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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
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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
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