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HB-5851, As Passed House, November 30, 2006

SUBSTITUTE FOR

HOUSE BILL NO. 5851

A bill to amend 1961 PA 236, entitled

"Revised judicature act of 1961,"

by amending section 5827 (MCL 600.5827) and by adding chapter 30

and section 5840.

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

CHAPTER 30

Sec. 3001. As used in this chapter:

(a) "AMA guides to the evaluation of permanent impairment"

means the American medical association's guides to the evaluation

of permanent impairment (fifth edition, 2000).

(b) "Asbestos" means all minerals defined as asbestos in 29

CFR 1910.1001.

or equitable relief presented in a civil action, arising out of,

based on, or related to the health effects of exposure to asbestos,

including loss of consortium and any other derivative claim made by

or on behalf of an exposed person or a representative, spouse,

parent, child, or other relative of an exposed person. Asbestos

claim does not include a claim for benefits under a workers'

compensation law or veterans' benefits program or claims brought by

a person as a subrogee by virtue of the payment of benefits under a

workers' compensation law.

(d) "Asbestosis" means bilateral diffuse interstitial fibrosis

of the lungs caused by inhalation of asbestos fibers.

(e) "Board-certified in internal medicine" means certified by

the American board of internal medicine or the American college of

osteopathic internists.

(f) "Board-certified in occupational medicine" means certified

in the subspecialty of occupational-environmental or occupational

medicine by the American board of preventive medicine or the

American osteopathic board of preventive medicine.

(g) "Board-certified in oncology" means certified in the

subspecialty of medical oncology or oncology by the American board

of internal medicine or the American college of osteopathic

internists.

(h) "Board-certified in pathology" means a physician who holds

primary certification in anatomic pathology or clinical pathology

from the American board of pathology or the American osteopathic

board of pathology and to whose professional practice both of the

following apply:

(i) The practice is principally in the field of pathology.

(ii) The practice involves regular evaluation of pathology

materials obtained from surgical or postmortem specimens.

(i) "Board-certified in pulmonary medicine" means certified in

the subspecialty of pulmonary disease by the American board of

internal medicine or the American college of osteopathic

internists.

(j) "Certified 'B' reader" means an individual qualified as a

final or "B" reader under 42 CFR 37.51(b).

(k) "Civil action" means an action or claim of a civil nature

in court, whether defined as a case at law or in equity or

admiralty. Civil action does not include an action relating to a

workers' compensation law or a proceeding for benefits under a

veterans' benefits program.

(l) "Economic loss" means a pecuniary loss resulting from

physical impairment, including the loss of earnings or other

benefits related to employment, medical expense loss, replacement

services loss, loss due to death, burial costs, and loss of

business or employment opportunities.

(m) "Exposed person" means a person whose exposure to asbestos

or to asbestos-containing products is the basis for an asbestos

claim.

(n) "ILO scale" means the system for the classification of

chest x-rays contained in the international labour organization's

guidelines for the use of ILO international classification of

radiographs of pneumoconioses (2000).

Sec. 3002. As used in this chapter:

(a) "Lung cancer" means a malignant tumor located inside a

lung. Lung cancer does not include mesothelioma.

(b) "Mesothelioma" means a malignant tumor with a primary site

in the pleura or the peritoneum that has been diagnosed by a

physician who is board-certified in pathology using standardized

and accepted criteria of microscopic morphology or appropriate

staining techniques, or both.

resulting from physical impairment, including pain, suffering,

inconvenience, mental anguish, emotional distress, disfigurement,

loss of society and companionship, loss of consortium, injury to

reputation, or any other nonpecuniary loss of any kind or nature.

(d) "Nonmalignant condition" means any condition that is

caused or may be caused by asbestos, other than a diagnosed cancer.

(e) "Nonsmoker" means a person who did not smoke cigarettes or

use any other inhalable tobacco product within the 15 years

immediately preceding the diagnosis that the person has a condition

or disease that is the basis for an asbestos or silica claim.

(f) "Pathological evidence of asbestosis" means a statement by

a physician who is board-certified in pathology that more than 1

representative section of lung tissue uninvolved with any other

disease process demonstrates a pattern of peribronchiolar or

parenchymal fibrosis in the presence of characteristic asbestos

bodies and that there is no other, more likely explanation for the

presence of the fibrosis.

