CHAPTER 90. CLAIMS INVOLVING ASBESTOS AND SILICA
CIVIL PRACTICE AND REMEDIES CODE
TITLE 4. LIABILITY IN TORT
CHAPTER 90. CLAIMS INVOLVING ASBESTOS AND SILICA
Sec. 90.001. DEFINITIONS. In this chapter:
(1) "Asbestos" means chrysotile, amosite, crocidolite, tremolite
asbestos, anthophyllite asbestos, actinolite asbestos, and any of
these minerals that have been chemically treated or altered.
(2) "Asbestos-related injury" means personal injury or death
allegedly caused, in whole or in part, by inhalation or ingestion
of asbestos.
(3) "Asbestosis" means bilateral diffuse interstitial fibrosis
of the lungs caused by inhalation of asbestos fibers.
(4) "Certified B-reader" means a person who has successfully
completed the x-ray interpretation course sponsored by the
National Institute for Occupational Safety and Health (NIOSH) and
passed the B-reader certification examination for x-ray
interpretation and whose NIOSH certification is current at the
time of any readings required by this chapter.
(5) "Chest x-ray" means chest films that are taken in accordance
with all applicable state and federal regulatory standards and in
the posterior-anterior view.
(6) "Claimant" means an exposed person and any person who is
seeking recovery of damages for or arising from the injury or
death of an exposed person.
(7) "Defendant" means a person against whom a claim arising from
an asbestos-related injury or a silica-related injury is made.
(8) "Exposed person" means a person who is alleged to have
suffered an asbestos-related injury or a silica-related injury.
(9) "FEV1" means forced expiratory volume in the first second,
which is the maximal volume of air expelled in one second during
performance of simple spirometric tests.
(10) "FVC" means forced vital capacity, which is the maximal
volume of air expired with maximum effort from a position of full
inspiration.
(11) "ILO system of classification" means the radiological
rating system of the International Labor Office in "Guidelines
for the Use of ILO International Classification of Radiographs of
Pneumoconioses" (2000), as amended.
(12) "MDL pretrial court" means the district court to which
related cases are transferred for consolidated or coordinated
pretrial proceedings under Rule 13, Texas Rules of Judicial
Administration.
(13) "MDL rules" means the rules adopted by the supreme court
under Subchapter H, Chapter 74, Government Code.
(14) "Mesothelioma" means a rare form of cancer allegedly caused
in some instances by exposure to asbestos in which the cancer
invades cells in the membrane lining:
(A) the lungs and chest cavity (the pleural region);
(B) the abdominal cavity (the peritoneal region); or
(C) the heart (the pericardial region).
(15) "Nonmalignant asbestos-related injury" means an
asbestos-related injury other than mesothelioma or other cancer.
(16) "Nonmalignant silica-related injury" means a silica-related
injury other than cancer.
(17) "Physician board certified in internal medicine" means a
physician who is certified by the American Board of Internal
Medicine or the American Osteopathic Board of Internal Medicine.
(18) "Physician board certified in occupational medicine" means
a physician who is certified in the subspecialty of occupational
medicine by the American Board of Preventive Medicine or the
American Osteopathic Board of Preventive Medicine.
(19) "Physician board certified in oncology" means a physician
who is certified in the subspecialty of medical oncology by the
American Board of Internal Medicine or the American Osteopathic
Board of Internal Medicine.
(20) "Physician 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 Internal Medicine and whose professional
practice:
(A) is principally in the field of pathology; and
(B) involves regular evaluation of pathology materials obtained
from surgical or postmortem specimens.
(21) "Physician board certified in pulmonary medicine" means a
physician who is certified in the subspecialty of pulmonary
medicine by the American Board of Internal Medicine or the
American Osteopathic Board of Internal Medicine.
(22) "Plethysmography" means the test for determining lung
volume, also known as "body plethysmography," in which the
subject of the test is enclosed in a chamber that is equipped to
measure pressure, flow, or volume change.
(23) "Pulmonary function testing" means spirometry, lung volume,
and diffusion capacity testing performed in accordance with
Section 90.002 using equipment, methods of calibration, and
techniques that meet:
(A) the criteria incorporated in 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
(B) the interpretative standards in the Official Statement of
the American Thoracic Society entitled "Lung Function Testing:
Selection of Reference Values and Interpretative Strategies," as
published in 144 American Review of Respiratory Disease 1202-1218
(1991).
(24) "Report" means a report required by Section 90.003, 90.004,
or 90.010(f)(1).
(25) "Respirable," with respect to silica, means particles that
are less than 10 microns in diameter.
