In July 2020, we reported on Iowa’s passage of legislation intended to significantly reduce or eliminate the over-naming of defendants in asbestos and silica litigation. Since then, three additional states have enacted similar legislation: West Virginia, North Dakota, and Tennessee.
West Virginia
On March 31, 2021, the West Virginia legislature passed House Bill 2495. The bill outlines the requirements with which a plaintiff must comply in an asbestos or silica action. Within 90 days of filing a complaint, a plaintiff with a nonmalignant condition must file a medical report and diagnosis, signed by a qualified physician and accompanied by supporting test results. A defendant shall be given a reasonable opportunity to contest the adequacy of the evidence adduced by the plaintiff. Within 60 days of filing a complaint—for actions filed on or after the effective date—a plaintiff must file a sworn information form including the following: specific details about the plaintiff, the name of each individual through whom the plaintiff alleges exposure and the plaintiff’s relationship to such individual, information related to exposure such as product manufacturers and locations of exposure, dates and frequency of exposure, and the specific asbestos-related disease alleged to exist. For cases filed prior to the effective date, a plaintiff must include an information form with less rigorous requirements.
North Dakota
The North Dakota legislature passed House Bill 1207 on April 14, 2021. The bill provides that a plaintiff in an asbestos action must file a sworn information form signed by both the plaintiff and his or her counsel within 45 days of the filing of a complaint. The form must include the following non-exhaustive list of items: the plaintiff’s current and former employers, each individual through whom the plaintiff was exposed to asbestos, and identification of each asbestos-containing product to which the plaintiff alleges exposure, and the location at which exposure took place. As to each exposure, the plaintiff must specify the beginning and end dates, the frequency and length, and the proximity of the product (or its use) to the plaintiff or another individual through whom the plaintiff was exposed. Finally, the plaintiff is required to identify the manufacturer or seller of the product for each exposure, his or her asbestos-related disease, and any relevant supporting documentation.
Along with the complaint, a plaintiff is obligated to include a medical report signed by a qualified physician and accompanied by supporting test results. A defendant will have a “reasonable opportunity” to contest the adequacy of this prima facie evidence. The bill further requires specific elements of proof for asbestos actions involving both malignant and nonmalignant conditions. For instance, for nonmalignant conditions, a plaintiff must put forth evidence that asbestosis or diffuse bilateral pleural thickening, as opposed to COPD, is a substantial contributing factor to the individual’s physical impairment based on one of the following:
a. FVC below the predicted lower limit of normal and FEV1/FVC ratio (using twenty actual valves) at or above the predicted lower limit of normal;
b. Total lung capacity, by plethysmography or timed gas dilution, below the predicted lower limit of normal; or
c. A chest x-ray showing bilateral small, irregular opacities (s, t, or u) graded by a twenty – four certified B – reader as at least 2/1 on the ILO scale.
House Bill 1207, 32-46.2-04, ¶ 6.
Tennessee
Tennessee Governor Bill Lee signed Senate Bill 873 on April 30, 2021. The bill provides that, in a malignant or non-malignant asbestos action filed on or after July 1, 2021, a plaintiff must file an information form within 30 days of filing a complaint. In particular, the form must contain background information about the plaintiff, current and past worksites and employers, and any person through whom the plaintiff claims exposure. The plaintiff must further identify each asbestos-containing product to which exposure is alleged, as well as the specific location and manner of exposure, the beginning and end dates of each exposure, the frequency of the exposure, and the manufacturer or seller of the relevant asbestos-containing product for each alleged exposure. Lastly, the plaintiff must describe the specific asbestos-related disease and provide supporting documentation “sufficient to establish the basis for each claim against the defendant.”
We will continue to look for efforts similar to those in Iowa, West Virginia, North Dakota, and Tennessee to improve the fairness of asbestos litigation. Should other states follow suit, it will be interesting to note whether they enact expansive legislation similar to North Dakota or trend more toward Tennessee and West Virginia. It will also be important to follow those states that have enacted legislation aimed at curbing the over-naming of defendants to observe the impact of such efforts.