I

106TH CONGRESS

1ST SESSION H. R. 1283

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

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’’.
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1 (b) TABLE OF CONTENTS.—The table of contents of

2 this Act is as follows:

Sec. 1. Short title; table of contents.

Sec. 2. Findings.

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—non-malignant 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. Grace period.

Sec. 305. Mediation.

Sec. 306. Arbitration.

Sec. 307. 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 ARBITRATION AND CIVIL

ACTIONS

Sec. 501. Elements of proof; relief.

Sec. 502. Timeliness defenses abolished.

Sec. 503. Attorneys’ fees.

Sec. 504. Effect on subsequent actions.

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.
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Sec. 604. Judicial review, enforcement.

Sec. 605. Penalties.

TITLE VII—APPLICABILITY; PENDING CIVIL ACTIONS

Sec. 701. Applicability.

Sec. 702. Pending civil actions.

TITLE VIII—MISCELLANEOUS PROVISIONS

Sec. 801. Definitions.

Sec. 802. Applicability of other federal laws.

Sec. 803. Obligations of the corporation not obligations of the United States.

Sec. 804. Application to existing asbestos trusts.

Sec. 805. Applicability to certain settlements.

Sec. 806. Severability.

1 SEC. 2. FINDINGS.

2 The Congress finds that:

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 state and federal 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.
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1 (5) Asbestos litigation is a mature tort. The

2 legal, medical, and scientific issues have been repeat3 edly tried and retired in the courts for many years.

4 (6) Currently, statutes of limitations can force

5 claimants to bring premature lawsuits in order to

6 avoid losing their claim for compensation. Moreover,

7 in order to obtain compensation for non-malignant

8 disease, claimants often must give up their right to

9 obtain compensation later on, if they develop an as10 bestos-related cancer.

11 (7) Litigation has not been able to provide com12 pensation to claimants swiftly. On the contrary, ac13 cording to the U.S. Judicial Conference’s Ad Hoc

14 Committee on Asbestos Litigation, the volume and

15 complexity of asbestos cases have resulted in the vio16 lation of a basic tenet of American justice: speedy

17 and inexpensive resolution of cases.

18 (8) Litigation has also proved to be an extraor19 dinarily costly means of resolving claims of asbestos20 related disease. Less than 50% of the total cost of

21 asbestos litigation actually goes to compensate

22 claimants, while the reminder is eaten up in attor23 neys’ fees and other litigation costs.

24 (9) In many courts, the vast majority of pend25 ing asbestos claims are filed by individuals who suf-
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1 fer no present asbestos-related impairment. These

2 claims divert the resources of defendant from com3 pensating individuals who are suffering from serious

4 asbestos-related disease.

5 (10) Punitive damages also divert the resources

6 of defendants from compensating impaired claim7 ants. Moreover, punitive damages give a few claim8 ants huge windfalls in addition to compensatory

9 damages.

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

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

12 mass consolidated trials and other aggregative meth13 ods of dealing with asbestos claims. Unfortunately,

14 mass consolidations only serve to magnify the irra15 tionality of a litigation system that awards massive

16 amounts to the unimpaired while threatening the

17 ability of seriously ill people to obtain compensation

18 in the future.

19 TITLE I—ASBESTOS

20 RESOLUTION CORPORATION

21 SEC. 101. ESTABLISHMENT.

22 There is established a non-profit corporation, to be

23 known as the ‘‘Asbestos Resolution Corporation’’.
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1 SEC. 102. POWERS OF THE CORPORATION.

2 (a) The Corporation shall have all of the powers

3 granted to non-profit corporations under the District of

4 Columbia Nonprofit Corporation Act, D.C. Code §§ 29–

5 501 et seq.

6 (b) In addition to the powers granted under sub7 section (a) the Corporation shall have the power to—

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

9 services of other entities to provide such employees;

10 (2) contract for services, including the services

11 of physicians and other medical professionals, hear12 ing examiners, mediators, arbitrators, financial ex13 perts or consultants, accountants, and attorneys;

14 (3) receive voluntary contributions of funds,

15 goods, and services in order to carry out its pur16 poses;

17 (4) appoint one or more exceptional medical

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

19 (5) adopt rules, policies, and procedures gov20 erning recovery of costs from and allocation of costs

21 to defendants and respondents;

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

23 fair and efficient conduct of medical review and al24 ternative dispute resolution;

25 (7) conduct audits of information submitted to

26 it, including inspection of laboratories performing
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1 medical tests and verification of quality assurance

2 and quality control procedures; and

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

4 SEC. 103. BOARD OF DIRECTORS.

5 (a) MEMBERSHIP.—The Corporation shall be man6 aged by a Board of Directors consisting of 7 members ap7 pointed by the President, by and with the advice and con8 sent of the Senate. The President shall designate the

9 chairman of the Board. No more than 4 directors may

10 be members of the same political party. Directors shall

11 be distinguished private citizens of the United States. The

12 President shall submit 7 nominations under this section

13 to the Senate not later than 4 months after the date of

14 the enactment of this Act.

15 (b) TERMS.—Each director shall be appointed for a

16 term of 6 years from the expiration of his predecessor’s

17 term, except that, of the directors first appointed—

18 (1) three shall be appointed for a term of 3

19 years,

20 (2) three shall be appointed for a term of 6

21 years, and

22 (3) the chairman shall be appointed for a term

23 of 6 years.

24 The terms of office of the directors first appointed shall

25 begin on the date of enactment. A director may continue
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1 to serve until his successor has been appointed and con2 firmed.

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

4 in the same manner as the original appointment. A direc5 tor appointed to fill a vacancy occurring before the expira6 tion of the term for which the member’s predecessor was

7 appointed shall be appointed for the remainder of that

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

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

10 by the President.

11 (d) COMPENSATION; EXPENSES.—

12 (1) The compensation of directors other than

13 the chairman shall not exceed $50,000 per year, and

14 the compensation of the chairman shall not exceed

15 $75,000 per year.

16 (2) Directors may be reimbursed for reasonable

17 travel and other expenses incurred in connection

18 with their services to the Corporation pursuant to

19 policies adopted by the Board.

20 (f) PERSONAL LIABILITY OF DIRECTORS.—A direc21 tor shall not be personally liable for any act or omission

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

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

24 as provided in this subsection if the director engaged in
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1 willful misconduct or a knowing violation of the criminal

2 law.

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

4 an Audit Committee which shall conduct an annual audit

5 of the finances of the Corporation and provide an annual

6 report to the Board regarding the financial condition of

7 the Corporation.

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

9 the exclusive authority to—

10 (1) adopt rules, consistent with this Act, re11 garding the assessment and recovery of costs, the

12 qualifications of physicians, the organization and op13 eration of the Medical Advisory Board, and the con14 duct of the alternative dispute resolution process;

15 (2) adopt guidelines, upon the recommendation

16 of the Medical Advisory Board, for implementing the

17 provisions of this Act regarding exceptional medical

18 cases;

19 (3) recommend the inclusion of new diseases in

20 the ‘‘other cancer’’ eligible medical category if it

21 finds, upon the recommendation of the Medical Ad22 visory Board at a meeting expressly called for that

23 purpose, that there is a medical consensus that the

24 disease is caused by exposure to asbestos; and

25 (4) adopt and amend by-laws.
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1 (i) TRANSITION.—The Board may take any action

2 authorized by law as soon as three directors have been

3 confirmed by the Senate. If these initial directors do not

4 include the designated chairman, they shall elect a tem5 porary chairman who shall serve until the designated

6 chairman is confirmed.

7 SEC. 104. OFFICERS.

8 The Corporation shall have a chief executive officer

9 and such other officers as may be named and appointed

10 by the Board at rates of compensation and terms of serv11 ice fixed by the Board. Officers of the Corporation may

12 not simultaneously serve on the Board.

13 SEC. 105. MEDICAL ADVISORY BOARD.

14 (a) The Board shall appoint a Medical Advisory

15 Board to provide advice on medical matters, including re16 tention, supervision, and removal of physicians; establish17 ment of guidelines regarding exceptional medical claims;

18 the appropriateness of adding new diseases to the ‘‘other

19 cancer’’ eligible medical category; and such other medical

20 matters as may be referred to the Medical Advisory Board

21 by the Board.

22 (b) The Medical Advisory Board shall not have fewer

23 than 5 or more than 9 members. Members of the Medical

24 Advisory Board shall be physicians with a demonstrated

25 expertise in asbestos-related conditions. The Medical Advi-
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1 sory Board shall include at least one Board-certified pul2 monary specialist, Board-certified radiologist, Board-cer3 tified oncologist, and Board-certified pathologist. The

4 Board shall adopt such rules and policies regarding the

5 composition and operation of the Medical Advisory Board

6 as may be necessary for its efficient operation, including

7 rules governing appointment and removal of members,

8 terms of office, filling of vacancies, notice and conduct of

9 meetings (including quorum requirements) and compensa10 tion.

11 (c) The Medical Advisory Board shall be subject to

12 the Federal Advisory Committee Act (5 U.S.C. App.).

13 SEC. 106. AVOIDANCE OF CONFLICT OF INTEREST.

14 No director, officer, member of the Medical Advisory

15 Board, employee, contract employee, contractor, or con16 sultant to the Corporation may represent any person in

17 any manner in any proceeding before the Corporation. In

18 addition, the Board shall adopt policies and procedures to

19 guard against both actual and apparent conflicts of inter20 est.

21 SEC. 107. ANNUAL REPORTS.

22 The Corporation shall submit an annual report to the

23 President and Committee on the Judiciary of the House

24 of Representatives and the Committee on the Judiciary
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1 of the Senate with respect to its operations, activities, and

2 financial condition on or before December 31 of each year.