(26) "Serve" means to serve notice on a party in compliance with
Rule 21a, Texas Rules of Civil Procedure.
(27) "Silica" means a respirable form of crystalline silicon
dioxide, including alpha quartz, cristobalite, and tridymite.
(28) "Silica-related injury" means personal injury or death
allegedly caused, in whole or in part, by inhalation of silica.
(29) "Silicosis" means interstitial fibrosis of the lungs caused
by inhalation of silica, including:
(A) acute silicosis, which may occur after exposure to very high
levels of silica within a period of months to five years after
the initial exposure;
(B) accelerated silicosis; and
(C) chronic silicosis.
Added by Acts 2005, 79th Leg., Ch.
97, Sec. 2, eff. September 1, 2005.
Sec. 90.002. PULMONARY FUNCTION TESTING. Pulmonary function
testing required by this chapter must be interpreted by a
physician:
(1) who is licensed in this state or another state of the United
States;
(2) who is board certified in pulmonary medicine, internal
medicine, or occupational medicine; and
(3) whose license and certification were not on inactive status
at the time the testing was interpreted.
Added by Acts 2005, 79th Leg., Ch.
97, Sec. 2, eff. September 1, 2005.
Sec. 90.003. REPORTS REQUIRED FOR CLAIMS INVOLVING
ASBESTOS-RELATED INJURY. (a) A claimant asserting an
asbestos-related injury must serve on each defendant the
following information:
(1) a report by a physician who is board certified in pulmonary
medicine, occupational medicine, internal medicine, oncology, or
pathology and whose license and certification were not on
inactive status at the time the report was made stating that:
(A) the exposed person has been diagnosed with malignant
mesothelioma or other malignant asbestos-related cancer; and
(B) to a reasonable degree of medical probability, exposure to
asbestos was a cause of the diagnosed mesothelioma or other
cancer in the exposed person; or
(2) a report by a physician who is board certified in pulmonary
medicine, internal medicine, or occupational medicine and whose
license and certification were not on inactive status at the time
the report was made that:
(A) verifies that the physician or a medical professional
employed by and under the direct supervision and control of the
physician:
(i) 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;
(ii) 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
(iii) 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;
(B) sets out the details of the exposed person's occupational,
exposure, medical, and smoking history and verifies that at least
10 years have elapsed between the exposed person's first exposure
to asbestos and the date of diagnosis;
(C) verifies that the exposed person has:
(i) 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:
(a) bilateral small irregular opacities (s, t, or u) with a
profusion grading of 1/1 or higher, for an action filed on or
after May 1, 2005;
(b) bilateral small irregular opacities (s, t, or u) with a
profusion grading of 1/0 or higher, for an action filed before
May 1, 2005; or
(c) bilateral diffuse pleural thickening graded b2 or higher
including blunting of the costophrenic angle; or
(ii) pathological asbestosis graded 1(B) or higher under the
criteria published in "Asbestos-Associated Diseases," 106
Archives of Pathology and Laboratory Medicine 11, Appendix 3
(October 8, 1982);
(D) verifies that the exposed person has asbestos-related
pulmonary impairment as demonstrated by pulmonary function
testing showing:
(i) forced vital capacity below the lower limit of normal or
below 80 percent of predicted and FEV1/FVC ratio (using actual
values) at or above the lower limit of normal or at or above 65
percent; or
(ii) total lung capacity, by plethysmography or timed gas
dilution, below the lower limit of normal or below 80 percent of
predicted;
(E) verifies that the physician has concluded that the exposed
person's medical findings and impairment were not more probably
the result of causes other than asbestos exposure revealed by the
exposed person's occupational, exposure, medical, and smoking
history; and
(F) 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) The detailed occupational and exposure history required by
Subsection (a)(2)(A)(ii) must describe:
(1) the exposed person's principal employments and state whether
the exposed person was exposed to airborne contaminants,
including asbestos fibers 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 asbestos fibers and
other dusts that can cause pulmonary impairment.
(c) If a claimant's pulmonary function test results do not meet
the requirements of Subsection (a)(2)(D)(i) or (ii), the claimant
may serve on each defendant a report by a physician who is board
certified in pulmonary medicine, internal medicine, or
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 has a physician-patient
relationship with the exposed person;
(2) verifies that the exposed person has 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 bilateral small irregular
opacities (s, t, or u) with a profusion grading of 2/1 or higher;
(3) verifies that the exposed person has restrictive impairment
from asbestosis and includes the specific pulmonary function test
findings on which the physician relies to establish that the
exposed person has restrictive impairment;
(4) verifies that the physician has concluded that the exposed
person's medical findings and impairment were not more probably
the result of causes other than asbestos exposure revealed by the
exposed person's occupational, exposure, medical, and smoking
history; and
(5) 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.
