not the exposed person.

9 (2) EXPOSURE INFORMATION.—The years of

10 the exposed person’s exposure to asbestos or asbes11 tos-containing products; identification of the types of

12 asbestos or asbestos-containing products to which

13 the exposed person was exposed; description of the

14 circumstances, intensity, and duration of the expo15 sure; and identification of the worksites or other

16 such locations where such exposures occurred.

17 (3) MEDICAL INFORMATION.—

18 (A) IN GENERAL.—The Corporation may

19 require following medical information:

20 (i) The eligible medical category or

21 categories for which the claimant is apply22 ing.

23 (ii) All medical diagnoses, reports and

24 records that relate to any claimed asbes25 tos-related condition.
37

•S 758 IS

1 (iii) Materials supporting those diag2 noses, reports and records that may be re3 quired by the Corporation, but in any

4 event including all of the backup data for

5 any pulmonary function tests on which the

6 claimant relies (including all flow volume

7 loops, spirographs, and any other tracings

8 for any test that is performed).

9 (iv) An identification of all medical

10 professionals and medical care facilities in11 volved in diagnosing, treating, testing,

12 counseling, or consulting with the exposed

13 person concerning any medical condition

14 within the 5-year period preceding the date

15 on which that information is submitted to

16 the Corporation.

17 (B) ADDITIONAL INFORMATION.—In addi18 tion to the medical information under subpara19 graph (A), the claimant shall also provide such

20 medical releases as the Corporation may require

21 allowing the Corporation to obtain any and all

22 medical information relevant to the determina23 tion of medical eligibility.

24 (4) EXCEPTIONAL MEDICAL CLAIMS.—The

25 claimant may concede that the claim cannot meet
38

•S 758 IS

1 the requirements of any eligible medical category

2 and state that the claimant intends to apply to an

3 exceptional medical claims panel for designation as

4 an exceptional medical claim. If the claimant makes

5 such a statement—

6 (A) the Corporation shall refer the claim to

7 an exceptional medical claim panel; and

8 (B) the application of the claimant shall be

9 reviewed under section 206.

10 (b) NOTIFICATION OF ACCEPTANCE FOR PROC11 ESSING.—

12 (1) IN GENERAL.—The Corporation shall notify

13 the claimant not later than 30 days after receipt of

14 the application that the application either—

15 (A) is accepted for processing; or

16 (B) is materially incomplete and cannot be

17 processed until additional information is pro18 vided.

19 (2) NOTICE FOR MATERIALLY INCOMPLETE AP20 PLICATIONS.—Any notice that an application is ma21 terially incomplete shall describe the missing infor22 mation.

23 (3) REQUESTS FOR ADDITIONAL INFORMA24 TION.—The issuance of a notice of acceptance shall

25 not preclude the Corporation from requesting addi-
39

•S 758 IS

1 tional information regarding a claim if the Corpora2 tion subsequently concludes that such information is

3 necessary to make a decision on medical eligibility.

4 (c) RECORDS FROM THIRD PERSONS.—The Corpora5 tion may at any time seek to obtain medical, employment,

6 or other relevant records concerning an exposed person

7 from persons other than the claimant. If the corporation

8 seeks such additional records, the Corporation shall—

9 (1) give notice to the claimant; and

10 (2) if the Corporation obtains those records,

11 furnish copies of all such records to the claimant,

12 upon request and at the expense of the claimant.

13 (d) ADDITIONAL MEDICAL TESTING.—If the Cor14 poration reasonably believes that the Corporation cannot

15 determine, on the basis of the available medical informa16 tion, whether an exposed person meets the medical criteria

17 for 1 of the eligible medical categories, the Corporation,

18 at its option and expense, may require the exposed person

19 to undergo appropriate, reasonable, and noninvasive med20 ical examination or testing (excluding any sort of com21 puted tomography (CT) scan).

22 (e) TESTIMONIAL INFORMATION UNDER OATH.—All

23 testimonial information provided to the Corporation in

24 connection with a claim, other than information in any

25 medical report or records, shall be made—
40

•S 758 IS

1 (1) under oath;

2 (2) by sworn affidavit; or

3 (3) by written declaration subscribed to as true

4 under penalty of perjury.

5 (f) DETERMINATION OF MEDICAL ELIGIBILITY.—

6 (1) IN GENERAL.—Subject to paragraph (2), as

7 soon as practicable and, but not later than 60 days

8 after the issuance of a notice of acceptance for proc9 essing, the Corporation shall issue either—

10 (A) a certificate of medical eligibility stat11 ing each eligible medical category for which the

12 claimant qualifies; or

13 (B) a finding of ineligibility.

14 (2) EXTENSION.—The Corporation may extend

15 the period of time beyond the period specified in

16 paragraph (1) if the Corporation determines that ex17 tension to be necessary to secure additional informa18 tion that is essential to the determination of medical

19 eligibility.

20 (3) STATEMENT IN REASON.—If the Corpora21 tion declines to certify a claimant for any eligible

22 medical category identified by the claimant or makes

23 a finding of ineligibility, the certificate of eligibility

24 or finding of ineligibility shall be accompanied by a

25 brief written statement of reasons.
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•S 758 IS

1 (g) RECONSIDERATION.—

2 (1) IN GENERAL.—

3 (A) RECONSIDERATION.—The claimant

4 may seek reconsideration of the Corporation’s

5 determination under subsection (f) by submit6 ting to the Corporation a written request for re7 consideration within 60 days after the date of

8 the Corporation’s determination under sub9 section (f).

10 (B) EXTENSION.—The Corporation may

11 extend the time period for submitting a request

12 for reconsideration upon the claimant’s request.

13 (C) CONTENTS OF REQUEST.—The request

14 for reconsideration shall—

15 (i) include a statement of the grounds

16 for reconsideration; and

17 (ii) be accompanied by any additional

18 evidence on which the claimant relies.

19 (2) REFERRAL.—

20 (A) IN GENERAL.—The Corporation shall

21 refer a request for reconsideration to a panel of

22 2 practicing physicians with expertise in the

23 medical issue or issues raised by the claimant.

24 (B) ADDITIONAL INFORMATION.—The

25 panel of practicing physicians may request fur-
42

•S 758 IS

1 ther information from the applicant or from

2 third parties, or may require additional medical

3 examination or testing, in accordance with the

4 provisions of subsections (c) and (d).

5 (3) OPERATION OF PANEL.—

6 (A) IN GENERAL.—The panel of practicing

7 physicians shall consider the issues raised by

8 the request for reconsideration de novo on the

9 basis of all of the evidence before the Corpora10 tion.

11 (B) DECISIONS.—If the panel of practicing

12 physicians agrees on the disposition of the re13 quest for reconsideration, the panel shall render

14 a decision.

15 (C) AUGMENTATION.—If the panel is not

16 in agreement, the Corporation shall appoint to

17 the panel a third practicing physician with ex18 pertise in the issues raised by the claimant, and

19 the panel of 3 practicing physicians shall render

20 a decision.

21 (4) ACCEPTANCE OR DENIAL OF REQUESTS.—

22 (A) ACCEPTANCE.—If the panel approves

23 the request for reconsideration, wholly or in

24 part, the Corporation shall issue a certificate of

25 medical eligibility for the eligible medical cat-
43

•S 758 IS

1 egories for which the panel finds that the claim2 ant qualifies.

3 (B) DENIAL.—If the panel denies the re4 quest for reconsideration, or if the certificate of

5 eligibility on reconsideration rejects eligibility

6 for any eligible medical category identified by

7 the claimant claim made by the claimant, the

8 panel shall provide a brief written statement of

9 reasons.

10 (5) ACTION ON REQUEST FOR RECONSIDER11 ATION.—

12 (A) IN GENERAL.—Subject to subpara13 graph (B), the Corporation shall act upon a re14 quest for reconsideration as soon as practicable

15 but not later than 30 days after receiving the

16 request.

17 (B) EXTENSIONS.—The Corporation may

18 extend the period specified in subparagraph (A)

19 if the Corporation determines the extension to

20 be necessary to secure additional information

21 that is essential to the disposition of the request

22 for reconsideration.

