HOUSE BILL No. 5851

 

March 9, 2006, Introduced by Reps. Gaffney, Hune, Jones, Ball, Baxter, Nitz, Mortimer, Hildenbrand, Stakoe, Shaffer, Meyer, Brandenburg, Ward, Gosselin, Acciavatti, LaJoy, Marleau, Casperson, Emmons, Pavlov, Hansen, Green, Moolenaar, Stahl, Huizenga, Taub, Pearce, Palsrok, Robertson, Farhat, Sheen and Vander Veen and referred to the Committee on Tort Reform.

 

     A bill to amend 1961 PA 236, entitled

 

"Revised judicature act of 1961,"

 

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

 

and section 5840.

 

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

 

                              CHAPTER 30

 

     Sec. 3001. As used in this chapter:

 

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

 

means the American medical association's guides to the evaluation

 

of permanent impairment (fifth edition, 2000).

 

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

 

CFR 1910.1001.

 


     (c) "Asbestos claim" means a claim for damages or other civil

 

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

 

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

 

including loss of consortium and any other derivative claim made by

 

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

 

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

 

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

 

compensation law or veterans' benefits program or claims brought by

 

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

 

workers' compensation law.

 

     (d) "Asbestosis" means bilateral diffuse interstitial fibrosis

 

of the lungs caused by inhalation of asbestos fibers.

 

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

 

the American board of internal medicine or the American college of

 

osteopathic internists.

 

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

 

in the subspecialty of occupational-environmental or occupational

 

medicine by the American board of preventive medicine or the

 

American osteopathic board of preventive medicine.

 

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

 

subspecialty of medical oncology or oncology by the American board

 

of internal medicine or the American college of osteopathic

 

internists.

 

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

 

primary certification in anatomic pathology or clinical pathology

 

from the American board of pathology or the American osteopathic

 

board of pathology and to whose professional practice both of the

 


following apply:

 

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

 

     (ii) The practice involves regular evaluation of pathology

 

materials obtained from surgical or postmortem specimens.

 

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

 

the subspecialty of pulmonary disease by the American board of

 

internal medicine or the American college of osteopathic

 

internists.

 

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

 

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

 

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

 

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

 

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

 

workers' compensation law or a proceeding for benefits under a

 

veterans' benefits program.

 

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

 

physical impairment, including the loss of earnings or other

 

benefits related to employment, medical expense loss, replacement

 

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

 

business or employment opportunities.

 

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

 

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

 

claim.

 

     (n) "FEV1" means forced expiratory volume in the first second,

 

which is the maximal volume of air expelled in 1 second during

 

performance of a simple spirometric test.

 

     (o) "FVC" means forced vital capacity, which is the maximal

 


volume of air expelled with maximum effort from a position of full

 

inspiration.

 

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

 

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

 

guidelines for the use of ILO international classification of

 

radiographs of pneumoconioses (2000).

 

     Sec. 3002. As used in this chapter:

 

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

 

lung. Lung cancer does not include mesothelioma.

 

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

 

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

 

physician who is board-certified in pathology using standardized

 

and accepted criteria of microscopic morphology or appropriate

 

staining techniques, or both.

 

     (c) "Noneconomic loss" means subjective, nonmonetary loss

 

resulting from physical impairment, including pain, suffering,

 

inconvenience, mental anguish, emotional distress, disfigurement,

 

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

 

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

 

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

 

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

 

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

 

use any other tobacco product within the 15 years immediately

 

preceding the diagnosis that the person has a condition or disease

 

that is the basis for an asbestos or silica claim.

 

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

 

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

 


representative section of lung tissue uninvolved with any other

 

disease process demonstrates a pattern of peribronchiolar or

 

parenchymal fibrosis in the presence of characteristic asbestos

 

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

 

presence of the fibrosis.

 

     (g) "Predicted lower limit of normal" means, with respect to a

 

test, the fifth percentile of healthy populations based on age,

 

height, and gender, as referenced in the AMA guides to the

 

evaluation of permanent impairment.

 

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

 

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

 

engaging in similar behavior in the future.

 

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

 

following qualifications:

 

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

 

pathology, pulmonary medicine, radiology, or occupational medicine.

 

     (ii) Has conducted a physical examination of the exposed

 

person.

 

     (iii) Is treating or has treated the exposed person and has or

 

had a doctor-patient relationship with the exposed person.

 

     (iv) Does not spend more than 10% of his or her professional

 

practice time providing consulting or expert services in connection

 

with actual or potential civil actions, and the physician's medical

 

group, professional corporation, clinic, or other affiliated group

 

does not earn more than 20% of its income from providing such

 

services.