3 TITLE II—MEDICAL ELIGIBILITY

4 DETERMINATIONS

5 SEC. 201. MEDICAL CRITERIA—NON-MALIGNANT CONDI6 TIONS.

7 In order to meet the requirements for the non-malig8 nant conditions eligible medical category, a claimant must

9 submit medical information and/or testimonial informa10 tion sufficient to demonstrate a latency period of at least

11 12 years, and (a) clinical evidence of asbestosis, (b) patho12 logical evidence of asbestosis, or (c) evidence of bilateral

13 pleural thickening with impairment.

14 SEC. 202. MEDICAL CRITERIA—MESOTHELIOMA.

15 In order to meet the requirements for the mesothe16 lioma eligible medical category, a claimant must submit—

17 (1) a diagnosis of malignant mesothelioma with

18 a primary site in the pleura or peritoneum, which is

19 derived from appropriate tissue, and verified using

20 standardized and accepted criteria of microscopic

21 morphology and/or a variety of appropriate staining

22 techniques; and which is made by either (1) two

23 Board-certified pathologists, or (2) one Board-cer24 tified pathologist who is, at the time that the diag-
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1 nosis is verified, a member of the U.S.-Canadian

2 Mesothelioma Reference Panel; and

3 (2) medical information and/or testimonial in4 formation sufficient to demonstrate a latency period

5 of at least ten (10) years.

6 SEC. 203. MEDICAL CRITERIA—LUNG CANCER.

7 In order to meet the requirements for the lung cancer

8 eligible medical category, a claimant must submit (a) a

9 diagnosis by a Board-certified pathologist, Board-certified

10 pulmonary specialist, or Board-certified oncologist of pri11 mary lung carcinoma; (b) medical information and/or tes12 timonial information sufficient to demonstrate a latency

13 period of at least twelve (12) years; and (c) either—

14 (1) evidence of non-malignant condition suffi15 cient to meet the requirements of section 201; or

16 (2) chest x-rays which, in the opinion of a cer17 tified B-reader, demonstrate both asbestos-related

18 bilateral pleural plaques or asbestos-related bilateral

19 pleural thickening and evidence of 15 years of expo20 sure to asbestos, to be calculated as specified in sub21 paragraphs (A)–(D)—

22 (A) Each year that an exposed person’s

23 primary occupation, during a substantial por24 tion of a normal work year for that occupation,

25 involved working in areas immediate to where
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1 asbestos-containing products were being in2 stalled, repaired, or removed under cir3 cumstances that involved regular airborne emis4 sions of visible asbestos dust, shall count as one

5 year;

6 (B) Each year that an exposed persons’

7 primary occupation, during a substantial por8 tion of a normal work year for that occupation,

9 involved the direct installation, repair, or re10 moval of asbestos-containing products, shall

11 count as 2 years;

12 (C) Each year that an exposed person’s

13 primary occupation, during a substantial por14 tion of a normal work year for that occupation,

15 involved the direct manufacture of asbestos-con16 taining products using raw asbestos fiber, or

17 the direct installation, repair, or removal of as18 bestos-containing products in a shipyard during

19 World War II, shall count as 4 years.

20 (D) For purposes of calculating years of

21 exposure under this paragraph, each year of ex22 posure prior to 1976 shall be counted fully;

23 each year of exposure from 1976 through 1979

24 shall be counted one-half; and exposures after

25 1979 shall not be counted, except that—
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1 (i) For each year from 1972 through

2 1975, for which it is demonstrated by a

3 preponderance of the evidence that the ex4 posed person’s exposure to asbestos in his

5 or her occupation was, during a substantial

6 portion of that work year, in compliance

7 with the OSHA 8-hour time-weighted aver8 age airborne concentration for asbestos ex9 posure at that time, then that year shall

10 count one-half for purposes of calculating

11 the years of exposure for purposes of this

12 paragraph:

13 (ii) For each year from 1976 through

14 1979 for which a claimant demonstrates,

15 by a preponderance of the evidence, that

16 the exposed persons’ exposure to asbestos

17 in his or her occupation was, during a sub18 stantial portion of that work year, in ex19 cess of the OSHA 8-hour time-weighted

20 average airborne concentration for asbestos

21 exposure at that time, then that year shall

22 count fully for purposes of calculating the

23 years of exposure for purpose of this para24 graph; and
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1 (iii) For every year after 1979 for

2 which a claimant demonstrates, by a pre3 ponderance of the evidence, that the ex4 posed person’s exposure to asbestos in his

5 or her occupation was, during a substantial

6 portion of that work year, in excess of the

7 OSHA 8-hour time-weighted average air8 borne concentration for asbestos exposure

9 at that time, then that year shall count

10 one-half for purposes of calculating years

11 of exposure for purposes of this paragraph.

12 SEC. 204. MEDICAL CRITERIA—OTHER CANCER.

13 In order to meet the requirements in the other cancer

14 medical eligible category, a claimant must submit (a) a

15 diagnosis by a Board-certified pathologist, Board-certified

16 pulmonary specialist, or Board-certified oncologist (as ap17 propriate for the type of cancer claimed) of primary cancer

18 of the colon or rectum, larynx, esophagus, or stomach; (b)

19 medical and/or testimonial information sufficient to dem20 onstrate a latency period of at least 12 months; and (c)

21 evidence of a non-malignant condition sufficient to meet

22 the requirements of section 201.

23 SEC. 205. PROCEDURE FOR CERTIFICATE OF ELIGIBILITY.

24 (a) APPLICATION.—This claimant may apply for a

25 certificate of medical eligibility by submitting to the Cor-
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1 poration such information as the Corporation may require

2 in a form designated by the Corporation, including:

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 work sites or other

16 such locations where such exposures occurred.

17 (3) MEDICAL INFORMATION.—The eligible med18 ical category or categories for which the claimant is

19 applying; all medical diagnoses, reports and records

20 that relate to any claimed asbestos-related condition;

21 materials supporting those diagnoses, reports and

22 records that may be required by the Corporation,

23 but in any event including all the back-up data for

24 any pulmonary function tests on which the claimant

25 relies (including all flow volume loops, spirographs,
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1 and any other tracings for any test that is per2 formed); identification of all medical professionals

3 and medical care facilities involved in diagnosing,

4 treating, testing, counseling, or consulting with the

5 exposed person concerning any medical condition

6 within the last five years. The claimant shall also

7 provide such medical releases as the Corporation

8 may require allowing the Corporation to obtain any

9 and all medical information relevant to the deter10 mination of medical eligibility.

11 (4) EXCEPTIONAL MEDICAL CLAIMS.—The

12 claimant may concede that the claim cannot meet

13 the requirements of any eligible medical category

14 and state that the claimant intends to apply to an

15 exceptional medical claims panel for designation as

16 an exceptional medical claim. In that event, the Cor17 poration shall refer the claim to an exceptional med18 ical claim panel and the application will be governed

19 by the provisions of section 206.

20 (b) NOTIFICATION OF ACCEPTANCE.—The Corpora21 tion shall notify the claimant within 30 days following re22 ceipt of the application either that the application is ac23 cepted for processing or that the application is materially

24 incomplete and cannot be processed until additional infor25 mation is provided. Any notice that an application is mate-
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1 rially incomplete shall describe the missing information.

2 Issuance of a notice of acceptance shall not preclude the

3 Corporation from requesting additional information re4 garding a claim if the Corporation subsequently concludes

5 that such information is necessary to make a decision on

6 medical eligibility.

7 (c) RECORDS FROM THIRD PERSONS.—The Corpora8 tion may at any time obtain medical, employment, or other

9 relevant records concerning an exposed person from per10 sons other than the claimant. If it seeks such additional

11 records, it shall give notice to the claimant, and shall upon

12 request and at the claimant’s expense, furnish copies of

13 all records obtained to the claimant.

14 (d) ADDITIONAL MEDICAL TESTING.—If the Cor15 poration reasonably believes that it cannot determine, on

16 the basis of the available medical information, whether an

17 exposed person meets the medical criteria for one of the

18 eligible medical categories, the Corporation may at any

19 time, at its option and expense, require the exposed person

20 to undergo appropriate, reasonable, and non-invasive med21 ical examination or testing (excluding any sort of com22 puted tomography (CT) scan).

23 (e) TESTIMONIAL INFORMATION UNDER OATH.—All

24 testimonial information provided to the Corporation in

25 connection with a claim, other than information in any
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1 medical report or records, shall be made under oath, or

2 by sworn affidavit, or by written declaration subscribed

3 to as true under penalty of perjury.

4 (f) DETERMINATION OF MEDICAL ELIGIBILITY.—As

5 soon as practicable and, in any event, no later than 60

6 days after issuance of a notice of acceptance, the Corpora7 tion shall issue either a certificate of medical eligibility

8 stating each eligible medical category for which the claim9 ant qualifies or a finding of noneligibility. The Corporation

10 may extend the time if necessary to secure additional in11 formation that is essential to the determination of medical

12 eligibility. If the claim is rejected wholly or in part, the

13 certificate of eligibility or finding of noneligibility shall be

14 accompanied by a brief written statement of reasons.

15 (g) RECONSIDERATION.—

16 (1) The claimant may seek reconsideration of

17 the Corporation’s determination under subsection (f)

18 by submitting to the Corporation a written request

19 for reconsideration within 60 days from the date of

20 the Corporation’s determination under subsection

21 (f). The Corporation may extend the time for sub22 mitting a request for reconsideration upon the claim23 ant’s request. The request for reconsideration shall

24 include a statement of the grounds for reconsider-
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1 ation and shall be accompanied by any additional

2 evidence on which the claimant relies.

3 (2) The Corporation shall refer a request for re4 consideration to a panel of two physicians with ex5 pertise in the medical issue or issues raised by the

6 claimant. The panel of physicians may request fur7 ther information from the applicant or from third

8 parties, or may require additional medical examina9 tion or testing, in accordance with the provisions of

10 subsections (c) and (d).

