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 fol-
lowing 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.
Be it enacted by the Senate and House of Representa-
tives of the United States of America in Congress assembled,
SECTION 1. SHORT TITLE; TABLE OF CONTENTS.
(a) SHORT TITLE.—This Act may be cited as the
‘‘Fairness in Asbestos Compensation Act of 1999’’.
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(b) TABLE OF CONTENTS.—The table of contents of
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.
SEC. 2. FINDINGS.
The Congress finds that:
(1) Asbestos personal injury litigation is unfair
and inefficient, and imposes a crushing burden on
litigants and taxpayers alike.
(2) Asbestos litigation has already led to the
bankruptcy of more than 15 companies, representing
the great majority of the former asbestos industry.
(3) The extraordinary volume of asbestos litiga-
tion is straining state and federal courts at enor-
mous taxpayer expense, with more than 150,000
such lawsuits currently pending in the tort system
and tens of thousands of new cases filed every year.
(4) Asbestos litigation has resulted in arbitrary
verdicts, with individuals receiving widely varying re-
coveries despite similar medical conditions.
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(5) Asbestos litigation is a mature tort. The
legal, medical, and scientific issues have been repeat-
edly tried and retired in the courts for many years.
(6) Currently, statutes of limitations can force
claimants to bring premature lawsuits in order to
avoid losing their claim for compensation. Moreover,
in order to obtain compensation for non-malignant
disease, claimants often must give up their right to
obtain compensation later on, if they develop an as-
bestos-related cancer.
(7) Litigation has not been able to provide com-
pensation to claimants swiftly. On the contrary, ac-
cording to the U.S. Judicial Conference’s Ad Hoc
Committee on Asbestos Litigation, the volume and
complexity of asbestos cases have resulted in the vio-
lation of a basic tenet of American justice: speedy
and inexpensive resolution of cases.
(8) Litigation has also proved to be an extraor-
dinarily costly means of resolving claims of asbestos-
related disease. Less than 50% of the total cost of
asbestos litigation actually goes to compensate
claimants, while the reminder is eaten up in attor-
neys’ fees and other litigation costs.
(9) In many courts, the vast majority of pend-
ing asbestos claims are filed by individuals who suf-
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fer no present asbestos-related impairment. These
claims divert the resources of defendant from com-
pensating individuals who are suffering from serious
asbestos-related disease.
(10) Punitive damages also divert the resources
of defendants from compensating impaired claim-
ants. Moreover, punitive damages give a few claim-
ants huge windfalls in addition to compensatory
damages.
(11) In an effort to cope with the overwhelming
tide of asbestos cases, a few courts have resorted to
mass consolidated trials and other aggregative meth-
ods of dealing with asbestos claims. Unfortunately,
mass consolidations only serve to magnify the irra-
tionality of a litigation system that awards massive
amounts to the unimpaired while threatening the
ability of seriously ill people to obtain compensation
in the future.
TITLE I—ASBESTOS
RESOLUTION CORPORATION
SEC. 101. ESTABLISHMENT.
There is established a non-profit corporation, to be
known as the ‘‘Asbestos Resolution Corporation’’.
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SEC. 102. POWERS OF THE CORPORATION.
(a) The Corporation shall have all of the powers
granted to non-profit corporations under the District of
Columbia Nonprofit Corporation Act, D.C. Code §§ 29–
501 et seq.
(b) In addition to the powers granted under sub-
section (a) the Corporation shall have the power to—
(1) hire or appoint employees and to retain the
services of other entities to provide such employees;
(2) contract for services, including the services
of physicians and other medical professionals, hear-
ing examiners, mediators, arbitrators, financial ex-
perts or consultants, accountants, and attorneys;
(3) receive voluntary contributions of funds,
goods, and services in order to carry out its pur-
poses;
(4) appoint one or more exceptional medical
claims panels, as described in section 206(a);
(5) adopt rules, policies, and procedures gov-
erning recovery of costs from and allocation of costs
to defendants and respondents;
(6) adopt rules, policies, and procedures for the
fair and efficient conduct of medical review and al-
ternative dispute resolution;
(7) conduct audits of information submitted to
it, including inspection of laboratories performing
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medical tests and verification of quality assurance
and quality control procedures; and
(8) to sue and be sued in its corporate name.
SEC. 103. BOARD OF DIRECTORS.
(a) MEMBERSHIP.—The Corporation shall be man-
aged by a Board of Directors consisting of 7 members ap-
pointed by the President, by and with the advice and con-
sent of the Senate. The President shall designate the
chairman of the Board. No more than 4 directors may
be members of the same political party. Directors shall
be distinguished private citizens of the United States. The
President shall submit 7 nominations under this section
to the Senate not later than 4 months after the date of
the enactment of this Act.
(b) TERMS.—Each director shall be appointed for a
term of 6 years from the expiration of his predecessor’s
term, except that, of the directors first appointed—
(1) three shall be appointed for a term of 3
years,
(2) three shall be appointed for a term of 6
years, and
(3) the chairman shall be appointed for a term
of 6 years.
The terms of office of the directors first appointed shall
begin on the date of enactment. A director may continue
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to serve until his successor has been appointed and con-
firmed.
(c) VACANCY.—A vacancy on the Board shall be filled
in the same manner as the original appointment. A direc-
tor appointed to fill a vacancy occurring before the expira-
tion of the term for which the member’s predecessor was
appointed shall be appointed for the remainder of that
term. A vacancy shall not affect the power of the Board.
(d) REMOVAL.—Directors may be removed for cause
by the President.
(d) COMPENSATION; EXPENSES.—
(1) The compensation of directors other than
the chairman shall not exceed $50,000 per year, and
the compensation of the chairman shall not exceed
$75,000 per year.
(2) Directors may be reimbursed for reasonable
travel and other expenses incurred in connection
with their services to the Corporation pursuant to
policies adopted by the Board.
(f) PERSONAL LIABILITY OF DIRECTORS.—A direc-
tor shall not be personally liable for any act or omission
within the scope of the director’s service as a member of
the Board. The liability of a director shall not be limited
as provided in this subsection if the director engaged in
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willful misconduct or a knowing violation of the criminal
law.
(g) AUDIT COMMITTEE.—The Board shall establish
an Audit Committee which shall conduct an annual audit
of the finances of the Corporation and provide an annual
report to the Board regarding the financial condition of
the Corporation.
(h) EXCLUSIVE AUTHORITY.—The Board shall have
the exclusive authority to—
(1) adopt rules, consistent with this Act, re-
garding the assessment and recovery of costs, the
qualifications of physicians, the organization and op-
eration of the Medical Advisory Board, and the con-
duct of the alternative dispute resolution process;
(2) adopt guidelines, upon the recommendation
of the Medical Advisory Board, for implementing the
provisions of this Act regarding exceptional medical
cases;
(3) recommend the inclusion of new diseases in
the ‘‘other cancer’’ eligible medical category if it
finds, upon the recommendation of the Medical Ad-
visory Board at a meeting expressly called for that
purpose, that there is a medical consensus that the
disease is caused by exposure to asbestos; and
(4) adopt and amend by-laws.
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(i) TRANSITION.—The Board may take any action
authorized by law as soon as three directors have been
confirmed by the Senate. If these initial directors do not
include the designated chairman, they shall elect a tem-
porary chairman who shall serve until the designated
chairman is confirmed.
SEC. 104. OFFICERS.
The Corporation shall have a chief executive officer
and such other officers as may be named and appointed
by the Board at rates of compensation and terms of serv-
ice fixed by the Board. Officers of the Corporation may
not simultaneously serve on the Board.
SEC. 105. MEDICAL ADVISORY BOARD.
(a) The Board shall appoint a Medical Advisory
Board to provide advice on medical matters, including re-
tention, supervision, and removal of physicians; establish-
ment of guidelines regarding exceptional medical claims;
the appropriateness of adding new diseases to the ‘‘other
cancer’’ eligible medical category; and such other medical
matters as may be referred to the Medical Advisory Board
by the Board.
(b) The Medical Advisory Board shall not have fewer
than 5 or more than 9 members. Members of the Medical
Advisory Board shall be physicians with a demonstrated
expertise in asbestos-related conditions. The Medical Advi-
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sory Board shall include at least one Board-certified pul-
monary specialist, Board-certified radiologist, Board-cer-
tified oncologist, and Board-certified pathologist. The
Board shall adopt such rules and policies regarding the
composition and operation of the Medical Advisory Board
as may be necessary for its efficient operation, including
rules governing appointment and removal of members,
terms of office, filling of vacancies, notice and conduct of
meetings (including quorum requirements) and compensa-
tion.
