IB

Calendar No. 449

106TH CONGRESS

2D SESSION H. R. 1283

[Report No. 106–782]

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 HOUSE OF REPRESENTATIVES

MARCH 25, 1999

Mr. HYDE (for himself, Mr. MORAN of Virginia, Mr. ARMEY, Mr. DELAY, Mr.

SENSENBRENNER, Mr. GEKAS, Mr. BURTON of Indiana, Mr. MANZULLO,

Mr. STENHOLM, Mr. HOSTETTLER, Mr. BONILLA, Mr. NORWOOD, Mr.

FOLEY, Mr. DEAL of Georgia, Mr. CALVERT, Mr. BRADY of Texas, Mr.

WELLER, Mr. CANNON, and Mr. WATTS of Oklahoma) introduced the following bill; which was referred to the Committee on the Judiciary

JULY 24, 2000

Additional sponsors: Mr. CUNNINGHAM, Mr. SAM JOHNSON of Texas, Mr.

MCINTOSH, Ms. DUNN, Mr. COMBEST, Mr. PASCRELL, Mr. BARR of

Georgia, Mrs. MYRICK, Mr. STUMP, Mr. BALLENGER, Mr. DOOLITTLE,

Mr. BLUNT, Mr. DOOLEY of California, Mr. SMITH of Texas, Mr. SHUSTER, Mr. DAVIS of Virginia, Mr. BRYANT, Mr. GARY MILLER of California, Mr. SHAYS, Mr. GALLEGLY, Mr. GOODLING, Mr. PORTER, Mr.

BACHUS, Mr. POMBO, Mr. THORNBERRY, Mrs. NORTHUP, Mrs. BONO,

Mr. HERGER, Mr. ROGAN, Ms. GRANGER, Mr. SWEENEY, Mrs. JOHNSON

of Connecticut, Mr. PACKARD, Mr. PETRI, Mr. LUCAS of Oklahoma, Mr.

DICKEY, Mr. LINDER, Mr. SESSIONS, Mr. PETERSON of Pennsylvania,

Mr. MCCOLLUM, Mr. WAMP, Mr. CAMP, Mr. MCKEON, Mr. SUNUNU, Mr.

SMITH of Michigan, Mr. BURR of North Carolina, Mr. EHLERS, Mr.

PICKERING, Mr. BAKER, Mr. BOYD, Mr. KASICH, Mr. HAYES, Mr. BARCIA, Mr. OXLEY, Mr. TANCREDO, Mr. BARTON of Texas, and Mr. VITTER

JULY 24, 2000

Deleted sponsors: Mr. HILL of Montana, (added September 22, 1999; deleted

March 16, 2000), and Mr. TALENT (added September 30, 1999; deleted

April 13, 2000)
2

•HR 1283 RH

JULY 24, 2000

Reported with an amendment, committed to the Committee of the Whole

House on the State of the Union and ordered to be printed

[Strike out all after the enacting clause and insert the part printed in italic]

[For text of introduced bill, see copy of bill as introduced on March 25, 1999]

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 ‘‘As5 bestos Compensation Act of 2000’’.

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

7 Act is as follows:

Sec. 1. Short title; table of contents.

TITLE I—ESTABLISHMENT AND PROCEDURE

Sec. 101. Establishment of the Office of Asbestos Compensation.

Sec. 102. Medical eligibility review.

Sec. 103. Election of administrative process; settlement offers.

Sec. 104. Claimant’s choice of forum.

Sec. 105. Administrative adjudication.

Sec. 106. Appeals; judicial review.

Sec. 107. Gathering and maintenance of information.

Sec. 108. Legal assistance program.

Sec. 109. Time limits for dispositions.

TITLE II—LAW APPLICABLE TO ASBESTOS ADJUDICATIONS.

Sec. 201. Medical eligibility.

Sec. 202. Damages.

Sec. 203. Statute of limitations or repose.

Sec. 204. Come back rights.
3

•HR 1283 RH

Sec. 205. Class actions, aggregations of claims and venue.

Sec. 206. Joint and several liability.

Sec. 207. Core claims

Sec. 208. Special rules applicable to section 105 adjudications.

Sec. 209. Special rules applicable to the trustee.

TITLE III—ELIGIBLE MEDICAL CATEGORIES.

Sec. 301. Eligible medical categories.

Sec. 302. Asbestos-related non-malignant conditions with impairment.

Sec. 303. Asbestos-related mesothelioma.

Sec. 304. Asbestos-related lung cancer.

Sec. 305. Asbestos-related other cancer.

Sec. 306. Medical testing reimbursement.

TITLE IV—FUNDING.

Sec. 401. Assessment and enforcement.

Sec. 402. Fiscal and financial management of the asbestos compensation fund.

Sec. 403. Authorization for appropriations and offsetting collections.

TITLE V—TRANSITION

Sec. 501. Applicability; transitional civil actions.

TITLE VI—DEFINITIONS

Sec. 601: Definitions.

TITLE VIII—MISCELLANEOUS PROVISIONS

Sec. 701. Relationship to other laws.

Sec. 702. Annual reports.

Sec. 703. Enforcement.

Sec. 704. Qualifying national settlement plan.

Sec. 705. Severability.

1 TITLE I—ESTABLISHMENT AND

2 PROCEDURE

3 SEC. 101. ESTABLISHMENT OF THE OFFICE OF ASBESTOS

4 COMPENSATION.

5 (a) ESTABLISHMENT OF PROGRAM; ADMINIS6 TRATOR.—There is established in the Department of Justice

7 the Office of Asbestos Compensation (OAC) to be headed by

8 an Administrator. The Administrator shall be appointed by

9 the President by and with the advice and consent of the

10 Senate. The Administrator shall serve for a term of 10
4

•HR 1283 RH

1 years, and may be removed by the Attorney General only

2 for good cause. The Administrator shall have authority to

3 promulgate all procedural and substantive rules necessary

4 to administer this Act. All claims and other filings under

5 this Act shall be lodged with the office designated by the

6 Administrator.

7 (b) EXCLUSIVE JURISDICTION.—Except as otherwise

8 provided in this Act, the OAC shall have exclusive jurisdic9 tion over proceedings to determine if a claimant is entitled

10 to compensation for an asbestos claim and the amount of

11 such compensation. The foregoing shall not apply to any

12 claim brought under any workers’ compensation law or vet13 erans’ benefits program.

14 (c) MEDICAL DIRECTOR.—The Administrator shall

15 appoint the Medical Director and may remove the Medical

16 Director for good cause. The Medical Director shall, under

17 the supervision of the Administrator, manage the medical

18 review process under section 102 and shall have the author19 ity to appoint or to contract for the services of claims exam20 iners, physicians, and such other personnel as may be nec21 essary or appropriate for the efficient conduct of the med22 ical review process and to create the exceptional medical

23 claims panel.

24 (d) ASBESTOS COMPENSATION FUND.—There is estab25 lished in the OAC an Asbestos Compensation Fund for the
5

•HR 1283 RH

1 purpose of providing payments to claimants under this Act.

2 The Administrator shall appoint the Trustee of the Asbestos

3 Compensation Fund and may remove the Trustee for good

4 cause.

5 (e) OFFICE OF ADMINISTRATIVE LAW JUDGES.—There

6 is established in the OAC an Office of Administrative Law

7 Judges for the purpose of providing expedited administra8 tive adjudication of asbestos claims pursuant to section 105.

9 The Administrator shall have authority to appoint Admin10 istrative Law Judges on a temporary or emergency basis

11 and to remove such judges for good cause.