11 (3) The panel of physicians shall consider the

12 issues raised by the request for reconsideration de

13 novo on the basis of all of the evidence before the

14 Corporation. If the panel of physicians agrees on the

15 disposition of the request for reconsideration, it will

16 render a decision. If the panel is not in agreement,

17 the Corporation will appoint to the panel a third

18 physician with expertise in the issues raised by the

19 claimant, and the panel thus augmented will render

20 a decision.

21 (4) If the panel approves the request for recon22 sideration, wholly or in part, the Corporation shall

23 issue a certificate of medical eligibility for the eligi24 ble medical categories for which the panel finds that

25 the claimant qualifies. If the panel denies the re-
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1 quest for reconsideration, or if the certificate of eli2 gibility on reconsideration rejects any claim made by

3 the claimant, wholly or in part, the panel shall pro4 vide a brief written statement of reasons.

5 (5) The Corporation shall act upon a request

6 for reconsideration as soon as practicable but in any

7 event within 30 days: Provided, That the Corpora8 tion may extend the time if necessary to secure addi9 tional information that is essential to the disposition

10 of the request for reconsideration.

11 (h) REAPPLICATION.—A claimant may file a new ap12 plication under this title at any time. Any such new appli13 cation filed within one year following the date on which

14 the Corporation issued a final finding of noneligibility

15 shall identify the previous application and any relevant

16 changes in circumstances.

17 SEC. 206. EXCEPTIONAL MEDICAL CLAIMS.

18 (a) EXCEPTIONAL MEDICAL CLAIMS PANEL.—The

19 Corporation shall establish one or more exceptional med20 ical claims panels. Each exceptional medical claims panel

21 shall be comprised of five physicians, including two Board22 certified pulmonary specialists, a Board-certified radiolo23 gist (who is either a certified B-reader or a specialist in

24 computed tomography), and two Board-certified patholo25 gists. Each exceptional medical claims panel shall deter-
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1 mine whether claims referred to it meet the requirements

2 of this section for designation as exceptional medical

3 claims.

4 (b) TIME TO APPLY.—A claimant may apply to the

5 Corporation for designation of his claim as an exceptional

6 medical claim if the claimant—

7 (1) concedes (either before or after a deter8 mination is made under section 205(f)) that the

9 claim does not meet the medical criteria in sections

10 201–204; or

11 (2) seeks designation of the claim as an excep12 tional medical claim within 60 days after a deter13 mination on reconsideration under section 205(g)

14 that the claim does not meet the medical criteria in

15 sections 201–204, wholly or in part.

16 However, the Corporation shall not accept any application

17 for designation as an exceptional medical claim if a claim18 ant has filed an action under section 208 for review of

19 the Corporation’s determination on reconsideration or has

20 commenced alternative dispute resolution procedures

21 under title III.

22 (c) CONTENTS OF APPLICATION.—The application

23 for designation as an exceptional medical claim shall in24 clude the information required by the Corporation under

25 section 205(a) and shall, in addition, be supported by the
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1 report of a Board-certified internist, Board-certified pul2 monary specialist, Board-certified pathologist, or Board3 certified oncologist, as appropriate for the eligible medical

4 category claimed. The physician’s report shall contain a

5 complete review of the exposed person’s medical history

6 and current condition, such additional material by way of

7 analysis and documentation as shall be prescribed by the

8 Corporation, and a detailed explanation why the claim

9 meets the standard for acceptance as an exceptional med10 ical claim set forth in subsection (d).

11 (d) STANDARD FOR ACCEPTANCE.—The exceptional

12 medical claims panel shall designate a claim as an excep13 tional medical claim only if the claimant cannot satisfy

14 the requirements for a given eligible medical category for

15 reasons beyond his or her control but demonstrates,

16 through clear and convincing evidence, that the exposed

17 person has an asbestos-related condition that is substan18 tially comparable to the condition of an exposed person

19 who would satisfy the requirements of a given eligible

20 medical category.

21 (e) FURTHER TESTING.—The exceptional medical

22 claims panel may order additional appropriate, reasonable,

23 and non-invasive testing or examination of the exposed

24 person (including computed tomography (CT) scanning).
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1 Tests ordered by an exceptional medical claims panel shall

2 be at the expense of the Corporation.

3 (f) DECISION.—The decision of the exceptional med4 ical claims panel shall not be subject to further review

5 within the Corporation. If the exceptional medical claims

6 panel decides that a claim should be designated, wholly

7 or in part, as an exceptional medical claim, the Corpora8 tion shall issue a certificate of medical eligibility which

9 shall designate the claim as an exceptional medical claim

10 and state the eligible medical category or categories for

11 which the claim qualifies by virtue of that designation.

12 SEC. 207. CONFIDENTIALITY.

13 The Corporation shall observe the requirements of 5

14 U.S.C. § 552a with respect to information that it receives

15 regarding a claimant or exposed person. The production

16 of this information to respondents in accordance with sec17 tion 303(c) shall be deemed a routine use of the informa18 tion within the meaning of 5 U.S.C. § 552a(a)(7).

19 SEC. 208. JUDICIAL REVIEW.

20 (a) The district courts of the United States shall have

21 exclusive jurisdiction, without regard to the amount in

22 controversy or the citizenship of the parties, of any action

23 to review a determination by the Corporation that a claim24 ant fails to meet the medical criteria, wholly or in part,

25 or that his claim does not qualify as an exceptional med-
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1 ical claim. An adverse determination regarding medical eli2 gibility shall not be subject to review until the claimant

3 has exhausted administrative remedies before the Corpora4 tion by obtaining a final determination under section

5 205(g) or section 206(f).

6 (b) An action for review under this section shall be

7 commenced within 60 days after the determination on re8 consideration as to which review is sought or the decision

9 that the claimant does not qualify as an exceptional med10 ical claim, whichever is later. However, no action for re11 view under this section may be commenced while an appli12 cation for designation as an exceptional medical claim is

13 pending.

14 (c) The court shall uphold the determination of the

15 Corporation if it is supported by substantial evidence on

16 the record as a whole and is not contrary to law. Due

17 account shall be taken of the rule of prejudicial error.

18 (d) In applying the standard set forth in subsection

19 (c), the record shall consist of the information submitted

20 to the Corporation or the exceptional medical claims panel

21 by the claimant, records and other information obtained

22 by the Corporation or exceptional medical claims panel re23 lating to the claim, and the results of any medical tests

24 administered at the direction of the Corporation or excep25 tional medical claims panel.
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1 TITLE III—ALTERNATIVE

2 DISPUTE RESOLUTION

3 SEC. 301. RULES OF PROCEDURE.

4 (a) The Board shall establish rules of procedure for

5 the alternative dispute resolution process. Such rules of

6 procedure shall be designed to ensure that claims will be

7 resolved in a prompt, efficient, fair, and inexpensive way

8 and shall include—

9 (1) reasonable time limits and rules regarding

10 the time at which actions of the Corporation become

11 final;

12 (2) procedures relating to the notification of re13 spondents, including reasonable and limited dis14 covery;

15 (3) procedures for the disclosure of information

16 necessary for settlement, including the timing of dis17 closure and determination of the information that

18 must be disclosed;

19 (4) rules regarding protection of confidential in20 formation;

21 (5) procedures for the selection of arbitrators;

22 (6) arbitration procedures designed to further

23 the objective of prompt, efficient, fair and inexpen24 sive dispute resolution including simplified pleadings,

25 reasonable limitations on discovery, resolution of
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1 pre-hearing motions including motions for summary

2 disposition, appropriate, evidentiary rules, and effi3 cient conduct of hearings; and

4 (7) procedures for just and reasonable sanctions

5 to ensure compliance with the Corporation’s rules

6 and orders.

7 (b) Parties shall have the right to be represented by

8 counsel at all phases of the alternative dispute resolution

9 process.

10 (c) By presenting to the Corporation any statement,

11 motion, or other paper, counsel and the party represented

12 by that counsel warrant that to the best of their knowl13 edge, information, and belief, formed after reasonable

14 inquiry—

15 (1) it is not being presented for any improper

16 purpose;

17 (2) the claims, defenses, or other legal conten18 tions therein are warranted by existing law or by a

19 nonfrivolous argument for the extension, modifica20 tion, or reversal of existing law or the establishment

21 of new law;

22 (3) the allegations and other factual contentions

23 have evidentiary support; and

24 (4) the denials of factual contentions are war25 ranted on the evidence.
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1 (d) The Corporation may contract with providers of

2 alternative dispute resolution services to provide mediation

3 or arbitration under this part. To the extent appropriate

4 and consistent with this Act, the Board may adopt the

5 rules of procedure of such contract service providers.

6 SEC. 302. MOTIONS OFFICERS.

7 Upon issuance of a certificate of eligibility, the Cor8 poration shall assign a motions officer to the claim. The

9 motions officer shall have the authority to determine all

10 procedural issues in the alternative dispute resolution

11 process except such matters as may be within the author12 ity of a mediator or arbitrator assigned to the claim. With13 out limitation, the motions officer may—

14 (1) determine whether notice shall be provided

15 to any respondent under section 303,

16 (2) issue subpoenas to parties and non-parties

17 for testimony and documents, in accordance with the

18 terms of section 307,

19 (3) enter scheduling orders and other orders to

20 control the progress of the proceedings,

21 (4) resolve discovery disputes, and

22 (5) exercise any other authority conferred by

23 procedural rules, policies, or procedures established

24 by the Corporation.
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1 SEC. 303. NOTICE TO RESPONDENTS.