(g) "Punitive damages" means damages awarded against a

defendant in order to punish or deter the defendant or others from

engaging in similar behavior in the future.

(h) "Qualified physician" means a physician who has all of the

following qualifications:

(i) Is board-certified in internal medicine, oncology,

pathology, pulmonary medicine, radiology, occupational medicine, or

family medicine.

(ii) Has conducted a physical examination of the exposed person

or, if the exposed person is deceased, has reviewed the pathology

material.

(i) "Radiological evidence of asbestosis" means evidence of

structural pathology consistent with asbestos-related disease as

documented by imaging or histology. Such imaging shall include

chest radiographs and computed tomography.

(j) "Radiological evidence of diffuse pleural thickening"

means evidence of structural pathology consistent with asbestos-

related disease as documented by imaging or histology. Such imaging

shall include chest radiographs and computed tomography.

Sec. 3003. As used in this chapter:

(a) "Silica" means a respirable crystalline form of silicon

dioxide, including, but not limited to, alpha, quartz,

cristobalite, and trydmite.

(b) "Silica claim" means a claim for damages or other civil or

equitable relief presented in a civil action, arising out of, based

on, or related to the health effects of exposure to silica,

including loss of consortium and any other derivative claim made by

or on behalf of an exposed person or a representative, spouse,

parent, child, or other relative of an exposed person. Silica claim

does not include a claim for benefits under a workers' compensation

law or veterans' benefits program or claims brought by a person as

a subrogee by virtue of the payment of benefits under a workers'

compensation law.

lungs produced caused by inhalation of silica.

(d) "Smoker" means a person who has smoked cigarettes or used

another inhalable tobacco product within the 15 years immediately

preceding the diagnosis that the person has a condition or disease

that is the basis for an asbestos or silica claim.

(e) "State" means a state of the United States, the District

of Columbia, the Commonwealth of Puerto Rico, the Northern Mariana

Islands, the Virgin Islands, Guam, American Samoa, and any other

territory or possession of the United States or a political

subdivision of a political entity defined as a state.

(f) "Substantial contributing factor" means that all of the

following apply:

(i) Exposure to asbestos or silica is a proximate cause of the

physical harm alleged in the claim.

(ii) The exposure to asbestos or silica took place on a regular

basis over an extended period of time and in close proximity to the

exposed person.

(iii) A qualified physician has determined with a reasonable

degree of medical certainty that the physical harm to the exposed

person would not have occurred but for the exposure to asbestos or

silica.

(g) "Third party payer" means a public or private health care

payment or benefits program, including, but not limited to, all of

the following:

(i) A health insurer.

(ii) A nonprofit health care corporation.

(iii) A health maintenance organization.

(iv) A preferred provider organization.

(v) Medicaid or medicare.

(h) "Veterans' benefit program" means a program for benefits

in connection with military service administered by the veterans'

administration under title 38 of the United States Code.

(i) "Workers' compensation law" means a law respecting a

program administered by a state or the United States to provide

benefits, funded by a responsible employer or its insurance

carrier, for occupational diseases or injuries or for disability or

death caused by occupational diseases or injuries. Workers'

compensation law includes the longshore and harbor workers'

compensation act, 33 USC 901 to 950, and 5 USC 8101 to 8193,

popularly known as the federal employees' compensation act.

Workers' compensation law does not include 45 USC 51 to 60,

popularly known as the federal employers' liability act.

Sec. 3005. (1) A person is not entitled to assert an asbestos

claim or a silica claim unless the exposed person has been

diagnosed with an asbestos-related disease and the diagnosis was

reached in compliance with the American thoracic society's position

statement, "Diagnosis and Initial Management of Non-Malignant

Diseases Related to Asbestos".

(2) A person shall not bring or maintain a civil action

alleging an asbestos claim based on a nonmalignant condition unless

the person makes a prima facie showing that the exposed person has

been diagnosed with an asbestos-related disease and that that

asbestos-related disease constitutes injury and harm to the exposed

individual. A prima facie showing required by this subsection

includes, at a minimum, all of the following:

(a) Evidence verifying that a qualified physician has taken a

detailed occupational and exposure history of the exposed person

or, if the exposed person is deceased, from a person who is

knowledgeable about the exposures that form the basis of the

asbestos claim, including both of the following:

(i) The identification of the exposed person's principal places

of employment and exposures to airborne contaminants.

