2023 Texas Statutes › Civil Practice and Remedies Code › Title 4 - Liability in Tort › Chapter 90 - Claims Involving Asbestos and Silica › Subchapter A. General Provisions › Section 90.004. Reports Required for Claims Involving Silica-Related Injury

Sec. 90.004.  REPORTS REQUIRED FOR CLAIMS INVOLVING SILICA-RELATED INJURY.  (a)  A claimant asserting a silica-related injury must serve on each defendant a report by a physician who is board certified in pulmonary medicine, internal medicine, oncology, pathology, or, with respect to a claim for silicosis, occupational medicine and whose license and certification were not on inactive status at the time the report was made that:
(1)  verifies that the physician or a medical professional employed by and under the direct supervision and control of the physician:
(A)  performed a physical examination of the exposed person, or if the exposed person is deceased, reviewed available records relating to the exposed person's medical condition;
(B)  took a detailed occupational and exposure history from the exposed person or, if the exposed person is deceased, from a person knowledgeable about the alleged exposure or exposures that form the basis of the action; and
(C)  took a detailed medical and smoking history that includes a thorough review of the exposed person's past and present medical problems and their most probable cause;
(2)  sets out the details of the exposed person's occupational, exposure, medical, and smoking history;
(3)  verifies that the exposed person has one or more of the following:
(A)  a quality 1 or 2 chest x-ray that has been read by a certified B-reader according to the ILO system of classification as showing:
(i)  bilateral predominantly nodular opacities (p, q, or r) occurring primarily in the upper lung fields, with a profusion grading of 1/1 or higher, for an action filed on or after May 1, 2005; or
(ii)  bilateral predominantly nodular opacities (p, q, or r) occurring primarily in the upper lung fields, with a profusion grading of 1/0 or higher, for an action filed before May 1, 2005;
(B)  pathological demonstration of classic silicotic nodules exceeding one centimeter in diameter as published in "Diseases Associated with Exposure to Silica and Nonfibrous Silicate Minerals," 112 Archives of Pathology and Laboratory Medicine 7 (July 1988);
(C)  progressive massive fibrosis radiologically established by large opacities greater than one centimeter in diameter; or
(D)  acute silicosis; and
(4)  is accompanied by copies of all ILO classifications, pulmonary function tests, including printouts of all data, flow volume loops, and other information demonstrating compliance with the equipment, quality, interpretation, and reporting standards set out in this chapter, lung volume tests, diagnostic imaging of the chest, pathology reports, or other testing reviewed by the physician in reaching the physician's conclusions.
(b)  If the claimant is asserting a claim for silicosis, the report required by Subsection (a) must also verify that:
(1)  there has been a sufficient latency period for the applicable type of silicosis;
(2)  the exposed person has at least Class 2 or higher impairment due to silicosis, according to the American Medical Association Guides to the Evaluation of Permanent Impairment and reported in 20 C.F.R. Part 404, Subpart P, Appendix 1, Part (A), Sections 3.00(E) and (F)(2003); and
(3)  the physician has concluded that the exposed person's medical findings and impairment were not more probably the result of causes other than silica exposure revealed by the exposed person's occupational, exposure, medical, and smoking history.
(c)  If the claimant is asserting a claim for silica-related lung cancer, the report required by Subsection (a) must also:
(1)  include a diagnosis that the exposed person has primary lung cancer and that inhalation of silica was a substantial contributing factor to that cancer; and
(2)  verify that at least 15 years have elapsed from the date of the exposed person's first exposure to silica until the date of diagnosis of the exposed person's primary lung cancer.
(d)  If the claimant is asserting a claim for any disease other than silicosis and lung cancer alleged to be related to exposure to silica, the report required by Subsection (a) must also verify that the physician has diagnosed the exposed person with a disease other than silicosis or silica-related lung cancer and has concluded that the exposed person's disease is not more probably the result of causes other than silica exposure.
(e)  The detailed occupational and exposure history required by Subsection (a)(1)(B) must describe:
(1)  the exposed person's principal employments and state whether the exposed person was exposed to airborne contaminants, including silica and other dusts that can cause pulmonary impairment; and
(2)  the nature, duration, and frequency of the exposed person's exposure to airborne contaminants, including silica and other dusts that can cause pulmonary impairment.
Added by Acts 2005, 79th Leg., Ch. 97 (S.B. 15), Sec. 2, eff. September 1, 2005.