 

     (v) Is currently licensed to practice and actively practices

 


in the state where the plaintiff resides or where the plaintiff's

 

civil action was filed.

 

     (vi) Receives or has received payment for the treatment of the

 

exposed person from the exposed person's third party payer.

 

     (j) "Radiological evidence of asbestosis" means a quality 1

 

chest x-ray on the ILO scale or, if the exposed person is deceased

 

and pathology and a quality 1 chest x-ray are not available, a

 

quality 2 chest x-ray, that shows small, irregular opacities (s, t)

 

graded by a certified "B" reader as at least 1/1 on the ILO scale.

 

     (k) "Radiological evidence of diffuse pleural thickening"

 

means a quality 1 chest x-ray on the ILO scale or, if the exposed

 

person is deceased and pathology and a quality 1 chest x-ray are

 

not available, a quality 2 chest x-ray, that shows bilateral

 

pleural thickening of at least B2 on the ILO scale and blunting of

 

at least 1 costophrenic angle.

 

     Sec. 3003. As used in this chapter:

 

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

 

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

 

cristobalite, and trydmite.

 

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

 

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

 

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

 

including loss of consortium and any other derivative claim made by

 

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

 

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

 

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

 

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

 


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

 

compensation law.

 

     (c) "Silicosis" means nodular interstitial fibrosis of the

 

lungs produced caused by inhalation of silica.

 

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

 

another tobacco product within the 15 years immediately preceding

 

the diagnosis that the person has a condition or disease that is

 

the basis for an asbestos or silica claim.

 

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

 

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

 

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

 

territory or possession of the United States or a political

 

subdivision of a political entity defined as a state.

 

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

 

following apply:

 

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

 

the physical impairment alleged in the claim.

 

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

 

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

 

exposed person.

 

     (iii) A qualified physician has determined with a reasonable

 

degree of medical certainty that the physical impairment of the

 

exposed person would not have occurred but for the exposure to

 

asbestos or silica.

 

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

 

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

 

the following:

 


     (i) A health insurer.

 

     (ii) A nonprofit health care corporation.

 

     (iii) A health maintenance organization.

 

     (iv) A preferred provider organization.

 

     (v) Medicaid or medicare.

 

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

 

in connection with military service administered by the veterans'

 

administration under title 38 of the United States Code.

 

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

 

program administered by a state or the United States to provide

 

benefits, funded by a responsible employer or its insurance

 

carrier, for occupational diseases or injuries or for disability or

 

death caused by occupational diseases or injuries. Workers'

 

compensation law includes the longshore and harbor workers'

 

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

 

popularly known as the federal employees' compensation act.

 

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

 

popularly known as the federal employers' liability act.

 

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

 

claim or a silica claim unless the exposed person has a physical

 

impairment to which asbestos or silica exposure was a substantial

 

contributing factor.

 

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

 

alleging an asbestos claim based on a nonmalignant condition unless

 

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

 

or had a physical impairment resulting from a medical condition to

 

which exposure to asbestos was a substantial contributing factor. A

 


prima facie showing required by this subsection includes, at a

 

minimum, all of the following:

 

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

 

detailed occupational and exposure history of the exposed person

 

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

 

knowledgeable about the exposures that form the basis of the

 

asbestos claim, including both of the following:

 

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

 

places of employment and exposures to airborne contaminants.

 

     (ii) Whether each place of employment involved exposures to

 

airborne contaminants, including, but not limited to, asbestos

 

fibers or other disease causing dusts, that can cause pulmonary

 

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

 

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

 

detailed medical and smoking history, including a thorough review

 

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

 

most probable cause of the problems.

 

     (c) A determination by a qualified physician, on the basis of

 

a medical examination and pulmonary function testing, that the

 

exposed person has or had a permanent respiratory impairment rating

 

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

 

guides to the evaluation of permanent impairment.

 

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

 

diffuse pleural thickening, based at a minimum on radiological or

 

pathological evidence of asbestosis or radiological evidence of

 

diffuse pleural thickening.

 

     (e) A determination by a qualified physician that asbestosis

 


or diffuse pleural thickening, rather than chronic obstructive

 

pulmonary disease, is or was a substantial contributing factor to

 

the exposed person's physical impairment, based at a minimum on a

 

determination that the exposed person has or had 1 or more of the

 

following:

 

     (i) Total lung capacity, by plethysmography or timed gas

 

dilution, below the predicted lower limit of normal.