(ii) Whether each place of employment involved exposures to

airborne contaminants, including, but not limited to, asbestos

fibers or other disease causing dusts, that can cause pulmonary

impairment and the nature, duration, and level of each exposure.

(b) Evidence verifying that a qualified physician has taken a

detailed medical and smoking history, including a thorough review

of the exposed person's past and present medical problems and the

most probable cause of the problems.

a medical examination and testing, that the exposed person has or

had a permanent injury to his or her respiratory system and that

such permanent injury constitutes harm to the individual.

(d) A diagnosis by a qualified physician of asbestosis or

diffuse pleural thickening, based at a minimum on radiological or

pathological evidence of asbestosis or radiological evidence of

diffuse pleural thickening.

(e) A conclusion by a qualified physician that the exposed

person's medical findings and condition were not more probably the

result of causes other than the asbestos exposure revealed by the

exposed person's employment and medical history.

(3) A person shall not bring or maintain a civil action

alleging an asbestos claim based on lung cancer unless the person

makes a prima facie showing that includes, at a minimum, all of the

following:

(a) Diagnosis by a qualified physician who is board-certified

in pathology, pulmonary medicine, oncology, or occupational

medicine of a primary lung cancer and that exposure to asbestos was

a substantial contributing factor to the cancer.

(b) Evidence sufficient to demonstrate that at least 10 years

have elapsed between the date of first exposure to asbestos and the

date of diagnosis of the lung cancer.

person's medical findings and physical injury were not more

probably the result of causes other than the asbestos exposure

revealed by the exposed person's employment and medical history.

(4) A person shall not bring or maintain a civil action

alleging an asbestos claim based on cancer of the colon, rectum,

larynx, pharynx, esophagus, or stomach unless the person makes a

prima facie showing that includes, at a minimum, both of the

following:

(a) A diagnosis by a qualified physician who is board-

certified in pathology, pulmonary medicine, oncology, or

occupational medicine of primary cancer of the colon, rectum,

larynx, pharynx, esophagus, or stomach, as applicable, and that

exposure to asbestos was a substantial contributing factor to the

cancer.

(b) Evidence sufficient to demonstrate that at least 10 years

have elapsed between the date of first exposure to asbestos and the

date of diagnosis of cancer of the colon, rectum, larynx, pharynx,

esophagus, or stomach.

person's medical findings and physical injury were not more

probably the result of causes other than the asbestos exposure

revealed by the exposed person's employment and medical history.

(5) A prima facie showing under this section is not required

in a civil action alleging an asbestos claim based on mesothelioma.

(6) A person shall not bring or maintain a civil action

alleging a silicosis claim unless the person makes a prima facie

showing that the exposed person suffered a physical impairment as a

result of a medical condition to which exposure to silica was a

substantial contributing factor. A prima facie showing under this

subsection shall include, at a minimum, all of the following:

(a) Evidence verifying that a qualified physician has taken a

detailed occupational and exposure history of the exposed person

or, if the exposed person is deceased, from a person who is

knowledgeable about the exposures that form the basis of the

nonmalignant silica claim, which history includes all of the

following:

(i) The exposed person's principal places of employment and

exposures to airborne contaminants.

(ii) Whether each place of employment involved exposures to

airborne contaminants, including, but not limited to, silica

particles or other disease causing dusts, that can cause pulmonary

impairment and the nature, duration, and level of any such

exposure.

(b) Evidence verifying that a qualified physician has taken a

detailed medical and smoking history, including a thorough review

of the exposed person's past and present medical problems and the

most probable cause of the problems, and verifying a sufficient

latency period for the applicable stage of silicosis.

a medical examination and pulmonary function testing, that the

exposed person has a permanent respiratory impairment rating of at

least class 2 as defined by and evaluated pursuant to the AMA

guides to the evaluation of permanent impairment.

(d) A determination by a qualified physician that the exposed

person has either of the following:

(i) A quality 1 chest x-ray under the ILO scale or, if the

exposed person is deceased and pathology and quality 1 x-ray are

not available, a quality 2 x-ray, that has been read by a certified

"B" reader as showing, according to the ILO scale, bilateral

nodular opacities (p, q, or r) occurring primarily in the upper

lung fields, graded 1/1 or higher.