23 (h) REAPPLICATION.—After making an application

24 under this title, a claimant may file a new application

25 under this title at any time. Any such new application filed
44

•S 758 IS

1 within 1 year after the date on which the Corporation

2 issued a final finding of ineligibility shall identify the pre3 vious application and any relevant changes in cir4 cumstances.

5 SEC. 206. EXCEPTIONAL MEDICAL CLAIMS.

6 (a) EXCEPTIONAL MEDICAL CLAIMS PANEL.—

7 (1) IN GENERAL.—The Corporation shall estab8 lish 1 or more exceptional medical claims panels.

9 Each exceptional medical claims panel shall be com10 prised of 5 practicing physicians, including—

11 (A) 2 board-certified pulmonary specialists;

12 (B) 1 board-certified radiologist (who is ei13 ther a certified B-reader or a specialist in com14 puted tomography); and

15 (C) 2 board-certified pathologists.

16 (2) DETERMINATIONS.—Each exceptional med17 ical claims panel shall determine whether claims re18 ferred to the panel meet the requirements of this

19 section for designation as exceptional medical claims.

20 (b) TIME TO APPLY.—

21 (1) IN GENERAL.—Subject to paragraph (2), a

22 claimant may apply to the Corporation for designa23 tion of his claim as an exceptional medical claim if

24 the claimant—
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•S 758 IS

1 (A) concedes (either before or after a de2 termination is made under section 205(f)) that

3 the claim does not meet the medical criteria in

4 sections 201 through 204; or

5 (B) seeks designation of the claim as an

6 exceptional medical claim within 60 days after

7 a determination on reconsideration under sec8 tion 205(g) that the claim does not meet the

9 medical criteria in sections 201 through 204,

10 wholly or in part.

11 (2) PROHIBITION.—The Corporation shall not

12 accept any application for designation as an excep13 tional medical claim, if a claimant has—

14 (A) filed an action under section 208 for

15 review of the Corporation’s determination on re16 consideration; or

17 (B) commenced alternative dispute resolu18 tion procedures under title III.

19 (c) CONTENTS OF APPLICATION.—

20 (1) IN GENERAL.—The application for designa21 tion as an exceptional medical claim shall include the

22 information required by the Corporation under sec23 tion 205(a) and shall, in addition, be supported, as

24 appropriate for the eligible medical category claimed,

25 by the report of—
46

•S 758 IS

1 (A) a board-certified internist;

2 (B) a board-certified pulmonary specialist;

3 (C) a board-certified pathologist; or

4 (D) a board-certified oncologist.

5 (2) REPORT.—The report under paragraph (1)

6 shall contain—

7 (A) a complete review of the exposed per8 son’s medical history and current condition;

9 (B) such additional material by way of

10 analysis and documentation as shall be pre11 scribed by the Corporation; and

12 (C) a detailed explanation why the claim

13 meets the standard for acceptance as an excep14 tional medical claim set forth in subsection (d).

15 (d) STANDARD FOR ACCEPTANCE.—The exceptional

16 medical claims panel shall designate a claim as an excep17 tional medical claim only if the claimant cannot satisfy

18 the requirements for a given eligible medical category for

19 reasons beyond the control of the claimant, but dem20 onstrates, through clear and convincing evidence, that the

21 exposed person has an asbestos-related condition that is

22 substantially comparable to the condition of an exposed

23 person who would satisfy the requirements of a given eligi24 ble medical category.
47

•S 758 IS

1 (e) FURTHER TESTING.—The exceptional medical

2 claims panel may order additional appropriate, reasonable,

3 and noninvasive testing or examination of the exposed per4 son (including computed tomography (CT) scanning).

5 Tests ordered by an exceptional medical claims panel shall

6 be made at the expense of the Corporation.

7 (f) DECISION.—The decision of the exceptional med8 ical claims panel shall not be subject to further review

9 within the Corporation. If the exceptional medical claims

10 panel decides that a claim should be designated, wholly

11 or in part, as an exceptional medical claim, the Corpora12 tion shall issue a certificate of medical eligibility which

13 shall designate the claim as an exceptional medical claim

14 and state the eligible medical category or categories for

15 which the claim qualifies by virtue of that designation.

16 SEC. 207. CONFIDENTIALITY.

17 The Corporation shall observe the requirements of

18 section 552a of title 5, United States Code, with respect

19 to information that it receives regarding a claimant or ex20 posed person. The production of that information to re21 spondents in accordance with section 303(c) shall be

22 deemed a routine use of the information within the mean23 ing of section 552a(a)(7) of title 5, United States Code.

24 SEC. 208. JUDICIAL REVIEW.

25 (a) IN GENERAL.—
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•S 758 IS

1 (1) JUDICIAL REVIEW.—The district courts of

2 the United States shall have exclusive jurisdiction,

3 without regard to the amount in controversy or the

4 citizenship of the parties, of any action to review a

5 determination of the Corporation—

6 (A) after a reconsideration by the Corpora7 tion under section 205(g); or

8 (B) with respect to designation as an ex9 ceptional medical claim under section 206.

10 (2) EXHAUSTION OF REMEDIES.—A determina11 tion under section 205(f) shall not be directly re12 viewable. Before any review by a court of such a de13 termination, a claimant shall be required to exhaust

14 each administrative remedy made available to that

15 claimant under section 205(g) or 206.

16 (b) PERIOD FOR COMMENCING ACTION.—

17 (1) IN GENERAL.—An action for review under

18 this section shall be commenced not later than 60

19 days after the later of, as applicable—

20 (A) the determination on reconsideration

21 made under section 205(g) with respect to

22 which review is sought; or

23 (B) the determination that the claimant

24 does not qualify as an exceptional medical

25 claim.
49

•S 758 IS

1 (2) EFFECT OF CERTAIN PENDING APPLICA2 TIONS.—No action for review under this section may

3 be commenced while an application for designation

4 as an exceptional medical claim is pending.

5 (3) APPEAL OF DUAL DETERMINATIONS.—If a

6 claimant has pursued a determination on reconsider7 ation under section 205(g) and a determination of

8 an exceptional medical claim under section 206, and

9 has failed to receive a favorable determination under

10 either section, the claimant may appeal both deter11 minations.

12 (c) GROUNDS FOR UPHOLDING DETERMINATION.—

13 The court shall uphold the determination of the Corpora14 tion if the determination is supported by substantial evi15 dence on the record as a whole and is not contrary to law.

16 Due account shall be taken of the rule of prejudicial error.

17 (d) RECORDS.—In applying the standard set forth in

18 subsection (c), the record referred to in that subsection

19 shall consist of—

20 (1) the information submitted to the Corpora21 tion or the exceptional medical claims panel by the

22 claimant;

23 (2) records and other information obtained by

24 the Corporation or exceptional medical claims panel

25 relating to the claim; and
50

•S 758 IS

1 (3) the results of any medical tests adminis2 tered at the direction of the Corporation or excep3 tional medical claims panel.

4 TITLE III—ALTERNATIVE

5 DISPUTE RESOLUTION

6 SEC. 301. RULES OF PROCEDURE.

7 (a) IN GENERAL.—The Board shall establish rules of

8 procedure for the alternative dispute resolution process.

9 Such rules of procedure shall—

10 (1) be designed to ensure that claims will be re11 solved in a prompt, efficient, fair, and inexpensive

12 manner; and

13 (2) include—

14 (A) reasonable time limits and rules re15 garding the time at which actions of the Cor16 poration become final;

17 (B) procedures relating to the notification

18 of respondents, including reasonable and limited

19 discovery;

20 (C) procedures for the disclosure of infor21 mation necessary for settlement, including the

22 timing of disclosure and determination of the

23 information that must be disclosed;

24 (D) rules regarding protection of confiden25 tial information;
51

•S 758 IS

1 (E) procedures for the selection of arbitra2 tors;

3 (F) arbitration procedures designed to fur4 ther the objective of prompt, efficient, fair and

5 inexpensive dispute resolution including sim6 plified pleadings, reasonable limitations on dis7 covery, resolution of prehearing motions includ8 ing motions for summary disposition, appro9 priate, evidentiary rules, and efficient conduct

10 of hearings; and

11 (G) procedures for just and reasonable

12 sanctions to ensure compliance with the rules

13 and orders of the Corporation.