(c) The Medical Advisory Board shall be subject to
the Federal Advisory Committee Act (5 U.S.C. App.).
SEC. 106. AVOIDANCE OF CONFLICT OF INTEREST.
No director, officer, member of the Medical Advisory
Board, employee, contract employee, contractor, or con-
sultant to the Corporation may represent any person in
any manner in any proceeding before the Corporation. In
addition, the Board shall adopt policies and procedures to
guard against both actual and apparent conflicts of inter-
est.
SEC. 107. ANNUAL REPORTS.
The Corporation shall submit an annual report to the
President and Committee on the Judiciary of the House
of Representatives and the Committee on the Judiciary
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of the Senate with respect to its operations, activities, and
financial condition on or before December 31 of each year.
TITLE II—MEDICAL ELIGIBILITY
DETERMINATIONS
SEC. 201. MEDICAL CRITERIA—NON-MALIGNANT CONDI-
TIONS.
In order to meet the requirements for the non-malig-
nant conditions eligible medical category, a claimant must
submit medical information and/or testimonial informa-
tion sufficient to demonstrate a latency period of at least
12 years, and (a) clinical evidence of asbestosis, (b) patho-
logical evidence of asbestosis, or (c) evidence of bilateral
pleural thickening with impairment.
SEC. 202. MEDICAL CRITERIA—MESOTHELIOMA.
In order to meet the requirements for the mesothe-
lioma eligible medical category, a claimant must submit—
(1) a diagnosis of malignant mesothelioma with
a primary site in the pleura or peritoneum, which is
derived from appropriate tissue, and verified using
standardized and accepted criteria of microscopic
morphology and/or a variety of appropriate staining
techniques; and which is made by either (1) two
Board-certified pathologists, or (2) one Board-cer-
tified pathologist who is, at the time that the diag-
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nosis is verified, a member of the U.S.-Canadian
Mesothelioma Reference Panel; and
(2) medical information and/or testimonial in-
formation sufficient to demonstrate a latency period
of at least ten (10) years.
SEC. 203. MEDICAL CRITERIA—LUNG CANCER.
In order to meet the requirements for the lung cancer
eligible medical category, a claimant must submit (a) a
diagnosis by a Board-certified pathologist, Board-certified
pulmonary specialist, or Board-certified oncologist of pri-
mary lung carcinoma; (b) medical information and/or tes-
timonial information sufficient to demonstrate a latency
period of at least twelve (12) years; and (c) either—
(1) evidence of non-malignant condition suffi-
cient to meet the requirements of section 201; or
(2) chest x-rays which, in the opinion of a cer-
tified B-reader, demonstrate both asbestos-related
bilateral pleural plaques or asbestos-related bilateral
pleural thickening and evidence of 15 years of expo-
sure to asbestos, to be calculated as specified in sub-
paragraphs (A)–(D)—
(A) Each year that an exposed person’s
primary occupation, during a substantial por-
tion of a normal work year for that occupation,
involved working in areas immediate to where
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asbestos-containing products were being in-
stalled, 
repaired, 
or 
removed 
under 
cir-
cumstances that involved regular airborne emis-
sions of visible asbestos dust, shall count as one
year;
(B) Each year that an exposed persons’
primary occupation, during a substantial por-
tion of a normal work year for that occupation,
involved the direct installation, repair, or re-
moval of asbestos-containing products, shall
count as 2 years;
(C) Each year that an exposed person’s
primary occupation, during a substantial por-
tion of a normal work year for that occupation,
involved the direct manufacture of asbestos-con-
taining products using raw asbestos fiber, or
the direct installation, repair, or removal of as-
bestos-containing products in a shipyard during
World War II, shall count as 4 years.
(D) For purposes of calculating years of
exposure under this paragraph, each year of ex-
posure prior to 1976 shall be counted fully;
each year of exposure from 1976 through 1979
shall be counted one-half; and exposures after
1979 shall not be counted, except that—
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(i) For each year from 1972 through
1975, for which it is demonstrated by a
preponderance of the evidence that the ex-
posed person’s exposure to asbestos in his
or her occupation was, during a substantial
portion of that work year, in compliance
with the OSHA 8-hour time-weighted aver-
age airborne concentration for asbestos ex-
posure at that time, then that year shall
count one-half for purposes of calculating
the years of exposure for purposes of this
paragraph:
(ii) For each year from 1976 through
1979 for which a claimant demonstrates,
by a preponderance of the evidence, that
the exposed persons’ exposure to asbestos
in his or her occupation was, during a sub-
stantial portion of that work year, in ex-
cess of the OSHA 8-hour time-weighted
average airborne concentration for asbestos
exposure at that time, then that year shall
count fully for purposes of calculating the
years of exposure for purpose of this para-
graph; and
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(iii) For every year after 1979 for
which a claimant demonstrates, by a pre-
ponderance of the evidence, that the ex-
posed person’s exposure to asbestos in his
or her occupation was, during a substantial
portion of that work year, in excess of the
OSHA 8-hour time-weighted average air-
borne concentration for asbestos exposure
at that time, then that year shall count
one-half for purposes of calculating years
of exposure for purposes of this paragraph.
SEC. 204. MEDICAL CRITERIA—OTHER CANCER.
In order to meet the requirements in the other cancer
medical eligible category, a claimant must submit (a) a
diagnosis by a Board-certified pathologist, Board-certified
pulmonary specialist, or Board-certified oncologist (as ap-
propriate for the type of cancer claimed) of primary cancer
of the colon or rectum, larynx, esophagus, or stomach; (b)
medical and/or testimonial information sufficient to dem-
onstrate a latency period of at least 12 months; and (c)
evidence of a non-malignant condition sufficient to meet
the requirements of section 201.
SEC. 205. PROCEDURE FOR CERTIFICATE OF ELIGIBILITY.
(a) APPLICATION.—This claimant may apply for a
certificate of medical eligibility by submitting to the Cor-
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poration such information as the Corporation may require
in a form designated by the Corporation, including:
(1) PERSONAL INFORMATION.—The name, ad-
dress, date of birth and death (if applicable), smok-
ing history, occupational history, and social security
number of the exposed person, and the relationship
between the exposed person and the claimant if the
claimant is not the exposed person.
(2) EXPOSURE
INFORMATION.—The years of
the exposed person’s exposure to asbestos or asbes-
tos-containing products; identification of the types of
asbestos or asbestos-containing products to which
the exposed person was exposed; description of the
circumstances, intensity, and duration of the expo-
sure; and identification of the work sites or other
such locations where such exposures occurred.
(3) MEDICAL INFORMATION.—The eligible med-
ical category or categories for which the claimant is
applying; all medical diagnoses, reports and records
that relate to any claimed asbestos-related condition;
materials supporting those diagnoses, reports and
records that may be required by the Corporation,
but in any event including all the back-up data for
any pulmonary function tests on which the claimant
relies (including all flow volume loops, spirographs,
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and any other tracings for any test that is per-
formed); identification of all medical professionals
and medical care facilities involved in diagnosing,
treating, testing, counseling, or consulting with the
exposed person concerning any medical condition
within the last five years. The claimant shall also
provide such medical releases as the Corporation
may require allowing the Corporation to obtain any
and all medical information relevant to the deter-
mination of medical eligibility.
(4) 
EXCEPTIONAL
MEDICAL
CLAIMS.—The
claimant may concede that the claim cannot meet
the requirements of any eligible medical category
and state that the claimant intends to apply to an
exceptional medical claims panel for designation as
an exceptional medical claim. In that event, the Cor-
poration shall refer the claim to an exceptional med-
ical claim panel and the application will be governed
by the provisions of section 206.
(b) NOTIFICATION OF ACCEPTANCE.—The Corpora-
tion shall notify the claimant within 30 days following re-
ceipt of the application either that the application is ac-
cepted for processing or that the application is materially
incomplete and cannot be processed until additional infor-
mation is provided. Any notice that an application is mate-
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rially incomplete shall describe the missing information.
Issuance of a notice of acceptance shall not preclude the
Corporation from requesting additional information re-
garding a claim if the Corporation subsequently concludes
that such information is necessary to make a decision on
medical eligibility.