2 (a) Within such time after receiving a final certificate

3 of eligibility as the Corporation may provide, a claimant

4 shall provide to the Corporation the name and address of

5 each person that claimant alleges is responsible for his as6 bestos-related injury and for each such person a verified

7 particularized statement in a form prescribed by the Cor8 poration of the basis for the allegation that that person

9 is or may be responsible for his injury. This particularized

10 statement shall include as applicable the dates of exposure

11 for each relevant time period; the worksite or other place

12 of exposure; the nature and frequency of the exposure; if

13 the exposure was occupational, the name of the exposed

14 person’s employer and a description of the exposed per15 son’s job and working conditions; the asbestos-containing

16 product(s) or material(s) to which the claimant was ex17 posed at each place of exposure; and any other information

18 that the Corporation may require by rule or otherwise in

19 all or in particular classes of cases.

20 (b) The Corporation will promptly notify each person

21 identified by the claimant pursuant to subsection (a) of

22 this section, and for whom a complete and adequate par23 ticularized statement has been submitted, that it has been

24 named as a respondent. The Corporation will at the same

25 time provide to each respondent a copy of all particular-
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1 ized statements submitted to the Corporation under sub2 section (a).

3 (c) The Corporation shall provide to each respondent,

4 on request and at the respondent’s expense, a copy of all

5 information submitted to the Corporation by the claimant,

6 records and other information obtained by Corporation re7 lating to the claim and the results of any medical tests

8 administered at the Corporation’s direction. However, the

9 Corporation shall not provide the information described in

10 this subsection to the respondent until it has received a

11 protective order, signed by or on behalf of the respondent,

12 in a form prescribed by the Corporation, that will preserve

13 the confidentiality of medical, employment, and other in14 formation that the Corporation reasonably designates as

15 confidential.

16 (d) For good cause shown and subject to reasonable

17 limitations, a motions officer may allow discovery for the

18 purpose of obtaining information necessary to allow the

19 claimant to provide a particularized statement under sub20 section (a). The motions officer may grant reasonable ex21 tensions of time for naming respondents in order to allow

22 for the completion of discovery under this subsection.

23 (e) New respondents may be added in mediation after

24 the time prescribed by the Corporation for adding re25 spondents (including any extensions) only upon motion by
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1 a claimant for good cause. Among the factors that the

2 Corporation may consider in determining whether good

3 cause exists are the following: (1) the prejudice to the

4 claimant if the new respondent is not added, (2) the rea5 son why the new respondent was not named in a timely

6 way, (3) whether the claimant sought to name the new

7 respondent as soon as he was aware of the omission, (4)

8 the extent to which late addition of a new respondent

9 would be disruptive, and (5) other relevant factors.

10 SEC. 304. GRACE PERIOD.

11 The Corporation shall establish a grace period not to

12 exceed 60 days after expiration of the time for naming

13 respondents, during which the parties will be encouraged

14 to reach voluntary settlements without the need for medi15 ation.

16 SEC. 305. MEDIATION.

17 (a) APPOINTMENT OF MEDIATOR.—Upon expiration

18 of the grace period, the Corporation shall appoint a medi19 ator to assist the parties who have not settled in the grace

20 period in settling the claim.

21 (b) DISCLOSURE OF INFORMATION NECESSARY FOR

22 SETTLEMENT.—Within such time after appointment of a

23 mediator as the Corporation shall prescribe, each party

24 shall serve upon all other non-settling parties a statement

25 of information required for settlement. The information
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1 to be included in such statements shall be determined by

2 the Corporation to be reasonably necessary for the parties

3 to evaluate the claim. Information previously provided by

4 any party may be incorporated by reference and need not

5 be resubmitted. Nothing in this subsection shall be con6 strued to require the disclosure of any information privi7 leged under applicable law.

8 (c) TIME LIMITS.—Mediation shall be completed

9 within 60 days following the appointment of the mediator.

10 The time period may be extended by the mediator if the

11 claimant has failed to provide the information required

12 under subsection (b), if such extension is necessary to

13 allow for simultaneous mediation of a group of claims, or

14 for other good cause. The time period may also be ex15 tended for a period not to exceed 60 days if in the judg16 ment of the mediator, the claimant’s final demand under

17 subsection (e) is not made in good faith, given the legal

18 and factual basis of the claim.

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

20 party in mediation shall be confidential and shall not be

21 admissible in any trial or arbitration except as allowed

22 under Rule 408 of the Federal Rules of Evidence.

23 (e) GOOD FAITH OFFERS AND DEMANDS.—Fifteen

24 days prior to the close of the mediation period, claimant

25 shall provide to each non-settling respondent or jointly-
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1 represented group of respondents a final good faith de2 mand of settlement. Five days later each respondent or

3 jointly-represented group of respondents shall make a final

4 good faith offer in reply. If a respondent or jointly-rep5 resented group of respondents fails to make a settlement

6 offer under this section, it shall be deemed to have made

7 a settlement offer of zero dollars. During the remaining

8 10-day period, or any extension thereof, the mediator shall

9 work with the parties in a further effort to settle the claim.

10 (f) RELEASE FROM MEDIATION.—At the close of the

11 mediation period, the mediator shall issue to the claimant

12 a release from mediation with respect to all respondents

13 that participated in mediation. After the issuance of a re14 lease from mediation, the claimant may elect arbitration

15 under section 306 or commence a civil action against those

16 respondents.

17 SEC. 306. ARBITRATION.

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

19 elect arbitration under this section by serving notice of

20 such election within 30 days following release from medi21 ation on all respondents that have not previously settled.

22 All such respondents will be parties to the arbitration. The

23 Corporation shall adopt rules of procedure under section

24 301 governing the assertion of third-party claims against

25 any person, whether or not that person has previously
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1 been named as a respondent. Except as otherwise provided

2 in this section, parties in arbitration against which third3 party claims have been asserted shall be deemed respond4 ents.

5 (b) FEDERAL ARBITRATION ACT.—All arbitrations

6 hereunder shall be subject to the Federal Arbitration Act,

7 9 U.S.C. §§ 1–6, 8–16, except that, the provisions of this

8 Act and rules adopted by the Corporation under this Act

9 shall be effective notwithstanding any inconsistent provi10 sion of the Federal Arbitration Act.

11 (c) ARBITRATION BY SPECIAL AGREEMENT.—Noth12 ing in this section shall be construed as prohibiting con13 sensual arbitration pursuant to a special agreement en14 tered into by the claimant and one or more of the respond15 ents. The terms of such a special agreement will prevail,

16 as to the parties thereto, over the provisions of this section

17 (other than subsection (h)) and any rules adopted pursu18 ant to section 301.

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

20 special agreement to arbitrate, arbitrations shall be con21 ducted under rules adopted by the Corporation pursuant

22 to section 301. Those rules shall establish a procedure for

23 early dismissal of, or summary judgment in favor of, any

24 party named as a third-party respondent, and no party
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1 that obtains such early dismissal summary judgment shall

2 be considered a respondent for purposes of section 601.

3 (e) SUBPOENA POWERS OF ARBITRATORS.—Arbitra4 tors may issue subpoenas to parties and non-parties for

5 testimony and documents in accordance with the terms of

6 section 307.

7 (f) LAW TO BE APPLIED.—Unless otherwise pro8 vided in this Act, the arbitrator shall, with respect to each

9 respondent, apply the law, including the law relating to

10 choice of law, that would be applied by a court designated

11 by the claimant which would have jurisdiction over that

12 respondent. However, if a respondent demonstrates to the

13 satisfaction of the arbitrator that the court designated by

14 the claimant would dismiss or transfer under forum non

15 conveniens or a similar doctrine, then the arbitrator shall

16 apply the law of the state which has the most significant

17 relationship to the occurrence and the parties.

18 (g) PRESUMPTION APPLICABLE TO MEDICAL DETER19 MINATION.—A finding of medical eligibility by the Cor20 poration shall be presumed correct and shall be conclusive

21 unless rebutted by clear and convincing evidence, except

22 that, to the extent that the finding of medical eligibility

23 is abased upon evidence of exposure to asbestos, proof

24 with respect to such exposure shall be determined in ac25 cordance with applicable state law.
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1 (h) AWARDS.—The arbitrator shall issue awards with

2 respect to each respondent within time periods set by the

3 Corporation. The awards shall be accompanied by findings

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

5 jointly and severally liable to the claimant to the extend

6 provided by applicable state law:

7 (1) Where joint and several liability exists

8 under applicable state law, the arbitrator shall deter9 mine the total joint and several liability of all re10 spondents that have not been released by the claim11 ant or dismissed from the proceeding. The arbitrator

12 shall, in addition, determine the amount allocable to

13 each such respondent based on principles of com14 parative fault or responsibility. Any respondent who

15 has obtained a release from the claimant prior to the

16 issuance of the arbitrator’s award shall be fully pro17 tected from claims for contribution or indemnity; but

18 the award against the remaining respondents shall

19 be reduced by the consideration paid or the amount

20 stated in the release, whichever is greater. The total

21 award, reduced by the aggregate of such reductions

22 for all respondents receiving a release, shall then be

23 allocated among the remaining respondents accord24 ing to the arbitrator’s allocation of comparative

25 shares of fault or responsibility.
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1 (2) Where joint and several liability has been

2 abolished under applicable stat law, the arbitrator

3 shall determine in accordance with that law the sev4 eral share of liability of each respondent that has

5 not been released or dismissed from the proceeding.

6 (3) Where joint and several liability has been

7 abolished under applicable state law with respect to

8 only a portion of damages, the arbitrator shall deter9 mine in accordance with state law the several share

10 of liability of each respondent that has not been re11 leased or dismissed from the proceeding, and shall

12 in addition determine in accordance with state law

13 the total joint and several liability of all such re14 spondents. Allocation of the joint and several portion

15 of the ward among the respondents, and reduction

16 of the total award on account of settlements, shall

17 be as set forth in paragraph (h)(1), except that only

18 the joint and several portion of an award may be

19 reduced by amounts paid in settlement by released

20 persons and only the portion of the amount paid by

21 any released person in settlement with respect to the

22 joint and several portion of damages shall be so ap23 plied to reduce the award.