14 (b) REPRESENTATION BY COUNSEL.—Each party

15 shall have the right to be represented by counsel at all

16 phases of the alternative dispute resolution process under

17 this section.

18 (c) EFFECT OF PRESENTING STATEMENTS.—By pre19 senting to the Corporation any statement, motion, or other

20 paper, counsel and the party represented by that counsel

21 shall be considered to warrant that to the best of their

22 knowledge, information, and belief, formed after reason23 able inquiry—

24 (1) the statement, motion, or other paper is not

25 being presented for any improper purpose;
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•S 758 IS

1 (2) the claims, defenses, or other legal conten2 tions in that statement, motion, or other paper are

3 warranted by applicable law or by a nonfrivolous ar4 gument for the extension, modification, or reversal

5 of applicable law for the establishment of new law;

6 (3) the allegations and other factual contentions

7 have evidentiary support; and

8 (4) the denials of factual contentions are war9 ranted on the evidence.

10 (d) CONTRACT SERVICE PROVIDERS.—The Corpora11 tion may contract with providers of alternative dispute res12 olution services to provide mediation or arbitration under

13 this part. To the extent appropriate and consistent with

14 this Act, the Board may adopt the rules of procedure of

15 such contract service providers.

16 SEC. 302. MOTIONS OFFICERS.

17 (a) IN GENERAL.—Upon the issuance of a certificate

18 of eligibility, the Corporation shall assign a motions officer

19 to the claim of a claimant.

20 (b) AUTHORITY OF MOTIONS OFFICER.—

21 (1) IN GENERAL.—The motions officer shall

22 have the authority to determine all procedural issues

23 in the alternative dispute resolution process except

24 such matters as may be within the authority of a

25 mediator or arbitrator assigned to the claim.
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1 (2) AUTHORITY.—Without limitation, the mo2 tions officer may—

3 (A) determine whether notice shall be pro4 vided to any respondent under section 303 or

5 304;

6 (B) issue subpoenas to parties and non7 parties for testimony and documents, in accord8 ance with the terms of section 308;

9 (C) enter scheduling orders and other or10 ders to control the progress of the proceedings;

11 (D) resolve discovery disputes; and

12 (E) exercise any other authority conferred

13 by procedural rules, policies, or procedures es14 tablished by the Corporation.

15 SEC. 303. NOTICE TO RESPONDENTS.

16 (a) IN GENERAL.—

17 (1) IN GENERAL.—Within such period of time

18 after receiving a final certificate of eligibility as the

19 Corporation may provide, a claimant shall provide to

20 the Corporation—

21 (A) the name and address of each person

22 that claimant alleges is responsible for the as23 bestos-related injury of the claimant; and

24 (B) for each such person, a verified par25 ticularized statement in a form prescribed by
54

•S 758 IS

1 the Corporation of the basis for the allegation

2 that that person is or may be responsible for

3 his injury.

4 (2) CONTENTS OF PARTICULARIZED STATE5 MENT.—A particularized statement under paragraph

6 (1)(B) shall include, as applicable—

7 (A) the dates of exposure for each relevant

8 time period;

9 (B) the worksite or other place of expo10 sure;

11 (C) the nature and frequency of the expo12 sure;

13 (D) if the exposure was occupational, the

14 name of the exposed person’s employer and a

15 description of the exposed person’s job and

16 working conditions;

17 (E) each asbestos-containing product or

18 material to which the claimant was exposed at

19 each place of exposure; and

20 (F) any other information that the Cor21 poration may require by rule or otherwise in all

22 or in particular classes of cases.

23 (b) NOTIFICATION.—
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•S 758 IS

1 (1) IN GENERAL.—After receiving particular2 ized statements submitted by a claimant under sub3 section (a), the Corporation shall promptly notify—

4 (A) each person identified by the claimant

5 under that subsection; and

6 (B) each person for whom a complete par7 ticularized statement has been submitted.

8 (2) CONTENT.—The notification under para9 graph (1) shall inform the person that such person

10 has been named as a respondent.

11 (3) COPIES OF PARTICULARIZED STATE12 MENTS.—At the same time as the Corporation pro13 vides the notification under paragraph (1), the Cor14 poration shall provide to each respondent a copy of

15 all particularized statements submitted to the Cor16 poration under subsection (a).

17 (c) INFORMATION.—

18 (1) IN GENERAL.—Except as provided in para19 graph (2), the Corporation shall provide to each re20 spondent, on request and at the respondent’s ex21 pense, a copy of all information submitted to the

22 Corporation by the claimant, records and other in23 formation obtained by the Corporation relating to

24 the claim and the results of any medical tests ad25 ministered at the Corporation’s direction.
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•S 758 IS

1 (2) EXCEPTION.—The Corporation shall not

2 provide the information described in this subsection

3 to the Corporation until the respondent has received

4 a protective order, signed by or on behalf of the re5 spondent, in a form prescribed by the Corporation,

6 that preserves the confidentiality of medical, employ7 ment, and other information that the Corporation

8 reasonably designates as confidential.

9 (d) DISCOVERY.—

10 (1) IN GENERAL.—For good cause shown and

11 subject to reasonable limitations, a motions officer

12 may allow discovery for the purpose of obtaining in13 formation necessary to allow the claimant to provide

14 a particularized statement under subsection (a).

15 (2) EXTENSIONS.—The motions officer may

16 grant reasonable extensions of time for naming re17 spondents in order to allow for the completion of dis18 covery under this subsection.

19 SEC. 304. ADDITIONAL RESPONDENTS.

20 (a) IN GENERAL.—

21 (1) IN GENERAL.—Any respondent notified

22 under section 303 may, within such period of time

23 as the Corporation may provide, identify additional

24 respondents and request the Corporation to notify

25 those additional respondents by providing to the
57

•S 758 IS

1 Corporation the particularized statement required

2 under section 303(a) with respect to each such newly

3 identified respondent.

4 (2) ACCEPTANCE OF INFORMATION.—For pur5 poses of this subsection, a respondent may accept as

6 true any assertion made by the claimant in a par7 ticularized statement submitted under section

8 303(a), unless the respondent knows, or with reason9 able investigation should know, that that assertion is

10 untrue.

11 (b) PROVISION OF INFORMATION.—As soon as prac12 ticable after the identification of additional persons under

13 subsection (a), the Corporation shall provide to each addi14 tional person identified under that subsection—

15 (1) the particularized statement required under

16 that subsection; and

17 (2) the information provided to original re18 spondents under section 303 (b) and (c), subject to

19 receiving the signed protective order described in

20 section 303(c).

21 (c) RIGHTS OF ADDITIONAL RESPONDENTS.—Addi22 tional respondents notified under this section shall have

23 the same right to add further additional respondents as

24 is conferred upon originally named respondents under sub25 section (a).
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•S 758 IS

1 (d) DISCOVERY.—

2 (1) IN GENERAL.—For good cause shown and

3 subject to reasonable limitations, a motions officer

4 may allow discovery for the purpose of obtaining in5 formation necessary to allow a respondent to provide

6 the information required under subsection (a).

7 (2) EXTENSIONS.—The motions officer may

8 grant reasonable extensions of time for naming addi9 tional respondents in order to allow for the comple10 tion of discovery under this subsection.

11 (e) NOTICE OF EXPIRATION OF PERIOD FOR ADDING

12 ADDITIONAL RESPONDENTS.—The Corporation shall pro13 vide notice to all parties at the time that period for adding

14 additional respondents has expired. No new party shall be

15 added to the proceeding after the expiration of that period,

16 except on motion for good cause.

17 SEC. 305. GRACE PERIOD.

18 The Corporation shall establish a grace period of not

19 to exceed 60 days after expiration of the period of time

20 for adding additional respondents referred to in section

21 304, during which the parties shall be encouraged to reach

22 voluntary settlements without the need for mediation.

23 SEC. 306. MEDIATION.

24 (a) APPOINTMENT OF MEDIATOR.—Upon the expira25 tion of a grace period referred to in section 305, the Cor-
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•S 758 IS

1 poration shall appoint a mediator to assist the parties who

2 have not settled in the grace period in settling the claim.

