H.R.1114 - Asbestos Compensation Act of 2003108th Congress (2003-2004)
|Sponsor:||Rep. Kirk, Mark Steven [R-IL-10] (Introduced 03/06/2003)|
|Committees:||House - Judiciary|
|Latest Action:||06/17/2003 Sponsor introductory remarks on measure. (CR H5459) (All Actions)|
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Introduced in House (03/06/2003)
[Congressional Bills 108th Congress] [From the U.S. Government Printing Office] [H.R. 1114 Introduced in House (IH)] 108th CONGRESS 1st Session H. R. 1114 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 6, 2003 Mr. Kirk (for himself, Mr. Hyde, Mrs. Johnson of Connecticut, Mr. Portman, Mr. Shays, Mr. Burr, Mr. Mica, Mr. McCotter, Mr. Gillmor, Mr. Shimkus, Mr. Tiberi, Ms. Ginny Brown-Waite of Florida, Ms. Ros- Lehtinen, Mr. Foley, Mr. Baker, Mr. Kennedy of Rhode Island, Mr. Doolittle, Mr. Castle, and Mr. McCrery) introduced the following bill; which was referred to the Committee on the Judiciary _______________________________________________________________________ A BILL To establish legal standards and procedures for the fair, prompt, inexpensive, and efficient resolution of personal injury claims arising out of asbestos exposure, and for other purposes. Be it enacted by the Senate and House of Representatives 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 ``Asbestos Compensation Act of 2003''. (b) Table of Contents.--The table of contents of this Act is as follows: Sec. 1. Short title; table of contents. TITLE I--ESTABLISHMENT AND PROCEDURE Sec. 101. Establishment of the Office of Asbestos Compensation. Sec. 102. Medical eligibility review. Sec. 103. Election of administrative process; settlement offers. Sec. 104. Claimant's choice of forum. Sec. 105. Administrative adjudication. Sec. 106. Appeals; judicial review. Sec. 107. Gathering and maintenance of information. Sec. 108. Legal assistance program. Sec. 109. Time limits for dispositions. TITLE II--LAW APPLICABLE TO ASBESTOS ADJUDICATIONS Sec. 201. Medical eligibility. Sec. 202. Damages. Sec. 203. Statute of limitations or repose. Sec. 204. Come back rights. Sec. 205. Class actions, aggregations of claims and venue. Sec. 206. Joint and several liability. Sec. 207. Core claims. Sec. 208. Special rules applicable to section 105 adjudications. Sec. 209. Special rules applicable to the trustee. TITLE III--ELIGIBLE MEDICAL CATEGORIES Sec. 301. Eligible medical categories. Sec. 302. Asbestos-related non-malignant conditions with impairment. Sec. 303. Asbestos-related mesothelioma. Sec. 304. Asbestos-related lung cancer. Sec. 305. Asbestos-related other cancer. Sec. 306. Medical testing reimbursement. TITLE IV--FUNDING Sec. 401. Assessment and enforcement. Sec. 402. Fiscal and financial management of the asbestos compensation fund. Sec. 403. Authorization for appropriations and offsetting collections. TITLE V--TRANSITION Sec. 501. Applicability; transitional civil actions. TITLE VI--DEFINITIONS Sec. 601. Definitions. TITLE VII--MISCELLANEOUS PROVISIONS Sec. 701. Relationship to other laws. Sec. 702. Annual reports. Sec. 703. Enforcement. Sec. 704. Qualifying National Settlement Plan. Sec. 705. Severability. Sec. 706. Settlements. TITLE I--ESTABLISHMENT AND PROCEDURE SEC. 101. ESTABLISHMENT OF THE OFFICE OF ASBESTOS COMPENSATION. (a) Establishment of Program; Administrator.--There is established in the Department of Justice the Office of Asbestos Compensation (OAC) to be headed by an Administrator. The Administrator shall be appointed by the President by and with the advice and consent of the Senate. The Administrator shall serve for a term of 10 years, and may be removed by the Attorney General only for good cause. The Administrator shall have authority to promulgate all procedural and substantive rules necessary to administer this Act. All claims and other filings under this Act shall be lodged with the office designated by the Administrator. (b) Exclusive Jurisdiction.--Except as otherwise provided in this Act, the OAC shall have exclusive jurisdiction over proceedings to determine if a claimant is entitled to compensation for an asbestos claim and the amount of such compensation. The foregoing shall not apply to any claim brought under any workers' compensation law or veterans' benefits program. (c) Medical Director.--The Administrator shall appoint the Medical Director and may remove the Medical Director for good cause. The Medical Director shall, under the supervision of the Administrator, manage the medical review process under section 102 and shall have the authority to appoint or to contract for the services of claims examiners, physicians, and such other personnel as may be necessary or appropriate for the efficient conduct of the medical review process and to create the exceptional medical claims panel. (d) Asbestos Compensation Fund.--There is established in the OAC an Asbestos Compensation Fund for the purpose of providing payments to claimants under this Act. The Administrator shall appoint the Trustee of the Asbestos Compensation Fund and may remove the Trustee for good cause. (e) Office of Administrative Law Judges.--There is established in the OAC an Office of Administrative Law Judges for the purpose of providing expedited administrative adjudication of asbestos claims pursuant to section 105. The Administrator shall have authority to appoint Administrative Law Judges on a temporary or emergency basis and to remove such judges for good cause. (f) Medical Advisory Committee.--The Administrator shall appoint a Medical Advisory Committee which shall periodically evaluate this Act's medical review process and medical eligibility criteria. The Administrator shall set a term of appointment for members of the Medical Advisory Committee. The Committee shall make appropriate recommendations as and when it deems appropriate and shall submit an annual report to the Administrator and the Congress. SEC. 102. MEDICAL ELIGIBILITY REVIEW. (a) Determination of Eligibility.--All claims when filed shall be immediately referred to the Medical Director. The Medical Director shall determine whether the claimant meets the requirements for medical eligibility in section 301 or the requirements for medical testing reimbursement in section 306. (b) Information for Medical Review.--The Administrator shall issue rules for the expeditious conduct of the medical review process. Such rules at a minimum shall provide for the following: (1) Submission of the following information where relevant and feasible: smoking history; occupational history; description of the circumstances, intensity, time, and duration of exposure; medical test results necessary for a decision as to whether an exposed person meets the requirements for one or more medically eligible categories under sections 301, 302, 303, 304, 305, or 306, including all of the supporting data for any pulmonary function tests on which the claimant relies (including all flow volume loops, spirographs, and any other tracings for any test that is performed). The claimant shall also provide such medical releases as the Administrator may require allowing the OAC to obtain any and all medical information relevant to the determination of medical eligibility. (2) The Medical Director may require additional non- invasive medical tests at the expense of the OAC if necessary for a determination of medical eligibility. (c) Procedures.