(ii) Pathological demonstration of classic silicotic nodules

exceeding 1 centimeter in diameter as published in 112 archive of

pathology and laboratory medicine 7 (July 1988).

(e) A conclusion by a qualified physician that the exposed

person's medical findings and impairment were not more probably the

result of causes other than the silica exposure revealed by the

exposed person's employment and medical history.

(7) A person shall not bring or maintain a civil action

alleging a silica claim other than a claim described in subsection

(6) unless the person makes a prima facie showing that includes, at

a minimum, all of the following:

(a) A report that meets either of the following requirements:

(i) The report is by a physician who is board-certified in

pulmonary medicine, internal medicine, oncology, or pathology and

states a diagnosis of the exposed person of silica-related lung

cancer and that, to a reasonable degree of medical probability,

exposure to silica was a substantial contributing factor to the

diagnosed lung cancer.

(ii) The report is by a physician who is board-certified in

pulmonary medicine, internal medicine, or pathology and states a

diagnosis of the exposed person of silica-related progressive

massive fibrosis or acute silicoproteinosis or of silicosis

complicated by documented tuberculosis.

(b) Evidence verifying that a qualified physician has taken a

detailed occupational and exposure history of the exposed person

or, if the exposed person is deceased, from a person who is

knowledgeable about the exposures that form the basis of the

nonmalignant silica claim, which history includes both of the

following:

(i) The exposed person's principal places of employment and

exposures to airborne contaminants.

(ii) Whether each place of employment involved exposures to

airborne contaminants, including, but not limited to, silica

particles or other disease causing dusts, that can cause pulmonary

impairment and the nature, duration, and level of the exposure.

detailed medical and smoking history, including a thorough review

of the exposed person's past and present medical problems and the

most probable cause of the problems.

(d) A determination by a qualified physician that the exposed

person has either of the following:

(i) A quality 1 chest x-ray under the ILO scale or, if the

exposed person is deceased and pathology and a quality 1 chest x-

ray are not available, a quality 2 chest x-ray, that has been read

by a certified "B" reader as showing, according to the ILO scale,

bilateral nodular opacities (p, q, or r) occurring primarily in the

upper lung fields, graded 1/1 or higher.

(ii) Pathological demonstration of classic silicotic nodules

exceeding 1 centimeter in diameter as published in 112 archive of

pathology and laboratory medicine 7 (July 1988).

(e) A conclusion by a qualified physician that the exposed

person's medical findings and impairment were not more probably the

result of causes other than the silica exposure revealed by the

exposed person's employment and medical history.

(8) To qualify for consideration under this section as

evidence relating to physical impairment, evidence, including

pulmonary function testing and diffusing studies, shall meet both

of the following criteria:

(a) Comply with the technical recommendations for

examinations, testing procedures, quality assurance, quality

control, and equipment of the AMA guides to the evaluation of

permanent impairment, as set forth in 20 CFR part 404, subpart P,

appendix 1, part A, section 3.00 E. and F., and the interpretive

standards in the official statement of the American thoracic

society entitled "lung function testing: selection of reference

values and interpretive strategies" as published in American review

of respiratory disease, 1991: 144:1202-1218.

(b) Not be obtained through testing or examinations that

violate any applicable law, regulation, licensing requirement, or

medical code of practice.

Sec. 3007. (1) A court may consolidate for trial any number

and type of asbestos or silica claims if the court determines that

there is sufficient commonality among the claims such that the

failure to consolidate would result in a waste of judicial

resources by requiring litigants offering similar or identical

evidence with respect to defendant's liability, asbestos disease in

general, and the specific plaintiff's diagnosis.

(2) A civil action alleging an asbestos or silica claim may

only be brought in this state if all or part of the exposure to

asbestos or silica on which the claim is based occurred in this

state.

(3) If a court determines that a plaintiff has failed to make

the prima facie showing required by this chapter, the plaintiff's

claim shall be dismissed without prejudice.

Sec. 3009. (1) The period of limitations for an asbestos or

silica claim that is not barred as of the effective date of the

amendatory act that added this chapter accrues when the exposed

person discovers, or through the exercise of reasonable diligence

should have discovered, that he or she is physically injured by an

asbestos or silica exposure.