12 (f) MEDICAL ADVISORY COMMITTEE.—The Adminis13 trator shall appoint a Medical Advisory Committee which

14 shall periodically evaluate this Act’s medical review process

15 and medical eligibility criteria. The Administrator shall set

16 a term of appointment for members of the Medical Advisory

17 Committee. The Committee shall make appropriate rec18 ommendations as and when it deems appropriate and shall

19 submit an annual report to the Administrator and the Con20 gress.

21 SEC. 102. MEDICAL ELIGIBILITY REVIEW.

22 (a) DETERMINATION OF ELIGIBILITY.—All claims

23 when filed shall be immediately referred to the Medical Di24 rector. The Medical Director shall determine whether the

25 claimant meets the requirements for medical eligibility in
6

•HR 1283 RH

1 section 301 or the requirements for medical testing reim2 bursement in section 306

3 (b) INFORMATION FOR MEDICAL REVIEW.—The Ad4 ministrator shall issue rules for the expeditious conduct of

5 the medical review process. Such rules at a minimum shall

6 provide for the following:

7 (1) Submission of the following information

8 where relevant and feasible: smoking history; occupa9 tional history; description of the circumstances, inten10 sity, time, and duration of exposure; medical test re11 sults necessary for a decision as to whether an ex12 posed person meets the requirements for one or more

13 medically eligible categories under sections 301, 302,

14 303, 304, 305, or 306, including all of the supporting

15 data for any pulmonary function tests on which the

16 claimant relies (including all flow volume loops,

17 spirographs, and any other tracings for any test that

18 is performed). The claimant shall also provide such

19 medical releases as the Administrator may require al20 lowing the OAC to obtain any and all medical infor21 mation relevant to the determination of medical eligi22 bility.

23 (2) The Medical Director may require additional

24 non-invasive medical tests at the expense of the OAC

25 if necessary for a determination of medical eligibility.
7

•HR 1283 RH

1 (c) PROCEDURES.—Upon receipt of a complete med2 ical application, the Medical Director shall send notice to

3 the claimant confirming the OAC’s receipt of the claim. The

4 Medical Director shall make an initial decision within 30

5 days of such receipt. If the application is initially denied,

6 the claimant shall be so notified and, at the claimant’s re7 quest, the application shall be immediately referred to—

8 (1) a review panel of 2 qualified physicians,

9 with a third qualified physician available to resolve

10 any disagreement between the initial 2 qualified phy11 sicians; or

12 (2) an exceptional medical claims panel.

13 The Medical Director shall be bound by a panel’s decision.

14 The rules shall also provide for the prioritization of claims,

15 including enhanced priority for claimants who have meso16 thelioma, and set a time limit for a determination by the

17 review panel.

18 (d) EXCEPTIONAL MEDICAL CLAIMS.—The rules of the

19 medical review process shall provide the claimant with an

20 opportunity to apply to an exceptional medical claims

21 panel for a determination of whether the exposed person

22 meets the requirements under section 301(b) for an excep23 tional medical claim for any category. This opportunity

24 shall be provided both at the initial filing of a claim and

25 after a claim has been denied under this subsection. The
8

•HR 1283 RH

1 exceptional medical claims panel shall decide whether the

2 claimant qualifies as an exceptional medical claim within

3 30 days of receipt of the claim. This time limit may be

4 extended by the Administrator only for good cause. The

5 Medical Director shall be bound by the decision of the excep6 tional medical claims panel. The Medical Director shall

7 issue a final denial, along with a brief statement of reasons,

8 if the claimant is found ineligible following an opportunity

9 to submit the claim to a medical review panel and an excep10 tional medical claims panel.

11 (e) MONITORING ACCURACY OF DETERMINATIONS.—

12 The Medical Director shall establish audit and personnel

13 review procedures for evaluating the accuracy of medical

14 eligibility determinations, including both erroneous approv15 als and erroneous denials.

16 (f) OPT-OUT.—After receiving a certificate of eligi17 bility, a claimant may opt out of settlement proceedings

18 provided for under sections 103 and 104 and elect to file

19 suit in any State or Federal court of competent jurisdiction.

20 SEC. 103. ELECTION OF ADMINISTRATIVE PROCESS; SET21 TLEMENT OFFERS.

22 (a) NAMING AND NOTIFICATION OF DEFENDANTS.—

23 Medically eligible claimants, other than those who elect to

24 file suit in court under section 102(f), shall name defend-
9

•HR 1283 RH

1 ants. Defendants shall receive notice from the Adminis2 trator.

3 (1) IDENTIFICATION OF DEFENDANTS ASSOCI4 ATED WITH WORK SITES.—At the claimant’s request,

5 the Administrator will provide information con6 cerning person who may have provided asbestos or as7 bestos-containing products or materials to work sites

8 named by the claimant and when such asbestos or as9 bestos-containing products or materials may have

10 been provided as well as the time such products or

11 materials were located at the named work sites The

12 Administrator may implement this paragraph

13 through rulemaking.

14 (2) VERIFIED PARTICULARIZED STATEMENT.—

15 Within such time after receiving a certificate of med16 ical eligibility as may be provided by rule, a claim17 ant shall provide, with respect to each person that the

18 claimant alleges is responsible for the injury claimed,

19 a verified particularized statement of the basis for the

20 allegation that the person is or may be responsible for

21 the injury. The particularized statement shall include

22 such information as the Administrator may require

23 for the purpose of providing the defendant with a rea24 sonable basis for making an offer of settlement. The

25 claimant may incorporate by reference any informa-
10

•HR 1283 RH

1 tion required by this paragraph that may already

2 have been submitted to the OAC.

3 (3) NOTICE.—Upon finding that the claimant’s

4 particularized statement meets the requirements of

5 paragraph (2), the Administrator shall provide notice

6 to each named defendant. The defendant shall at the

7 same time be furnished with a copy of all particular8 ized statements submitted by the claimant under

9 paragraph (2) and, subject to reasonable rules pro10 tecting the confidentiality of information provided by

11 the claimant, a copy of all information submitted by

12 the claimant, records and other information obtained

13 by the Medical Director relating to the claim and the

14 results of any medical tests administered at the direc15 tion of the Medical Director. Any defendant may pro16 vide any information relevant to the amount of any

17 recommended settlement under subsection (b), includ18 ing information regarding product identification, ex19 posure, and damages.

20 (4) THIRD-PARTY PRACTICE.—Defendants may

21 assert third-party claims in accordance with rules

22 adopted by the Administrator. Third-party claimants

23 shall provide a verified particularized statement,

24 meeting the requirements of paragraph (2), substan25 tiating the allegation that the third-party defendant
11

•HR 1283 RH

1 may be liable to the third-party plaintiff, wholly or

2 in part, for the claimant’s injury. For good cause

3 shown and subject to reasonable limitations, an Ad4 ministrative Law Judge may allow discovery for the

5 purpose of obtaining information necessary to allow

6 the claimant or any third-party plaintiff to provide

7 a particularized statement under paragraph (2) or

8 this paragraph.

9 (b) SETTLEMENT OFFERS; OFFER OF COMPENSATION

10 BY THE TRUSTEE.—

11 (1) MANDATORY OFFER FROM DEFENDANTS.—

12 Within 21 days following the naming of all defend13 ants, each defendant shall provide to the claimant in

14 writing a good faith settlement offer, and shall pro15 vide a copy to the Trustee.

16 (2) MANDATORY OFFER FROM ASBESTOS COM17 PENSATION FUND.—Within 10 days of receiving all of

18 the defendants’ offers, the Trustee shall make an offer

19 of compensation to the claimant, based on a com20 pensation grid which shall be established and regu21 larly revised by rule.