--Upon receipt of a complete medical application, the Medical Director shall send notice to the claimant confirming the OAC's receipt of the claim. The Medical Director shall make an initial decision within 30 days of such receipt. If the application is initially denied, the claimant shall be so notified and, at the claimant's request, the application shall be immediately referred to-- (1) a review panel of 2 qualified physicians, with a third qualified physician available to resolve any disagreement between the initial 2 qualified physicians; or (2) an exceptional medical claims panel. The Medical Director shall be bound by a panel's decision. The rules shall also provide for the prioritization of claims, including enhanced priority for claimants who have mesothelioma, and set a time limit for a determination by the review panel. (d) Exceptional Medical Claims.--The rules of the medical review process shall provide the claimant with an opportunity to apply to an exceptional medical claims panel for a determination of whether the exposed person meets the requirements under section 301(b) for an exceptional medical claim for any category. This opportunity shall be provided both at the initial filing of a claim and after a claim has been denied under this subsection. The exceptional medical claims panel shall decide whether the claimant qualifies as an exceptional medical claim within 30 days of receipt of the claim. This time limit may be extended by the Administrator only for good cause. The Medical Director shall be bound by the decision of the exceptional medical claims panel. The Medical Director shall issue a final denial, along with a brief statement of reasons, if the claimant is found ineligible following an opportunity to submit the claim to a medical review panel and an exceptional medical claims panel. (e) Monitoring Accuracy of Determinations.--The Medical Director shall establish audit and personnel review procedures for evaluating the accuracy of medical eligibility determinations, including both erroneous approvals and erroneous denials. (f) Opt-Out.--After receiving a certificate of eligibility, a claimant may opt out of settlement proceedings provided for under sections 103 and 104 and elect to file suit in any State or Federal court of competent jurisdiction. SEC. 103. ELECTION OF ADMINISTRATIVE PROCESS; SETTLEMENT OFFERS. (a) Naming and Notification of Defendants.--Medically eligible claimants, other than those who elect to file suit in court under section 102(f), shall name defendants. Defendants shall receive notice from the Administrator. (1) Identification of defendants associated with work sites.--At the claimant's request, the Administrator will provide information concerning person who may have provided asbestos or asbestos-containing products or materials to work sites named by the claimant and when such asbestos or asbestos- containing products or materials may have been provided as well as the time such products or materials were located at the named work sites. The Administrator may implement this paragraph through rulemaking. (2) Verified particularized statement.--Within such time after receiving a certificate of medical eligibility as may be provided by rule, a claimant shall provide, with respect to each person that the claimant alleges is responsible for the injury claimed, a verified particularized statement of the basis for the allegation that the person is or may be responsible for the injury. The particularized statement shall include such information as the Administrator may require for the purpose of providing the defendant with a reasonable basis for making an offer of settlement. The claimant may incorporate by reference any information required by this paragraph that may already have been submitted to the OAC. (3) Notice.--Upon finding that the claimant's particularized statement meets the requirements of paragraph (2), the Administrator shall provide notice to each named defendant. The defendant shall at the same time be furnished with a copy of all particularized statements submitted by the claimant under paragraph (2) and, subject to reasonable rules protecting the confidentiality of information provided by the claimant, a copy of all information submitted by the claimant, records and other information obtained by the Medical Director relating to the claim and the results of any medical tests administered at the direction of the Medical Director. Any defendant may provide any information relevant to the amount of any recommended settlement under subsection (b), including information regarding product identification, exposure, and damages. (4) Third-party practice.--Defendants may assert third- party claims in accordance with rules adopted by the Administrator. Third-party claimants shall provide a verified particularized statement, meeting the requirements of paragraph (2), substantiating the allegation that the third-party defendant may be liable to the third-party plaintiff, wholly or in part, for the claimant's injury. For good cause shown and subject to reasonable limitations, an Administrative Law Judge may allow discovery for the purpose of obtaining information necessary to allow the claimant or any third-party plaintiff to provide a particularized statement under paragraph (2) or this paragraph. (b) Settlement Offers; Offer of Compensation by the Trustee.-- (1) Mandatory offer from defendants.--Within 21 days following the naming of all defendants, each defendant shall provide to the claimant in writing a good faith settlement offer, and shall provide a copy to the Trustee. (2) Mandatory offer from asbestos compensation fund.-- Within 10 days of receiving all of the defendants' offers, the Trustee shall make an offer of compensation to the claimant, based on a compensation grid which shall be established and regularly revised by rule. SEC. 104. CLAIMANT'S CHOICE OF FORUM. (a) In General.--The claimant shall notify each defendant and the Trustee whether the claimant accepts or rejects the defendant's settlement offer under section 103(b)(1). If the claimant accepts any such offer, or any other settlement offer, the Trustee's offer of compensation shall be automatically reduced by the amount of such settlements. (b) Notice.--The claimant shall notify the Trustee and any defendant within 60 days whether the claimant accepts or rejects an offer that has been provided pursuant to section 103(b)(1) or 103(b)(2). (c) Orphan Shares.