(2) An asbestos or silica claim arising out of a nonmalignant

condition is a distinct cause of action from an asbestos or silica

claim relating to the same exposed person arising out of asbestos-

or silica-related cancer.

(3) Damages for risk of cancer shall not be awarded in a civil

action asserting a nonmalignant asbestos claim. Damages for a well-

founded fear of cancer shall be available to an individual

asserting an asbestos noncancerous disease claim.

(4) The settlement of a nonmalignant asbestos or silica claim

concluded after the effective date of the amendatory act that added

this chapter shall not require, as a condition of the settlement,

the release of any future claim for asbestos- or silica-related

cancer.

Sec. 3011. (1) The limitations on damages, as adjusted, in

section 2946a apply in a civil action that includes an asbestos

claim, regardless of whether the action is a product liability

action.

(2) Punitive damages shall not be awarded in a civil action

that includes an asbestos or silica claim.

(3) At the time of trial in a civil action alleging personal

injury due to asbestos exposure, the plaintiff shall provide to the

court and to the defendants a verified written report disclosing

the total amount of any collateral source payments received,

including payments the plaintiff will receive in the future, as a

result of settlements or judgments based on the same claim.

Sec. 3013. A manufacturer of a product is only liable for

damages in an asbestos claim or a silica claim under 1 or more of

the following legal theories:

(a) Failure to warn.

(b) Failure to test.

(d) Breach of implied warranty.

(e) Gross negligence.

Sec. 3015. (1) A product seller other than a manufacturer is

liable to a plaintiff in a civil action that includes an asbestos

or silica claim only if the plaintiff establishes 1 or more of the

following:

(a) All of the following:

(i) The product that allegedly caused the harm that is the

subject of the complaint was sold, rented, or leased by the product

seller.

(ii) The product seller failed to exercise reasonable care with

respect to the product.

(iii) The failure to exercise reasonable care was a proximate

cause of the harm to the exposed person.

(b) All of the following:

(i) The product seller made an express warranty applicable to

the product that allegedly caused the harm that is the subject of

the complaint, independent of any express warranty made by the

manufacturer as to the same product.

(ii) The product failed to conform to the warranty.

(iii) The failure of the product to conform to the warranty

caused the harm to the exposed person.

(i) The product that allegedly caused the harm that is the

subject of the complaint was defective.

(ii) The defect was a breach of an implied warranty.

(iii) The defect caused the harm to the exposed person.

(d) Both of the following:

(i) The product seller engaged in intentional wrongdoing, as

determined under applicable state law.

(ii) The intentional wrongdoing caused the harm that is the

subject of the complaint.

(2) For purposes of subsection (1)(a)(ii), a product seller's

failure to inspect the product is not a failure to exercise

reasonable care with respect to the product if either of the

following applies:

(a) The failure occurred because there was no reasonable

opportunity to inspect the product.

(b) An inspection of the product, in the exercise of

reasonable care, would not have revealed the aspect of the product

that allegedly caused the exposed person's impairment.

(3) In a civil action that includes an asbestos or silica

claim, a person engaged in the business of renting or leasing a

product is not liable for the tortious act of another solely by

reason of ownership of the product.

Sec. 3017. This chapter does not affect the scope or operation

of any workers' compensation law or veterans' benefit program or

the exclusive remedy or subrogation provisions of any such law or

authorize any lawsuit that is barred by such law.

Sec. 3019. This chapter applies prospectively only and

specifically does not apply to civil actions filed before the

effective date of the amendatory act that added this chapter. This

chapter does not do either of the following:

(a) Affect the rights of any party in bankruptcy proceedings.

(b) Affect the ability of any person who is able to make a

showing that the person satisfies the claims criteria for

compensable claims or demands under a trust established pursuant to

a plan of reorganization under chapter 11 of the federal bankruptcy

code, 11 USC 1101 to 1174, to make a claim or demand against that

trust.

Sec. 5827. Except as otherwise expressly provided, the period

of limitations runs from the time the claim accrues. The claim

accrues at the time provided in sections 5829 to ~~5838~~ 5840, and

in cases not covered by these sections the claim accrues at the

time the wrong upon which the claim is based was done regardless of

the time when damage results.

Sec. 5840. (1) An asbestos or silica claim described in

section 3009(1) accrues as provided in section 3009(1).

(2) As used in this section:

(a) "Asbestos claim" means that term as defined in section