 

     (ii) FVC below the lower limit of normal and a ratio of FEV1 to

 

FVC that is equal to or greater than the predicted lower limit of

 

normal.

 

     (iii) A chest x-ray showing small, irregular opacities (s, t)

 

graded by a certified "B" reader at least 2/1 on the ILO scale.

 

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

 

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

 

result of causes other than the asbestos exposure revealed by the

 

exposed person's employment and medical history.

 

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

 

alleging an asbestos claim based on lung cancer unless the person

 

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

 

following:

 

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

 

in pathology, pulmonary medicine, or oncology of a primary lung

 

cancer and that exposure to asbestos was a substantial contributing

 

factor to the cancer.

 

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

 

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

 

date of diagnosis of the lung cancer.

 


     (c) Either of the following:

 

     (i) If the exposed person is a nonsmoker, either of the

 

following:

 

     (A) Radiological or pathological evidence of asbestosis.

 

     (B) Evidence of occupational exposure to asbestos for 1 or

 

more of the following minimum exposure periods:

 

     (I) Five exposure years if the exposed person was an

 

insulator, shipyard worker, worker in a manufacturing plant

 

handling raw asbestos, boilermaker, shipfitter, or steamfitter or

 

worked in another trade performing similar functions.

 

     (II) Ten exposure years if the exposed person was a utility or

 

power house worker or secondary manufacturing worker or worked in

 

another trade performing similar functions.

 

     (III) Fifteen exposure years if the exposed person was in

 

general construction, a maintenance worker, a chemical or refinery

 

worker, marine engine room personnel or other personnel on a

 

vessel, a stationary engineer or fireman, or a railroad engine

 

repair worker or worked in another trade performing similar

 

functions.

 

     (ii) If the exposed person is a smoker, the requirements of

 

both sub-subparagraphs (A) and (B) of subparagraph (i).

 

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

 

person's medical findings and physical impairment were not more

 

probably the result of causes other than the asbestos exposure

 

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

 

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

 

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

 


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

 

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

 

following:

 

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

 

certified in pathology, pulmonary medicine, or oncology of primary

 

cancer of the colon, rectum, larynx, pharynx, esophagus, or

 

stomach, as applicable, and that exposure to asbestos was a

 

substantial contributing factor to the cancer.

 

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

 

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

 

date of diagnosis of the cancer.

 

     (c) One or both of the following:

 

     (i) Radiological or pathological evidence of asbestosis.

 

     (ii) Evidence of occupational exposure to asbestos for 1 or

 

more of the following minimum exposure periods:

 

     (A) Five exposure years if the exposed person was an

 

insulator, shipyard worker, worker in a manufacturing plant

 

handling raw asbestos, boilermaker, shipfitter, or steamfitter or

 

worker in another trade performing similar functions.

 

     (B) Ten exposure years if the exposed person was a utility or

 

power house worker or secondary manufacturing worker or worker in

 

another trade performing similar functions.

 

     (C) Fifteen exposure years if the exposed person was in

 

general construction, a maintenance worker, a chemical or refinery

 

worker, marine engine room personnel or other personnel on a

 

vessel, a stationary engineer or fireman, a railroad engine repair

 

worker, or a worker in another trade performing similar functions.

 


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

 

person's medical findings and physical impairment were not more

 

probably the result of causes other than the asbestos exposure

 

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

 

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

 

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

 

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

 

alleging a silicosis claim unless the person makes a prima facie

 

showing that the exposed person suffered a physical impairment as a

 

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

 

substantial contributing factor. A prima facie showing under this

 

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

 

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

 

detailed occupational and exposure history of the exposed person

 

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

 

knowledgeable about the exposures that form the basis of the

 

nonmalignant silica claim, which history includes all of the

 

following:

 

     (i) All of the exposed person's principal places of employment

 

and exposures to airborne contaminants.

 

     (ii) Whether each place of employment involved exposures to

 

airborne contaminants, including, but not limited to, silica

 

particles or other disease causing dusts, that can cause pulmonary

 

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

 

exposure.

 

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

 

detailed medical and smoking history, including a thorough review

 


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

 

most probable cause of the problems, and verifying a sufficient

 

latency period for the applicable stage of silicosis.

 

     (c) A determination by a qualified physician, on the basis of

 

a medical examination and pulmonary function testing, that the

 

exposed person has a permanent respiratory impairment rating of at

 

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

 

guides to the evaluation of permanent impairment.

 

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

 

person has either of the following:

 

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

 

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

 

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

 

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

 

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

 

lung fields, graded 1/1 or higher.