22 SEC. 104. CLAIMANT’S CHOICE OF FORUM.

23 (a) IN GENERAL.—The claimant shall notify each de24 fendant and the Trustee whether the claimant accepts or

25 rejects the defendant’s settlement offer under section
12

•HR 1283 RH

1 103(b)(1). If the claimant accepts any such offer, or any

2 other settlement offer, the Trustee’s offer of compensation

3 shall be automatically reduced by the amount of such settle4 ments.

5 (b) NOTICE.—The claimant shall notify the Trustee

6 and any defendant within 60 days whether the claimant

7 accepts or rejects an offer that has been provided pursuant

8 to section 103(b)(1) or 103(b)(2).

9 (c) ORPHAN SHARES.—The Trustee shall not make an

10 offer to the claimant under section 103(b) if no solvent de11 fendant has been named.

12 (d) ACCEPTANCE.—If the claimant accepts the Trust13 ee’s offer of compensation, the Trustee shall assume the

14 claim. The Trustee may accept any defendant’s settlement

15 offer under section 103(b)(1) or may prosecute the claim

16 against any defendant as provided in section 105, or may

17 prosecute the claim in any State or Federal court.

18 (e) REJECTION.—If the claimant rejects any defend19 ant’s settlement offer and also rejects the Trustee’s offer of

20 compensation, the claimant may elect an administrative

21 adjudication under section 105 or opt out of further admin22 istrative proceedings and file suit in a State or Federal

23 court.
13

•HR 1283 RH

1 SEC. 105. ADMINISTRATIVE ADJUDICATION.

2 If a claimant elects adjudication under this section,

3 the OAC shall assign an Administrative Law Judge to con4 duct a hearing on the record and to determine whether com5 pensation is to be provided and the amount of such com6 pensation. The Administrative Law Judge shall adhere to

7 the law applicable to asbestos adjudications as contained

8 in sections 201 through 210. The Administrative Law Judge

9 shall issue a decision, containing findings of fact and con10 clusions of law, as expeditiously as possible, but not later

11 than 90 days after the case is assigned.

12 SEC. 106. APPEALS; JUDICIAL REVIEW.

13 Any person aggrieved by a final decision of the Admin14 istrator under section 105 or a final denial by the Medical

15 Director under section 102, may seek review of that decision

16 or denial in the United States Court of Federal Claims,

17 which shall uphold the decision or denial if it is supported

18 by substantial evidence and is not contrary to law. A deci19 sion by the Medical Director that a claimant has an eligible

20 medical condition is not a final decision under this section.

21 Decisions of the United States Court of Federal Claims are

22 appealable, without regard to the amount in controversy or

23 the citizenship of the parties, to a United States Court of

24 Appeals for a judicial circuit.
14

•HR 1283 RH

1 SEC. 107. GATHERING AND MAINTENANCE OF INFORMA2 TION.

3 (a) PRODUCT IDENTIFICATION.—The OAC shall collect

4 and regularly update information regarding product iden5 tification and shall make such information publicly avail6 able. The data base maintained by the OAC under this sec7 tion is for information purposes only, and the presence of

8 information in that database shall not lead to any pre9 sumption.

10 (b) SETTLEMENTS, JUDGMENTS, AND AWARDS.—The

11 OAC shall collect data on settlements, judgments, and

12 awards in connection with asbestos claims and shall make

13 such data publicly available. The OAC may require this

14 data to be reported in such form as it may prescribe.

15 (c) SUBPOENA POWER.—The OAC may compel, by

16 subpoena or other appropriate process, information from

17 any person regarding past settlements or product identi18 fication for purposes of developing and maintaining a com19 pensation grid under section 103(b)(2) and maintaining a

20 database for purposes of naming defendants under section

21 103(a)(1). In addition, the subpoena power under this sub22 section may be used by the OAC in order to secure financial

23 information from any defendant.

24 (d) CONFIDENTIALITY.—Any information or documen25 tary material concerning settlements which is specific to a

26 company, law firm, or plaintiff that is provided to the OAC
15

•HR 1283 RH

1 pursuant to subsection (b) or (c), whether by subpoena or

2 otherwise, shall be exempt from disclosure under section 552

3 of title 5, United States Code, and the disclosure of such

4 information by the OAC or any person is prohibited.

5 SEC. 108. LEGAL ASSISTANCE PROGRAM.

6 (a) IN GENERAL.—The OAC shall implement a legal

7 assistance program for the purpose of providing legal rep8 resentation to claimants. The OAC shall maintain a roster

9 of qualified counsel who agree to provide services to claim10 ants under rules, practices, and procedures established by

11 the Administrator.

12 (b) FREE CHOICE OF COUNSEL.—Claimants shall not

13 be required to use counsel provided or recommended by the

14 OAC, but shall retain their right to be assisted by counsel

15 of their choice.

16 (c) LEGAL ASSISTANCE.—The OAC shall adopt rules

17 concerning the reasonableness of fees, and all legal represen18 tation of persons asserting asbestos claims shall comply

19 with such rules.

20 SEC. 109. TIME LIMITS FOR DISPOSITIONS.

21 (a) IN GENERAL.—If the Medical Director fails to meet

22 the time limits for an initial decision provided under this

23 Act with respect to more than 30 percent of claims, then

24 the Administrator shall take such action as may be nec25 essary, including increasing staff and administrative as-
16

•HR 1283 RH

1 sessments under section 401, to ensure compliance with such

2 time limit with regard to at least 70 percent of claims

3 (b) NO OFFER.—If the Trustee fails to make an offer

4 within 120 days after the Administrator’s receipt of a com5 plete application under section 102 with respect to more

6 than 30 percent of claims, then the Administrator shall take

7 such action as may be necessary, including increasing staff

8 and administrative assessments under section 401, to en9 sure compliance with such time limit with regard to at least

10 70 percent of claims.

11 (c) DUTIES.—The duties established by subsections (a)

12 and (b) shall be non-discretionary and enforceable by an

13 order of mandamus from any judge of the United States

14 Court of Federal Claims.

15 (d) EXCEPTIONS.—The Administrator may by rule es16 tablish exceptions to the time limits in this section. Such

17 rules shall take into consideration the complexity of the

18 case, the extent to which delays are attributable to the fault

19 or neglect of the claimant or the claimant’s attorney and

20 other factors that are beyond the control of the OAC.

21 TITLE II—LAW APPLICABLE TO

22 ASBESTOS ADJUDICATIONS.

23 SEC. 201. MEDICAL ELIGIBILITY.

24 A claimant may recover compensation for damages

25 caused by an eligible medical condition only if the claimant
17

•HR 1283 RH

1 presents a certificate of medical eligibility establishing its

2 existence. A certificate of medical eligibility shall be conclu3 sive unless rebutted by clear and convincing evidence. How4 ever, a certificate of medical eligibility shall not be conclu5 sive as to allegations regarding exposure to asbestos or when

6 medical eligibility is established pursuant to section 304(b).

7 SEC. 202. DAMAGES.

8 A claimant who establishes an eligible medical condi9 tion shall be entitled to compensatory damages to the extent

10 provided by applicable law, including damages for emo11 tional distress, pain and suffering, and medical monitoring

12 where authorized. Such damages shall not include punitive

13 damages or damages solely for enhanced risk of a future

14 condition, except as provided in section 208(d).