24 (i) CONTRIBUTION RIGHTS RETAINED BY RESPOND25 ENTS IN ADR.—The entry of an arbitration award
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1 against any respondent shall give rise to a right of con2 tribution on the part of that respondent against any joint

3 tortfeasor whose liability is extinguished by the award

4 without the necessity that the award be enforced as a

5 court judgment. A settlement between a respondent and

6 the claimant that extinguishes in whole or in part the li7 ability of a joint tortfeasor shall not extinguish the settling

8 respondent’s right of contribution against that joint

9 tortfeasor.

10 (j) PENALTY FOR INADEQUATE OFFER IN MEDI11 ATION.—If the final offer made by any respondent or

12 jointly-represented group of respondents under section

13 305(e) is more than 25 percent less than the share of the

14 total liability (exclusive of prejudgment interest, if any)

15 awarded in arbitration against that respondent or against

16 all the members of a jointly-represented group of respond17 ents, the arbitrator shall add a 10% penalty to the award

18 against such respondent or each member of such group

19 of respondents. This penalty shall not be taken into con20 sideration in determining the maximum allowable attor21 neys’ fees under section 503.

22 (k) CONSOLIDATIONS.—Claims with respect to mul23 tiple exposed persons shall not be joined or consolidated

24 for hearing on the merits without the consent of all par25 ties.
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1 SEC. 307. SUBPOENA POWERS OF MOTIONS OFFICERS AND

2 ARBITRATORS.

3 A motions officer or an arbitrator may summon in

4 writing any person to attend before him as a witness, or

5 to appear for a deposition, and in a proper case to bring

6 with him any book, record, document, or paper which may

7 be deemed material as evidence in the case. The fees for

8 such attendance shall be the same as the fees of witnesses

9 before masters of the United States courts. A summons

10 under this section shall issue in the name of the motions

11 officer or arbitrator, shall be signed by the motions officer

12 or arbitrator, shall be directed to the person summoned,

13 and shall be served in accordance with Rule 45(b)(1) of

14 the Federal Rules of Civil Procedure. If any person so

15 summoned to testify or produce documents shall refuse or

16 neglect to obey said summons, upon petition the United

17 States District Court for the District of Columbia or for

18 the district in which the testimony is to be taken or the

19 document production is to take place may compel the at20 tendance of such person before the motions officer or arbi21 trator, or his appearance for a deposition, or the produc22 tion of documents, or may punish said person for con23 tempt in the same manner provided by law for securing

24 the attendance of witnesses or their punishment for ne25 glect or refusal to attend in the courts of the United

26 States.
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1 TITLE IV—CIVIL ACTIONS

2 SEC. 401. PREREQUISITES FOR CIVIL ACTION.

3 Subject to section 702, no civil action asserting any

4 asbestos claim may be filed or maintained unless the plain5 tiff has obtained a certificate of medical eligibility and re6 lease from mediation.

7 SEC. 402. INDIVIDUAL TRIALS.

8 No class action suit, joinder of parties, aggregation

9 of claims, consolidation of actions, extrapolation, or other

10 device to determine multiple asbestos claims on a collective

11 basis shall be permitted without the consent of each de12 fendant. Any defendant in a civil action that involves a

13 violation of this subsection may remove such action to an

14 appropriate Federal district court. The district courts of

15 the United States shall have jurisdiction of all civil actions

16 removed pursuant to this section without regard to diver17 sity of citizenship or amount in controversy.

18 SEC. 403. CERTIFICATE OF MEDICAL ELIGIBILITY PRE19 SUMED CORRECT.

20 A finding of medical eligibility by the Corporation

21 shall be presumed correct and shall be conclusive unless

22 rebutted by clear and convincing evidence, except that, to

23 the extent that a finding of medical eligibility is based on

24 evidence of exposure to asbestos, the burden of proof with
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1 respect to such exposure shall be determined in accordance

2 with applicable state law.

3 SEC. 404. PENALTY FOR INADEQUATE OFFER IN MEDI4 ATION.

5 If the final offer made by any respondent or jointly6 represented group of respondents under section 305(e) is

7 more than 25 percent less than the several share of liabil8 ity (exclusive of prejudgment interest, if any) assigned by

9 the jury or other fact-finder to that respondent or to all

10 the members of a jointly represented group of respond11 ents, the court shall award a 10% penalty as to each such

12 respondent or member of a jointly-represented group of

13 respondents. This penalty shall not be taken into consider14 ation in determining the maximum allowable attorneys’

15 fees under section 503.

16 TITLE V—RULES APPLICABLE

17 TO ARBITRATIONS AND CIVIL

18 ACTIONS

19 SEC. 501. ELEMENTS OF PROOF; RELIEF.

20 Subject to section 702 and notwithstanding any other

21 provision of law, the following shall apply in all civil ac22 tions and arbitrations involving an asbestos claim:

23 (1) BASIC REQUIREMENT OF ELIGIBLE MED24 ICAL CONDITION.—No person shall recover in any

25 civil action or arbitration damages or other relief
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1 with respect to an asbestos claim unless such person

2 establishes, by evidence meeting the requirements of

3 sections 201, 202, 203, 204, or 206, as appropriate,

4 the existence of an eligible medical condition.

5 (2) EMOTIONAL DISTRESS; MEDICAL MONI6 TORING.—No damages or other relief shall be

7 awarded in any civil action or arbitration involving

8 an asbestos claim for emotional distress or any other

9 form of mental or emotional harm, or for medical

10 monitoring or surveillance, based wholly or in part

11 on exposure to asbestos unless the requirements of

12 paragraph (1) are met in addition to any other re13 quirement under applicable law for recovery of dam14 ages or other relief for emotional distress or medical

15 monitoring or surveillance.

16 (3) ENHANCED RISK.—No damages or other re17 lief shall be awarded in any civil action or arbitra18 tion involving an asbestos claim solely for increased

19 risk of cancer or other disease.

20 (4) PUNITIVE DAMAGES.—No punitive damages

21 shall be awarded in any civil action or arbitration in22 volving an asbestos claim.

23 SEC. 502. TIMELINESS DEFENSES ABOLISHED.

24 No defense to an asbestos claim based on a statute

25 of limitations or statute of repose, laches, or any other
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1 defense based on the timeliness of the claim shall be recog2 nized or allowed in any civil action or arbitration unless

3 such claim was untimely as of the date of enactment of

4 this Act.

5 SEC. 503. ATTORNEYS’ FEES.

6 Notwithstanding any provision of other law or con7 tract, the aggregate fee, including all expenses and other

8 charges of a claimant’s attorneys in any civil action or pro9 ceeding before the Corporation involving an asbestos claim

10 (whether or not such attorney formally appears in such

11 civil action or proceeding) shall not exceed twenty-five per12 cent of the damages or other payments received by that

13 claimant, in settlement or pursuant to a judgment or

14 award, from or on behalf of all respondents before the Cor15 poration and all defendants in the civil action. This limita16 tion does not apply to any settlement between a claimant

17 and any other person regarding an asbestos claim reached

18 prior to the mediation period and where no civil action

19 has been commenced in any court.

20 SEC. 504. EFFECTIVE ON SUBSEQUENT ACTIONS.

21 (a) Notwithstanding any other provision of law, a

22 judgment or settlement of an asbestos claim for a non23 malignant condition satisfying the requirements of section

24 201 shall not preclude a subsequent claim with respect

25 to the same exposed person for a malignant condition sat-
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1 isfying the requirements of sections 202, 203, 204, or 206,

2 as applicable.

3 (b) Subsection (a) shall not be construed to invalidate

4 any provision of a settlement agreement entered into prior

5 to the date of enactment.

6 TITLE VI—FUNDING

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

8 ADMINISTRATION.

9 (a) PROVISIONAL ALLOCATION.—

10 (1) ESTIMATE OF COSTS.—On or before August

11 1 of each year, the Corporation shall estimate its

12 costs (exclusive of the cost of mediation and arbitra13 tion that may be recovered under section 602) for

14 the following fiscal year beginning October 1. In es15 timating its costs under this section, the Corporation

16 shall make reasonable allowances for contingencies

17 and shall state separately those costs directly related

18 to medical review and those costs directly related to

19 general overhead and overhead and administration

20 of the Corporation.

21 (2) ALLOCATION TO RESPONDENTS.—The Cor22 poration shall proportionally allocate the costs esti23 mated pursuant to paragraph (1) among all persons

24 named as a respondent during the 12-month period

25 ending the preceding June 30 and shall notify each
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1 such person of the amount due pursuant to such al2 location. In this section, a person shall be considered

3 named as a respondent if notice was provided to

4 such person under section 303. In making this allo5 cation, the Corporation shall calculate the following:

6 (i) for each individual respondent, the total number

7 of proceedings in which the respondent has been

8 named, and (ii) the total combined number of pro9 ceedings for all respondents. For purposes of this

10 calculation, all claims, including derivative claims,

11 relating to one exposed person shall be counted as

12 one proceeding for each respondent named in the

13 proceeding. The total number of proceedings for

14 each respondent shall be divided by the total com15 bined number of proceedings for all respondents to

16 determine the percentage of costs allocable to each

17 individual respondent. The Corporation shall not al18 locate any of the costs estimated pursuant to para19 graph (1) to any respondent whose allocable share

20 of the costs, in the absence of such exclusion, is less

21 than a de minimis percentage established by the

22 Corporation. Any such unallocated percentage(s)

23 shall be reallocated to the remaining respondents

24 based upon their original allocation percentages.
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1 (3) PAYMENT OF ESTIMATED SHARE OF

2 COSTS.—Each respondent shall pay to the Corpora3 tion its allocated share of the estimated costs within

4 30 days after the date of notification of its allocated

5 share.