(d) If a claimant's radiologic findings do not meet the
requirements of Subsection (a)(2)(C)(i), the claimant may serve
on each defendant a report by a physician who is board certified
in pulmonary medicine, internal medicine, or 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 has a physician-patient
relationship with the exposed person;
(2) verifies that the exposed person has asbestos-related
pulmonary impairment as demonstrated by pulmonary function
testing showing:
(A) either:
(i) forced vital capacity below the lower limit of normal or
below 80 percent of predicted and total lung capacity, by
plethysmography, below the lower limit of normal or below 80
percent of predicted; or
(ii) forced vital capacity below the lower limit of normal or
below 80 percent of predicted and FEV1/FVC ratio (using actual
values) at or above the lower limit of normal or at or above 65
percent; and
(B) diffusing capacity of carbon monoxide below the lower limit
of normal or below 80 percent of predicted;
(3) verifies that the exposed person has a computed tomography
scan or high-resolution computed tomography scan showing either
bilateral pleural disease or bilateral parenchymal disease
consistent with asbestos exposure;
(4) verifies that the physician has concluded that the exposed
person's medical findings and impairment were not more probably
the result of causes other than asbestos exposure as revealed by
the exposed person's occupational, exposure, medical, and smoking
history; and
(5) is accompanied by copies of all computed tomography scans,
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.
Added by Acts 2005, 79th Leg., Ch.
97, Sec. 2, eff. September 1, 2005.
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, Sec. 2, eff. September 1, 2005.
Sec. 90.005. PROHIBITED BASIS FOR DIAGNOSIS. (a) For purposes
of this chapter, a physician may not, as the basis for a
diagnosis, rely on the reports or opinions of any doctor, clinic,
laboratory, or testing company that performed an examination,
test, or screening of the exposed person's medical condition that
was conducted in violation of any law, regulation, licensing
requirement, or medical code of practice of the state in which
the examination, test, or screening was conducted.
(b) If a physician relies on any information in violation of
Subsection (a), the physician's opinion or report does not comply
with the requirements of this chapter.
Added by Acts 2005, 79th Leg., Ch.
97, Sec. 2, eff. September 1, 2005.
Sec. 90.006. SERVING REPORTS. (a) In an action filed on or
after the date this chapter becomes law, a report prescribed by
Section 90.003 or 90.004 must be served on each defendant not
later than the 30th day after the date that defendant answers or
otherwise enters an appearance in the action.
(b) In an action pending on the date this chapter becomes law
and in which the trial, or any new trial or retrial following
motion, appeal, or otherwise, commences on or before the 90th day
after the date this chapter becomes law, a claimant is not
required to serve a report on any defendant unless a mistrial,
new trial, or retrial is subsequently granted or ordered.
(c) In an action pending on the date this chapter becomes law
and in which the trial, or any new trial or retrial following
motion, appeal, or otherwise, commences after the 90th day after
the date this chapter becomes law, a report must be served on
each defendant on or before the earlier of the following dates:
(1) the 60th day before trial commences; or
(2) the 180th day after the date this chapter becomes law.
Added by Acts 2005, 79th Leg., Ch.
97, Sec. 2, eff. September 1, 2005.
Sec. 90.007. MOTION TO DISMISS. (a) In an action filed on or
after the date this chapter becomes law, if a claimant fails to
timely serve a report on a defendant, or serves on the defendant
a report that does not comply with the requirements of Section
90.003 or 90.004, the defendant may file a motion to dismiss the
claimant's asbestos-related claims or silica-related claims. The
motion must be filed on or before the 30th day after the date the
report is served on the defendant. If a claimant fails to serve
a report on the defendant, the motion must be filed on or before
the 30th day after the date the report was required to be served
on the defendant under Section 90.006. If the basis of the
motion is that the claimant has served on the defendant a report
that does not comply with Section 90.003 or 90.004, the motion
must include the reasons why the report does not comply with that
section.
(b) A claimant may file a response to a motion to dismiss on or
before the 15th day after the date the motion to dismiss is
served. A report required by Section 90.003 or 90.004 may be
filed, amended, or supplemented within the time required for
responding to a motion to dismiss. The service of an amended or
supplemental report does not require the filing of an additional
motion to dismiss if the reasons stated in the original motion to
dismiss are sufficient to require dismissal under this chapter.