15 SEC. 203. STATUTE OF LIMITATIONS OR REPOSE.

16 No defense to an asbestos claim based on a statute of

17 limitations or statute of repose, laches, or any other defense

18 based on the timeliness of the claim shall be recognized or

19 allowed, unless such claim was untimely as of the date of

20 enactment of this Act. No claim shall be deemed to have

21 accrued until and unless the claimant’s condition would

22 have qualified as an eligible medical condition under sec23 tion 302, 303, 304, or 305.
18

•HR 1283 RH

1 SEC. 204. COME BACK RIGHTS.

2 Notwithstanding any other provision of law, a judg3 ment or settlement of an asbestos claim for a non-malignant

4 disease shall not preclude a subsequent claim with respect

5 to the same exposed person for an eligible medical condition

6 pursuant to section 301(b), 303, 304, or 305

7 SEC. 205. CLASS ACTIONS, AGGREGATIONS OF CLAIMS AND

8 VENUE.

9 (a) CONSOLIDATIONS.—No joinder of parties, aggrega10 tion of claims, consolidation of actions, extrapolation, or

11 other device to determine multiple asbestos claims on a col12 lective basis shall be permitted without the consent of all

13 parties, except as provided in subsection (b) or unless the

14 court, pursuant to an exercise of judicial authority to pro15 mote the just and efficient conduct of asbestos civil actions,

16 orders such procedures, including the transfer for consolida17 tion, to determine multiple asbestos claims on a collective

18 basis.

19 (b) CLASS ACTION SUITS.—In any civil action assert20 ing an asbestos claim, a class action may be allowed with21 out the consent of all parties if the requirements of Rule

22 23, Federal Rules of Civil Procedure are satisfied.

23 (c) VENUE.—At the election of the claimant, an asbes24 tos claim may be filed in any jurisdiction where the claim25 ant is alleging that the claimant was exposed to asbestos

26 or where the claimant is currently domiciled.
19

•HR 1283 RH

1 (d) REMOVAL.—Any party in a civil action that in2 volves a violation of subsection (a), (b) or (c) of this section

3 may remove such action to an appropriate district court

4 of the United States. The district courts of the United States

5 shall have jurisdiction of all civil actions removed pursuant

6 to this section without regard to diversity of citizenship or

7 amount in controversy.

8 (e) ADMINISTRATIVE PROCEEDINGS.—In any pro9 ceeding under section 105, the Administrative Law Judge

10 may order adjudication of claims on a collective basis.

11 SEC. 206. JOINT AND SEVERAL LIABILITY.

12 This Act shall not be construed to limit joint and sev13 eral liability under applicable Federal or State law. In any

14 core claim that is successfully asserted against a defendant,

15 such defendant shall be held jointly and severally liable for

16 full compensatory damages to the claimant notwithstanding

17 any contrary provision of law.

18 SEC. 207. CORE CLAIMS.

19 In any core claim, the issues to be decided shall be

20 limited to—

21 (1) whether the exposed person with respect to

22 whom a claim is made has or had an eligible medical

23 condition;

24 (2) whether the exposure of the exposed person to

25 the product of the defendant was a substantial con-
20

•HR 1283 RH

1 tributing factor in causing that eligible medical con2 dition; and

3 (3) the amount of compensation to be provided.

4 SEC. 208. SPECIAL RULES APPLICABLE TO SECTION 105 AD5 JUDICATIONS.

6 (a) APPLICABLE LAW.—Unless otherwise provided in

7 this Act, in claims based on State law, the Administrative

8 Law Judge shall, with respect to each defendant, apply the

9 substantive law of the State which has the most significant

10 relationship to the exposure and the parties.

11 (b) FULL COMPENSATORY DAMAGES IN WRONGFUL

12 DEATH CASES.—Notwithstanding any contrary provision

13 of State law, full compensatory damages, including dam14 ages for non-economic loss, shall be awarded in wrongful

15 death claims involving mesothelima. In all other cases,

16 damages for non-economic loss may be awarded to the ex17 tent that they are available pursuant to applicable law.

18 (c) PENALTY FOR INADEQUATE OFFER.—In any pro19 ceeding against a defendant by a claimant under section

20 105, and in any proceeding by the Trustee, if the final offer

21 made by any defendant is less than the share of the total

22 liability awarded against that defendant, a penalty shall

23 be added to the award equal to 100 percent of the difference

24 between the defendant’s settlement offer under section 103(b)

25 and the lesser of—
21

•HR 1283 RH

1 (1) the defendant’s share of the offer made by the

2 Trustee under section 103(b); or

3 (2) the defendant’s share of the award made

4 under section 105.

5 (d) PUNITIVE DAMAGES.—Punitive damages may be

6 awarded against a defendant if the claimant establishes by

7 clear and convincing evidence that the conduct carried out

8 by the defendant with a conscious, flagrant indifference to

9 the rights or safety of others was the proximate cause of

10 the harm that is the subject of the asbestos claim. Punitive

11 damages may not exceed 3 times the amount of the award

12 pursuant to a section 105 adjudication plus any penalties

13 added to that award pursuant to subsection (c).

14 SEC. 209. SPECIAL RULES APPLICABLE TO THE TRUSTEE.

15 In an action by the Trustee as assignee of the claim16 ant, the award under section 104(d) shall include compen17 satory damages for the claimant’s injury and all punitive

18 damages under section 208(d), any penalties for inadequate

19 offers by defendants, and the Trustee’s costs in establishing

20 the claim, including reasonable attorneys’ fees and expenses

21 and an allowance for interest on the amount paid by the

22 Fund to the claimant under section 104. Interest shall be

23 calculated from the time of such payments, and in accord24 ance with Title IV. All economic and non-economic dam25 ages recovered by the Fund in excess of 200 percent of the
22

•HR 1283 RH

1 amount paid to the claimant pursuant to section 104 and

2 all punitive damages under section 208(d) shall be paid to

3 the settling claimant. The fact that the claimant has accept4 ed an offer of compensation by the Trustee, and the amount

5 and terms of such offer, shall not be admissible in any adju6 dication of a claim brought by the Trustee against any de7 fendant.

8 TITLE III—ELIGIBLE MEDICAL

9 CATEGORIES.

10 SEC. 301. ELIGIBLE MEDICAL CATEGORIES.

11 (a) IN GENERAL.—The eligible medical categories

12 under this Act are asbestos-related non-malignant condi13 tions with impairment, asbestos-related mesothelioma, as14 bestos-related lung cancer, and asbestos-related other cancer.

15 (b) ESTABLISHING EXISTENCE.—A claimant may es16 tablish the existence of an eligible medical condition either

17 by demonstrating that the exposed person meets the stand18 ard criteria provided in sections 302, 303, 304, and 305

19 or by demonstrating to an exceptional medical claims

20 panel, through reliable evidence, that the exposed person has

21 an asbestos-related impairment that is substantially com22 parable to the condition of an exposed person who would

23 satisfy the requirements of a given medical category. The

24 Administrator, after consultation with the Medical Advi25 sory Committee, may adopt rules consistent with this sec-
23

•HR 1283 RH

1 tion to assure consistency and efficiency in the designation

2 of claims as exceptional medical claims.

3 SEC. 302. ASBESTOS-RELATED NON-MALIGNANT CONDI4 TIONS WITH IMPAIRMENT.

5 (a) IN GENERAL.—The standard criteria for asbestos6 related non-malignant conditions with impairment shall

7 include—

8 (1) clinical evidence of asbestosis,

9 (2) pathological evidence of asbestosis, or

10 (3) evidence of bilateral pleural thickening with

11 impairment.