3 (b) DISCLOSURE OF INFORMATION NECESSARY FOR

4 SETTLEMENT.—

5 (1) IN GENERAL.—Within such period of time

6 after appointment of a mediator as the Corporation

7 shall prescribe, each party shall serve upon all other

8 nonsettling parties a statement of information re9 quired for settlement.

10 (2) INFORMATION INCLUDED.—The information

11 to be included in a statement referred to in para12 graph (1) shall be determined by the Corporation to

13 be reasonably necessary for the parties to evaluate

14 the claim.

15 (3) INCORPORATION BY REFERENCE.—With re16 spect to a statement referred to in paragraph (1),

17 information previously provided to the Corporation

18 by any party may be incorporated by reference and

19 need not be resubmitted.

20 (4) RULE OF CONSTRUCTION.—Nothing in this

21 subsection shall be construed to require the disclo22 sure of any information privileged under applicable

23 law.

24 (c) TIME LIMITS.—
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1 (1) IN GENERAL.—Except as provided in para2 graph (2), mediation conducted under this section

3 shall be completed not later than 60 days after the

4 appointment of the mediator.

5 (2) EXTENSION.—The time period specified in

6 paragraph (1) may be extended by the mediator if—

7 (A)(i) the claimant has failed to provide

8 the information required under subsection (b);

9 and

10 (ii) that extension is necessary to allow for

11 simultaneous mediation of a group of claims, or

12 for other good cause; or

13 (B) for a period not to exceed 60 days, if

14 in the judgment of the mediator, the claimant’s

15 final demand under subsection (e) is not made

16 in good faith, on consideration of the legal and

17 factual basis of the claim.

18 (d) CONFIDENTIALITY.—All statements made by any

19 party in mediation shall be confidential and shall not be

20 admissible in any trial or arbitration except as allowed

21 under rule 408 of the Federal Rules of Evidence.

22 (e) GOOD FAITH OFFERS AND DEMANDS.—

23 (1) GOOD FAITH OFFERS.—On the date that is

24 15 days before the close of the mediation period, the

25 claimant shall provide to each nonsettling respond-
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•S 758 IS

1 ent or jointly represented group of respondents a

2 final good faith demand of settlement.

3 (2) GOOD FAITH OFFERS IN REPLY.—On the

4 date that is 10 days before the close of the medi5 ation period, each respondent or jointly represented

6 group of respondents shall make a final good faith

7 offer in reply.

8 (3) FAILURE TO MAKE A SETTLEMENT

9 OFFER.—If a respondent or jointly represented

10 group of respondents fails to make a settlement

11 offer under this section, that respondent or group of

12 respondents shall be deemed to have made a settle13 ment offer of $0.

14 (4) EFFORTS OF MEDIATOR.—During the 10-

15 day period preceding the close of the mediation pe16 riod, or any extension of that 10-day period, the me17 diator shall work with the parties in a further effort

18 to settle the claim.

19 (f) RELEASE FROM MEDIATION.—

20 (1) IN GENERAL.—At the close of the mediation

21 period under this section, the mediator shall issue to

22 the claimant a release from mediation.

23 (2) EFFECT OF RELEASE.—After the issuance

24 of a release from mediation under paragraph (1),
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•S 758 IS

1 the claimant may commence a civil action or may

2 elect arbitration under section 307.

3 SEC. 307. ARBITRATION.

4 (a) ELECTION TO ARBITRATE.—A claimant may

5 elect arbitration under this section by serving notice of

6 such election within 30 days following release from medi7 ation on all respondents that have not previously settled.

8 All such respondents shall be parties to the arbitration.

9 (b) FEDERAL ARBITRATION ACT.—All arbitrations

10 under this section shall be subject to the provisions of title

11 9, United States Code, that are commonly referred to as

12 the Federal Arbitration Act including sections 1 through

13 6 and 8 through 16 of that title, except that, the provi14 sions of this Act and rules adopted by the Corporation

15 under this Act shall be effective notwithstanding any in16 consistent provision of title 9, United States Code.

17 (c) ARBITRATION BY SPECIAL AGREEMENT.—

18 (1) IN GENERAL.—Nothing in this section shall

19 be construed as prohibiting consensual arbitration

20 under a special agreement entered into by the claim21 ant and 1 or more of the respondents.

22 (2) EFFECT OF SPECIAL AGREEMENT.—With

23 respect to the parties to a special agreement under

24 paragraph (1), the terms of that agreement shall su25 persede any provision of this section (other than
63

•S 758 IS

1 subsection (h)) and any rule adopted under section

2 301.

3 (d) STATUTORY ARBITRATION.—In the absence of a

4 special agreement to arbitrate, arbitrations under this sec5 tion shall be conducted under rules adopted by the Cor6 poration under section 301.

7 (e) SUBPOENA POWERS OF ARBITRATORS.—Arbitra8 tors may issue subpoenas to parties and nonparties for

9 testimony and documents in accordance with the terms of

10 section 308.

11 (f) LAW TO BE APPLIED.—

12 (1) IN GENERAL.—Subject to paragraph (2)

13 and unless otherwise provided in this Act, the arbi14 trator shall, with respect to each respondent, apply

15 the law, including the law relating to choice of law,

16 that would be applied by a court designated by the

17 claimant which would have jurisdiction over that re18 spondent.

19 (2) EXCEPTION.—If a respondent demonstrates

20 to the satisfaction of an arbitrator that the court

21 designated by the claimant would dismiss or transfer

22 under forum non conveniens or a similar doctrine,

23 then the arbitrator shall apply the law of the State

24 that has the most significant relationship to the oc25 currence and the parties.
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•S 758 IS

1 (g) PRESUMPTION APPLICABLE TO MEDICAL DETER2 MINATION.—

3 (1) BURDEN OF PROOF—Except as provided in

4 paragraph (2), a finding of medical eligibility by the

5 Corporation shall be presumed to be correct unless

6 rebutted by clear and convincing evidence.

7 (2) EXTENT OF EXPOSURE TO ASBESTOS.—

8 With respect to the issue of the extent of exposure

9 to asbestos, the burden of proof with respect to a

10 finding of medical eligibility by the Corporation shall

11 be determined in accordance with applicable State

12 law.

13 (h) AWARDS.—The arbitrator shall issue awards with

14 respect to each respondent within time periods set by the

15 Corporation. The awards shall be accompanied by findings

16 of fact and conclusions of law. Each respondent shall be

17 jointly and severally liable to the claimant to the extent

18 provided by applicable State law, as follows:

19 (1)(A) In any case in which joint and several li20 ability exists under applicable State law, the arbi21 trator shall determine the total joint and several li22 ability of all respondents that have not been released

23 by the claimant or dismissed from the proceeding.

24 (B) In addition to making a determination

25 under subparagraph (A), the arbitrator shall deter-
65

•S 758 IS

1 mine the amount allocable to each such respondent

2 based on principles of comparative fault or responsi3 bility.

4 (C)(i) Subject to clause (ii), any respondent

5 who has obtained a release from the claimant before

6 the issuance of the arbitrator’s award shall be fully

7 protected from claims for contribution or indemnity.

8 (ii) In any case in which a respondent obtains

9 a release, the award against the remaining respond10 ents shall be reduced by the greater of—

11 (I) consideration paid; or

12 (II) the amount stated in the release.

13 (iii) The total award, reduced by the aggregate

14 amount of reductions determined under clause (ii)

15 for all respondents receiving a release, shall be allo16 cated among the remaining respondents according to

17 the arbitrator’s allocation of comparative shares of

18 fault or responsibility.

19 (2) In any case in which joint and several liabil20 ity has been abolished under applicable State law,

21 the arbitrator shall determine in accordance with the

22 law of that State the share of several liability (re23 ferred to in this subsection as the ‘‘several share’’)

24 of each respondent that has not been released or dis25 missed from the proceeding.
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•S 758 IS

1 (3) In any case in which joint and several liabil2 ity has been abolished under applicable State law

3 with respect to only a portion of damages, the arbi4 trator shall determine in accordance with applicable

5 State law—

6 (A) the several share of each respondent

7 that has not been released or dismissed from

8 the proceeding; and

9 (B) the total amount of joint and several

10 liability of all such respondents.