(c) Except as provided by Section 90.010(d) or (e), if the court
is of the opinion that a motion to dismiss is meritorious, the
court shall, by written order, grant the motion and dismiss all
of the claimant's asbestos-related claims or silica-related
claims, as appropriate, against the defendant. A dismissal under
this section is without prejudice to the claimant's right, if
any, to assert claims for an asbestos-related injury or a
silica-related injury in a subsequent action.
(d) On the filing of a motion to dismiss under this section, all
further proceedings in the action are stayed until the motion is
heard and determined by the court.
(e) On the motion of a party showing good cause, the court may
shorten or extend the time limits provided in this section for
filing or serving motions, responses, or reports.
Added by Acts 2005, 79th Leg., Ch.
97, Sec. 2, eff. September 1, 2005.
Sec. 90.008. VOLUNTARY DISMISSAL. Before serving a report
required by Section 90.003 or 90.004, a claimant seeking damages
arising from an asbestos-related injury or silica-related injury
may voluntarily dismiss the claimant's action. If a claimant
files a voluntary dismissal under this section, the claimant's
voluntary dismissal is without prejudice to the claimant's right
to file a subsequent action seeking damages arising from an
asbestos-related injury or a silica-related injury.
Added by Acts 2005, 79th Leg., Ch.
97, Sec. 2, eff. September 1, 2005.
Sec. 90.009. JOINDER OF CLAIMANTS. Unless all parties agree
otherwise, claims relating to more than one exposed person may
not be joined for a single trial.
Added by Acts 2005, 79th Leg., Ch.
97, Sec. 2, eff. September 1, 2005.
Sec. 90.010. MULTIDISTRICT LITIGATION PROCEEDINGS. (a) The MDL
rules apply to any action pending on the date this chapter
becomes law in which the claimant alleges personal injury or
death from exposure to asbestos or silica unless:
(1) the action was filed before September 1, 2003, and trial has
commenced or is set to commence on or before the 90th day after
the date this chapter becomes law, except that the MDL rules
shall apply to the action if the trial does not commence on or
before the 90th day after the date this chapter becomes law;
(2) the action was filed before September 1, 2003, and the
claimant serves a report that complies with Section 90.003 or
90.004 on or before the 90th day after the date this chapter
becomes law; or
(3) the action was filed before September 1, 2003, and the
exposed person has been diagnosed with malignant mesothelioma,
other malignant asbestos-related cancer, or malignant
silica-related cancer.
(b) If the claimant fails to serve a report complying with
Section 90.003 or 90.004 on or before the 90th day after the date
this chapter becomes law under Subsection (a)(2), the defendant
may file a notice of transfer to the MDL pretrial court. If the
MDL pretrial court determines that the claimant served a report
that complies with Section 90.003 or 90.004 on or before the 90th
day after the date this chapter becomes law, the MDL pretrial
court shall remand the action to the court in which the action
was filed. If the MDL pretrial court determines that the report
was not served on or before the 90th day after the date this
chapter becomes law or that the report served does not comply
with Section 90.003 or 90.004, the MDL pretrial court shall
retain jurisdiction over the action pursuant to the MDL rules.
(c) In an action transferred to an MDL pretrial court in which
the exposed person is living and has been diagnosed with
malignant mesothelioma, other malignant asbestos-related cancer,
malignant silica-related cancer, or acute silicosis, the MDL
pretrial court shall expedite the action in a manner calculated
to provide the exposed person with a trial or other disposition
in the shortest period that is fair to all parties and consistent
with the principles of due process. The MDL pretrial court
should, as far as reasonably possible, ensure that such action is
brought to trial or final disposition within six months from the
date the action is transferred to the MDL pretrial court,
provided that all discovery and case management requirements of
the MDL pretrial court have been satisfied.
(d) In an action pending on the date this chapter becomes law
that is transferred to or pending in an MDL pretrial court and in
which the claimant does not serve a report that complies with
Section 90.003 or 90.004, the MDL pretrial court shall not
dismiss the action pursuant to this chapter but shall retain
jurisdiction over the action under the MDL rules. The MDL
pretrial court shall not remand such action for trial unless:
(1) the claimant serves a report complying with Section 90.003
or 90.004; or
(2)(A) the claimant does not serve a report that complies with
Section 90.003 or 90.004;
(B) the claimant serves a report complying with Subsection
(f)(1); and
(C) the court, on motion and hearing, makes the findings
required by Subsection (f)(2).
(e) In an action filed on or after the date this chapter becomes
law that is transferred to an MDL pretrial court and in which the
claimant does not serve on a defendant a report that complies
with Section 90.003 or 90.004, the MDL pretrial court shall, on
motion by a defendant, dismiss the action under Section 90.007
unless:
(1) the claimant serves a report that complies with Subsection
(f)(1); and
(2) the court, on motion and hearing, makes the findings
required by Subsection (f)(2).