12 (b) OBSTRUCTIVE LUNG DISEASE.—A claimant shall

13 not be disqualified from compensation under this category

14 solely because an exposed person who otherwise meets the

15 requirements for impairment has a reduced FEV1/FVC

16 ratio indicating obstructive lung disease. In that event, the

17 exceptional medical claims panel shall determine, giving

18 due regard to the evidence that any impairment is related

19 to obstructive disease and taking into consideration all

20 available evidence, whether an asbestos-related restrictive

21 disease substantially contributes to the impairment of the

22 exposed person. Such a contribution shall be presumed if

23 the panel concludes, based upon the findings of a certified

24 B-reader, that the exposed person’s chest x-ray is ILO

25 Grade 2/1 or more.
24

•HR 1283 RH

1 SEC. 303. ASBESTOS-RELATED MESOTHELIOMA.

2 The standard criteria for asbestos-related mesothe3 lioma shall include a diagnosis by a qualified physician

4 of a malignant mesothelioma caused or contributed to by

5 exposure to asbestos with a primary site in the pleura, peri6 toneum, or like tissue, or reasonably equivalent clinical di7 agnosis in the absence of adequate tissue for pathological

8 diagnosis.

9 SEC. 304. ASBESTOS-RELATED LUNG CANCER.

10 (a) IN GENERAL.—The standard criteria for asbestos11 related lung cancer shall include—

12 (1) a diagnosis by a qualified physician of lung

13 cancer that the physician concludes was caused or

14 contributed to by exposure to asbestos;

15 (2) a latency period of at least 10 years; and

16 (3) either—

17 (A) evidence of asbestosis or bilateral pleu18 ral thickening with impairment sufficient to

19 meet the requirements of section 302 or to qual20 ify as an exceptional medical claim under sec21 tion 301(b); or

22 (B) chest x-rays which, in the opinion of a

23 certified B-reader, demonstrate asbestos-related

24 bilateral pleural plaques or thickening, and 7.5

25 equivalent-years of exposure to asbestos-con26 taining materials in employment regularly re-
25

•HR 1283 RH

1 quiring work in the immediate area of visible as2 bestos dust.

3 (b) HISTORY OF SMOKING.—If a finding of asbestos4 related lung cancer is made pursuant to paragraph (3)(B)

5 and the exposed person has a substantial history of smok6 ing, which shall be defined by rule, the claimant shall be

7 medically eligible for compensation, but the finding of as8 bestos-related lung cancer shall not be conclusive as to cau9 sation for purposes of section 201.

10 SEC. 305. ASBESTOS-RELATED OTHER CANCER.

11 The standard criteria for asbestos-related other cancer

12 shall include a diagnosis by a qualified physician of a ma13 lignant primary tumor of the larynx, oral-pharynx, gastro14 intestinal tract, or stomach, caused or contributed to by ex15 posure to asbestos, together with evidence of a condition suf16 ficient to meet the requirements of section 302 or to qualify

17 as an exceptional medical claim under section 301(b).

18 SEC. 306. MEDICAL TESTING REIMBURSEMENT.

19 (a) LEVEL A.—A claimant with at least 4 equivalent20 years of heavy exposure to asbestos, whose chest x-ray shows

21 either small irregular opacities of ILO Grade 1/0 or bilat22 eral pleural thickening of ILO Grade B/2, shall be eligible

23 for reimbursement of 100 percent of out-of-pocket expenses

24 for any medical testing required under section 102, up to

25 a ceiling of $1500. Level A claimants shall be eligible at
26

•HR 1283 RH

1 3 year intervals for similar reimbursement of future med2 ical testing expenses for up to 2 additional occasions. Level

3 A reimbursements shall be treated as administrative ex4 penses of the OAC and paid for by defendants under section

5 401.

6 (b) LEVEL B.—The Administrator shall, subject to the

7 availability of appropriated funds, reimburse up to 100

8 percent of the out-of-pocket expenses for any medical testing

9 required under section 102, up to a ceiling established by

10 rule, with the approval of the Trustee, for any claimant

11 with at least one equivalent-year of heavy exposure to asbes12 tos who meets the medical but not the exposure requirements

13 of Level A. Level B claimants may be eligible for similar

14 reimbursement of future medical testing expenses for up to

15 2 additional occasions at least 3 years apart. The Adminis16 trator shall adjust periodically the amount of the cash pay17 ment to reflect changes in medical costs. Level B reimburse18 ments shall be treated as administrative expenses of the

19 OAC and paid for by defendants under section 401.

20 (c) CERTIFIED LABS.—The Administrator is author21 ized to establish a program for the certification of labora22 tories to provide medical testing under this section.

23 (d) EXPOSURE VERIFICATION.—The Administrator

24 shall establish audit and other procedures to provide reason25 able assurance that statements concerning exposure made
27

•HR 1283 RH

1 by claimants seeking medical testing reimbursement under

2 this section are accurate.

3

4 TITLE IV—FUNDING

5 SEC. 401. ASSESSMENT AND ENFORCEMENT.

6 (a) RULES.—The Administrator shall adopt rules for

7 calculating and collecting from defendants all costs associ8 ated with the determination of claims and payments to

9 claimants.

10 (b) TRUSTEE.—The Trustee shall have authority to

11 bring an action in the district courts of the United States

12 to enforce any obligation imposed on any person by this

13 section and such courts shall have exclusive jurisdiction of

14 such actions without regard to the amount in controversy

15 or citizenship of the parties. The district court shall not

16 entertain any defense other than lack of jurisdiction in any

17 action by the Trustee under this subsection.

18 (c) TRUSTEE PREVAILS.—In any action under sub19 section (b) in which the Trustee prevails, the Trustee shall

20 be entitled to costs, including reasonable attorneys’ fees, and

21 interest on any unpaid amount.

22 (d) JUDICIAL REVIEW.—A defendant may challenge

23 the legality or amount of any assessment only by seeking

24 judicial review in the United States Court of Federal
28

•HR 1283 RH

1 Claims after paying the disputed amount. If successful, the

2 defendant shall be awarded interest.

3 SEC. 402. FISCAL AND FINANCIAL MANAGEMENT OF THE AS4 BESTOS COMPENSATION FUND

5 (a) APPLICABILITY OF CREDIT REFORM ACT PRIN6 CIPLES; FISCAL MANAGEMENT RULES.—Except as provided

7 in this section, the operations of the Fund related to settle8 ment payments under section 104, and associated recoveries

9 from defendants, shall be governed by the Federal Credit

10 Reform Act of 1990 (2 U.S.C. 661 et seq.), notwithstanding

11 the status of the Fund as a governmental entity. The Ad12 ministrator shall promulgate rules, approved by the Office

13 of Management and Budget, for the fiscal management of

14 the Fund. Such rules and their application shall not be sub15 ject to judicial review and shall, as regards payments under

16 section 104—

17 (1) provide all reasonable assurance that, over

18 an appropriate time period, the subsidy rate associ19 ated with the net litigation risk of the Fund is zero;

20 (2) provide all reasonable assurance that, in any

21 given year, the subsidy rate associated with the net

22 litigation risk of the Fund is no more than 2 percent;

23 (3) provide for the allocation of receipts from de24 fendants to various Fund accounts, including the

25 Fund’s financing account, program account, and an
29

•HR 1283 RH

1 account for salaries and expenses (which shall include

2 litigation costs); and

3 (4) provide specific instructions for the Trustee

4 to reduce payments by the Fund when necessary to

5 meet the solvency requirements of this subsection.

6 (b) FINANCING OF THE FUND, SETTLEMENT PAY7 MENTS TO CLAIMANTS.—

8 (1) CREDIT REFORM PRINCIPLES.—The Fund is

9 authorized to receive from defendants, as offsetting re10 ceipts, any amounts related to settlements or judg11 ments, including damages, interest, litigation costs,

12 specific administrative costs that may be required by

13 the Administrator through rulemaking, and interest

14 costs incurred by the Fund in connection with pay15 ment of settlement offers made under section 103.