6 (b) FINAL ALLOCATION.—On or before November 30

7 of each year, the Corporation shall determine its total

8 costs (exclusive of the cost of mediation and arbitration

9 that may be recovered from respondents under section

10 602) for the prior fiscal year ending September 30 and

11 will allocate those costs proportionally, in the manner de12 scribed in subsection (a)(2), among persons who were

13 named as respondents in that fiscal year. In making an

14 allocation under this subsection, the Corporation shall

15 state separately those costs directly attributable to the

16 medical review process and those costs directly attrib17 utable to general overhead and administration of the Cor18 poration. If the amount allocated to any person under this

19 subsection is greater than the amount deposited by such

20 person under subsection (a)(2) with respect to the pre21 ceding fiscal year, that person shall pay the deficiency to

22 the Corporation within 30 days after receiving a notice

23 of deficiency from the Corporation. If the amount allo24 cated to any person under this subsection is less than the

25 amount deposited by such person under subsection (a)(2)
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1 for the preceding fiscal year, the Corporation shall

2 promptly refund the difference to that respondent.

3 (c) TRANSITIONAL PROVISIONS.—

4 (1) START-UP FUNDING.—Start-up funding will

5 be provided by voluntary contributions within 30

6 days after appointment and confirmation of the first

7 director. Unless the Corporation and the donor oth8 erwise agree, the Corporation will refund such con9 tributions following receipt of the funds allocated

10 pursuant to the initial determination of costs and as11 sessments to defendants provided in subsection

12 (c)(2). Start-up costs include all reasonable and nec13 essary expenses of the Corporation incurred prior to

14 the availability of transitional funding under sub15 section (c)(2).

16 (2) TRANSITIONAL FUNDING.—

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

18 majority of the Board is appointed and con19 firmed, the Board shall provide notice request20 ing the information listed in subparagraph (B)

21 to each defendant served in any civil action in22 volving an asbestos claim pending on the date

23 of enactment. Such notice shall be the best

24 practicable under the circumstances, including

25 publication in the Federal Register and indi-
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1 vidual notice to any defendant that can be iden2 tified through reasonable effort.

3 (B) INFORMATION TO BE PROVIDED.—

4 Within such time as the Corporation may pre5 scribe, but in any event not less than 60 days

6 after the date of publication in the Federal

7 Register, every person who was, on the date of

8 enactment, served as a defendant in at least

9 5000 pending civil actions involving asbestos

10 claims shall provide to the Corporation a state11 ment containing the following information: the

12 total number of civil actions in which that per13 son was named as a defendant and, with re14 spect to each civil action, the name of the lead

15 plaintiff, the name of the lead defendant, the

16 court in which the civil action was pending, and

17 the docket number.

18 (C) COUNTING RULES.—For purposes of

19 subparagraph (B):

20 (i) All asbestos claims relating to a

21 single exposed person, including derivative

22 claims, shall be treated as one civil action

23 regardless of the number of plaintiffs or

24 defendants names in the complaint.
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1 (ii) In civil actions involving multiple

2 plaintiffs and defendants, each asbestos

3 claim shall be deemed to have been as4 serted against each defendant unless the

5 complaint states otherwise.

6 (iii) Third-party defendants shall cal7 culate the number of civil actions involving

8 asbestos claims pending against them as if

9 they had been joined as a defendant by the

10 original plaintiff or plaintiffs.

11 (iv) Cross claims, deemed or other12 wise, shall not count as a separate civil ac13 tion.

14 (D) SIGNATURE.—The statement of infor15 mation required under this paragraph shall be

16 signed on behalf of the defendant by a cor17 porate officer or (in the case of a defendant

18 that is not a corporation) a senior official com19 parable to a corporate officer, authorized to

20 bind such defendant, attesting under penalty of

21 perjury that the information contained therein

22 is true and complete to the best of his knowl23 edge and belief after reasonable investigation.

24 (E) ALLOCATION AND PAYMENT.—The

25 Corporation shall proportionally allocate its es-
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1 timated costs for transitional period to include

2 the first two fiscal years after the date of enact3 ment, in substantially the same manner as the

4 allocation described in subsection (a)(2), to the

5 defendants identified in this paragraph and

6 shall notify each such defendant of its propor7 tionate share of such estimated transitional

8 costs. Within 45 days following the date of such

9 notice, each such defendant shall pay its share

10 of the estimated transitional costs to the Cor11 poration.

12 (3) RECONCILIATION.—On or before November

13 30 following the end of the transitional period, the

14 Corporation shall determine its total costs (exclusive

15 of the cost of mediation an arbitration that may be

16 recovered from respondents under section 602) for

17 the transitional period, including start-up costs, and

18 shall proportionally allocate those costs, in substan19 tially the same manner as the allocation described in

20 subsection (a)(2), among defendants who were

21 named as respondents during that transitional pe22 riod. In making an allocation under this subsection,

23 the Corporation shall state separately those costs di24 rectly attributable to the medical review process and

25 those costs directly attributable to general overhead
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1 and administration of the Corporation. If the

2 amount allocated to any respondent under this sub3 section is greater than the amount deposited by such

4 respondent under paragraph (2), that respondent

5 shall pay the deficiency to the Corporation within

6 30 days after receiving a notice of deficiency from

7 the Corporation. If the amount allocated to any re8 spondent under this subsection is less than the

9 amount deposited by such respondent under para10 graph (2), the difference shall be promptly refunded.

11 SEC. 602. COST OF MEDIATION AND ARBITRATION.

12 (a) The cost of mediation shall be charged, on a per

13 capita basis, to each respondent who participated in medi14 ation, wholly or in part.

15 (b) In the absence of an agreement among the parties

16 to the contrary, the cost of arbitration shall be charged,

17 on a per capita basis, to each respondent who participated

18 in the arbitration, wholly or in part, except that, the Cor19 poration may by rule provide for a reduction in the costs

20 charged to respondents who settle or are dismissed from

21 arbitration prior to the commencement of the hearing.

22 SEC. 603. INFORMAL DISPUTE RESOLUTION.

23 (a) The Corporation shall establish expeditious proce24 dures for the informal resolution of disputes regarding the

25 assessment of costs under this title. The Corporation may,
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1 in its sole discretion, postpone the obligation to pay the

2 disputed assessment, wholly or in part, during the pend3 ency of informal dispute resolution procedures.

4 (b) The Corporation may agree to participate in vol5 untary alternative dispute resolution procedures, including

6 mediation and arbitration, to resolve disputes regarding

7 assessments.

8 SEC. 604. JUDICIAL REVIEW; ENFORCEMENT.

9 (a) The district courts of the United States shall have

10 exclusive jurisdiction, without regard to the amount in

11 controversy or citizenship of the parties, to review any as12 sessment of costs made by the Corporation pursuant to

13 this title. The reviewing court shall uphold a challenged

14 assessment unless it determines that that assessment is

15 arbitrary and capricious or otherwise not in accordance

16 with law. No action under this subsection may be com17 menced or maintained by any person unless that person

18 has first (1) exhausted the informal dispute resolution

19 procedures provided under section 603 and (2) paid to the

20 Corporation the entire amount assessed to that person by

21 the Corporation, including the amount in dispute.

22 (b) The Corporation shall have the authority to bring

23 an action in the district courts of the United States to

24 enforce any obligation imposed on any person by this title,

25 and the district courts of the United States shall have ex-
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1 clusive jurisdiction of such actions without regard to the

2 amount in controversy or citizenship of the parties. The

3 court shall not entertain any defense other than lack of

4 jurisdiction in any action by the Corporation to recover

5 assessments due under this title unless the assessment is

6 fully paid, with interest, in which case the court shall up7 hold the Corporation’s determination if it is not arbitrary

8 and capricious or otherwise contrary to law. In any action

9 under this subsection in which the Corporation prevails,

10 it shall be entitled to costs, including reasonable attorneys’

11 fees, and interest on any unpaid funds. Interest under this

12 subsection shall be equal to the rate applicable to under13 paid taxes under 26 U.S.C. § 6621.

14 SEC. 605. PENALTIES.

15 If any person required by section 601 to provide in16 formation to the Corporation willfully fails to do so within

17 the time fixed by the Corporation, the person shall forfeit

18 to the Corporation the sum of $50,000, which forfeiture

19 shall be payable to the Corporation, and shall be recover20 able in a civil suit in the name of the Corporation brought

21 under section 604(b).
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1 TITLE VII—APPLICABILITY;

2 PENDING CIVIL ACTIONS

3 SEC. 701. APPLICABILITY.

4 Subject to section 702, upon the date of enactment

5 the Act shall apply to any civil action asserting an asbestos

6 claim that has not resulted in a final, non-appealable judg7 ment.

8 SEC. 702. PENDING CIVIL ACTIONS.

9 (a) A certificate of medical eligibility shall not be re10 quired in any civil action asserting an asbestos claim if

11 (1) that action was pending upon the date of enactment

12 and (2) a trial commences prior to the operational date.

13 No release from mediation shall be required in any civil

14 action asserting an asbestos claim if that action was pend15 ing on the date of enactment, whether or not trial com16 mences prior to the operational date.

17 (b) Prior to the operational date, a plaintiff in a civil

18 action asserting an asbestos claim that is pending on the

19 date of enactment may elect to submit that claim to the

20 Corporation for a determination of medical eligibility. Any

21 such election shall be irrevocable.

22 (c) Notwithstanding any other provision of law, the

23 plaintiff in any civil action asserting an asbestos claim who

24 has not obtained a certificate of medical eligibility shall

25 have the burden of establishing the existence of an asbes-
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1 tos-related condition that meets the criteria for an eligible

2 medical category pursuant to sections 201–204.