(c) RECORDS FROM THIRD PERSONS.—The Corpora-
tion may at any time obtain medical, employment, or other
relevant records concerning an exposed person from per-
sons other than the claimant. If it seeks such additional
records, it shall give notice to the claimant, and shall upon
request and at the claimant’s expense, furnish copies of
all records obtained to the claimant.
(d) ADDITIONAL MEDICAL TESTING.—If the Cor-
poration reasonably believes that it cannot determine, on
the basis of the available medical information, whether an
exposed person meets the medical criteria for one of the
eligible medical categories, the Corporation may at any
time, at its option and expense, require the exposed person
to undergo appropriate, reasonable, and non-invasive med-
ical examination or testing (excluding any sort of com-
puted tomography (CT) scan).
(e) TESTIMONIAL INFORMATION UNDER OATH.—All
testimonial information provided to the Corporation in
connection with a claim, other than information in any
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medical report or records, shall be made under oath, or
by sworn affidavit, or by written declaration subscribed
to as true under penalty of perjury.
(f) DETERMINATION OF MEDICAL ELIGIBILITY.—As
soon as practicable and, in any event, no later than 60
days after issuance of a notice of acceptance, the Corpora-
tion shall issue either a certificate of medical eligibility
stating each eligible medical category for which the claim-
ant qualifies or a finding of noneligibility. The Corporation
may extend the time if necessary to secure additional in-
formation that is essential to the determination of medical
eligibility. If the claim is rejected wholly or in part, the
certificate of eligibility or finding of noneligibility shall be
accompanied by a brief written statement of reasons.
(g) RECONSIDERATION.—
(1) The claimant may seek reconsideration of
the Corporation’s determination under subsection (f)
by submitting to the Corporation a written request
for reconsideration within 60 days from the date of
the Corporation’s determination under subsection
(f). The Corporation may extend the time for sub-
mitting a request for reconsideration upon the claim-
ant’s request. The request for reconsideration shall
include a statement of the grounds for reconsider-
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ation and shall be accompanied by any additional
evidence on which the claimant relies.
(2) The Corporation shall refer a request for re-
consideration to a panel of two physicians with ex-
pertise in the medical issue or issues raised by the
claimant. The panel of physicians may request fur-
ther information from the applicant or from third
parties, or may require additional medical examina-
tion or testing, in accordance with the provisions of
subsections (c) and (d).
(3) The panel of physicians shall consider the
issues raised by the request for reconsideration de
novo on the basis of all of the evidence before the
Corporation. If the panel of physicians agrees on the
disposition of the request for reconsideration, it will
render a decision. If the panel is not in agreement,
the Corporation will appoint to the panel a third
physician with expertise in the issues raised by the
claimant, and the panel thus augmented will render
a decision.
(4) If the panel approves the request for recon-
sideration, wholly or in part, the Corporation shall
issue a certificate of medical eligibility for the eligi-
ble medical categories for which the panel finds that
the claimant qualifies. If the panel denies the re-
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quest for reconsideration, or if the certificate of eli-
gibility on reconsideration rejects any claim made by
the claimant, wholly or in part, the panel shall pro-
vide a brief written statement of reasons.
(5) The Corporation shall act upon a request
for reconsideration as soon as practicable but in any
event within 30 days: Provided, That the Corpora-
tion may extend the time if necessary to secure addi-
tional information that is essential to the disposition
of the request for reconsideration.
(h) REAPPLICATION.—A claimant may file a new ap-
plication under this title at any time. Any such new appli-
cation filed within one year following the date on which
the Corporation issued a final finding of noneligibility
shall identify the previous application and any relevant
changes in circumstances.
SEC. 206. EXCEPTIONAL MEDICAL CLAIMS.
(a) EXCEPTIONAL MEDICAL CLAIMS PANEL.—The
Corporation shall establish one or more exceptional med-
ical claims panels. Each exceptional medical claims panel
shall be comprised of five physicians, including two Board-
certified pulmonary specialists, a Board-certified radiolo-
gist (who is either a certified B-reader or a specialist in
computed tomography), and two Board-certified patholo-
gists. Each exceptional medical claims panel shall deter-
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mine whether claims referred to it meet the requirements
of this section for designation as exceptional medical
claims.
(b) TIME TO APPLY.—A claimant may apply to the
Corporation for designation of his claim as an exceptional
medical claim if the claimant—
(1) concedes (either before or after a deter-
mination is made under section 205(f)) that the
claim does not meet the medical criteria in sections
201–204; or
(2) seeks designation of the claim as an excep-
tional medical claim within 60 days after a deter-
mination on reconsideration under section 205(g)
that the claim does not meet the medical criteria in
sections 201–204, wholly or in part.
However, the Corporation shall not accept any application
for designation as an exceptional medical claim if a claim-
ant has filed an action under section 208 for review of
the Corporation’s determination on reconsideration or has
commenced alternative dispute resolution procedures
under title III.
(c) CONTENTS OF APPLICATION.—The application
for designation as an exceptional medical claim shall in-
clude the information required by the Corporation under
section 205(a) and shall, in addition, be supported by the
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report of a Board-certified internist, Board-certified pul-
monary specialist, Board-certified pathologist, or Board-
certified oncologist, as appropriate for the eligible medical
category claimed. The physician’s report shall contain a
complete review of the exposed person’s medical history
and current condition, such additional material by way of
analysis and documentation as shall be prescribed by the
Corporation, and a detailed explanation why the claim
meets the standard for acceptance as an exceptional med-
ical claim set forth in subsection (d).
(d) STANDARD FOR ACCEPTANCE.—The exceptional
medical claims panel shall designate a claim as an excep-
tional medical claim only if the claimant cannot satisfy
the requirements for a given eligible medical category for
reasons beyond his or her control but demonstrates,
through clear and convincing evidence, that the exposed
person has an asbestos-related condition that is substan-
tially comparable to the condition of an exposed person
who would satisfy the requirements of a given eligible
medical category.
(e) FURTHER TESTING.—The exceptional medical
claims panel may order additional appropriate, reasonable,
and non-invasive testing or examination of the exposed
person (including computed tomography (CT) scanning).
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Tests ordered by an exceptional medical claims panel shall
be at the expense of the Corporation.
(f) DECISION.—The decision of the exceptional med-
ical claims panel shall not be subject to further review
within the Corporation. If the exceptional medical claims
panel decides that a claim should be designated, wholly
or in part, as an exceptional medical claim, the Corpora-
tion shall issue a certificate of medical eligibility which
shall designate the claim as an exceptional medical claim
and state the eligible medical category or categories for
which the claim qualifies by virtue of that designation.
SEC. 207. CONFIDENTIALITY.
The Corporation shall observe the requirements of 5
U.S.C. § 552a with respect to information that it receives
regarding a claimant or exposed person. The production
of this information to respondents in accordance with sec-
tion 303(c) shall be deemed a routine use of the informa-
tion within the meaning of 5 U.S.C. § 552a(a)(7).
SEC. 208. JUDICIAL REVIEW.
(a) The district courts of the United States shall have
exclusive jurisdiction, without regard to the amount in
controversy or the citizenship of the parties, of any action
to review a determination by the Corporation that a claim-
ant fails to meet the medical criteria, wholly or in part,
or that his claim does not qualify as an exceptional med-
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ical claim. An adverse determination regarding medical eli-
gibility shall not be subject to review until the claimant
has exhausted administrative remedies before the Corpora-
tion by obtaining a final determination under section
205(g) or section 206(f).
(b) An action for review under this section shall be
commenced within 60 days after the determination on re-
consideration as to which review is sought or the decision
that the claimant does not qualify as an exceptional med-
ical claim, whichever is later. However, no action for re-
view under this section may be commenced while an appli-
cation for designation as an exceptional medical claim is
pending.
(c) The court shall uphold the determination of the
Corporation if it is supported by substantial evidence on
the record as a whole and is not contrary to law. Due
account shall be taken of the rule of prejudicial error.
(d) In applying the standard set forth in subsection
(c), the record shall consist of the information submitted
to the Corporation or the exceptional medical claims panel
by the claimant, records and other information obtained
by the Corporation or exceptional medical claims panel re-
lating to the claim, and the results of any medical tests
administered at the direction of the Corporation or excep-
tional medical claims panel.
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TITLE III—ALTERNATIVE
DISPUTE RESOLUTION
SEC. 301. RULES OF PROCEDURE.