16 Amounts received from defendants as interest shall be

17 sufficient to pay interest costs due to the United

18 States Treasury from the financing account, plus the

19 subsidy costs of the program account, provided that

20 the latter amounts may not exceed 3 percent of the

21 amount of any settlement or award. Recoveries on a

22 claim by the Fund in excess of the settlement amount

23 paid to the claimant and other costs of the Fund

24 which are not paid to the claimant under section 209

25 shall be available to the program account as a reduc-
30

•HR 1283 RH

1 tion to subsidy costs in the current or any subsequent

2 year.

3 (2) AUTHORITY.—The program account shall

4 have permanent indefinite authority, not subject to

5 further appropriation, to transfer funds to the finance

6 account in accordance with principles of the Credit

7 Reform Act.

8 SEC. 403. AUTHORIZATION FOR APPROPRIATIONS AND OFF9 SETTING COLLECTIONS.

10 (a) IN GENERAL.—There are authorized to be

11 appropriated—

12 (1) to the OAC such sums as may be required to

13 perform responsibilities under this Act;

14 (2) to the United States Court of Federal Claims,

15 such sums as may be required to carry out its respon16 sibilities under this Act; and

17 (3) to the OAC an amount not to exceed $100

18 million, for a one-time loan to the Fund in connec19 tion with startup expenses, such loan to be repaid by

20 the Fund with interest;

21 The total of appropriations provided under this subsection

22 in the first year after the date of enactment not exceed $250

23 million and in any subsequent year not exceed $150 mil24 lion.
31

•HR 1283 RH

1 (b) OFFSETTING COLLECTIONS OF ADMINISTRATIVE

2 ASSESSMENTS.—The OAC is authorized to receive and to

3 expend in any year, as offsetting collections, all administra4 tive assessments or prepaid administrative assessments and

5 all costs and penalties paid to it.

6 TITLE V—TRANSITION

7 SEC. 501. APPLICABILITY; TRANSITIONAL CIVIL ACTIONS.

8 (a) IN GENERAL.—This Act shall be effective upon its

9 date of enactment with respect to any civil action asserting

10 an asbestos claim in which trial has not commenced as of

11 that date.

12 (b) PENDING CLAIM.—A claimant with a pending civil

13 claim on the date of enactment shall not be required to ob14 tain a certificate of medical eligibility or otherwise exhaust

15 the procedures set forth in title I if trial commences within

16 6 months of the date of enactment of this Act. This 6-month

17 period may be extended by the Attorney General for up to

18 an additional 6 months if required for the orderly imple19 mentation of this Act, and after reporting to the Congress

20 the reasons for any such extension.

21 (c) RIGHT TO SUE LETTER.—If a claimant with—

22 (1) a pending civil action on the date of enact23 ment of this Act, and

24 (2) a scheduled trial date within one year after

25 the date of enactment of this Act
32

•HR 1283 RH

1 does not receive an initial decision on medical eligibility

2 within the time period prescribed in section 102(c), the

3 claimant may request a right-to sue letter from the Admin4 istrator at any time prior to the issuance of that initial

5 decision. If the Attorney General determines that the 6-

6 month period in subsection (b) should be extended, the one7 year period in the preceding sentence shall be similarly ex8 tended. The Administrator shall issue a right-to-sue letter

9 or an initial decision under section 102 within 10 days

10 following the receipt of the claimant’s request. A claimant

11 who receives a right-to-sue letter may assert the claimant’s

12 asbestos claim in any competent forum notwithstanding

13 section 101(b).

14 (d) CLAIM IN ANOTHER FORUM.—Any claimant who

15 asserts his claim in a forum other than the OAC under sub16 sections (b) or (c) must demonstrate that the exposed person

17 has qualified for medical eligibility under section 301, 302,

18 303, 304, 305, or 306.

19 TITLE VI—DEFINITIONS

20 SEC. 601: DEFINITIONS.

21 In this Act:

22 (1) ASBESTOS CLAIM.—The term ‘‘asbestos

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

24 arising out of, based on, or related to the health effects

25 of exposure to asbestos, including any claim for per-
33

•HR 1283 RH

1 sonal injury, death, mental or emotional injury, risk

2 of disease or other injury, or the costs of medical mon3 itoring or surveillance, and including any claim

4 made by or on behalf of any exposed person or any

5 representative, spouse, parent, child, or other relative

6 of any exposed person. The term does not include any

7 claim for workers’ compensation benefits, or any

8 claim by an employer or insurer for reimbursement

9 from a third-party for benefits paid under a workers’

10 compensation plan, or any claim for benefits under a

11 veterans’ benefits program.

12 (2) ASBESTOS TRUST.—The term ‘‘asbestos

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

14 resolve asbestos claims arising directly or indirectly

15 from exposure to asbestos or asbestos-containing prod16 ucts, including a trust created pursuant to the bank17 ruptcy laws of the United States or Rule 23 of the

18 Federal Rules of Civil Procedure.

19 (3) CERTIFICATE OF MEDICAL ELIGIBILITY.—The

20 term ‘‘certificate of medical eligibility’’ means a cer21 tificate issued to a claimant pursuant to this Act cer22 tifying that an exposed person meets the requirements

23 of one or more eligible medical categories or qualifies

24 as an exceptional medical claim.
34

•HR 1283 RH

1 (4) CERTIFIED B-READER.—The term ‘‘certified

2 B-reader’’ means an individual qualified as a ‘‘final’

3 or ‘‘B-reader’’ under 42 C.F.R. 37.51(b) (1997) (and

4 any subsequent revisions thereof) whose certification

5 is current.

6 (5) CHEST X-RAYS.—The term ‘‘chest x-rays’’

7 means chest radiographs taken in at least 2 views

8 (Posterior-Anterior and Lateral) and graded quality

9 1 for reading according to the criteria established by

10 the ILO. If the claimant is unable to provide quality

11 1 chest x-rays because of death or because of an in12 ability to have new chest x-rays taken, chest x-rays

13 graded quality 2 will be acceptable.

14 (6) CIVIL ACTION.—The term ‘‘civil action’’

15 means any action, lawsuit, or proceeding in any

16 State, Federal, or tribal court, but does not include—

17 (A) a criminal action; or

18 (B) an action relating to State or Federal

19 workers’ compensation laws, or a proceeding for

20 benefits under any veterans’ benefits program.

21 (7) CLAIMANT.—The term ‘‘claimant’’ means

22 any exposed person or the person’s legal representa23 tive, and any relative of an exposed person or their

24 legal representative, who asserts an asbestos claim.
35

•HR 1283 RH

1 (8) CLINICAL EVIDENCE OF ASBESTOSIS.—The

2 term ‘‘clinical evidence of asbestosis’’ means a diag3 nosis of pulmonary asbestosis by a qualified physi4 cian based on the minimum objective criteria of—

5 (A) Chest x-rays for which a B-reader re6 port is furnished showing small irregular opac7 ities of ILO Grade 1/0 and pulmonary function

8 testing and physical examination that show

9 either—

10 (i) FVC <80% of predicted value with

11 FEV1/FVC≥ 75% (actual value); or

12 (ii) TLC <80% of predicted value,

13 with either DLCO≤ 76% of predicted value

14 or bilateral basilar crackles, and also the

15 absence of any probable explanation for this

16 DLCO result or crackles finding other than

17 the presence of asbestos lung disease; or

18 (B) Chest x-rays for which a B-reader re19 port is furnished showing small irregular opac20 ities of ILO Grade 1/1 or greater and pulmonary

21 function testing that shows either—

22 (i) FVC <80% of predicted value with

23 FEV1/FVC≥ 72% (actual value) or, if the

24 individual tested is at least 68 years old at
36

•HR 1283 RH

1 the time of the testing, with FEV1/FVC≥

2 65% (actual value); or

3 (ii) TLC <80% of predicted value.