11 (4) The allocation of the joint and several por12 tion of the award among the respondents, and the

13 reduction of the total award on account of settle14 ments, shall be made in accordance with subsection

15 (h)(1), except that—

16 (A) only the joint and several portion of an

17 award may be reduced by amounts paid in set18 tlement by released persons; and

19 (B) only that portion of the amount paid

20 by any released person in settlement with re21 spect to the joint and several portion of dam22 ages shall be so applied to reduce the award.

23 (i) CONTRIBUTION RIGHTS RETAINED BY RESPOND24 ENTS IN ADR.—
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•S 758 IS

1 (1) IN GENERAL.—The entry of an arbitration

2 award against any respondent under this section

3 shall give rise to a right of contribution on the part

4 of that respondent against any joint tortfeasor

5 whose liability is extinguished by the award without

6 the necessity that the award be enforced as a court

7 judgment.

8 (2) EFFECT OF SETTLEMENT.—A settlement

9 between a respondent and a claimant under this sec10 tion that extinguishes in whole or in part the liabil11 ity of a joint tortfeasor shall not extinguish the set12 tling respondent’s right of contribution against that

13 joint tortfeasor.

14 (j) PENALTY FOR INADEQUATE OFFER IN MEDI15 ATION.—

16 (1) IN GENERAL.—If the final offer made by a

17 respondent or jointly represented group of respond18 ents under section 306(e) is less than the amount

19 specified in paragraph (2), the arbitrator shall add

20 a 10-percent penalty to the award against that re21 spondent or each member of the group of respond22 ents.

23 (2) AMOUNT.—The amount specified in this

24 paragraph is, with respect to a respondent or a

25 jointly represented group of respondents, an amount
68

•S 758 IS

1 equal to 75 percent of the share of the total liability

2 (exclusive of prejudgment interest, if any) awarded

3 in arbitration against that respondent or that group

4 of respondents as a whole, the arbitrator shall add

5 a 10-percent penalty to the award against such re6 spondent or each member of such group of respond7 ents.

8 (3) EXCLUSION.—A penalty added under para9 graph (1) shall not be counted in any determination

10 of maximum allowable attorneys’ fees under section

11 503.

12 (k) CONSOLIDATIONS.—Claims with respect to mul13 tiple exposed persons shall not be consolidated for hearing

14 on the merits without the consent of all parties.

15 SEC. 308. SUBPOENA POWERS OF MOTIONS OFFICERS AND

16 ARBITRATORS.

17 (a) IN GENERAL.—A motions officer or an arbitrator

18 under this title may summon in writing any person to at19 tend before that officer or arbitrator as a witness, or to

20 appear for a deposition, and in a proper case to bring with

21 him or her any book, record, document, or paper which

22 may be deemed material as evidence in the case.

23 (b) FEES.—The fees for attendance under subsection

24 (a) shall be the same as the fees of witnesses before mas25 ters of the United States courts.
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•S 758 IS

1 (c) SUMMONS.—

2 (1) IN GENERAL.—A summons under this sec3 tion shall—

4 (A) be issued in the name of the motions

5 officer or arbitrator;

6 (B) be signed by the motions officer or ar7 bitrator;

8 (C) be directed to the person summoned;

9 and

10 (D) be served in accordance with rule

11 45(b)(1) of the Federal Rules of Civil Proce12 dure.

13 (2) EFFECT OF REFUSAL OR NEGLECT.—If any

14 person summoned to testify or produce documents

15 under paragraph (1) refuses or neglects to obey that

16 summons, upon petition, the United States District

17 Court for the District of Columbia or the district

18 court for the district in which the testimony is to be

19 taken or the document production is to take place

20 may, in the same manner provided by law for secur21 ing the attendance of witnesses or for the punish22 ment of witnesses for neglect or refusal to attend in

23 the courts of the United States—

24 (A) compel—
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•S 758 IS

1 (i) the attendance of that person be2 fore the motions officer or arbitrator;

3 (ii) the appearance of that person for

4 a deposition; or

5 (iii) the production of documents; or

6 (B) punish that person for contempt.

7 TITLE IV—CIVIL ACTIONS

8 SEC. 401. PREREQUISITES FOR CIVIL ACTION.

9 Subject to section 702, no civil action asserting any

10 asbestos claim may be filed or maintained unless the plain11 tiff has obtained a certificate of medical eligibility and re12 lease from mediation.

13 SEC. 402. INDIVIDUAL TRIALS.

14 (a) IN GENERAL.—No class action suit, joinder of

15 parties, aggregation of claims, consolidation of actions, ex16 trapolation, or other device to determine multiple asbestos

17 claims on a collective basis shall be permitted without the

18 consent of each defendant.

19 (b) REMOVAL.—Any defendant in a civil action that

20 involves a violation of this section may remove such action

21 to an appropriate Federal district court.

22 (c) JURISDICTION.—The district courts of the United

23 States shall have jurisdiction of all civil actions removed

24 under this section without regard to diversity of citizen25 ship or amount in controversy.
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1 SEC. 403. CERTIFICATE OF MEDICAL ELIGIBILITY PRE2 SUMED CORRECT.

3 (a) BURDEN OF PROOF—Except as provided in sub4 section (b), a finding of medical eligibility by the Corpora5 tion shall be presumed to be correct unless rebutted by

6 clear and convincing evidence.

7 (b) EXTENT OF EXPOSURE TO ASBESTOS.—With re8 spect to the issue of the extent of exposure to asbestos,

9 the burden of proof with respect to a finding of medical

10 eligibility by the Corporation shall be determined in ac11 cordance with applicable State law.

12 SEC. 404. PENALTY FOR INADEQUATE OFFER IN MEDI13 ATION.

14 (a) IN GENERAL.—If the final offer made by a re15 spondent or jointly represented group of respondents

16 under section 306(e) is less than the amount specified in

17 paragraph (2), the court shall add a 10-percent penalty

18 to the award against that respondent or each member of

19 the group of respondents.

20 (b) AMOUNT.—The amount specified in this para21 graph is, with respect to a respondent or a jointly rep22 resented group of respondents, an amount equal to 75 per23 cent of the share of the total liability (exclusive of prejudg24 ment interest, if any) assigned by the jury or other fact

25 finder to that respondent or that group of respondents as

26 a whole, the arbitrator shall add a 10-percent penalty to
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•S 758 IS

1 the award against such respondent or each member of

2 such group of respondents.

3 (c) EXCLUSION.—A penalty added under paragraph

4 (1) shall not be counted in any determination of maximum

5 allowable attorneys’ fees under section 503.

6 TITLE V—RULES APPLICABLE

7 TO ARBITRATIONS AND CIVIL

8 ACTIONS

9 SEC. 501. ELEMENTS OF PROOF; RELIEF.

10 Subject to section 702 and notwithstanding any other

11 provision of law, the following shall apply in all civil ac12 tions and arbitrations involving an asbestos claim:

13 (1) ELEMENTS OF PROOF.—A plaintiff or

14 claimant shall be entitled to recovery if and only if—

15 (A)(i) the plaintiff or claimant presents a

16 certificate of medical eligibility; and

17 (ii) the defendant or respondent fails to

18 satisfy the applicable burden of proof under sec19 tion 403 to rebut the finding of medical eligi20 bility contained in the certificate; and

21 (B) the plaintiff or claimant establishes

22 that the exposure of the exposed person to as23 bestos or an asbestos-containing product of a

24 defendant or respondent was a substantial con25 tributing factor in the exposed person’s condi-
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•S 758 IS

1 tion, as set forth in the certificate of medical

2 eligibility.

3 (2) ISSUES TO BE DECIDED.—

4 (A) IN GENERAL.—Subject to subpara5 graph (B), the only issues that may be decided

6 in any civil action or arbitration involving an

7 asbestos claim are—

8 (i) whether the exposed person with

9 respect to whom a claim is made has or

10 had an asbestos-related disease or condi11 tion;

12 (ii) whether the exposure of the ex13 pose person to asbestos or an asbestos-con14 taining product of a defendant or respond15 ent was a substantial contributing factor in

16 causing that asbestos-related disease or

17 condition; and

18 (iii) the amount of compensatory dam19 ages, if any to be awarded.