(a) The Board shall establish rules of procedure for
the alternative dispute resolution process. Such rules of
procedure shall be designed to ensure that claims will be
resolved in a prompt, efficient, fair, and inexpensive way
and shall include—
(1) reasonable time limits and rules regarding
the time at which actions of the Corporation become
final;
(2) procedures relating to the notification of re-
spondents, including reasonable and limited dis-
covery;
(3) procedures for the disclosure of information
necessary for settlement, including the timing of dis-
closure and determination of the information that
must be disclosed;
(4) rules regarding protection of confidential in-
formation;
(5) procedures for the selection of arbitrators;
(6) arbitration procedures designed to further
the objective of prompt, efficient, fair and inexpen-
sive dispute resolution including simplified pleadings,
reasonable limitations on discovery, resolution of
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pre-hearing motions including motions for summary
disposition, appropriate, evidentiary rules, and effi-
cient conduct of hearings; and
(7) procedures for just and reasonable sanctions
to ensure compliance with the Corporation’s rules
and orders.
(b) Parties shall have the right to be represented by
counsel at all phases of the alternative dispute resolution
process.
(c) By presenting to the Corporation any statement,
motion, or other paper, counsel and the party represented
by that counsel warrant that to the best of their knowl-
edge, information, and belief, formed after reasonable
inquiry—
(1) it is not being presented for any improper
purpose;
(2) the claims, defenses, or other legal conten-
tions therein are warranted by existing law or by a
nonfrivolous argument for the extension, modifica-
tion, or reversal of existing law or the establishment
of new law;
(3) the allegations and other factual contentions
have evidentiary support; and
(4) the denials of factual contentions are war-
ranted on the evidence.
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(d) The Corporation may contract with providers of
alternative dispute resolution services to provide mediation
or arbitration under this part. To the extent appropriate
and consistent with this Act, the Board may adopt the
rules of procedure of such contract service providers.
SEC. 302. MOTIONS OFFICERS.
Upon issuance of a certificate of eligibility, the Cor-
poration shall assign a motions officer to the claim. The
motions officer shall have the authority to determine all
procedural issues in the alternative dispute resolution
process except such matters as may be within the author-
ity of a mediator or arbitrator assigned to the claim. With-
out limitation, the motions officer may—
(1) determine whether notice shall be provided
to any respondent under section 303,
(2) issue subpoenas to parties and non-parties
for testimony and documents, in accordance with the
terms of section 307,
(3) enter scheduling orders and other orders to
control the progress of the proceedings,
(4) resolve discovery disputes, and
(5) exercise any other authority conferred by
procedural rules, policies, or procedures established
by the Corporation.
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SEC. 303. NOTICE TO RESPONDENTS.
(a) Within such time after receiving a final certificate
of eligibility as the Corporation may provide, a claimant
shall provide to the Corporation the name and address of
each person that claimant alleges is responsible for his as-
bestos-related injury and for each such person a verified
particularized statement in a form prescribed by the Cor-
poration of the basis for the allegation that that person
is or may be responsible for his injury. This particularized
statement shall include as applicable the dates of exposure
for each relevant time period; the worksite or other place
of exposure; the nature and frequency of the exposure; if
the exposure was occupational, the name of the exposed
person’s employer and a description of the exposed per-
son’s job and working conditions; the asbestos-containing
product(s) or material(s) to which the claimant was ex-
posed at each place of exposure; and any other information
that the Corporation may require by rule or otherwise in
all or in particular classes of cases.
(b) The Corporation will promptly notify each person
identified by the claimant pursuant to subsection (a) of
this section, and for whom a complete and adequate par-
ticularized statement has been submitted, that it has been
named as a respondent. The Corporation will at the same
time provide to each respondent a copy of all particular-
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ized statements submitted to the Corporation under sub-
section (a).
(c) The Corporation shall provide to each respondent,
on request and at the respondent’s expense, a copy of all
information submitted to the Corporation by the claimant,
records and other information obtained by Corporation re-
lating to the claim and the results of any medical tests
administered at the Corporation’s direction. However, the
Corporation shall not provide the information described in
this subsection to the respondent until it has received a
protective order, signed by or on behalf of the respondent,
in a form prescribed by the Corporation, that will preserve
the confidentiality of medical, employment, and other in-
formation that the Corporation reasonably designates as
confidential.
(d) For good cause shown and subject to reasonable
limitations, a motions officer may allow discovery for the
purpose of obtaining information necessary to allow the
claimant to provide a particularized statement under sub-
section (a). The motions officer may grant reasonable ex-
tensions of time for naming respondents in order to allow
for the completion of discovery under this subsection.
(e) New respondents may be added in mediation after
the time prescribed by the Corporation for adding re-
spondents (including any extensions) only upon motion by
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a claimant for good cause. Among the factors that the
Corporation may consider in determining whether good
cause exists are the following: (1) the prejudice to the
claimant if the new respondent is not added, (2) the rea-
son why the new respondent was not named in a timely
way, (3) whether the claimant sought to name the new
respondent as soon as he was aware of the omission, (4)
the extent to which late addition of a new respondent
would be disruptive, and (5) other relevant factors.
SEC. 304. GRACE PERIOD.
The Corporation shall establish a grace period not to
exceed 60 days after expiration of the time for naming
respondents, during which the parties will be encouraged
to reach voluntary settlements without the need for medi-
ation.
SEC. 305. MEDIATION.
(a) APPOINTMENT OF MEDIATOR.—Upon expiration
of the grace period, the Corporation shall appoint a medi-
ator to assist the parties who have not settled in the grace
period in settling the claim.
(b) DISCLOSURE OF INFORMATION NECESSARY FOR
SETTLEMENT.—Within such time after appointment of a
mediator as the Corporation shall prescribe, each party
shall serve upon all other non-settling parties a statement
of information required for settlement. The information
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to be included in such statements shall be determined by
the Corporation to be reasonably necessary for the parties
to evaluate the claim. Information previously provided by
any party may be incorporated by reference and need not
be resubmitted. Nothing in this subsection shall be con-
strued to require the disclosure of any information privi-
leged under applicable law.
(c) TIME LIMITS.—Mediation shall be completed
within 60 days following the appointment of the mediator.
The time period may be extended by the mediator if the
claimant has failed to provide the information required
under subsection (b), if such extension is necessary to
allow for simultaneous mediation of a group of claims, or
for other good cause. The time period may also be ex-
tended for a period not to exceed 60 days if in the judg-
ment of the mediator, the claimant’s final demand under
subsection (e) is not made in good faith, given the legal
and factual basis of the claim.
(d) CONFIDENTIALITY.—All statements made by any
party in mediation shall be confidential and shall not be
admissible in any trial or arbitration except as allowed
under Rule 408 of the Federal Rules of Evidence.
(e) GOOD FAITH OFFERS AND DEMANDS.—Fifteen
days prior to the close of the mediation period, claimant
shall provide to each non-settling respondent or jointly-
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represented group of respondents a final good faith de-
mand of settlement. Five days later each respondent or
jointly-represented group of respondents shall make a final
good faith offer in reply. If a respondent or jointly-rep-
resented group of respondents fails to make a settlement
offer under this section, it shall be deemed to have made
a settlement offer of zero dollars. During the remaining
10-day period, or any extension thereof, the mediator shall
work with the parties in a further effort to settle the claim.
(f) RELEASE FROM MEDIATION.—At the close of the
mediation period, the mediator shall issue to the claimant
a release from mediation with respect to all respondents
that participated in mediation. After the issuance of a re-
lease from mediation, the claimant may elect arbitration
under section 306 or commence a civil action against those
respondents.
SEC. 306. ARBITRATION.
(a) ELECTION TO ARBITRATE.—A claimant may
elect arbitration under this section by serving notice of
such election within 30 days following release from medi-
ation on all respondents that have not previously settled.
All such respondents will be parties to the arbitration. The
Corporation shall adopt rules of procedure under section
301 governing the assertion of third-party claims against
any person, whether or not that person has previously
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been named as a respondent. Except as otherwise provided
in this section, parties in arbitration against which third-
party claims have been asserted shall be deemed respond-
ents.
(b) FEDERAL ARBITRATION ACT.—All arbitrations
hereunder shall be subject to the Federal Arbitration Act,
9 U.S.C. §§ 1–6, 8–16, except that, the provisions of this
Act and rules adopted by the Corporation under this Act
shall be effective notwithstanding any inconsistent provi-
sion of the Federal Arbitration Act.