 

     (ii) Pathological demonstration of classic silicotic nodules

 

exceeding 1 centimeter in diameter as published in 112 archive of

 

pathology and laboratory medicine 7 (July 1988).

 

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

 

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

 

result of causes other than the silica exposure revealed by the

 

exposed person's employment and medical history.

 

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

 

alleging a silica claim other than a claim described in subsection

 

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

 

a minimum, all of the following:

 


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

 

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

 

pulmonary medicine, internal medicine, oncology, or pathology and

 

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

 

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

 

exposure to silica was a substantial contributing factor to the

 

diagnosed lung cancer.

 

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

 

pulmonary medicine, internal medicine, or pathology and states a

 

diagnosis of the exposed person of silica-related progressive

 

massive fibrosis or acute silicoproteinosis or of silicosis

 

complicated by documented tuberculosis.

 

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

 

detailed occupational and exposure history of the exposed person

 

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

 

knowledgeable about the exposures that form the basis of the

 

nonmalignant silica claim, which history includes both of the

 

following:

 

     (i) All of the exposed person's principal places of employment

 

and exposures to airborne contaminants.

 

     (ii) Whether each place of employment involved exposures to

 

airborne contaminants, including, but not limited to, silica

 

particles or other disease causing dusts, that can cause pulmonary

 

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

 

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

 

detailed medical and smoking history, including a thorough review

 

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

 


most probable cause of the problems.

 

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

 

person has either of the following:

 

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

 

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

 

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

 

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

 

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

 

upper lung fields, graded 1/1 or higher.

 

     (ii) Pathological demonstration of classic silicotic nodules

 

exceeding 1 centimeter in diameter as published in 112 archive of

 

pathology and laboratory medicine 7 (July 1988).

 

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

 

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

 

result of causes other than the silica exposure revealed by the

 

exposed person's employment and medical history.

 

     (8) To qualify for consideration under this section as

 

evidence relating to physical impairment, evidence, including

 

pulmonary function testing and diffusing studies, shall meet all of

 

the following criteria:

 

     (a) Comply with the technical recommendations for

 

examinations, testing procedures, quality assurance, quality

 

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

 

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

 

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

 

standards in the official statement of the American thoracic

 

society entitled "lung function testing: selection of reference

 


values and interpretive strategies" as published in American review

 

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

 

     (b) Not be obtained through testing or examinations that

 

violate any applicable law, regulation, licensing requirement, or

 

medical code of practice.

 

     (c) Not be obtained under the condition that the exposed

 

person retain legal services in exchange for the examination, test,

 

or screening.

 

     (9) For purposes of this section, the number of exposure years

 

shall be determined as follows:

 

     (a) Each single year of exposure prior to 1972 shall be

 

counted as 1 year.

 

     (b) Subject to subdivision (d), each single year of exposure

 

from 1972 through 1979 shall be counted as 1/2 year.

 

     (c) Subject to subdivision (d), exposure after 1979 shall not

 

be counted.

 

     (d) Each year after 1971 for which the plaintiff can establish

 

exposure exceeding the United States department of labor

 

occupational safety and health administration limit for 8-hour

 

time-weighted average airborne concentration for a substantial

 

portion of the year shall be counted as 1 year.

 

     (10) All of the following apply to a ruling by a court that a

 

plaintiff has satisfactorily presented prima facie evidence to meet

 

the applicable requirements of this section:

 

     (a) The ruling does not raise a presumption at trial that the

 

exposed person is impaired by an asbestos- or silica-related

 

condition.

 


     (b) The ruling is not conclusive as to the liability of any

 

defendant.

 

     (c) The ruling is not admissible at trial.

 

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

 

and type of asbestos or silica claims if all of the parties to the

 

claims consent. If all of the parties to the claims do not consent,

 

the court may consolidate for trial only asbestos or silica claims

 

relating to the same exposed person and members of the exposed

 

person's household.

 

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

 

only be brought in this state if the plaintiff is domiciled in this

 

state or the exposure to asbestos or silica that is a substantial

 

contributing factor to the physical impairment on which the claim

 

is based occurred in this state.

 

     (3) The plaintiff in a civil action alleging an asbestos or

 

silica claim shall file with the complaint or other initial

 

pleading a written report and supporting test results that

 

constitute prima facie evidence of the exposed person's asbestos-

 

or silica-related physical impairment that meets the applicable

 

requirements of section 3005. In an asbestos or silica claim

 

pending on the effective date of the amendatory act that added this

 

chapter, the plaintiff shall file a written report and supporting

 

test results that comply with this subsection not later than 60

 

days after the effective date of the amendatory act that added this

 

chapter or 30 days before the commencement of trial of the action,

 

whichever occurs first.