20 (B) DETERMINATION OF COMPENSATORY

21 DAMAGES.—In addition to the issues referred to

22 in subparagraph (A), in any proceeding in

23 which, under applicable law, the share of com24 pensatory damages allocable to a defendant or

25 respondent is relevant to an issue described in
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•S 758 IS

1 that subparagraph, the share of compensatory

2 damages of that defendant or respondent shall

3 be determined.

4 (C) PROHIBITION.—No evidence that is

5 not relevant to an issue referred to in subpara6 graph (A) or (B) may be offered by a plaintiff

7 or claimant against a defendant or respondent

8 in any civil action or arbitration involving an

9 asbestos claim.

10 (3) EMOTIONAL DISTRESS; MEDICAL MONI11 TORING.—No damages or other relief shall be

12 awarded in any civil action or arbitration involving

13 an asbestos claim for emotional distress or any other

14 form of mental or emotional harm, or for medical

15 monitoring or surveillance, based wholly or in part

16 on exposure to asbestos unless the requirements of

17 paragraph (1) are met in addition to any other re18 quirement under applicable law for recovery of dam19 ages or other relief for emotional distress or medical

20 monitoring or surveillance.

21 (4) ENHANCED RISK.—No damages or other re22 lief shall be awarded in any civil action or arbitra23 tion involving an asbestos claim solely for increased

24 risk of cancer or other disease.
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•S 758 IS

1 (5) PUNITIVE DAMAGES.—No punitive damages

2 shall be awarded in any civil action or arbitration in3 volving an asbestos claim.

4 SEC. 502. TIMELINESS DEFENSES ABOLISHED.

5 No defense to an asbestos claim based on a statute

6 of limitations or statute of repose, laches, or any other

7 defense based on the timeliness of the claim shall be recog8 nized or allowed in any civil action or arbitration unless

9 that claim was untimely as of the date of enactment of

10 this Act.

11 SEC. 503. ATTORNEYS’ FEES.

12 (a) IN GENERAL.—Notwithstanding any other provi13 sion of law or any contract, the aggregate amount of fees,

14 including expenses and other charges, of a claimant’s at15 torneys in any proceeding covered under this Act shall not

16 exceed an amount equal to 25 percent of the amount of

17 compensation received by the claimant as a result of that

18 proceeding.

19 (b) RULES OF PROCEDURE.—The Corporation shall

20 establish rules of procedure that require any attorney who

21 represents a claimant in any proceeding covered under this

22 Act to submit an itemized statement of expenses and fees

23 to the Corporation before receiving any fee.

24 (c) PENALTIES.—Any attorney who charges, de25 mands, receives, or collects, for services rendered in con-
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•S 758 IS

1 nection with any proceeding under this Act, an amount

2 that exceeds the amount that is allowable under this Act

3 shall—

4 (1) be guilty of a misdemeanor; and

5 (2) upon conviction, be subject to a fine of not

6 more than $10,000, imprisonment for not more than

7 1 year, or both.

8 SEC. 504. CERTAIN PRIOR LITIGATION DEFENSES ABOL9 ISHED.

10 (a) IN GENERAL.—Notwithstanding any other provi11 sion of law, a judgment or settlement of an asbestos claim

12 for a nonmalignant condition satisfying the requirements

13 of section 201 shall not preclude a subsequent claim with

14 respect to the same exposed person for a malignant condi15 tion satisfying the requirements of section 202, 203, 204,

16 or 206, as applicable.

17 (b) RULE OF CONSTRUCTION.—Subsection (a) shall

18 not be construed to invalidate any provision of a settle19 ment agreement entered into before the date of enactment.

20 TITLE VI—FUNDING

21 SEC. 601. COSTS OF MEDICAL REVIEW AND OVERHEAD AND

22 ADMINISTRATION.

23 (a) PROVISIONAL ALLOCATION.—

24 (1) ESTIMATE OF COSTS.—
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•S 758 IS

1 (A) IN GENERAL.—On or before August 1

2 of each year, the Corporation shall estimate the

3 costs of the Corporation (exclusive of the cost

4 of mediation and arbitration that may be recov5 ered under section 602) for the following fiscal

6 year (beginning on October 1 of that year).

7 (B) ALLOWANCES FOR CONTINGENCIES;

8 COSTS OF MEDICAL REVIEW, OVERHEAD, AND

9 ADMINISTRATION.—In estimating its costs

10 under this section, the Corporation shall—

11 (i) make reasonable allowances for

12 contingencies; and

13 (ii) state separately those costs di14 rectly related to—

15 (I) medical review; or

16 (II) general overhead and admin17 istration of the Corporation.

18 (2) ALLOCATION TO RESPONDENTS.—

19 (A) IN GENERAL.—The Corporation shall

20 proportionally allocate the costs estimated

21 under paragraph (1) among all persons named

22 as a respondent during the 12-month period

23 ending the preceding June 30 and shall notify

24 each such person of the amount due under that

25 allocation.
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•S 758 IS

1 (B) DETERMINATION OF RESPONDENTS.—

2 In this section, a person shall be considered

3 named as a respondent if notice was provided

4 to that person under section 303 or 304.

5 (C) DETERMINATION OF NUMBER OF PRO6 CEEDINGS.—In making an allocation under

7 subparagraph (B), the Corporation shall deter8 mine the following:

9 (i) For each individual respondent,

10 the total number of proceedings in which

11 the respondent has been named.

12 (ii) The total combined number of

13 proceedings for all respondents.

14 (D) COUNTING CLAIMS.—For purposes of

15 a determination under subparagraph (C) all

16 claims, including derivative claims, relating to 1

17 exposed person shall be counted as 1 proceeding

18 for each respondent named in the proceeding.

19 (E) DETERMINATION OF ALLOCATION.—In

20 calculating an allocation made in accordance

21 with subparagraph (A), the total number of

22 proceedings for each respondent shall be divided

23 by the total combined number of proceedings

24 for all respondents to determine the percentage

25 of costs allocable to each individual respondent.
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•S 758 IS

1 (F) PROHIBITION.—The Corporation shall

2 not allocate any of the costs estimated under

3 paragraph (1) to any respondent whose allo4 cable share of the costs, in the absence of such

5 exclusion, is less than a de minimis percentage

6 established by the Corporation. Any such

7 unallocated percentage shall be reallocated to

8 the remaining respondents based upon their

9 original allocation percentages.

10 (3) PAYMENT OF ESTIMATED SHARE OF

11 COSTS.—Each respondent shall pay to the Corpora12 tion the allocated share of the respondent of the esti13 mated costs of the Corporation not later than 30

14 days after the date of notification of the allocated

15 share of the respondent.

16 (b) FINAL ALLOCATION.—

17 (1) IN GENERAL.—On or before November 30

18 of each year, the Corporation shall determine the

19 total costs of the Corporation (exclusive of the cost

20 of mediation and arbitration that may be recovered

21 from respondents under section 602) for the pre22 ceding fiscal year ending September 30 and shall al23 locate those costs proportionally, in the manner de24 scribed in subsection (a)(2), among persons who

25 were named as respondents in that fiscal year.
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1 (2) ATTRIBUTION OF COSTS.—In making an al2 location under this subsection, the Corporation shall

3 state separately those costs directly attributable to—

4 (A) the medical review process; or

5 (B) general overhead and administration of

6 the Corporation.

7 (3) PAYMENT OF DEFICIENCIES.—If the

8 amount allocated to any person under this sub9 section is greater than the amount deposited by such

10 person under subsection (a)(2) with respect to the

11 preceding fiscal year, that person shall pay the defi12 ciency to the Corporation not later than 30 days

13 after receiving a notice of deficiency from the Cor14 poration.

15 (4) REFUNDS.—If the amount allocated to any

16 person under this subsection is less than the amount

17 deposited by such person under subsection (a)(2) for

18 the preceding fiscal year, the Corporation shall

19 promptly refund the difference to that respondent.