(c) ARBITRATION BY SPECIAL AGREEMENT.—Noth-
ing in this section shall be construed as prohibiting con-
sensual arbitration pursuant to a special agreement en-
tered into by the claimant and one or more of the respond-
ents. The terms of such a special agreement will prevail,
as to the parties thereto, over the provisions of this section
(other than subsection (h)) and any rules adopted pursu-
ant to section 301.
(d) STATUTORY ARBITRATION.—In the absence of a
special agreement to arbitrate, arbitrations shall be con-
ducted under rules adopted by the Corporation pursuant
to section 301. Those rules shall establish a procedure for
early dismissal of, or summary judgment in favor of, any
party named as a third-party respondent, and no party
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that obtains such early dismissal summary judgment shall
be considered a respondent for purposes of section 601.
(e) SUBPOENA POWERS OF ARBITRATORS.—Arbitra-
tors may issue subpoenas to parties and non-parties for
testimony and documents in accordance with the terms of
section 307.
(f) LAW TO BE APPLIED.—Unless otherwise pro-
vided in this Act, the arbitrator shall, with respect to each
respondent, apply the law, including the law relating to
choice of law, that would be applied by a court designated
by the claimant which would have jurisdiction over that
respondent. However, if a respondent demonstrates to the
satisfaction of the arbitrator that the court designated by
the claimant would dismiss or transfer under forum non
conveniens or a similar doctrine, then the arbitrator shall
apply the law of the state which has the most significant
relationship to the occurrence and the parties.
(g) PRESUMPTION APPLICABLE TO MEDICAL DETER-
MINATION.—A finding of medical eligibility by the Cor-
poration shall be presumed correct and shall be conclusive
unless rebutted by clear and convincing evidence, except
that, to the extent that the finding of medical eligibility
is abased upon evidence of exposure to asbestos, proof
with respect to such exposure shall be determined in ac-
cordance with applicable state law.
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(h) AWARDS.—The arbitrator shall issue awards with
respect to each respondent within time periods set by the
Corporation. The awards shall be accompanied by findings
of fact and conclusions of law. Each respondent shall be
jointly and severally liable to the claimant to the extend
provided by applicable state law:
(1) Where joint and several liability exists
under applicable state law, the arbitrator shall deter-
mine the total joint and several liability of all re-
spondents that have not been released by the claim-
ant or dismissed from the proceeding. The arbitrator
shall, in addition, determine the amount allocable to
each such respondent based on principles of com-
parative fault or responsibility. Any respondent who
has obtained a release from the claimant prior to the
issuance of the arbitrator’s award shall be fully pro-
tected from claims for contribution or indemnity; but
the award against the remaining respondents shall
be reduced by the consideration paid or the amount
stated in the release, whichever is greater. The total
award, reduced by the aggregate of such reductions
for all respondents receiving a release, shall then be
allocated among the remaining respondents accord-
ing to the arbitrator’s allocation of comparative
shares of fault or responsibility.
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(2) Where joint and several liability has been
abolished under applicable stat law, the arbitrator
shall determine in accordance with that law the sev-
eral share of liability of each respondent that has
not been released or dismissed from the proceeding.
(3) Where joint and several liability has been
abolished under applicable state law with respect to
only a portion of damages, the arbitrator shall deter-
mine in accordance with state law the several share
of liability of each respondent that has not been re-
leased or dismissed from the proceeding, and shall
in addition determine in accordance with state law
the total joint and several liability of all such re-
spondents. Allocation of the joint and several portion
of the ward among the respondents, and reduction
of the total award on account of settlements, shall
be as set forth in paragraph (h)(1), except that only
the joint and several portion of an award may be
reduced by amounts paid in settlement by released
persons and only the portion of the amount paid by
any released person in settlement with respect to the
joint and several portion of damages shall be so ap-
plied to reduce the award.
(i) CONTRIBUTION RIGHTS RETAINED BY RESPOND-
ENTS
IN ADR.—The entry of an arbitration award
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against any respondent shall give rise to a right of con-
tribution on the part of that respondent against any joint
tortfeasor whose liability is extinguished by the award
without the necessity that the award be enforced as a
court judgment. A settlement between a respondent and
the claimant that extinguishes in whole or in part the li-
ability of a joint tortfeasor shall not extinguish the settling
respondent’s right of contribution against that joint
tortfeasor.
(j) PENALTY FOR INADEQUATE OFFER IN MEDI-
ATION.—If the final offer made by any respondent or
jointly-represented group of respondents under section
305(e) is more than 25 percent less than the share of the
total liability (exclusive of prejudgment interest, if any)
awarded in arbitration against that respondent or against
all the members of a jointly-represented group of respond-
ents, the arbitrator shall add a 10% penalty to the award
against such respondent or each member of such group
of respondents. This penalty shall not be taken into con-
sideration in determining the maximum allowable attor-
neys’ fees under section 503.
(k) CONSOLIDATIONS.—Claims with respect to mul-
tiple exposed persons shall not be joined or consolidated
for hearing on the merits without the consent of all par-
ties.
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SEC. 307. SUBPOENA POWERS OF MOTIONS OFFICERS AND
ARBITRATORS.
A motions officer or an arbitrator may summon in
writing any person to attend before him as a witness, or
to appear for a deposition, and in a proper case to bring
with him any book, record, document, or paper which may
be deemed material as evidence in the case. The fees for
such attendance shall be the same as the fees of witnesses
before masters of the United States courts. A summons
under this section shall issue in the name of the motions
officer or arbitrator, shall be signed by the motions officer
or arbitrator, shall be directed to the person summoned,
and shall be served in accordance with Rule 45(b)(1) of
the Federal Rules of Civil Procedure. If any person so
summoned to testify or produce documents shall refuse or
neglect to obey said summons, upon petition the United
States District Court for the District of Columbia or for
the district in which the testimony is to be taken or the
document production is to take place may compel the at-
tendance of such person before the motions officer or arbi-
trator, or his appearance for a deposition, or the produc-
tion of documents, or may punish said person for con-
tempt in the same manner provided by law for securing
the attendance of witnesses or their punishment for ne-
glect or refusal to attend in the courts of the United
States.
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TITLE IV—CIVIL ACTIONS
SEC. 401. PREREQUISITES FOR CIVIL ACTION.
Subject to section 702, no civil action asserting any
asbestos claim may be filed or maintained unless the plain-
tiff has obtained a certificate of medical eligibility and re-
lease from mediation.
SEC. 402. INDIVIDUAL TRIALS.
No class action suit, joinder of parties, aggregation
of claims, consolidation of actions, extrapolation, or other
device to determine multiple asbestos claims on a collective
basis shall be permitted without the consent of each de-
fendant. Any defendant in a civil action that involves a
violation of this subsection may remove such action to an
appropriate Federal district court. The district courts of
the United States shall have jurisdiction of all civil actions
removed pursuant to this section without regard to diver-
sity of citizenship or amount in controversy.
SEC. 403. CERTIFICATE OF MEDICAL ELIGIBILITY PRE-
SUMED CORRECT.
A finding of medical eligibility by the Corporation
shall be presumed correct and shall be conclusive unless
rebutted by clear and convincing evidence, except that, to
the extent that a finding of medical eligibility is based on
evidence of exposure to asbestos, the burden of proof with
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respect to such exposure shall be determined in accordance
with applicable state law.
SEC. 404. PENALTY FOR INADEQUATE OFFER IN MEDI-
ATION.
If the final offer made by any respondent or jointly-
represented group of respondents under section 305(e) is
more than 25 percent less than the several share of liabil-
ity (exclusive of prejudgment interest, if any) assigned by
the jury or other fact-finder to that respondent or to all
the members of a jointly represented group of respond-
ents, the court shall award a 10% penalty as to each such
respondent or member of a jointly-represented group of
respondents. This penalty shall not be taken into consider-
ation in determining the maximum allowable attorneys’
fees under section 503.
TITLE 
V—RULES 
APPLICABLE
TO ARBITRATIONS AND CIVIL
ACTIONS
SEC. 501. ELEMENTS OF PROOF; RELIEF.
Subject to section 702 and notwithstanding any other
provision of law, the following shall apply in all civil ac-
tions and arbitrations involving an asbestos claim:
(1) BASIC
REQUIREMENT
OF
ELIGIBLE
MED-
ICAL CONDITION.—No person shall recover in any
civil action or arbitration damages or other relief
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with respect to an asbestos claim unless such person
establishes, by evidence meeting the requirements of
sections 201, 202, 203, 204, or 206, as appropriate,
the existence of an eligible medical condition.