--The Trustee shall not make an offer to the claimant under section 103(b) if no solvent defendant has been named. (d) Acceptance.--If the claimant accepts the Trustee's offer of compensation, the Trustee shall assume the claim. The Trustee may accept any defendant's settlement offer under section 103(b)(1) or may prosecute the claim against any defendant as provided in section 105, or may prosecute the claim in any State or Federal court. (e) Rejection.--If the claimant rejects any defendant's settlement offer and also rejects the Trustee's offer of compensation, the claimant may elect an administrative adjudication under section 105 or opt out of further administrative proceedings and file suit in a State or Federal court. SEC. 105. ADMINISTRATIVE ADJUDICATION. If a claimant elects adjudication under this section, the OAC shall assign an Administrative Law Judge to conduct a hearing on the record and to determine whether compensation is to be provided and the amount of such compensation. The Administrative Law Judge shall adhere to the law applicable to asbestos adjudications as contained in sections 201 through 210. The Administrative Law Judge shall issue a decision, containing findings of fact and conclusions of law, as expeditiously as possible, but not later than 90 days after the case is assigned. SEC. 106. APPEALS; JUDICIAL REVIEW. Any person aggrieved by a final decision of the Administrator under section 105 or a final denial by the Medical Director under section 102, may seek review of that decision or denial in the United States Court of Federal Claims, which shall uphold the decision or denial if it is supported by substantial evidence and is not contrary to law. A decision by the Medical Director that a claimant has an eligible medical condition is not a final decision under this section. Decisions of the United States Court of Federal Claims are appealable, without regard to the amount in controversy or the citizenship of the parties, to a United States Court of Appeals for a judicial circuit. SEC. 107. GATHERING AND MAINTENANCE OF INFORMATION. (a) Product Identification.--The OAC shall collect and regularly update information regarding product identification and shall make such information publicly available. The data base maintained by the OAC under this section is for information purposes only, and the presence of information in that database shall not lead to any presumption. (b) Settlements, Judgments, and Awards.--The OAC shall collect data on settlements, judgments, and awards in connection with asbestos claims and shall make such data publicly available. The OAC may require this data to be reported in such form as it may prescribe. (c) Subpoena Power.--The OAC may compel, by subpoena or other appropriate process, information from any person regarding past settlements or product identification for purposes of developing and maintaining a compensation grid under section 103(b)(2) and maintaining a database for purposes of naming defendants under section 103(a)(1). In addition, the subpoena power under this subsection may be used by the OAC in order to secure financial information from any defendant. (d) Confidentiality.--Any information or documentary material concerning settlements which is specific to a company, law firm, or plaintiff that is provided to the OAC pursuant to subsection (b) or (c), whether by subpoena or otherwise, shall be exempt from disclosure under section 552 of title 5, United States Code, and the disclosure of such information by the OAC or any person is prohibited. SEC. 108. LEGAL ASSISTANCE PROGRAM. (a) In General.--The OAC shall implement a legal assistance program for the purpose of providing legal representation to claimants. The OAC shall maintain a roster of qualified counsel who agree to provide services to claimants under rules, practices, and procedures established by the Administrator. (b) Free Choice of Counsel.--Claimants shall not be required to use counsel provided or recommended by the OAC, but shall retain their right to be assisted by counsel of their choice. (c) Legal Assistance.--The OAC shall adopt rules concerning the reasonableness of fees, and all legal representation of persons asserting asbestos claims shall comply with such rules. SEC. 109. TIME LIMITS FOR DISPOSITIONS. (a) In General.--If the Medical Director fails to meet the time limits for an initial decision provided under this Act with respect to more than 30 percent of claims, then the Administrator shall take such action as may be necessary, including increasing staff and administrative assessments under section 401, to ensure compliance with such time limit with regard to at least 70 percent of claims. (b) No Offer.--If the Trustee fails to make an offer within 120 days after the Administrator's receipt of a complete application under section 102 with respect to more than 30 percent of claims, then the Administrator shall take such action as may be necessary, including increasing staff and administrative assessments under section 401, to ensure compliance with such time limit with regard to at least 70 percent of claims. (c) Duties.--The duties established by subsections (a) and (b) shall be non-discretionary and enforceable by an order of mandamus from any judge of the United States Court of Federal Claims. (d) Exceptions.--The Administrator may by rule establish exceptions to the time limits in this section. Such rules shall take into consideration the complexity of the case, the extent to which delays are attributable to the fault or neglect of the claimant or the claimant's attorney and other factors that are beyond the control of the OAC. TITLE II--LAW APPLICABLE TO ASBESTOS ADJUDICATIONS SEC. 201. MEDICAL ELIGIBILITY. A claimant may recover compensation for damages caused by an eligible medical condition only if the claimant presents a certificate of medical eligibility establishing its existence. A certificate of medical eligibility shall be conclusive unless rebutted by clear and convincing evidence. However, a certificate of medical eligibility shall not be conclusive as to allegations regarding exposure to asbestos or when medical eligibility is established pursuant to section 304(b). SEC. 202. DAMAGES. A claimant who establishes an eligible medical condition shall be entitled to compensatory damages to the extent provided by applicable law, including damages for emotional distress, pain and suffering, and medical monitoring where authorized. Such damages shall not include punitive damages or damages solely for enhanced risk of a future condition, except as provided in section 208(d). SEC. 203. STATUTE OF LIMITATIONS OR REPOSE. No defense to an asbestos claim based on a statute of limitations or statute of repose, laches, or any other defense based on the timeliness of the claim shall be recognized or allowed, unless such claim was untimely as of the date of enactment of this Act. No claim shall be deemed to have accrued until and unless the claimant's condition would have qualified as an eligible medical condition under section 302, 303, 304, or 305. SEC. 204. COME BACK RIGHTS. Notwithstanding any other provision of law, a judgment or settlement of an asbestos claim for a non-malignant disease shall not preclude a subsequent claim with respect to the same exposed person for an eligible medical condition pursuant to section 301(b), 303, 304, or 305. SEC. 205. CLASS ACTIONS, AGGREGATIONS OF CLAIMS AND VENUE. (a) Consolidations.