3 TITLE VIII—MISCELLANEOUS

4 PROVISIONS

5 SEC. 801. DEFINITIONS.

6 In this Act:

7 (1) ALTERNATIVE DISPUTE RESOLUTION PROC8 ESS.—The term ‘‘alternative dispute resolution proc9 ess’’ means the mediation and voluntary arbitration

10 process established under Title III of this Act.

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

12 any number of naturally occurring silicates with the

13 common properties of great resistance to destruction

14 by physical or chemical means and a fibrous configu15 ration, including asbestiform varieties of chrysotile,

16 crocidolite, amosite, anthophyllite, tremolite, and ac17 tinolite.

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

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

20 arising out of, based on, or related to the health ef21 fects of exposure to asbestos, including any claim for

22 personal injury, death, mental, or emotional injury,

23 risk of disease or other injury, or the costs of med24 ical monitoring or surveillance, and including any

25 claim made by or on behalf of any exposed person
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1 or any representative, spouse, parent, child, or other

2 relative of any exposed person.

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

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

5 resolve asbestos claims arising directly or indirectly

6 from exposure to asbestos or asbestos-containing

7 products, including a trust created pursuant to the

8 bankruptcy laws of the United States or Rule 23 of

9 the Federal Rules of Civil Procedure.

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

11 crackles’’, sometimes called ‘‘rales’’, means those

12 sounds described in American Thoracic Society,

13 ‘‘The Diagnosis of Nonmalignant Diseases Related

14 to Asbestos’’, 134 American Review of Respiratory

15 Disease 363, 366 (1986).

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

17 Board of Directors of the Asbestos Resolution Cor18 poration.

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

20 ‘‘Board-certified internist’’ means a physician who is

21 currently certified by the American Board of Inter22 nal Medicine in internal medicine.

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

24 ‘‘Board-certified oncologist’’ means a physician who

25 is currently certified by the American Board of In-
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1 ternal Medicine in the subspecialty of medical oncol2 ogy.

3 (9) BOARD-CERTIFIED PATHOLOGIST.—The

4 term ‘‘Board-certified pathologist’’ means a physi5 cian who currently holds primary certification in

6 anatomic pathology, or combined anatomic and clin7 ical pathology, from the American Board of Pathol8 ogy.

9 (10) BOARD-CERTIFIED PULMONARY SPE10 CIALIST.—The term ‘‘Board-certified pulmonary spe11 cialist’’ means a physician who is currently certified

12 by the American Board of Internal Medicine in the

13 subspecialty of pulmonary disease.

14 (11) BOARD-CERTIFIED RADIOLOGIST.—The

15 term ‘‘Board-certified radiologist’’ means a physician

16 who is currently certified by the American Board of

17 Radiology.

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

19 code or codes of rules adopted for the regulation or

20 management of the affairs of the Corporation. By21 laws shall be consistent with the requirements of this

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

23 the requirements of the District of Columbia Non24 profit Corporation Act, (D.C. Code §§ 29–501 et

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

2 of various malignant neoplasms marked by the pro3 liferation of anaplastic cells that tend to invade sur4 rounding tissue and metastasize to new body sites

5 and the pathological condition characterized by such

6 growths.

7 (14) CERTIFICATE OF MEDICAL ELIGIBILITY.—

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

9 certificate issued by the Corporation to a claimant

10 pursuant to this Act certifying that an exposed per11 son meets the requirements of one or more eligible

12 medical categories (or qualifies as an exceptional

13 medical claim with respect to an eligible medical cat14 egory).

15 (15) CERTIFIED B-READER.—The term ‘‘cer16 tified B-reader’’ means an individual qualified as a

17 ‘‘final’’ or ‘‘B-reader’’ under 42 C.F.R. § 37.51(b)

18 (1997) (and any subsequent revisions thereof) whose

19 certification is current.

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

21 means chest radiographs taken in four views (Pos22 terior-Anterior, Lateral, and Left and Right Ob23 liques) and graded quality 1 for reading according to

24 the criteria established by the ILO; except that, in

25 situations where the claimant is unable to provide
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1 quality 1 chest x-rays because of death or because

2 of an inability to have new chest x-rays taken, chest

3 x-rays graded quality 2 will be acceptable.

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

5 means any action, lawsuit, or proceeding in any

6 state, federal, or tribal court, but does not include

7 (a) criminal action, (b) an action relating to state or

8 federal workers’ compensation laws, or (c) a pro9 ceeding for judicial review of the actions of the Cor10 poration.

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

12 any exposed person or his legal representative, and

13 any parent, child, or other relative of an exposed

14 person, or their legal representatives, who asserts an

15 asbestos claim.

16 (19) CLINICAL EVIDENCE OF ASBESTOSIS.—

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

18 diagnosis of pulmonary asbestosis by a Board-cer19 tified internist or Board-certified pulmonary spe20 cialist based on the following minimum objective cri21 teria:

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

23 a certified B-reader, show small irregular opac24 ities of ILO Grade 1/0 and pulmonary function
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1 testing and physical examination that show ei2 ther:

3 (i) FVC < 80% of predicted value

4 with FEV1/FVC ≥ 75% (actual value); or

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

6 with either DLCO ≤ 76% of predicted

7 value or bilateral basilar crackles, and also

8 the absence of any probable explanation

9 for this DLCO result or crackles finding

10 other than the presence of lung disease.

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

12 a certified B-reader, show small irregular opac13 ities of ILO Grad 1/1 or greater; and pul14 monary function testing that show either:

15 (i) FVC < 80% of predicted value

16 with FEV1/FVC ≥ 72% (actual value) or,

17 if the individual tested is at least 68 years

18 old at the time of the testing, with FEV1/

19 FVC ≥ 65% (actual value); or

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

21 (20) COMPENSATORY DAMAGES.—The term

22 ‘‘compensatory damages’’ means damages awarded

23 for economic and non-economic loss.
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1 (21) CORPORATION.—The term ‘‘Corporation’’

2 means the Asbestos Resolution Corporation estab3 lished in section 101.

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

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

6 be legally responsible for the claimant’s injury.

7 (23) DLCO.—The term ‘‘DLCO’’ means dif8 fusing capacity of the lung (carbon monoxide), which

9 is a measure of the volume of carbon monoxide

10 transferred from the alveoli to blood in the pul11 monary capillaries for each unit of driving pressure

12 of the carbon monoxide.

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

14 loss’’ means any pecuniary loss resulting from harm

15 (including the loss of earnings or other benefits re16 lated to employment, medical expense loss, replace17 ment service loss, loss due to death, burial costs, and

18 loss of business or employment opportunities) to the

19 extent that recovery for such loss is allowed under

20 applicable law.

21 (25) ELIGIBLE MEDICAL CATEGORY.—The term

22 ‘‘eligible medical category’’ means mesothelioma,

23 lung cancer, other cancer, and non-malignant condi24 tions.
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1 (26) EVIDENCE OF BILATERAL PLEURAL

2 THICKENING WITH IMPAIRMENT.—The term ‘‘evi3 dence of bilateral pleural thickening with impair4 ment’’ means a diagnosis of bilateral pleural thick5 ening with impairment by a Board-certified internist

6 or Board-certified pulmonary specialist based on the

7 following minimum objective criteria:

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

9 a certified B-reader, show bilateral pleural

10 thickening of ILO Grad B2, and which includes

11 blunting of at least one costophrenic angle and

12 is not explained by any other condition in the

13 subject’s history; and pulmonary function test14 ing that shows:

15 (i) If TLC is available, TLC < 75%

16 of predicted value; or

17 (ii) If TLC is not available, VC or

18 FVC < 75% of predicted value with

19 FEV1/FVC ≥ 75% (actual value); and in

20 either case

21 (iii) a statement by the Board-cer22 tified internist or Board-certified pul23 monary specialist that the asbestos-related

24 changes are a substantial contributing fac-
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1 tor in causing the pulmonary function

2 changes.

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

4 a certified B-reader, show bilateral pleural

5 thickening of ILO Grade C2 or greater, and

6 which includes the blunting of at least one

7 costophrenic angle and is not explained by any

8 other condition in the subject’s history; and pul9 monary function testing that shows—

10 (i) FVC < 180% of predicted value

11 with FEV1/FVC ≥ 75% (actual value), or,

12 if the individual tested is at least 68 years

13 old at the time of the testing, with FEV1/

14 FVC ≥ 65% (actual value); or

15 (ii) TLC < 80% of predicted value;

16 and in either case

17 (iii) a statement by the Board-cer18 tified internist or Board-certified pul19 monary specialist that the asbestos-related

20 changes are a substantial contributing fac21 tor in causing the pulmonary function

22 changes.

23 (27) EXCEPTIONAL MEDICAL CLAIM.—The term

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

25 as such pursuant to the procedures in section 206.
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1 (28) EXPOSED PERSON.—The term ‘‘exposed

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

3 any state (or while working aboard a United States

4 vessel outside the United States) to asbestos or to

5 asbestos containing products.

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

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

8 volume of air expelled in one second during perform9 ance of the spirometric test for forced vital capacity

10 (FVC). FEV1 shall be measured using standard spi11 rometric methods.

12 (30) FINAL CERTIFICATE OF ELIGIBILITY.—

13 The term ‘‘final certificate of eligibility’’ means a

14 certificate of eligibility that is not subject to further

15 review or modification by the Corporation, whether

16 on reconsideration under section 205 or by action of

17 an exceptional medical claims panel under section

18 206.

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

20 vital capacity, which is the maximal volume of air

21 expired with a maximally forced effort from a posi22 tion of maximal inspiration. FVC shall be measured

23 using standard spirometric methods.

24 (32) GOOD FAITH OFFER OR GOOD FAITH DE25 MAND.—The terms ‘‘good faith offer’’ or ‘‘good faith
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1 demand’’ means a settlement offer or demand which

2 reflects an evaluation of relevant factors of tradi3 tional tort principles of damages.