(f) In an action in which the claimant seeks remand for trial
under Subsection (d)(2) or denial of a motion to dismiss under
Subsection (e):
(1) the claimant shall serve on each defendant a report that:
(A) complies with the requirements of Sections 90.003(a)(2)(A),
(B), (E), and (F) and 90.003(b) or Sections 90.004(a)(1), (2),
and (4) and 90.004(e); and
(B) verifies that:
(i) the physician making the report has a physician-patient
relationship with the exposed person;
(ii) pulmonary function testing has been performed on the
exposed person and the physician making the report has
interpreted the pulmonary function testing;
(iii) the physician making the report has concluded, to a
reasonable degree of medical probability, that the exposed person
has radiographic, pathologic, or computed tomography evidence
establishing bilateral pleural disease or bilateral parenchymal
disease caused by exposure to asbestos or silica; and
(iv) the physician has concluded that the exposed person has
asbestos-related or silica-related physical impairment comparable
to the impairment the exposed person would have had if the
exposed person met the criteria set forth in Section 90.003 or
90.004; and
(2) the MDL pretrial court shall determine whether:
(A) the report and medical opinions offered by the claimant are
reliable and credible;
(B) due to unique or extraordinary physical or medical
characteristics of the exposed person, the medical criteria set
forth in Sections 90.003 and 90.004 do not adequately assess the
exposed person's physical impairment caused by exposure to
asbestos or silica; and
(C) the claimant has produced sufficient credible evidence for a
finder of fact to reasonably find that the exposed person is
physically impaired as the result of exposure to asbestos or
silica to a degree comparable to the impairment the exposed
person would have had if the exposed person met the criteria set
forth in Section 90.003 or 90.004.
(g) A court's determination under Subsection (f) shall be made
after conducting an evidentiary hearing at which the claimant and
any defendant to the action may offer supporting or controverting
evidence. The parties shall be permitted a reasonable
opportunity to conduct discovery before the evidentiary hearing.
(h) The court shall state its findings under Subsection (f)(2)
in writing and shall address in its findings:
(1) the unique or extraordinary physical or medical
characteristics of the exposed person that justify the
application of this section; and
(2) the reasons the criteria set forth in Sections 90.003 and
90.004 do not adequately assess the exposed person's physical
impairment caused by exposure to asbestos or silica.
(i) Any findings made by a court under Subsection (f) are not
admissible for any purpose at a trial on the merits.
(j) Subsections (d)(2) and (e)-(i) apply only in exceptional and
limited circumstances in which the exposed person does not
satisfy the medical criteria of Section 90.003 or 90.004 but can
demonstrate meaningful asbestos-related or silica-related
physical impairment that satisfies the requirements of Subsection
(f). Subsections (d)(2) and (e)-(i) have limited application and
shall not be used to negate the requirements of this chapter.
(k) On or before September 1, 2010, each MDL pretrial court
having jurisdiction over cases to which this chapter applies
shall deliver a report to the governor, lieutenant governor, and
the speaker of the house of representatives stating:
(1) the number of cases on the court's multidistrict litigation
docket as of August 1, 2010;
(2) the number of cases on the court's multidistrict litigation
docket as of August 1, 2010, that do not meet the criteria of
Section 90.003 or 90.004, to the extent known;
(3) the court's evaluation of the effectiveness of the medical
criteria established by Sections 90.003 and 90.004;
(4) the court's recommendation, if any, as to how medical
criteria should be applied to the cases on the court's
multidistrict litigation docket as of August 1, 2010; and
(5) any other information regarding the administration of cases
in the MDL pretrial courts that the court deems appropriate.
Added by Acts 2005, 79th Leg., Ch.
97, Sec. 2, eff. September 1, 2005.
Sec. 90.011. BANKRUPTCY. Nothing in this chapter is intended to
affect the rights of any party in a bankruptcy proceeding or
affect the ability of any person to satisfy the claim criteria
for compensable claims or demands under a trust established
pursuant to a plan of reorganization under Chapter 11 of the
United States Bankruptcy Code (11 U.S.C. Section 1101 et seq.).
Added by Acts 2005, 79th Leg., Ch.
97, Sec. 2, eff. September 1, 2005.
Sec. 90.012. SUPREME COURT RULEMAKING. The supreme court may
promulgate amendments to the Texas Rules of Civil Procedure
regarding the joinder of claimants in asbestos-related actions or
silica-related actions if the rules are consistent with Section
90.009.
Added by Acts 2005, 79th Leg., Ch.
97, Sec. 2, eff. September 1, 2005.