--No 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 all parties, except as provided in subsection (b) or unless the court, pursuant to an exercise of judicial authority to promote the just and efficient conduct of asbestos civil actions, orders such procedures, including the transfer for consolidation, to determine multiple asbestos claims on a collective basis. (b) Class Action Suits.--In any civil action asserting an asbestos claim, a class action may be allowed without the consent of all parties if the requirements of Rule 23, Federal Rules of Civil Procedure are satisfied. (c) Venue.--At the election of the claimant, an asbestos claim may be filed in any jurisdiction where the claimant is alleging that the claimant was exposed to asbestos or where the claimant is currently domiciled. (d) Removal.--Any party in a civil action that involves a violation of subsection (a), (b) or (c) of this section may remove such action to an appropriate district court of the United States. The district courts of the United States shall have jurisdiction of all civil actions removed pursuant to this section without regard to diversity of citizenship or amount in controversy. (e) Administrative Proceedings.--In any proceeding under section 105, the Administrative Law Judge may order adjudication of claims on a collective basis. SEC. 206. JOINT AND SEVERAL LIABILITY. This Act shall not be construed to limit joint and several liability under applicable Federal or State law. In any core claim that is successfully asserted against a defendant, such defendant shall be held jointly and severally liable for full compensatory damages to the claimant notwithstanding any contrary provision of law. SEC. 207. CORE CLAIMS. In any core claim, the issues to be decided shall be limited to-- (1) whether the exposed person with respect to whom a claim is made has or had an eligible medical condition; (2) whether the exposure of the exposed person to the product of the defendant was a substantial contributing factor in causing that eligible medical condition; and (3) the amount of compensation to be provided. SEC. 208. SPECIAL RULES APPLICABLE TO SECTION 105 ADJUDICATIONS. (a) Applicable Law.--Unless otherwise provided in this Act, in claims based on State law, the Administrative Law Judge shall, with respect to each defendant, apply the substantive law of the State which has the most significant relationship to the exposure and the parties. (b) Full Compensatory Damages in Wrongful Death Cases.-- Notwithstanding any contrary provision of State law, full compensatory damages, including damages for non-economic loss, shall be awarded in wrongful death claims involving mesothelima. In all other cases, damages for non-economic loss may be awarded to the extent that they are available pursuant to applicable law. (c) Penalty for Inadequate Offer.--In any proceeding against a defendant by a claimant under section 105, and in any proceeding by the Trustee, if the final offer made by any defendant is less than the share of the total liability awarded against that defendant, a penalty shall be added to the award equal to 100 percent of the difference between the defendant's settlement offer under section 103(b) and the lesser of-- (1) the defendant's share of the offer made by the Trustee under section 103(b); or (2) the defendant's share of the award made under section 105. (d) Punitive Damages.--Punitive damages may be awarded against a defendant if the claimant establishes by clear and convincing evidence that the conduct carried out by the defendant with a conscious, flagrant indifference to the rights or safety of others was the proximate cause of the harm that is the subject of the asbestos claim. Punitive damages may not exceed 3 times the amount of the award pursuant to a section 105 adjudication plus any penalties added to that award pursuant to subsection (c). SEC. 209. SPECIAL RULES APPLICABLE TO THE TRUSTEE. In an action by the Trustee as assignee of the claimant, the award under section 104(d) shall include compensatory damages for the claimant's injury and all punitive damages under section 208(d), any penalties for inadequate offers by defendants, and the Trustee's costs in establishing the claim, including reasonable attorneys' fees and expenses and an allowance for interest on the amount paid by the Fund to the claimant under section 104. Interest shall be calculated from the time of such payments, and in accordance with Title IV. All economic and non-economic damages recovered by the Fund in excess of 200 percent of the amount paid to the claimant pursuant to section 104 and all punitive damages under section 208(d) shall be paid to the settling claimant. The fact that the claimant has accepted an offer of compensation by the Trustee, and the amount and terms of such offer, shall not be admissible in any adjudication of a claim brought by the Trustee against any defendant. TITLE III--ELIGIBLE MEDICAL CATEGORIES SEC. 301. ELIGIBLE MEDICAL CATEGORIES. (a) In General.--The eligible medical categories under this Act are asbestos-related non-malignant conditions with impairment, asbestos- related mesothelioma, asbestos-related lung cancer, and asbestos- related other cancer. (b) Establishing Existence.--A claimant may establish the existence of an eligible medical condition either by demonstrating that the exposed person meets the standard criteria provided in sections 302, 303, 304, and 305 or by demonstrating to an exceptional medical claims panel, through reliable evidence, that the exposed person has an asbestos-related impairment that is substantially comparable to the condition of an exposed person who would satisfy the requirements of a given medical category. The Administrator, after consultation with the Medical Advisory Committee, may adopt rules consistent with this section to assure consistency and efficiency in the designation of claims as exceptional medical claims. SEC. 302. ASBESTOS-RELATED NON-MALIGNANT CONDITIONS WITH IMPAIRMENT. (a) In General.--The standard criteria for asbestos-related non- malignant conditions with impairment shall include-- (1) clinical evidence of asbestosis, (2) pathological evidence of asbestosis, or (3) evidence of bilateral pleural thickening with impairment. (b) Obstructive Lung Disease.