4 (9) COMPENSATORY DAMAGES.—The term ‘‘com5 pensatory damages’’ means damages awarded for eco6 nomic loss, such as medical expenses, as well as non7 economic loss. Non-economic loss includes subjective,

8 non-pecuniary loss, such as pain, suffering, inconven9 ience, emotional distress, loss of society and compan10 ionship, and loss of consortium.

11 (10) CORE CLAIM.—The term ‘‘core claim’’

12 means an asbestos claim against a defendant who

13 either—

14 (A) manufactured any asbestos-containing

15 product which released asbestos fibers to which

16 the exposed person was exposed, and paid out $

17 50 million in respect of such claims cumulatively

18 over the 10 year period preceding the filing of

19 the claim; or

20 (B) was not a manufacturer but paid out $

21 100 million in respect of such claims cumula22 tively over the 10 year period preceding the fil23 ing of the claim; provided that the alleged liabil24 ity is not based upon the control or ownership

25 of property.
37

•HR 1283 RH

1 (11) DEFENDANT.—The term ‘‘defendant’’ means

2 any person who is or may be responsible for the asbes3 tos-related condition of the exposed person and who is

4 so notified by the Administrator pursuant to title I.

5 The term does not include—

6 (A) an asbestos trust in existence as of the

7 date of enactment of this Act unless the trust

8 elects to be covered by this Act under section

9 701(b); or

10 (B) the United States Government or a

11 State government.

12 (12) DLCO.—The term ‘‘DLCO’’ means single13 breath diffusing capacity of the lung (carbon mon14 oxide), which is a measure of the volume of carbon

15 monoxide transferred from the alveoli to blood in the

16 pulmonary capillaries for each unit of driving pres17 sure of the carbon monoxide.

18 (13) EQUIVALENT-YEAR.—The term ‘‘equivalent19 year’’ means a measure of exposure to asbestos ad20 justed to reflect varying exposure levels typical of dif21 ferent occupations. Each year of exposure in which an

22 exposed person’s primary occupation involved the di23 rect installation, repair, or removal of asbestos-con24 taining products, shall count as one year. Each year

25 of such occupational exposure in which the exposed
38

•HR 1283 RH

1 person’s primary occupation involved either the direct

2 manufacture of asbestos-containing products using

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

4 removal of asbestos-containing products in a shipyard

5 during World War II, shall count as 2 years. Each

6 year of exposure in occupations not described above

7 shall count as one-half year.

8 (14) EVIDENCE OF BILATERAL PLEURAL THICK9 ENING WITH IMPAIRMENT.—The term ‘‘evidence of bi10 lateral pleural thickening with impairment’’ means a

11 diagnosis of bilateral pleural thickening by a quali12 fied physician based on the minimum objective cri13 teria of either—

14 (A) Chest x-rays for which a B-reader re15 port is furnished showing bilateral pleural thick16 ening of ILO Grade B/2 with pulmonary func17 tion testing and physical examination that show

18 either—

19 (i) FVC <80% of predicted value with

20 FEV1/FVC≥ 75% (actual value) or

21 (ii) TLC <80% of predicted value,

22 with either DLCO≤ 76% of predicted value

23 or bilateral basilar crackles, and also the

24 absence of any probable explanation for this
39

•HR 1283 RH

1 DLCO result or crackles finding other than

2 the presence of asbestos lung disease; or

3 (B) Chest x-rays for which a B-reader re4 port is furnished showing bilateral pleural thick5 ening of ILO Grade C/2 or greater; and pul6 monary function testing that shows either—

7 (i) FVC <80% of predicted value with

8 FEV1/FVC≥ 72% (actual value) or, if the

9 individual tested is at least 68 years old at

10 the time of the testing, with FEV1/FVC≥

11 65% (actual value); or

12 (ii) TLC <80% of predicted value.

13 (15) EXPOSED PERSON.—The term ‘‘exposed per14 son’’ means any person who has been exposed in any

15 State (or while working aboard a United States vessel

16 outside the United States) to asbestos or to asbestos17 containing products.

18 (16) FEV1.—The term ‘‘FEV1’’ means forced ex19 piratory volume (1 second), which is the maximal vol20 ume of air expelled in one second during performance

21 of the spirometric test for forced vital capacity (FVC).

22 (17) FUND.—The term ‘‘Fund’’ means the Asbes23 tos Compensation Fund.

24 (18) FVC.—The term ‘‘FVC’’ means forced vital

25 capacity, which is the maximal volume of air expired
40

•HR 1283 RH

1 with a maximally forced effort from a position of

2 maximal inspiration.

3 (19) ILO.—The term ‘‘ILO’’ means the Inter4 national Labour Organization.

5 (20) ILO GRADE.—The term ‘‘ILO grade’’ means

6 the radiological ratings for the presence of lung or

7 pleural changes by chest x-ray as established from

8 time to time by the ILO.

9 (21) LATENCY PERIOD.—The term ‘‘latency pe10 riod’’ means the period from the date of the exposed

11 person’s first exposure to asbestos or an asbestos-con12 taining product to the date of manifestation of the

13 condition claimed.

14 (22) LUNG CANCER.—The term ‘‘lung cancer’’

15 means a primary malignant bronchogenic tumor, of

16 any cell type, caused or contributed to by exposure to

17 asbestos.

18 (23) MANIFESTATION.—The term ‘‘manifesta19 tion’’ means either the date of the actual diagnosis of

20 the condition claimed, or the date upon which the

21 clinical records and available tests indicate that the

22 condition could reasonably have been diagnosed by a

23 qualified physician.

24 (24) NET LITIGATION RISK.—The term ‘‘net liti25 gation risk’’ means the risk to the Asbestos Compensa-
41

•HR 1283 RH

1 tion Fund that amounts paid out to claimants, plus

2 associated interest and litigation expenses, will exceed

3 amounts recovered from defendants, expressed as a

4 percentage of sums expended, and estimated for a spe5 cific cohort of transactions. Losses on particular

6 claims are netted against excess recoveries on other

7 claims.

8 (25) OAC.—The term ‘‘OAC’’ means the Office of

9 Asbestos Compensation.

10 (25) OCCUPATIONAL HISTORY.—The term ‘‘occu11 pational history’’ means a listing of all employment

12 positions, providing for the dates and location of em13 ployment, the employer, and a description of job re14 sponsibilities and activities.

15 (26) PARTY.—The term ‘‘party’’ does not include

16 the United States Government or a State government.

17 (27) PATHOLOGICAL EVIDENCE OF ASBES18 TOSIS.—The term ‘‘pathological evidence of asbes19 tosis’’ means diagnosis of pulmonary asbestosis by a

20 qualified physician based on a finding that more

21 than one representative section of lung tissue other22 wise uninvolved with any other process (e.g., cancer

23 or emphysema) demonstrates a pattern of

24 peribronchiolar or parenchymal scarring in the pres25 ence of characteristic asbestos bodies, and also that
42

•HR 1283 RH

1 there is no other more likely explanation for the pres2 ence of the fibrosis.

3 (28) PERSON.—The term ‘‘person’’ means an in4 dividual, trust, firm, corporation, association, part5 nership, or joint venture. The term does not include—

6 (A) an asbestos trust in existence as of the

7 date of enactment of this Act unless the trust

8 elects to be covered by this Act under section

9 701(b); or

10 (B) the United States Government or any

11 State government.

12 (29) PHYSICIAN.—The term ‘‘physician’’ means

13 a medical doctor or doctor of osteopathy currently li14 censed to practice medicine in any State who has not,

15 within the 5-year period prior to the date of enact16 ment of this Act, spent more than one half of the doc17 tor’s professional time, or derived more than one-half

18 of the doctor’s professional income, either annually or

19 in total, either reviewing or testifying in any forum

20 on medical-legal issues related to asbestos.