20 (c) TRANSITIONAL PROVISIONS.—

21 (1) STARTUP FUNDING.—

22 (A) IN GENERAL.—Startup funding shall

23 be provided by voluntary contributions within

24 30 days after appointment and confirmation of

25 the first director of the Board. Those contribu-
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1 tions shall be provided by the signatories to a

2 startup funding agreement that all of the de3 fendants shall enter into before that date, in ac4 cordance with, and contingent only on the

5 terms and conditions contained in that agree6 ment.

7 (B) REFUND OF CONTRIBUTIONS.—Unless

8 the Corporation and the donor otherwise agree,

9 the Corporation shall refund contributions made

10 under subparagraph (A) following receipt of the

11 funds allocated under the initial determination

12 of costs and assessments to defendants provided

13 in subsection (c)(2).

14 (C) STARTUP COSTS DEFINED.—For pur15 poses of this subsection, startup costs include

16 all reasonable and necessary expenses of the

17 Corporation incurred before the availability of

18 transitional funding under paragraph (2).

19 (2) TRANSITIONAL FUNDING.—

20 (A) NOTICE.—As soon as feasible after a

21 majority of the Board is appointed and con22 firmed, the Board shall provide notice request23 ing the information listed in subparagraph (B)

24 to each defendant served in any civil action in25 volving an asbestos claim pending on the date
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1 of enactment of this Act. The notice shall be

2 the best practicable notice under the cir3 cumstances, including publication in the Fed4 eral Register and individual notice to any de5 fendant that can be identified through reason6 able effort.

7 (B) INFORMATION TO BE PROVIDED.—

8 Within such time as the Corporation may pre9 scribe, but not less than 60 days after the date

10 of publication in the Federal Register, each per11 son who, as of the date of enactment of this

12 Act, has been served as a defendant in at least

13 5,000 pending civil actions involving asbestos

14 claims shall provide to the Corporation a state15 ment containing the following information:

16 (i) The total number of civil actions in

17 which that person was named as a defend18 ant.

19 (ii) With respect to each civil action

20 referred to in clause (i)—

21 (I) the name of the lead plaintiff;

22 (II) the name of the lead defend23 ant;

24 (III) the court in which the civil

25 action was pending; and
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1 (IV) the docket number.

2 (C) COUNTING RULES.—For purposes of

3 subparagraph (B):

4 (i) All asbestos claims relating to a

5 single exposed person, including derivative

6 claims, shall be treated as 1 civil action re7 gardless of the number of plaintiffs or de8 fendants named in the complaint.

9 (ii) In civil actions involving multiple

10 plaintiffs and defendants, each asbestos

11 claim shall be deemed to have been as12 serted against each defendant unless the

13 complaint states otherwise.

14 (iii) Third-party defendants shall cal15 culate the number of civil actions involving

16 asbestos claims pending against them as if

17 they had been joined as a defendant by the

18 original plaintiff or plaintiffs.

19 (iv) Cross claims, deemed or other20 wise, shall not count as a separate civil ac21 tion.

22 (D) SIGNATURE.—The statement of infor23 mation required under this paragraph shall be

24 signed on behalf of the defendant by a cor25 porate officer or (in the case of a defendant
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1 that is not a corporation) a senior official com2 parable to a corporate officer, authorized to

3 bind such defendant, attesting under penalty of

4 perjury that the information contained therein

5 is true and complete to the best of his knowl6 edge and belief after reasonable investigation.

7 (E) ALLOCATION AND PAYMENT.—

8 (i) IN GENERAL.—The Corporation

9 shall—

10 (I) proportionally allocate the es11 timated costs of the Corporation for a

12 transitional period to include the first

13 2 fiscal years after the date of enact14 ment of this Act, in substantially the

15 same manner as the allocation de16 scribed in subsection (a)(2), to the de17 fendants identified in this paragraph;

18 and

19 (II) notify each such defendant

20 of its proportionate share of such esti21 mated transitional costs.

22 (ii) PAYMENT.—Not later than 45

23 days after the date on which a defendant

24 receives a notice made under clause (i)(II),

25 that defendant shall pay its share of the
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1 estimated transitional costs to the Cor2 poration.

3 (3) RECONCILIATION.—

4 (A) IN GENERAL.—On or before November

5 30 following the end of the transitional period,

6 the Corporation shall—

7 (i) determine the total costs of the

8 Corporation (exclusive of the cost of medi9 ation and arbitration that may be recov10 ered from respondents under section 602)

11 for the transitional period, including start12 up costs; and

13 (ii) proportionally allocate those costs,

14 in substantially the same manner as the al15 location described in subsection (a)(2),

16 among defendants who were named as re17 spondents during that transitional period.

18 (B) STATEMENT OF COSTS.—In making an

19 allocation under this subsection, the Corpora20 tion shall state separately those costs directly

21 attributable to—

22 (i) the medical review process; or

23 (ii) general overhead and administra24 tion of the Corporation.
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1 (C) PAYMENT OF DEFICIENCIES.—If the

2 amount allocated to any respondent under this

3 subsection is greater than the amount deposited

4 by such respondent under paragraph (2), that

5 respondent shall pay the deficiency to the Cor6 poration within 30 days after receiving a notice

7 of deficiency from the Corporation.

8 (D) REFUNDS.—If the amount allocated to

9 any respondent under this subsection is less

10 than the amount deposited by such respondent

11 under paragraph (2), the difference shall be re12 funded promptly.

13 SEC. 602. COST OF MEDIATION AND ARBITRATION.

14 (a) MEDIATION.—The cost of mediation shall be

15 charged, on a per capita basis, to each respondent who

16 participated in the mediation, wholly or in part.

17 (b) ARBITRATION.—In the absence of an agreement

18 among the parties to the contrary, the cost of arbitration

19 shall be charged, on a per capita basis, to each respondent

20 who participated in the arbitration, wholly or in part, ex21 cept that, the Corporation may by rule provide for a reduc22 tion in the costs charged to respondents who settle or are

23 dismissed from arbitration before the commencement of

24 the hearing.
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1 SEC. 603. INFORMAL DISPUTE RESOLUTION.

2 (a) PROCEDURES.—The Corporation shall establish

3 expeditious procedures for the informal resolution of dis4 putes regarding the assessment of costs under this title.

5 The Corporation may, in its sole discretion, postpone the

6 obligation to pay the disputed assessment, wholly or in

7 part, during the pendency of informal dispute resolution

8 procedures.

9 (b) VOLUNTARY PROCEDURES.—The Corporation

10 may agree to participate in voluntary alternative dispute

11 resolution procedures, including mediation and arbitra12 tion, to resolve disputes regarding assessments.

13 SEC. 604. JUDICIAL REVIEW; ENFORCEMENT.

14 (a) JURISDICTION.—

15 (1) IN GENERAL.—The district courts of the

16 United States shall have exclusive jurisdiction, with17 out regard to the amount in controversy or citizen18 ship of the parties, to review any assessment of costs

19 made by the Corporation under this title.

20 (2) TREATMENT OF CHALLENGED ASSESS21 MENT.—The reviewing court shall uphold a chal22 lenged assessment unless that court determines that

23 that assessment is arbitrary and capricious or other24 wise not in accordance with law.
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1 (3) PROCEDURES.—No action under this sub2 section may be commenced or maintained by any

3 person unless that person first has—

4 (A) exhausted the informal dispute resolu5 tion procedures provided under section 603; and

6 (B) paid to the Corporation the entire

7 amount assessed to that person by the Corpora8 tion, including the amount in dispute.

9 (b) AUTHORITY OF CORPORATION.—

10 (1) IN GENERAL.—The Corporation shall have

11 the authority to bring an action in a district court

12 of the United States to enforce any obligation im13 posed on any person by this title.

14 (2) JURISDICTION.—In an action brought under

15 paragraph (1), the district court of the United

16 States shall have exclusive jurisdiction of such action

17 without regard to the amount in controversy or citi18 zenship of the parties.

19 (3) DEFENSES.—The court shall not entertain

20 any defense other than lack of jurisdiction in any ac21 tion by the Corporation to recover assessments due

22 under this title unless the assessment is fully paid,

23 with interest. If the assessment is fully paid, with in24 terest, the court shall uphold the Corporation’s de-
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1 termination that a determination is not arbitrary

2 and capricious or otherwise contrary to law.