--A claimant shall not be disqualified from compensation under this category solely because an exposed person who otherwise meets the requirements for impairment has a reduced FEV1/ FVC ratio indicating obstructive lung disease. In that event, the exceptional medical claims panel shall determine, giving due regard to the evidence that any impairment is related to obstructive disease and taking into consideration all available evidence, whether an asbestos- related restrictive disease substantially contributes to the impairment of the exposed person. Such a contribution shall be presumed if the panel concludes, based upon the findings of a certified B-reader, that the exposed person's chest x-ray is ILO Grade 2/1 or more. SEC. 303. ASBESTOS-RELATED MESOTHELIOMA. The standard criteria for asbestos-related mesothelioma shall include a diagnosis by a qualified physician of a malignant mesothelioma caused or contributed to by exposure to asbestos with a primary site in the pleura, peritoneum, or like tissue, or reasonably equivalent clinical diagnosis in the absence of adequate tissue for pathological diagnosis. SEC. 304. ASBESTOS-RELATED LUNG CANCER. (a) In General.--The standard criteria for asbestos-related lung cancer shall include-- (1) a diagnosis by a qualified physician of lung cancer that the physician concludes was caused or contributed to by exposure to asbestos; (2) a latency period of at least 10 years; and (3) either-- (A) evidence of asbestosis or bilateral pleural thickening with impairment sufficient to meet the requirements of section 302 or to qualify as an exceptional medical claim under section 301(b); or (B) chest x-rays which, in the opinion of a certified B-reader, demonstrate asbestos-related bilateral pleural plaques or thickening, and 7.5 equivalent-years of exposure to asbestos-containing materials in employment regularly requiring work in the immediate area of visible asbestos dust. (b) History of Smoking.--If a finding of asbestos-related lung cancer is made pursuant to paragraph (3)(B) and the exposed person has a substantial history of smoking, which shall be defined by rule, the claimant shall be medically eligible for compensation, but the finding of asbestos-related lung cancer shall not be conclusive as to causation for purposes of section 201. SEC. 305. ASBESTOS-RELATED OTHER CANCER. The standard criteria for asbestos-related other cancer shall include a diagnosis by a qualified physician of a malignant primary tumor of the larynx, oral-pharynx, gastro-intestinal tract, or stomach, caused or contributed to by exposure to asbestos, together with evidence of a condition sufficient to meet the requirements of section 302 or to qualify as an exceptional medical claim under section 301(b). SEC. 306. MEDICAL TESTING REIMBURSEMENT. (a) Level A.--A claimant with at least 4 equivalent-years of heavy exposure to asbestos, whose chest x-ray shows either small irregular opacities of ILO Grade 1/0 or bilateral pleural thickening of ILO Grade B/2, shall be eligible for reimbursement of 100 percent of out-of- pocket expenses for any medical testing required under section 102, up to a ceiling of $1500. Level A claimants shall be eligible at 3 year intervals for similar reimbursement of future medical testing expenses for up to 2 additional occasions. Level A reimbursements shall be treated as administrative expenses of the OAC and paid for by defendants under section 401. (b) Level B.--The Administrator shall, subject to the availability of appropriated funds, reimburse up to 100 percent of the out-of-pocket expenses for any medical testing required under section 102, up to a ceiling established by rule, with the approval of the Trustee, for any claimant with at least one equivalent-year of heavy exposure to asbestos who meets the medical but not the exposure requirements of Level A. Level B claimants may be eligible for similar reimbursement of future medical testing expenses for up to 2 additional occasions at least 3 years apart. The Administrator shall adjust periodically the amount of the cash payment to reflect changes in medical costs. Level B reimbursements shall be treated as administrative expenses of the OAC and paid for by defendants under section 401. (c) Certified Labs.--The Administrator is authorized to establish a program for the certification of laboratories to provide medical testing under this section. (d) Exposure Verification.--The Administrator shall establish audit and other procedures to provide reasonable assurance that statements concerning exposure made by claimants seeking medical testing reimbursement under this section are accurate. TITLE IV--FUNDING SEC. 401. ASSESSMENT AND ENFORCEMENT. (a) Rules.--The Administrator shall adopt rules for calculating and collecting from defendants all costs associated with the determination of claims and payments to claimants. (b) Trustee.--The Trustee shall have authority to bring an action in the district courts of the United States to enforce any obligation imposed on any person by this section and such courts shall have exclusive jurisdiction of such actions without regard to the amount in controversy or citizenship of the parties. The district court shall not entertain any defense other than lack of jurisdiction in any action by the Trustee under this subsection. (c) Trustee Prevails.--In any action under subsection (b) in which the Trustee prevails, the Trustee shall be entitled to costs, including reasonable attorneys' fees, and interest on any unpaid amount. (d) Judicial Review.--A defendant may challenge the legality or amount of any assessment only by seeking judicial review in the United States Court of Federal Claims after paying the disputed amount. If successful, the defendant shall be awarded interest. SEC. 402. FISCAL AND FINANCIAL MANAGEMENT OF THE ASBESTOS COMPENSATION FUND. (a) Applicability of Credit Reform Act Principles; Fiscal Management Rules.--Except as provided in this section, the operations of the Fund related to settlement payments under section 104, and associated recoveries from defendants, shall be governed by the Federal Credit Reform Act of 1990 (2 U.S.C. 661 et seq.), notwithstanding the status of the Fund as a governmental entity. The Administrator shall promulgate rules, approved by the Office of Management and Budget, for the fiscal management of the Fund. Such rules and their application shall not be subject to judicial review and shall, as regards payments under section 104-- (1) provide all reasonable assurance that, over an appropriate time period, the subsidy rate associated with the net litigation risk of the Fund is zero; (2) provide all reasonable assurance that, in any given year, the subsidy rate associated with the net litigation risk of the Fund is no more than 2 percent; (3) provide for the allocation of receipts from defendants to various Fund accounts, including the Fund's financing account, program account, and an account for salaries and expenses (which shall include litigation costs); and (4) provide specific instructions for the Trustee to reduce payments by the Fund when necessary to meet the solvency requirements of this subsection. (b) Financing of the Fund, Settlement Payments to Claimants.