21 (30) PREDICTED VALUE.—The term ‘‘predicted

22 value’’ means a published reference to the normal

23 breathing capacity of healthy populations based on

24 age, height, and gender, as approved by the Medical

25 Director, pursuant to a rule, issued within 120 days
43

•HR 1283 RH

1 of the date of enactment. For the purposes of this Act,

2 the use of any published, predicted values that are

3 generally accepted in the medical community shall be

4 acceptable and such values may not be adjusted for

5 race.

6 (31) PULMONARY FUNCTION TESTING.—The term

7 ‘‘pulmonary function testing’’ means tests for forced

8 vital capacity, lung volume, and diffusing studies

9 using equipment, tests and standards generally ac10 cepted in the medical community, as approved by the

11 Medical Director, pursuant to a rule, issued within

12 120 days of enactment of this Act. Such pulmonary

13 function test shall not be adjusted for race.

14 (32) PUNITIVE DAMAGES.—The term ‘‘punitive

15 damages’’ means damages, in addition to compen16 satory damages, awarded against any person to pun17 ish past conduct or deter that person, or others, from

18 engaging in similar conduct in the future.

19 (33) QUALIFIED PHYSICIAN.—The term ‘‘quali20 fied physician’’ means, with respect to a diagnosis or

21 other medical judgment or procedure under this Act,

22 an internist, pulmonary specialist, pathologist, radi23 ologist, oncologist, or specialist in occupational medi24 cine with an appropriate subspecialty, as appro-
44

•HR 1283 RH

1 priate, who is certified by the relevant medical spe2 cialty board.

3 (34) QUALIFYING NATIONAL SETTLEMENT

4 PLAN.—The term ‘‘Qualifying National Settlement

5 Plan’’ means a written agreement or related series of

6 written agreements with claimants or with attorneys

7 or law firms representing claimants, pursuant to

8 which a person who is or may be responsible for such

9 claims has resolved or agreed to resolve at least 50

10 percent of the asbestos claims that were pending

11 against such person.

12 (35) STATE.—The term ‘‘State’’ means any

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

14 Commonwealth of Puerto Rico, the Northern Mariana

15 Islands, the Virgin Islands, Guam, American Samoa,

16 and any other territory or possession of the United

17 States or any political subdivision of any of the fore18 going.

19 (36) TLC.—The term ‘‘TLC’’ means total lung

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

21 maximal inspiration.

22 (37) TRUSTEE.—The term ‘‘Trustee’’ means the

23 Trustee of the Asbestos Compensation Fund.

24 (38) VETERANS’ BENEFITS PROGRAM.—The term

25 ‘‘veterans’ benefits program’’ means any program for
45

•HR 1283 RH

1 benefits in connection with military service adminis2 tered by the Veterans’ Administration under Title 38,

3 United States Code.

4 (39) WORKERS’ COMPENSATION LAW.—The term

5 ‘‘workers’ compensation law’’ means a law respecting

6 a program administered by a State or the United

7 States to provide benefits, funded by a responsible em8 ployer or its insurance carrier, for occupational dis9 eases or injuries or for disability or death caused by

10 occupational diseases or injuries. The term includes

11 the Longshore and Harbor Workers’ Compensation

12 Act, (33 U.S.C. 901-944, 948-950), but does not in13 clude the Employer’s Liability Act, (45 U.S.C. chap14 ter 2).

15 TITLE VII—MISCELLANEOUS

16 PROVISIONS

17 SEC. 701. RELATIONSHIP TO OTHER LAWS.

18 (a) APPLICABILITY OF OTHER FEDERAL LAWS.—The

19 OAC may, with the approval of the Director of the Office

20 of Management and Budget, waive the applicability in

21 whole or in part of personnel and procurement laws and

22 regulations, provided that any such waiver must be specific,

23 must be subject to periodic review and evaluation, and must

24 be reasonably related to the goals of expeditious, profes-
46

•HR 1283 RH

1 sional, efficient, cost-effective and fair resolution of asbestos

2 claims.

3 (b) APPLICATION TO EXISTING ASBESTOS TRUSTS.—

4 (1) IN GENERAL.—This Act shall not apply to

5 any asbestos trust in existence as of the date of enact6 ment of this Act, except as provided in paragraph (2).

7 (2) ELECTION.—An asbestos trust may elect to

8 be subject to this Act by providing written notice of

9 such election to the OAC, in which case the trust will

10 have the same rights and responsibilities under this

11 Act as any person who is not a trust. A valid election

12 under this paragraph shall be irrevocable.

13 (c) SETTLEMENTS PRESERVED.—Nothing in this

14 Act—

15 (1) invalidates any settlement of asbestos claims

16 entered into prior to the date of enactment of this Act;

17 or

18 (2) revokes or negates any asbestos defendant’s

19 standing offer to settle existing asbestos claims.

20 (d) OTHER COMPENSATION.—This Act shall not be

21 construed to affect the scope or operation of any workers’

22 compensation law or veterans’ disability benefit program,

23 to affect the exclusive remedy provisions of any such law,

24 or to authorize any lawsuit which is barred by any such

25 provision of law.
47

•HR 1283 RH

1 (e) SUCCESSOR LIABILITY.—Nothing in this Act is in2 tended to displace otherwise applicable law governing any

3 liability arising from the defendants’ status as transferee

4 or successor with respect to a change in ownership of cor5 porate assets.

6 SEC. 702. ANNUAL REPORTS.

7 The Administrator shall submit an annual report to

8 the President and Congress.

9 SEC. 703. ENFORCEMENT.

10 The Administrator may enforce any obligation im11 posed on any person by this Act in a district court of the

12 United States, and such courts shall have exclusive jurisdic13 tion over such actions without regard to the amount in con14 troversy or citizenship of the parties. The Administrator,

15 if successful, shall be entitled to costs, including attorney’s

16 fees.

17 SEC. 704. QUALIFYING NATIONAL SETTLEMENT PLAN.

18 Any defendant which is party to a Qualifying Na19 tional Settlement Plan may elect to defer the application

20 of this Act (other than sections 201 through 207 and section

21 501) to asbestos claims against that defendant for a period

22 not exceeding 7 years from a date relative to the commence23 ment of the Qualified National Settlement Plan. The Ad24 ministrator shall, by rule, adopt procedures for processing

25 requests for deferral under this section. If the request for
48

•HR 1283 RH

1 deferral is accepted, the deferred defendant and any asbestos

2 claims or third party asbestos claims against the deferred

3 defendant shall not be subject to the provisions of this Act

4 (other than sections 201 through 207 and section 501).

5 SEC. 705. SEVERABILITY.

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

7 provision to any person or circumstance is held invalid,

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

9 and application of such provision to other persons or cir10 cumstances shall not be affected thereby.

11 SEC. 706. SETTLEMENTS.

12 For a period of 7 years after the date of enactment

13 of this Act, a claimant or a defendant may specifically en14 force, in any applicable Federal or State court where the

15 claimant is alleging that the claimant was exposed to asbes16 tos or where the claimant is currently domiciled, any writ17 ten settlement agreement which was agreed to by the claim18 ant or the claimant’s attorney and the defendant before such

19 date of enactment.

Calendar No. 449

106TH CONGRESS

2D SESSION H. R. 1283

[Report No. 106–782]

A BILL

To establish legal standards and procedures for the

fair, prompt, inexpensive, and efficient resolutionof personal injury claims arising out of asbestosexposure, and for other purposes.

JULY 24, 2000

Reported with an amendment, committed to the Committee of the Whole House on the State of the Union

and ordered to be printed