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

5 means the period allowed for voluntary settlements

6 in section 304.

7 (34) ILO.—The term ‘‘ILO’’ means the Inter8 national Labour Office.

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

10 means the radiological ratings for the presence of

11 lung changes by chest x-ray as established from time

12 to time by the ILO.

13 (36) LATENCY PERIOD.—The term ‘‘latency pe14 riod’’ means the period from the date of the exposed

15 person’s first significant exposure to asbestos or an

16 asbestos-containing product to the date of mani17 festation of the condition claimed.

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

20 of 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 competent physician.

24 (38) MEDICAL ADVISORY BOARD.—The term

25 ‘‘medical advisory board’’ means the board estab-
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1 lished under section 105 to provide medical advice to

2 the board of directors of the Corporation.

3 (39) MESOTHELIOMA.—The term ‘‘mesothe4 lioma’’ means a malignant tumor of the mesothelial

5 tissue.

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

7 officer’’ means an official of the Corporation respon8 sible for resolving procedural and discovery disputes

9 during the alternative dispute resolution process in

10 the absence of an arbitrator. Motions officers shall

11 be members in good standing of the bar of a State.

12 (41) NON-ECONOMIC LOSS.—The term ‘‘non13 economic loss’’ means subjective, nonmonetary loss

14 resulting from harm, including pain, suffering, in15 convenience, mental suffering, emotional distress,

16 loss of society and companionship, loss of consor17 tium, injury to reputation, and humiliation.

18 (42) OCCUPATIONAL HISTORY.—The term ‘‘oc19 cupational history’’ means a listing of all employ20 ment positions, providing for each the dates and

21 place of employment, the employer, and a descrip22 tion of job responsibilities and activities.

23 (43) OPERATIONAL DATE.—The term ‘‘oper24 ational date’’ means the earlier of (i) the date on

25 which the Board certifies that the Corporation is
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1 operational, or (ii) the first business day following

2 the seventh month after the date on which the

3 Board is authorized under section 103(i) to take any

4 action authorized by law.

5 (44) PATHOLOGICAL EVIDENCE OF ASBES6 TOSIS.—The term ‘‘pathological evidence of asbes7 tosis’’ means diagnosis of pulmonary asbestosis by a

8 Board-certified pathologist based on a finding that

9 more than one representative section of lung tissue

10 otherwise uninvolved with any other process (e.g.,

11 cancer or emphysema) demonstrates a pattern of

12 peribronchiolar or parenchymal scarring in the pres13 ence of characteristic asbestos bodies, and also that

14 there is no other more likely explanation for the

15 presence of the fibrosis.

16 (45) PERSON.—The term ‘‘person’’ means an

17 individual, trust, firm, corporation, association, part18 nership, joint venture, the United States, and any

19 state or political subdivisions thereof. The term does

20 not include an asbestos trust in existence as of the

21 date of enactment unless the trust elects to be cov22 ered by this Act under section 804.

23 (46) PHYSICIAN.—The term ‘‘physician’’ means

24 a medical doctor currently licensed to practice medi25 cine in any state who has not, within the five-year
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1 period prior to the date of enactment of the Act,

2 spent more than one half of his or her professional

3 time, or derived more than one-half of his or her

4 professional income, either annually or in total, ei5 ther reviewing or testifying in any forum on medical6 legal issues related to asbestos.

7 (47) PREDICTED VALUE.—The term ‘‘predicted

8 value’’ for spirometry and lung volumes shall be the

9 relevant value published by Morris, Clinical Pul10 monary Function Testing, 2d Edition, Inter11 mountain Thoracic Society (1984). ‘‘Predicted

12 Value’’ for diffusing capacity shall be the relevant

13 value published by Miller, et al., ‘‘Single Breath Dif14 fusing Capacity in a Representative Sample of the

15 Population of Michigan, a Large Industrial State,’’

16 127 American Review of Respiratory Disease, 270–

17 77 (1983). Predicted value in all pulmonary function

18 tests shall be corrected for race, ethnic origin, and

19 other relevant factors.

20 (48) PULMONARY FUNCTION TESTING.—The

21 term ‘‘pulmonary function testing’’ means

22 spirometry, lung volume, and diffusing capacity

23 (‘‘DLCO’’) testing. All spirometry shall use standard

24 spirometric methods. Pulmonary function testing

25 other than spirometry shall use methods, quality cri-
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1 teria, and standards approved by the Board, upon

2 the recommendation of the Medical Advisory Board.

3 Such methods, quality criteria, and standards shall

4 be generally recognized by authoritative professional

5 bodies as appropriate, giving due consideration to re6 liability where obstructive lung disease may be

7 present. All back-up data (including flow volume

8 loops, spirographs, and other tracings), necessary to

9 ensure compliance with the methods, quality criteria,

10 and standards approved by the Board shall be sub11 mitted to the Corporation along with the results of

12 such tests.

13 (49) PUNITIVE DAMAGES.—The term ‘‘punitive

14 damages’’ means damages awarded against any per15 son to punish or deter such person, or others, from

16 engaging in similar behavior in the future.

17 (50) RESPONDENT.—The term ‘‘respondent’’

18 means any person who is or may be responsible for

19 a claimant’s asbestos-related condition and who is so

20 notified by the Corporation under section 303 or

21 who is added to an arbitration proceeding under sec22 tion 306(a). The terms does not include an asbestos

23 trust in existence as of the date of enactment of this

24 Act unless the trust elects to be covered by this Act

25 under section 804.
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1 (51) STANDARD SPIROMETRIC METHODS.—The

2 term ‘‘standard spirometric methods’’ means spiro3 metric methods and equipment that substantially

4 conform to American Thoracic Society standards for

5 technical quality and instrumentation, as set forth in

6 20 C.F.R. § 718.103(1997) and Appendix B thereto

7 or in guidelines established by the American Tho8 racic Society, as set forth in ‘‘Standardization of

9 Spirometry—1994 Update’’, 152 American Review

10 of Respiratory Disease 1107–36 (1995) and any re11 visions thereof. Each subject must be tested with

12 and without inhaled bronchodilaters, with best val13 ues taken. All back-up data pertaining to spirometric

14 testing of an exposed person (including all flow vol15 ume loops, spirographs, and any other tracings)

16 shall be submitted to the Corporation to ensure that

17 these quality criteria and standards have been satis18 fied.

19 (52) STATE.—The term ‘‘state’’ means any

20 state of the United States, the District of Columbia,

21 Commonwealth of Puerto Rico, the Northern Mar22 iana Islands, the Virgin Islands, Guam, American

23 Samoa, and any other territory or possession of the

24 United States or any political subdivision of any of

25 the foregoing.
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1 (53) TLC.—The term ‘‘TLC’’ means total lung

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

3 maximal inspiration.

4 (54) WORKERS’ COMPENSATION LAW.—The

5 term ‘‘workers’ compensation law’’ means a law re6 specting a program administered by a state or the

7 United States to provide benefits, funded by a re8 sponsible employer or its insurance carrier, for occu9 pational diseases or injuries or for disability or death

10 caused by occupational diseases or injuries. The

11 term includes the Longshore and Harbor Workers’

12 Compensation Act, (33 U.S.C. §§ 901–944, 948–

13 950), but does not include the Federal Employers’

14 Liability Act, (45 U.S.C. § 51–60).

15 SEC. 802. APPLICABILITY OF OTHER FEDERAL LAWS.

16 (a) Nothing in this Act shall be construed to make

17 any director, officer or employee of the Corporation, an

18 officer or employee of the U.S. Government for purposes

19 of Title 5, United States Code. Neither the Corporation

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

21 shall be subject to the provisions of 31 U.S.C. § 1341(a).

22 (b) To the extent consistent with the provisions of

23 this Act, the Corporation shall be subject to 5 U.S.C.

24 §§ 553, 555, and 706 and 5 U.S.C. § 552a.
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1 (c) In order to preserve the integrity of the settlement

2 process in the resolution of asbestos claims, the Corpora3 tion shall exempt from disclosure under 5 U.S.C.

4 § 552(b)(3) information or documents that contain the re5 sults of settlements or settlement averages, individual

6 party or attorney names, medical records, and relating

7 data collected for the purpose of resolving individual

8 claims.

9 (d) The Corporation shall be exempt from: 5 U.S.C.

10 § 552b, 5 U.S.C. §§ 5101–5115, 5331–5338, 5 U.S.C.

11 § 504, 5 U.S.C. App. (Ethics in Government Act), 28

12 U.S.C. § 2412, 28 U.S.C. § 2672, 41 U.S.C. §§ 251–260

13 and 44 U.S.C. § 3501 et seq.

14 SEC. 803. OBLIGATIONS OF THE CORPORATION NOT OBLI15 GATIONS OF THE UNITED STATES.

16 Obligations or liabilities of the Corporation shall not

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

18 may be maintained against the United States to enforce

19 any obligation or liability of the Corporation.

20 SEC. 804. APPLICATION TO EXISTING ASBESTOS TRUSTS.

21 (a) This Act shall not apply to any asbestos trust in

22 existence as of the date of enactment of this Act, except

23 as provided in subsection (b).

24 (b) An asbestos trust may elect to be subject to the

25 Act by providing written notice of such election to the Cor-
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1 poration, in which case the trust will have the same rights

2 and responsibilities under the Act as any person who is

3 not a trust. A valid election under this subsection shall

4 be irrevocable.

5 SEC. 805. APPLICATION TO CERTAIN SETTLEMENTS.

6 This Act shall not apply to any settlement agreement

7 or related agreement concerning asbestos claims entered

8 into by claimants, defendants, or their counsel.

9 SEC. 806. SEVERABILITY.

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

11 provision to any person or circumstance is held invalid,

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

13 and application of such provision to other persons or cir14 cumstances shall not be affected thereby.

Æ