 

     (4) A court shall give a defendant in a civil action that

 


includes an asbestos or silica claim a reasonable opportunity to

 

challenge the adequacy of prima facie evidence of an asbestos- or

 

silica-related impairment offered under this chapter.

 

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

 

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

 

claim shall be dismissed without prejudice.

 

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

 

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

 

amendatory act that added this chapter accrues when the exposed

 

person discovers, or through the exercise of reasonable diligence

 

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

 

asbestos- or silica-related condition.

 

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

 

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

 

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

 

or silica-related cancer.

 

     (3) Damages for fear or risk of cancer shall not be awarded in

 

a civil action asserting an asbestos or silica claim.

 

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

 

concluded after the effective date of the amendatory act that added

 

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

 

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

 

cancer.

 

     Sec. 3011. (1) Except as provided in subsection (2), the total

 

amount of damages awarded for noneconomic loss in a civil action

 

that includes an asbestos or silica claim shall not exceed

 

$250,000.00 or 3 times the amount of economic loss, whichever is

 


greater, regardless of the number of parties against whom the

 

action is brought.

 

     (2) The total amount of damages awarded for noneconomic loss

 

in a civil action that includes an asbestos claim based upon

 

mesothelioma shall not exceed $500,000.00 or 3 times the amount of

 

economic loss, whichever is greater, regardless of the number of

 

parties against whom the action is brought.

 

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

 

that includes an asbestos or silica claim.

 

     (4) At the time a complaint is filed in a civil action that

 

includes an asbestos or silica claim, the plaintiff shall file a

 

verified written report with the court that discloses the total

 

amount of any collateral source payments received, including

 

payments the plaintiff will receive in the future, as a result of

 

settlements or judgments based on the same claim. In a civil action

 

alleging an asbestos or silica claim pending on the effective date

 

of the amendatory act that added this chapter, the plaintiff shall

 

file the verified written report required by this subsection not

 

later than 60 days after the effective date of the act that added

 

this chapter or 30 days before the commencement of trial of the

 

action, whichever occurs first.

 

     (5) A plaintiff in a civil action that includes an asbestos or

 

silica claim shall file updated reports disclosing the total amount

 

of collateral source payments received, or to be received in the

 

future, on a regular basis until a final judgment is entered in the

 

action.

 

     (6) A court shall ensure that information contained in the

 


initial and updated reports required by subsections (4) and (5) are

 

treated as privileged and confidential and that the contents of the

 

reports are not disclosed to anyone except the other parties to the

 

action.

 

     Sec. 3013. (1) An attorney or representative of an individual

 

shall not receive, for services rendered in connection with filing,

 

litigating, settling, or otherwise assisting in bringing an

 

asbestos or silica claim governed by this chapter, more than 20% of

 

the amount awarded to the individual by way of settlement or

 

judgment.

 

     (2) A representative of an asbestos or silica claimant who

 

violates this section shall be fined for each violation not more

 

than the greater of $5,000.00 or twice the amount received by the

 

representative for services rendered.

 

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

 

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

 

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

 

following:

 

     (a) All of the following:

 

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

 

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

 

seller.

 

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

 

respect to the product.

 

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

 

cause of the harm to the exposed person.

 

     (b) All of the following:

 


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

 

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

 

the complaint, independent of any express warranty made by the

 

manufacturer as to the same product.

 

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

 

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

 

caused the harm to the exposed person.

 

     (c) Both of the following:

 

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

 

determined under applicable state law.

 

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

 

subject of the complaint.

 

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

 

failure to inspect the product is not a failure to exercise

 

reasonable care with respect to the product if either of the

 

following applies:

 

     (a) The failure occurred because there was no reasonable

 

opportunity to inspect the product.

 

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

 

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

 

that allegedly caused the exposed person's impairment.

 

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

 

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

 

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

 

reason of ownership of the product.

 

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

 

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

 


the exclusive remedy or subrogation provisions of any such law or

 

authorize any lawsuit that is barred by such law.

 

     Sec. 3019. This chapter applies to a civil action that

 

includes an asbestos or silica claim in which trial has not

 

commenced as of the effective date of the amendatory act that added

 

this chapter.

 

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

 

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

 

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

 

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

 

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

 

the time when damage results.

 

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

 

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

 

     (2) As used in this section:

 

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

 

3001.

 

     (b) "Silica claim" means that term as defined in section 3003.