-- (1) Credit reform principles.--The Fund is authorized to receive from defendants, as offsetting receipts, any amounts related to settlements or judgments, including damages, interest, litigation costs, specific administrative costs that may be required by the Administrator through rulemaking, and interest costs incurred by the Fund in connection with payment of settlement offers made under section 103. Amounts received from defendants as interest shall be sufficient to pay interest costs due to the United States Treasury from the financing account, plus the subsidy costs of the program account, provided that the latter amounts may not exceed 3 percent of the amount of any settlement or award. Recoveries on a claim by the Fund in excess of the settlement amount paid to the claimant and other costs of the Fund which are not paid to the claimant under section 209 shall be available to the program account as a reduction to subsidy costs in the current or any subsequent year. (2) Authority.--The program account shall have permanent indefinite authority, not subject to further appropriation, to transfer funds to the finance account in accordance with principles of the Credit Reform Act. SEC. 403. AUTHORIZATION FOR APPROPRIATIONS AND OFFSETTING COLLECTIONS. (a) In General.--There are authorized to be appropriated-- (1) to the OAC such sums as may be required to perform responsibilities under this Act; (2) to the United States Court of Federal Claims, such sums as may be required to carry out its responsibilities under this Act; and (3) to the OAC an amount not to exceed $100 million, for a one-time loan to the Fund in connection with startup expenses, such loan to be repaid by the Fund with interest. The total of appropriations provided under this subsection in the first year after the date of enactment not exceed $250 million and in any subsequent year not exceed $150 million. (b) Offsetting Collections of Administrative Assessments.--The OAC is authorized to receive and to expend in any year, as offsetting collections, all administrative assessments or prepaid administrative assessments and all costs and penalties paid to it. TITLE V--TRANSITION SEC. 501. APPLICABILITY; TRANSITIONAL CIVIL ACTIONS. (a) In General.--This Act shall be effective upon its date of enactment with respect to any civil action asserting an asbestos claim in which trial has not commenced as of that date. (b) Pending Claim.--A claimant with a pending civil claim on the date of enactment shall not be required to obtain a certificate of medical eligibility or otherwise exhaust the procedures set forth in title I if trial commences within 6 months of the date of enactment of this Act. This 6-month period may be extended by the Attorney General for up to an additional 6 months if required for the orderly implementation of this Act, and after reporting to the Congress the reasons for any such extension. (c) Right To Sue Letter.--If a claimant with-- (1) a pending civil action on the date of enactment of this Act, and (2) a scheduled trial date within one year after the date of enactment of this Act-- does not receive an initial decision on medical eligibility within the time period prescribed in section 102(c), the claimant may request a right-to sue letter from the Administrator at any time prior to the issuance of that initial decision. If the Attorney General determines that the 6-month period in subsection (b) should be extended, the one- year period in the preceding sentence shall be similarly extended. The Administrator shall issue a right-to-sue letter or an initial decision under section 102 within 10 days following the receipt of the claimant's request. A claimant who receives a right-to-sue letter may assert the claimant's asbestos claim in any competent forum notwithstanding section 101(b). (d) Claim in Another Forum.--Any claimant who asserts his claim in a forum other than the OAC under subsections (b) or (c) must demonstrate that the exposed person has qualified for medical eligibility under section 301, 302, 303, 304, 305, or 306. TITLE VI--DEFINITIONS SEC. 601. DEFINITIONS. In this Act: (1) Asbestos claim.--The term ``asbestos claim'' means any claim for damages or other relief, arising out of, based on, or related to the health effects 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 medical monitoring or surveillance, and including any claim made by or on behalf of any exposed person or any representative, spouse, parent, child, or other relative of any exposed person. The term does not include any claim for workers' compensation benefits, or any claim by an employer or insurer for reimbursement from a third-party for benefits paid under a workers' compensation plan, or any claim for benefits under a veterans' benefits program. (2) 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. (3) Certificate of medical eligibility.--The term ``certificate of medical eligibility'' means a certificate issued to a claimant pursuant to this Act certifying that an exposed person meets the requirements of one or more eligible medical categories or qualifies as an exceptional medical claim. (4) Certified b-reader.--The term ``certified 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. (5) Chest x-rays.--The term ``chest x-rays'' means chest radiographs taken in at least 2 views (Posterior-Anterior and Lateral) and graded quality 1 for reading according to the criteria established by the ILO. If the claimant is unable to provide 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. (6) Civil action.--The term ``civil action'' means any action, lawsuit, or proceeding in any State, Federal, or tribal court, but does not include-- (A) a criminal action; or (B) an action relating to State or Federal workers' compensation laws, or a proceeding for benefits under any veterans' benefits program. (7) Claimant.--The term ``claimant'' means any exposed person or the person's legal representative, and any relative of an exposed person or their legal representative, who asserts an asbestos claim. (8) Clinical evidence of asbestosis.--The term ``clinical evidence of asbestosis'' means a diagnosis of pulmonary asbestosis by a qualified physician based on the minimum objective criteria of-- (A) chest x-rays for which a B-reader report is furnished showing small irregular opacities of ILO Grade 1/0 and pulmonary function testing and physical examination that show either-- (i) FVC <80% of predicted value with FEV1/ FVC<gr-thn-eq> 75% (actual value); or (ii) TLC <80% of predicted value, with either DLCO<ls-thn-eq> 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 asbestos lung disease; or (B) chest x-rays for which a B-reader report is furnished showing small irregular opacities of ILO Grade 1/1 or greater and pulmonary function testing that shows either-- (i) FVC <80% of predicted value with FEV1/ FVC<gr-thn-eq> 72% (actual value) or, if the individual tested is at least 68 years old at the time of the testing, with FEV1/ FVC<gr-thn-eq> 65% (actual value); or (ii) TLC <80% of predicted value. (9) Compensatory Damages.