(2) EMOTIONAL
DISTRESS; MEDICAL
MONI-
TORING.—No damages or other relief shall be
awarded in any civil action or arbitration involving
an asbestos claim for emotional distress or any other
form of mental or emotional harm, or for medical
monitoring or surveillance, based wholly or in part
on exposure to asbestos unless the requirements of
paragraph (1) are met in addition to any other re-
quirement under applicable law for recovery of dam-
ages or other relief for emotional distress or medical
monitoring or surveillance.
(3) ENHANCED RISK.—No damages or other re-
lief shall be awarded in any civil action or arbitra-
tion involving an asbestos claim solely for increased
risk of cancer or other disease.
(4) PUNITIVE DAMAGES.—No punitive damages
shall be awarded in any civil action or arbitration in-
volving an asbestos claim.
SEC. 502. TIMELINESS DEFENSES ABOLISHED.
No defense to an asbestos claim based on a statute
of limitations or statute of repose, laches, or any other
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defense based on the timeliness of the claim shall be recog-
nized or allowed in any civil action or arbitration unless
such claim was untimely as of the date of enactment of
this Act.
SEC. 503. ATTORNEYS’ FEES.
Notwithstanding any provision of other law or con-
tract, the aggregate fee, including all expenses and other
charges of a claimant’s attorneys in any civil action or pro-
ceeding before the Corporation involving an asbestos claim
(whether or not such attorney formally appears in such
civil action or proceeding) shall not exceed twenty-five per-
cent of the damages or other payments received by that
claimant, in settlement or pursuant to a judgment or
award, from or on behalf of all respondents before the Cor-
poration and all defendants in the civil action. This limita-
tion does not apply to any settlement between a claimant
and any other person regarding an asbestos claim reached
prior to the mediation period and where no civil action
has been commenced in any court.
SEC. 504. EFFECTIVE ON SUBSEQUENT ACTIONS.
(a) Notwithstanding any other provision of law, a
judgment or settlement of an asbestos claim for a non-
malignant condition satisfying the requirements of section
201 shall not preclude a subsequent claim with respect
to the same exposed person for a malignant condition sat-
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isfying the requirements of sections 202, 203, 204, or 206,
as applicable.
(b) Subsection (a) shall not be construed to invalidate
any provision of a settlement agreement entered into prior
to the date of enactment.
TITLE VI—FUNDING
SEC. 601. COSTS OF MEDICAL REVIEW AND OVERHEAD AND
ADMINISTRATION.
(a) PROVISIONAL ALLOCATION.—
(1) ESTIMATE OF COSTS.—On or before August
1 of each year, the Corporation shall estimate its
costs (exclusive of the cost of mediation and arbitra-
tion that may be recovered under section 602) for
the following fiscal year beginning October 1. In es-
timating its costs under this section, the Corporation
shall make reasonable allowances for contingencies
and shall state separately those costs directly related
to medical review and those costs directly related to
general overhead and overhead and administration
of the Corporation.
(2) ALLOCATION TO RESPONDENTS.—The Cor-
poration shall proportionally allocate the costs esti-
mated pursuant to paragraph (1) among all persons
named as a respondent during the 12-month period
ending the preceding June 30 and shall notify each
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such person of the amount due pursuant to such al-
location. In this section, a person shall be considered
named as a respondent if notice was provided to
such person under section 303. In making this allo-
cation, the Corporation shall calculate the following:
(i) for each individual respondent, the total number
of proceedings in which the respondent has been
named, and (ii) the total combined number of pro-
ceedings for all respondents. For purposes of this
calculation, all claims, including derivative claims,
relating to one exposed person shall be counted as
one proceeding for each respondent named in the
proceeding. The total number of proceedings for
each respondent shall be divided by the total com-
bined number of proceedings for all respondents to
determine the percentage of costs allocable to each
individual respondent. The Corporation shall not al-
locate any of the costs estimated pursuant to para-
graph (1) to any respondent whose allocable share
of the costs, in the absence of such exclusion, is less
than a de minimis percentage established by the
Corporation. Any such unallocated percentage(s)
shall be reallocated to the remaining respondents
based upon their original allocation percentages.
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(3) PAYMENT
OF
ESTIMATED
SHARE
OF
COSTS.—Each respondent shall pay to the Corpora-
tion its allocated share of the estimated costs within
30 days after the date of notification of its allocated
share.
(b) FINAL ALLOCATION.—On or before November 30
of each year, the Corporation shall determine its total
costs (exclusive of the cost of mediation and arbitration
that may be recovered from respondents under section
602) for the prior fiscal year ending September 30 and
will allocate those costs proportionally, in the manner de-
scribed in subsection (a)(2), among persons who were
named as respondents in that fiscal year. In making an
allocation under this subsection, the Corporation shall
state separately those costs directly attributable to the
medical review process and those costs directly attrib-
utable to general overhead and administration of the Cor-
poration. If the amount allocated to any person under this
subsection is greater than the amount deposited by such
person under subsection (a)(2) with respect to the pre-
ceding fiscal year, that person shall pay the deficiency to
the Corporation within 30 days after receiving a notice
of deficiency from the Corporation. If the amount allo-
cated to any person under this subsection is less than the
amount deposited by such person under subsection (a)(2)
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for the preceding fiscal year, the Corporation shall
promptly refund the difference to that respondent.
(c) TRANSITIONAL PROVISIONS.—
(1) START-UP FUNDING.—Start-up funding will
be provided by voluntary contributions within 30
days after appointment and confirmation of the first
director. Unless the Corporation and the donor oth-
erwise agree, the Corporation will refund such con-
tributions following receipt of the funds allocated
pursuant to the initial determination of costs and as-
sessments to defendants provided in subsection
(c)(2). Start-up costs include all reasonable and nec-
essary expenses of the Corporation incurred prior to
the availability of transitional funding under sub-
section (c)(2).
(2) TRANSITIONAL FUNDING.—
(A) NOTICE.—As soon as feasible after a
majority of the Board is appointed and con-
firmed, the Board shall provide notice request-
ing the information listed in subparagraph (B)
to each defendant served in any civil action in-
volving an asbestos claim pending on the date
of enactment. Such notice shall be the best
practicable under the circumstances, including
publication in the Federal Register and indi-
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vidual notice to any defendant that can be iden-
tified through reasonable effort.
(B) INFORMATION
TO
BE
PROVIDED.—
Within such time as the Corporation may pre-
scribe, but in any event not less than 60 days
after the date of publication in the Federal
Register, every person who was, on the date of
enactment, served as a defendant in at least
5000 pending civil actions involving asbestos
claims shall provide to the Corporation a state-
ment containing the following information: the
total number of civil actions in which that per-
son was named as a defendant and, with re-
spect to each civil action, the name of the lead
plaintiff, the name of the lead defendant, the
court in which the civil action was pending, and
the docket number.
(C) COUNTING RULES.—For purposes of
subparagraph (B):
(i) All asbestos claims relating to a
single exposed person, including derivative
claims, shall be treated as one civil action
regardless of the number of plaintiffs or
defendants names in the complaint.
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(ii) In civil actions involving multiple
plaintiffs and defendants, each asbestos
claim shall be deemed to have been as-
serted against each defendant unless the
complaint states otherwise.
(iii) Third-party defendants shall cal-
culate the number of civil actions involving
asbestos claims pending against them as if
they had been joined as a defendant by the
original plaintiff or plaintiffs.
(iv) Cross claims, deemed or other-
wise, shall not count as a separate civil ac-
tion.
(D) SIGNATURE.—The statement of infor-
mation required under this paragraph shall be
signed on behalf of the defendant by a cor-
porate officer or (in the case of a defendant
that is not a corporation) a senior official com-
parable to a corporate officer, authorized to
bind such defendant, attesting under penalty of
perjury that the information contained therein
is true and complete to the best of his knowl-
edge and belief after reasonable investigation.
(E) ALLOCATION
AND
PAYMENT.—The
Corporation shall proportionally allocate its es-
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timated costs for transitional period to include
the first two fiscal years after the date of enact-
ment, in substantially the same manner as the
allocation described in subsection (a)(2), to the
defendants identified in this paragraph and
shall notify each such defendant of its propor-
tionate share of such estimated transitional
costs. Within 45 days following the date of such
notice, each such defendant shall pay its share
of the estimated transitional costs to the Cor-
poration.