3 (4) PAYMENT OF COSTS.—In any action under

4 this subsection in which the Corporation prevails,

5 the Corporation shall be entitled to costs, including

6 reasonable attorneys’ fees, and interest on any un7 paid funds. Interest under this subsection shall be

8 equal to the rate applicable to underpaid taxes under

9 section 6621 of the Internal Revenue Code of 1986.

10 SEC. 605. PENALTIES.

11 If any person who is required by section 601 to pro12 vide information to the Corporation willfully fails to pro13 vide that information within the period of time specified

14 by the Corporation, that person shall forfeit to the Cor15 poration an amount equal to $50,000. That forfeiture

16 shall be payable to the Corporation, and shall be recover17 able in a civil suit in the name of the Corporation brought

18 under section 604(b).

19 SEC. 606. ASBESTOS RESOLUTION CORPORATION TRUST

20 FUND.

21 (a) ESTABLISHMENT.—There is established in the

22 Treasury of the United States a trust fund, to be known

23 as the Asbestos Resolution Corporation Trust Fund (in

24 this section referred to as the ‘‘Trust Fund’’), consisting

25 of such amounts as are transferred to the Trust Fund
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1 under subsection (b) and any interest earned on invest2 ment of amounts in the Trust Fund under subsection

3 (c)(2).

4 (b) TRANSFER OF AMOUNTS EQUIVALENT TO CER5 TAIN TARIFFS.—The Corporation shall transfer to the

6 Secretary of the Treasury for deposit in the Trust Fund

7 any—

8 (1) amounts paid to the Corporation under sec9 tions 601 and 602;

10 (2) amounts received by the Corporation as vol11 untary donations;

12 (3) interest earned on deposits made by the

13 Corporation;

14 (4) amounts received by the Corporation as

15 judgments, costs (including reasonable attorneys’

16 fees) and interest under section 604 or any other ap17 plicable provision of law; and

18 (5) penalties paid to the Corporation under sec19 tion 605.

20 (c) INVESTMENT OF TRUST FUND.—

21 (1) IN GENERAL.—It shall be the duty of the

22 Secretary of the Treasury to invest such portion of

23 the Trust Fund as is not, in the Secretary’s judg24 ment, required to meet current withdrawals. Such

25 investments may be made only in interest-bearing
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1 obligations of the United States or in obligations

2 guaranteed as to both principal and interest by the

3 United States.

4 (2) SALE OF OBLIGATIONS.—Any obligation ac5 quired by the Trust Fund (except special obligations

6 issued exclusively to the Trust Fund) may be sold by

7 the Secretary of the Treasury at the market price,

8 and such special obligations may be redeemed at par

9 plus accrued interest.

10 (3) CREDITS TO TRUST FUND.—The interest

11 on, and the proceeds from the sale or redemption of,

12 any obligations held in the Trust Fund shall be

13 credited to and form a part of the Trust Fund.

14 (d) OBLIGATIONS FROM TRUST FUND.—The Cor15 poration may obligate such sums as are available in the

16 Trust Fund (including any amounts not obligated in pre17 vious fiscal years) in a manner consistent with this Act.

18 Amounts in the Trust Fund shall be available for obliga19 tion without fiscal year limitation.

20 TITLE VII—APPLICABILITY;

21 PENDING CIVIL ACTIONS

22 SEC. 701. APPLICABILITY.

23 Subject to section 702, beginning on the date of en24 actment of this Act, this Act shall apply to any civil action
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1 asserting an asbestos claim that has not resulted in a

2 final, nonappealable judgment.

3 SEC. 702. PENDING CIVIL ACTIONS.

4 (a) IN GENERAL.—

5 (1) CERTIFICATES OF MEDICAL ELIGIBILITY.—

6 A certificate of medical eligibility shall not be re7 quired in any civil action asserting an asbestos claim

8 if—

9 (A) that action was pending on the date of

10 enactment of this Act; and

11 (B) a trial commences before the oper12 ational date.

13 No release from mediation shall be required in any

14 civil action asserting an asbestos claim if the action

15 was pending on the date of enactment, whether or

16 not trial commences before the operational date.

17 (b) ELECTIONS.—Before the operational date, a

18 plaintiff in a civil action asserting an asbestos claim that

19 is pending on the date of enactment may elect to submit

20 that claim to the Corporation for a determination of med21 ical eligibility. Any such election shall be irrevocable.

22 (c) BURDEN OF PROOF.—Notwithstanding any other

23 provision of law, the plaintiff in any civil action asserting

24 an asbestos claim who has not obtained a certificate of

25 medical eligibility shall have the burden of establishing the
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1 existence of an asbestos-related condition that meets the

2 criteria for an eligible medical category under sections 201

3 through 204.

4 TITLE VIII—MISCELLANEOUS

5 PROVISIONS

6 SEC. 801. APPLICABILITY OF OTHER FEDERAL LAWS.

7 (a) IN GENERAL—Nothing in this Act shall be con8 strued to make any director, officer, or employee of the

9 Corporation, an officer or employee of the Federal Govern10 ment for purposes of title 5, United States Code. Neither

11 the Corporation nor any director, officer, or employee of

12 the Corporation shall be subject to section 1341(a) of title

13 31, United States Code.

14 (b) APPLICABILITY OF CERTAIN ADMINISTRATIVE

15 PROVISIONS.—To the extent consistent with the provisions

16 of this Act, the Corporation shall be subject to the require17 ments of sections 552a, 553, 555, and 706 of title 5,

18 United States Code, as though the Corporation were an

19 agency, as such term is defined under section 551(1) of

20 such title.

21 (c) DISCLOSURE OF INFORMATION.—In order to pre22 serve the integrity of the settlement process in the resolu23 tion of asbestos claims, the Corporation shall exempt from

24 disclosure under section 552(b)(3) of title 5, United States

25 Code, with respect to information or documents that con-
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1 tain the results of settlements or settlement averages, indi2 vidual party or attorney names, medical records, and re3 lated data collected for the purpose of resolving individual

4 claims.

5 (d) EXEMPTIONS.—The Corporation shall be exempt

6 from the requirements of the following provisions of law:

7 (1) Sections 504 and 552b of title 5, United

8 States Code.

9 (2) Chapter 51 of title 5, United States Code.

10 (3) Chapter 53 of title 5, United States Code.

11 (4) The Ethics in Government Act (5 U.S.C.

12 App.).

13 (5) Sections 2412 and 2672 of title 28, United

14 States Code.

15 (6) Title III of the Federal Property and Ad16 ministrative Services Act of 1949 (41 U.S.C. 251 et

17 seq.).

18 (7) Chapter 35 of title 44, United States Code.

19 SEC. 802. OBLIGATIONS OF THE CORPORATION NOT OBLI20 GATIONS OF THE UNITED STATES.

21 Obligations or liabilities of the Corporation shall not

22 be obligations or liabilities of the United States. No action

23 may be maintained against the United States to enforce

24 any obligation or liability of the Corporation.
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1 SEC. 803. APPLICATION TO EXISTING ASBESTOS TRUSTS.

2 (a) IN GENERAL.—This Act shall not apply to any

3 asbestos trust in existence as of the date of enactment of

4 this Act, except as provided in subsection (b).

5 (b) ELECTION.—An asbestos trust may elect to be

6 subject to the Act by providing written notice of such elec7 tion to the Corporation, in which case the trust will have

8 the same rights and responsibilities under the Act as any

9 person who is not a trust. A valid election under this sub10 section shall be irrevocable.

11 SEC. 804. SETTLEMENTS UNAFFECTED.

12 Nothing in this Act shall prohibit any claimant, plain13 tiff, respondent, or defendant from entering into a settle14 ment agreement or any other agreement concerning a

15 claim covered, in whole or in part, under this Act.

16 SEC. 805. SEVERABILITY.

17 If any provision of this Act or the application of such

18 provision to any person or circumstance is held invalid,

19 it is the intent of Congress that the remainder of this Act

20 and application of such provision to other persons or cir21 cumstances shall not be affected thereby.

Æ