--The term ``compensatory damages'' means damages awarded for economic loss, such as medical expenses, as well as non-economic loss. Non-economic loss includes subjective, non-pecuniary loss, such as pain, suffering, inconvenience, emotional distress, loss of society and companionship, and loss of consortium. (10) Core claim.--The term ``core claim'' means an asbestos claim against a defendant who either-- (A) manufactured any asbestos-containing product which released asbestos fibers to which the exposed person was exposed, and paid out $50 million in respect of such claims cumulatively over the 10 year period preceding the filing of the claim; or (B) was not a manufacturer but paid out $100 million in respect of such claims cumulatively over the 10 year period preceding the filing of the claim; provided that the alleged liability is not based upon the control or ownership of property. (11) Defendant.--The term ``defendant'' means any person who is or may be responsible for the asbestos-related condition of the exposed person and who is so notified by the Administrator pursuant to title I. The term does not include-- (A) an asbestos trust in existence as of the date of enactment of this Act unless the trust elects to be covered by this Act under section 701(b); or (B) the United States Government or a State government. (12) DLCO.--The term ``DLCO'' means single-breath diffusing capacity of the lung (carbon monoxide), which is a measure of the volume of carbon monoxide transferred from the alveoli to blood in the pulmonary capillaries for each unit of driving pressure of the carbon monoxide. (13) Equivalent-year.--The term ``equivalent-year'' means a measure of exposure to asbestos adjusted to reflect varying exposure levels typical of different occupations. Each year of exposure in which an exposed person's primary occupation involved the direct installation, repair, or removal of asbestos-containing products, shall count as one year. Each year of such occupational exposure in which the exposed person's primary occupation involved either the direct manufacture of asbestos-containing products using raw asbestos fiber or the direct installation, repair, or removal of asbestos-containing products in a shipyard during World War II, shall count as 2 years. Each year of exposure in occupations not described above shall count as one-half year. (14) Evidence of bilateral pleural thickening with impairment.--The term ``evidence of bilateral pleural thickening with impairment'' means a diagnosis of bilateral pleural thickening by a qualified physician based on the minimum objective criteria of either-- (A) chest x-rays for which a B-reader report is furnished showing bilateral pleural thickening of ILO Grade B/2 with pulmonary function testing and physical examination that show either-- (i) FVC <80% of predicted value with FEV1/ FVC<gr-thn-eq> 75% (actual value) or (ii) TLC <80% of predicted value, with either DLCO<ls-thn-eq> 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 asbestos lung disease; or (B) chest x-rays for which a B-reader report is furnished showing bilateral pleural thickening of ILO Grade C/2 or greater; and pulmonary function testing that shows either-- (i) FVC <80% of predicted value with FEV1/ FVC<gr-thn-eq> 72% (actual value) or, if the individual tested is at least 68 years old at the time of the testing, with FEV1/ FVC<gr-thn-eq> 65% (actual value); or (ii) TLC <80% of predicted value. (15) 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. (16) FEV1.--The term ``FEV1'' means forced expiratory volume (1 second), which is the maximal volume of air expelled in one second during performance of the spirometric test for forced vital capacity (FVC). (17) Fund.--The term ``Fund'' means the Asbestos Compensation Fund. (18) FVC.--The term ``FVC'' means forced vital capacity, which is the maximal volume of air expired with a maximally forced effort from a position of maximal inspiration. (19) ILO.--The term ``ILO'' means the International Labour Organization. (20) ILO grade.--The term ``ILO grade'' means the radiological ratings for the presence of lung or pleural changes by chest x-ray as established from time to time by the ILO. (21) Latency period.--The term ``latency period'' means the period from the date of the exposed person's first exposure to asbestos or an asbestos-containing product to the date of manifestation of the condition claimed. (22) Lung cancer.--The term ``lung cancer'' means a primary malignant bronchogenic tumor, of any cell type, caused or contributed to by exposure to asbestos. (23) Manifestation.--The term ``manifestation'' 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 qualified physician. (24) Net litigation risk.--The term ``net litigation risk'' means the risk to the Asbestos Compensation Fund that amounts paid out to claimants, plus associated interest and litigation expenses, will exceed amounts recovered from defendants, expressed as a percentage of sums expended, and estimated for a specific cohort of transactions. Losses on particular claims are netted against excess recoveries on other claims. (25) OAC.--The term ``OAC'' means the Office of Asbestos Compensation. (26) Occupational history.--The term ``occupational history'' means a listing of all employment positions, providing for the dates and location of employment, the employer, and a description of job responsibilities and activities. (27) Party.--The term ``party'' does not include the United States Government or a State government. (28) Pathological evidence of asbestosis.--The term ``pathological evidence of asbestosis'' means diagnosis of pulmonary asbestosis by a qualified physician based on a finding that more than one representative section of lung tissue otherwise uninvolved with any other process (e.g., cancer or emphysema) demonstrates a pattern of peribronchiolar or parenchymal scarring in the presence of characteristic asbestos bodies, and also that there is no other more likely explanation for the presence of the fibrosis. (29) Person.--The term ``person'' means an individual, trust, firm, corporation, association, partnership, or joint venture. The term does not include-- (A) an asbestos trust in existence as of the date of enactment of this Act unless the trust elects to be covered by this Act under section 701(b); or (B) the United States Government or any State government. (30) Physician.