(3) RECONCILIATION.—On or before November
30 following the end of the transitional period, the
Corporation shall determine its total costs (exclusive
of the cost of mediation an arbitration that may be
recovered from respondents under section 602) for
the transitional period, including start-up costs, and
shall proportionally allocate those costs, in substan-
tially the same manner as the allocation described in
subsection (a)(2), among defendants who were
named as respondents during that transitional pe-
riod. In making an allocation under this subsection,
the Corporation shall state separately those costs di-
rectly attributable to the medical review process and
those costs directly attributable to general overhead
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and administration of the Corporation. If the
amount allocated to any respondent under this sub-
section is greater than the amount deposited by such
respondent under paragraph (2), that respondent
shall pay the deficiency to the Corporation within
30 days after receiving a notice of deficiency from
the Corporation. If the amount allocated to any re-
spondent under this subsection is less than the
amount deposited by such respondent under para-
graph (2), the difference shall be promptly refunded.
SEC. 602. COST OF MEDIATION AND ARBITRATION.
(a) The cost of mediation shall be charged, on a per
capita basis, to each respondent who participated in medi-
ation, wholly or in part.
(b) In the absence of an agreement among the parties
to the contrary, the cost of arbitration shall be charged,
on a per capita basis, to each respondent who participated
in the arbitration, wholly or in part, except that, the Cor-
poration may by rule provide for a reduction in the costs
charged to respondents who settle or are dismissed from
arbitration prior to the commencement of the hearing.
SEC. 603. INFORMAL DISPUTE RESOLUTION.
(a) The Corporation shall establish expeditious proce-
dures for the informal resolution of disputes regarding the
assessment of costs under this title. The Corporation may,
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in its sole discretion, postpone the obligation to pay the
disputed assessment, wholly or in part, during the pend-
ency of informal dispute resolution procedures.
(b) The Corporation may agree to participate in vol-
untary alternative dispute resolution procedures, including
mediation and arbitration, to resolve disputes regarding
assessments.
SEC. 604. JUDICIAL REVIEW; ENFORCEMENT.
(a) The district courts of the United States shall have
exclusive jurisdiction, without regard to the amount in
controversy or citizenship of the parties, to review any as-
sessment of costs made by the Corporation pursuant to
this title. The reviewing court shall uphold a challenged
assessment unless it determines that that assessment is
arbitrary and capricious or otherwise not in accordance
with law. No action under this subsection may be com-
menced or maintained by any person unless that person
has first (1) exhausted the informal dispute resolution
procedures provided under section 603 and (2) paid to the
Corporation the entire amount assessed to that person by
the Corporation, including the amount in dispute.
(b) The Corporation shall have the authority to bring
an action in the district courts of the United States to
enforce any obligation imposed on any person by this title,
and the district courts of the United States shall have ex-
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clusive jurisdiction of such actions without regard to the
amount in controversy or citizenship of the parties. The
court shall not entertain any defense other than lack of
jurisdiction in any action by the Corporation to recover
assessments due under this title unless the assessment is
fully paid, with interest, in which case the court shall up-
hold the Corporation’s determination if it is not arbitrary
and capricious or otherwise contrary to law. In any action
under this subsection in which the Corporation prevails,
it shall be entitled to costs, including reasonable attorneys’
fees, and interest on any unpaid funds. Interest under this
subsection shall be equal to the rate applicable to under-
paid taxes under 26 U.S.C. § 6621.
SEC. 605. PENALTIES.
If any person required by section 601 to provide in-
formation to the Corporation willfully fails to do so within
the time fixed by the Corporation, the person shall forfeit
to the Corporation the sum of $50,000, which forfeiture
shall be payable to the Corporation, and shall be recover-
able in a civil suit in the name of the Corporation brought
under section 604(b).
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TITLE VII—APPLICABILITY;
PENDING CIVIL ACTIONS
SEC. 701. APPLICABILITY.
Subject to section 702, upon the date of enactment
the Act shall apply to any civil action asserting an asbestos
claim that has not resulted in a final, non-appealable judg-
ment.
SEC. 702. PENDING CIVIL ACTIONS.
(a) A certificate of medical eligibility shall not be re-
quired in any civil action asserting an asbestos claim if
(1) that action was pending upon the date of enactment
and (2) a trial commences prior to the operational date.
No release from mediation shall be required in any civil
action asserting an asbestos claim if that action was pend-
ing on the date of enactment, whether or not trial com-
mences prior to the operational date.
(b) Prior to the operational date, a plaintiff in a civil
action asserting an asbestos claim that is pending on the
date of enactment may elect to submit that claim to the
Corporation for a determination of medical eligibility. Any
such election shall be irrevocable.
(c) Notwithstanding any other provision of law, the
plaintiff in any civil action asserting an asbestos claim who
has not obtained a certificate of medical eligibility shall
have the burden of establishing the existence of an asbes-
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tos-related condition that meets the criteria for an eligible
medical category pursuant to sections 201–204.
TITLE VIII—MISCELLANEOUS
PROVISIONS
SEC. 801. DEFINITIONS.
In this Act:
(1) ALTERNATIVE DISPUTE RESOLUTION PROC-
ESS.—The term ‘‘alternative dispute resolution proc-
ess’’ means the mediation and voluntary arbitration
process established under Title III of this Act.
(2) ASBESTOS.—The term ‘‘asbestos’’ means
any number of naturally occurring silicates with the
common properties of great resistance to destruction
by physical or chemical means and a fibrous configu-
ration, including asbestiform varieties of chrysotile,
crocidolite, amosite, anthophyllite, tremolite, and ac-
tinolite.
(3) ASBESTOS
CLAIM.—The term ‘‘asbestos
claim’’ means any claim for damages or other relief,
arising out of, based on, or related to the health ef-
fects of exposure to asbestos, including any claim for
personal injury, death, mental, or emotional injury,
risk of disease or other injury, or the costs of med-
ical monitoring or surveillance, and including any
claim made by or on behalf of any exposed person
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or any representative, spouse, parent, child, or other
relative of any exposed person.
(4) ASBESTOS
TRUST.—The term ‘‘asbestos
trust’’ means a court-supervised trust established to
resolve asbestos claims arising directly or indirectly
from exposure to asbestos or asbestos-containing
products, including a trust created pursuant to the
bankruptcy laws of the United States or Rule 23 of
the Federal Rules of Civil Procedure.
(5) BASILAR
CRACKLES.—The term ‘‘basilar
crackles’’, sometimes called ‘‘rales’’, means those
sounds described in American Thoracic Society,
‘‘The Diagnosis of Nonmalignant Diseases Related
to Asbestos’’, 134 American Review of Respiratory
Disease 363, 366 (1986).
(6) BOARD.—The term ‘‘Board’’ means the
Board of Directors of the Asbestos Resolution Cor-
poration.
(7) BOARD-CERTIFIED INTERNIST.—The term
‘‘Board-certified internist’’ means a physician who is
currently certified by the American Board of Inter-
nal Medicine in internal medicine.
(8) BOARD-CERTIFIED ONCOLOGIST.—The term
‘‘Board-certified oncologist’’ means a physician who
is currently certified by the American Board of In-
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ternal Medicine in the subspecialty of medical oncol-
ogy.
(9) 
BOARD-CERTIFIED
PATHOLOGIST.—The
term ‘‘Board-certified pathologist’’ means a physi-
cian who currently holds primary certification in
anatomic pathology, or combined anatomic and clin-
ical pathology, from the American Board of Pathol-
ogy.
(10) 
BOARD-CERTIFIED
PULMONARY
SPE-
CIALIST.—The term ‘‘Board-certified pulmonary spe-
cialist’’ means a physician who is currently certified
by the American Board of Internal Medicine in the
subspecialty of pulmonary disease.
(11) 
BOARD-CERTIFIED
RADIOLOGIST.—The
term ‘‘Board-certified radiologist’’ means a physician
who is currently certified by the American Board of
Radiology.
(12) BYLAWS.—The term ‘‘bylaws’’ means the
code or codes of rules adopted for the regulation or
management of the affairs of the Corporation. By-
laws shall be consistent with the requirements of this
Act and, to the extent consistent with this Act, with
the requirements of the District of Columbia Non-
profit Corporation Act, (D.C. Code §§ 29–501 et
seq.)