--The term ``physician'' means a medical doctor or doctor of osteopathy currently licensed to practice medicine in any State who has not, within the 5-year period prior to the date of enactment of this Act, spent more than one half of the doctor's professional time, or derived more than one-half of the doctor's professional income, either annually or in total, either reviewing or testifying in any forum on medical-legal issues related to asbestos. (31) Predicted value.--The term ``predicted value'' means a published reference to the normal breathing capacity of healthy populations based on age, height, and gender, as approved by the Medical Director, pursuant to a rule, issued within 120 days of the date of enactment. For the purposes of this Act, the use of any published, predicted values that are generally accepted in the medical community shall be acceptable and such values may not be adjusted for race. (32) Pulmonary function testing.--The term ``pulmonary function testing'' means tests for forced vital capacity, lung volume, and diffusing studies using equipment, tests and standards generally accepted in the medical community, as approved by the Medical Director, pursuant to a rule, issued within 120 days of enactment of this Act. Such pulmonary function test shall not be adjusted for race. (33) Punitive damages.--The term ``punitive damages'' means damages, in addition to compensatory damages, awarded against any person to punish past conduct or deter that person, or others, from engaging in similar conduct in the future. (34) Qualified physician.--The term ``qualified physician'' means, with respect to a diagnosis or other medical judgment or procedure under this Act, an internist, pulmonary specialist, pathologist, radiologist, oncologist, or specialist in occupational medicine with an appropriate subspecialty, as appropriate, who is certified by the relevant medical specialty board. (35) Qualifying national settlement plan.--The term ``Qualifying National Settlement Plan'' means a written agreement or related series of written agreements with claimants or with attorneys or law firms representing claimants, pursuant to which a person who is or may be responsible for such claims has resolved or agreed to resolve at least 50 percent of the asbestos claims that were pending against such person. (36) State.--The term ``State'' means any State of the United States, the District of Columbia, 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 any political subdivision of any of the foregoing. (37) TLC.--The term ``TLC'' means total lung capacity, which is the volume of air in the lung after maximal inspiration. (38) Trustee.--The term ``Trustee'' means the Trustee of the Asbestos Compensation Fund. (39) Veterans' benefits program.--The term ``veterans' benefits program'' means any program for benefits in connection with military service administered by the Veterans' Administration under Title 38, United States Code. (40) Workers' compensation law.--The term ``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. The term includes the Longshore and Harbor Workers' Compensation Act (33 U.S.C. 901-944, 948-950), but does not include the Employer's Liability Act, (45 U.S.C. chapter 2). TITLE VII--MISCELLANEOUS PROVISIONS SEC. 701. RELATIONSHIP TO OTHER LAWS. (a) Applicability of Other Federal Laws.--The OAC may, with the approval of the Director of the Office of Management and Budget, waive the applicability in whole or in part of personnel and procurement laws and regulations, provided that any such waiver must be specific, must be subject to periodic review and evaluation, and must be reasonably related to the goals of expeditious, professional, efficient, cost- effective and fair resolution of asbestos claims. (b) Application to Existing Asbestos Trusts.-- (1) In general.--This Act shall not apply to any asbestos trust in existence as of the date of enactment of this Act, except as provided in paragraph (2). (2) Election.--An asbestos trust may elect to be subject to this Act by providing written notice of such election to the OAC, in which case the trust will have the same rights and responsibilities under this Act as any person who is not a trust. A valid election under this paragraph shall be irrevocable. (c) Settlements Preserved.--Nothing in this Act-- (1) invalidates any settlement of asbestos claims entered into prior to the date of enactment of this Act; or (2) revokes or negates any asbestos defendant's standing offer to settle existing asbestos claims. (d) Other Compensation.--This Act shall not be construed to affect the scope or operation of any workers' compensation law or veterans' disability benefit program, to affect the exclusive remedy provisions of any such law, or to authorize any lawsuit which is barred by any such provision of law. (e) Successor Liability.--Nothing in this Act is intended to displace otherwise applicable law governing any liability arising from the defendants' status as transferee or successor with respect to a change in ownership of corporate assets. SEC. 702. ANNUAL REPORTS. The Administrator shall submit an annual report to the President and Congress. SEC. 703. ENFORCEMENT. The Administrator may enforce any obligation imposed on any person by this Act in a district court of the United States, and such courts shall have exclusive jurisdiction over such actions without regard to the amount in controversy or citizenship of the parties. The Administrator, if successful, shall be entitled to costs, including attorney's fees. SEC. 704. QUALIFYING NATIONAL SETTLEMENT PLAN. Any defendant which is party to a Qualifying National Settlement Plan may elect to defer the application of this Act (other than sections 201 through 207 and section 501) to asbestos claims against that defendant for a period not exceeding 7 years from a date relative to the commencement of the Qualified National Settlement Plan. The Administrator shall, by rule, adopt procedures for processing requests for deferral under this section. If the request for deferral is accepted, the deferred defendant and any asbestos claims or third party asbestos claims against the deferred defendant shall not be subject to the provisions of this Act (other than sections 201 through 207 and section 501). SEC. 705. SEVERABILITY. If any provision of this Act or the application of such provision to any person or circumstance is held invalid, it is the intent of Congress that the remainder of this Act and application of such provision to other persons or circumstances shall not be affected thereby. SEC. 706. SETTLEMENTS. For a period of 7 years after the date of enactment of this Act, a claimant or a defendant may specifically enforce, in any applicable Federal or State court where the claimant is alleging that the claimant was exposed to asbestos or where the claimant is currently domiciled, any written settlement agreement which was agreed to by the claimant or the claimant's attorney and the defendant before such date of enactment. <all>