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(13) CANCER.—The term ‘‘cancer’’ means any
of various malignant neoplasms marked by the pro-
liferation of anaplastic cells that tend to invade sur-
rounding tissue and metastasize to new body sites
and the pathological condition characterized by such
growths.
(14) CERTIFICATE OF MEDICAL ELIGIBILITY.—
The term ‘‘certificate of medical eligibility’’ means a
certificate issued by the Corporation to a claimant
pursuant to this Act certifying that an exposed per-
son meets the requirements of one or more eligible
medical categories (or qualifies as an exceptional
medical claim with respect to an eligible medical cat-
egory).
(15) CERTIFIED
B-READER.—The term ‘‘cer-
tified B-reader’’ means an individual qualified as a
‘‘final’’ or ‘‘B-reader’’ under 42 C.F.R. § 37.51(b)
(1997) (and any subsequent revisions thereof) whose
certification is current.
(16) CHEST X-RAYS.—The term ‘‘chest x-rays’’
means chest radiographs taken in four views (Pos-
terior-Anterior, Lateral, and Left and Right Ob-
liques) and graded quality 1 for reading according to
the criteria established by the ILO; except that, in
situations where the claimant is unable to provide
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quality 1 chest x-rays because of death or because
of an inability to have new chest x-rays taken, chest
x-rays graded quality 2 will be acceptable.
(17) CIVIL ACTION.—The term ‘‘civil action’’
means any action, lawsuit, or proceeding in any
state, federal, or tribal court, but does not include
(a) criminal action, (b) an action relating to state or
federal workers’ compensation laws, or (c) a pro-
ceeding for judicial review of the actions of the Cor-
poration.
(18) CLAIMANT.—The term ‘‘claimant’’ means
any exposed person or his legal representative, and
any parent, child, or other relative of an exposed
person, or their legal representatives, who asserts an
asbestos claim.
(19) CLINICAL
EVIDENCE
OF
ASBESTOSIS.—
The term ‘‘clinical evidence of asbestosis’’ means a
diagnosis of pulmonary asbestosis by a Board-cer-
tified internist or Board-certified pulmonary spe-
cialist based on the following minimum objective cri-
teria:
(A) Chest x-rays which, in the opinion of
a certified B-reader, show small irregular opac-
ities of ILO Grade 1/0 and pulmonary function
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testing and physical examination that show ei-
ther:
(i) FVC < 80% of predicted value
with FEV1/FVC ≥ 75% (actual value); or
(ii) TLC < 80% of predicted value,
with either DLCO ≤ 76% of predicted
value or bilateral basilar crackles, and also
the absence of any probable explanation
for this DLCO result or crackles finding
other than the presence of lung disease.
(B) Chest x-rays which, in the opinion of
a certified B-reader, show small irregular opac-
ities of ILO Grad 1/1 or greater; and pul-
monary function testing that show either:
(i) FVC < 80% of predicted value
with FEV1/FVC ≥ 72% (actual value) or,
if the individual tested is at least 68 years
old at the time of the testing, with FEV1/
FVC ≥ 65% (actual value); or
(ii) TLC < 80% of predicted value.
(20) COMPENSATORY
DAMAGES.—The term
‘‘compensatory damages’’ means damages awarded
for economic and non-economic loss.
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(21) CORPORATION.—The term ‘‘Corporation’’
means the Asbestos Resolution Corporation estab-
lished in section 101.
(22) DEFENDANT.—The term ‘‘defendant’’
means any party in a civil action that is alleged to
be legally responsible for the claimant’s injury.
(23) DLCO.—The term ‘‘DLCO’’ means dif-
fusing capacity of the lung (carbon monoxide), which
is a measure of the volume of carbon monoxide
transferred from the alveoli to blood in the pul-
monary capillaries for each unit of driving pressure
of the carbon monoxide.
(24) ECONOMIC
LOSS.—The term ‘‘economic
loss’’ means any pecuniary loss resulting from harm
(including the loss of earnings or other benefits re-
lated to employment, medical expense loss, replace-
ment service loss, loss due to death, burial costs, and
loss of business or employment opportunities) to the
extent that recovery for such loss is allowed under
applicable law.
(25) ELIGIBLE MEDICAL CATEGORY.—The term
‘‘eligible medical category’’ means mesothelioma,
lung cancer, other cancer, and non-malignant condi-
tions.
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(26) 
EVIDENCE
OF
BILATERAL
PLEURAL
THICKENING
WITH
IMPAIRMENT.—The term ‘‘evi-
dence of bilateral pleural thickening with impair-
ment’’ means a diagnosis of bilateral pleural thick-
ening with impairment by a Board-certified internist
or Board-certified pulmonary specialist based on the
following minimum objective criteria:
(A) Chest x-rays which, in the opinion of
a certified B-reader, show bilateral pleural
thickening of ILO Grad B2, and which includes
blunting of at least one costophrenic angle and
is not explained by any other condition in the
subject’s history; and pulmonary function test-
ing that shows:
(i) If TLC is available, TLC < 75%
of predicted value; or
(ii) If TLC is not available, VC or
FVC < 75% of predicted value with
FEV1/FVC ≥ 75% (actual value); and in
either case
(iii) a statement by the Board-cer-
tified internist or Board-certified pul-
monary specialist that the asbestos-related
changes are a substantial contributing fac-
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tor in causing the pulmonary function
changes.
(B) Chest x-rays which, in the opinion of
a certified B-reader, show bilateral pleural
thickening of ILO Grade C2 or greater, and
which includes the blunting of at least one
costophrenic angle and is not explained by any
other condition in the subject’s history; and pul-
monary function testing that shows—
(i) FVC < 180% of predicted value
with FEV1/FVC ≥ 75% (actual value), or,
if the individual tested is at least 68 years
old at the time of the testing, with FEV1/
FVC ≥ 65% (actual value); or
(ii) TLC < 80% of predicted value;
and in either case
(iii) a statement by the Board-cer-
tified internist or Board-certified pul-
monary specialist that the asbestos-related
changes are a substantial contributing fac-
tor in causing the pulmonary function
changes.
(27) EXCEPTIONAL MEDICAL CLAIM.—The term
‘‘exceptional medical claim’’ means a claim identified
as such pursuant to the procedures in section 206.
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(28) EXPOSED
PERSON.—The term ‘‘exposed
person’’ means any person who has been exposed in
any state (or while working aboard a United States
vessel outside the United States) to asbestos or to
asbestos containing products.
(29) FEV1.—The term ‘‘FEV1’’ means forced
expiratory volume (1 second), which is the maximal
volume of air expelled in one second during perform-
ance of the spirometric test for forced vital capacity
(FVC). FEV1 shall be measured using standard spi-
rometric methods.
(30) FINAL
CERTIFICATE
OF
ELIGIBILITY.—
The term ‘‘final certificate of eligibility’’ means a
certificate of eligibility that is not subject to further
review or modification by the Corporation, whether
on reconsideration under section 205 or by action of
an exceptional medical claims panel under section
206.
(31) FVC.—The term ‘‘FVC’’ means forced
vital capacity, which is the maximal volume of air
expired with a maximally forced effort from a posi-
tion of maximal inspiration. FVC shall be measured
using standard spirometric methods.
(32) GOOD FAITH OFFER OR GOOD FAITH DE-
MAND.—The terms ‘‘good faith offer’’ or ‘‘good faith
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demand’’ means a settlement offer or demand which
reflects an evaluation of relevant factors of tradi-
tional tort principles of damages.
(33) GRACE PERIOD.—The term ‘‘grace period’’
means the period allowed for voluntary settlements
in section 304.
(34) ILO.—The term ‘‘ILO’’ means the Inter-
national Labour Office.
(35) ILO GRADE.—The term ‘‘ILO grade’’
means the radiological ratings for the presence of
lung changes by chest x-ray as established from time
to time by the ILO.
(36) LATENCY PERIOD.—The term ‘‘latency pe-
riod’’ means the period from the date of the exposed
person’s first significant exposure to asbestos or an
asbestos-containing product to the date of mani-
festation of the condition claimed.
(37) MANIFESTATION.—The term ‘‘manifesta-
tion’’ means either the date of the actual diagnosis
of the condition claimed, or the date upon which the
clinical records and available tests indicate that the
condition could reasonably have been diagnosed by a
competent physician.
(38) MEDICAL
ADVISORY
BOARD.—The term
‘‘medical advisory board’’ means the board estab-