2009 Texas Code
CIVIL PRACTICE AND REMEDIES CODE
TITLE 4. LIABILITY IN TORT
CHAPTER 90. CLAIMS INVOLVING ASBESTOS AND SILICA  

CIVIL PRACTICE AND REMEDIES CODE

TITLE 4. LIABILITY IN TORT

CHAPTER 90. CLAIMS INVOLVING ASBESTOS AND SILICA

Sec. 90.001. DEFINITIONS. In this chapter:

(1) "Asbestos" means chrysotile, amosite, crocidolite, tremolite

asbestos, anthophyllite asbestos, actinolite asbestos, and any of

these minerals that have been chemically treated or altered.

(2) "Asbestos-related injury" means personal injury or death

allegedly caused, in whole or in part, by inhalation or ingestion

of asbestos.

(3) "Asbestosis" means bilateral diffuse interstitial fibrosis

of the lungs caused by inhalation of asbestos fibers.

(4) "Certified B-reader" means a person who has successfully

completed the x-ray interpretation course sponsored by the

National Institute for Occupational Safety and Health (NIOSH) and

passed the B-reader certification examination for x-ray

interpretation and whose NIOSH certification is current at the

time of any readings required by this chapter.

(5) "Chest x-ray" means chest films that are taken in accordance

with all applicable state and federal regulatory standards and in

the posterior-anterior view.

(6) "Claimant" means an exposed person and any person who is

seeking recovery of damages for or arising from the injury or

death of an exposed person.

(7) "Defendant" means a person against whom a claim arising from

an asbestos-related injury or a silica-related injury is made.

(8) "Exposed person" means a person who is alleged to have

suffered an asbestos-related injury or a silica-related injury.

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

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

performance of simple spirometric tests.

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

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

inspiration.

(11) "ILO system of classification" means the radiological

rating system of the International Labor Office in "Guidelines

for the Use of ILO International Classification of Radiographs of

Pneumoconioses" (2000), as amended.

(12) "MDL pretrial court" means the district court to which

related cases are transferred for consolidated or coordinated

pretrial proceedings under Rule 13, Texas Rules of Judicial

Administration.

(13) "MDL rules" means the rules adopted by the supreme court

under Subchapter H, Chapter 74, Government Code.

(14) "Mesothelioma" means a rare form of cancer allegedly caused

in some instances by exposure to asbestos in which the cancer

invades cells in the membrane lining:

(A) the lungs and chest cavity (the pleural region);

(B) the abdominal cavity (the peritoneal region); or

(C) the heart (the pericardial region).

(15) "Nonmalignant asbestos-related injury" means an

asbestos-related injury other than mesothelioma or other cancer.

(16) "Nonmalignant silica-related injury" means a silica-related

injury other than cancer.

(17) "Physician board certified in internal medicine" means a

physician who is certified by the American Board of Internal

Medicine or the American Osteopathic Board of Internal Medicine.

(18) "Physician board certified in occupational medicine" means

a physician who is certified in the subspecialty of occupational

medicine by the American Board of Preventive Medicine or the

American Osteopathic Board of Preventive Medicine.

(19) "Physician board certified in oncology" means a physician

who is certified in the subspecialty of medical oncology by the

American Board of Internal Medicine or the American Osteopathic

Board of Internal Medicine.

(20) "Physician board certified in pathology" means a physician

who holds primary certification in anatomic pathology or clinical

pathology from the American Board of Pathology or the American

Osteopathic Board of Internal Medicine and whose professional

practice:

(A) is principally in the field of pathology; and

(B) involves regular evaluation of pathology materials obtained

from surgical or postmortem specimens.

(21) "Physician board certified in pulmonary medicine" means a

physician who is certified in the subspecialty of pulmonary

medicine by the American Board of Internal Medicine or the

American Osteopathic Board of Internal Medicine.

(22) "Plethysmography" means the test for determining lung

volume, also known as "body plethysmography," in which the

subject of the test is enclosed in a chamber that is equipped to

measure pressure, flow, or volume change.

(23) "Pulmonary function testing" means spirometry, lung volume,

and diffusion capacity testing performed in accordance with

Section 90.002 using equipment, methods of calibration, and

techniques that meet:

(A) the criteria incorporated in the American Medical

Association Guides to the Evaluation of Permanent Impairment and

reported in 20 C.F.R. Part 404, Subpart P, Appendix 1, Part (A),

Sections 3.00(E) and (F)(2003); and

(B) the interpretative standards in the Official Statement of

the American Thoracic Society entitled "Lung Function Testing:

Selection of Reference Values and Interpretative Strategies," as

published in 144 American Review of Respiratory Disease 1202-1218

(1991).

(24) "Report" means a report required by Section 90.003, 90.004,

or 90.010(f)(1).

(25) "Respirable," with respect to silica, means particles that

are less than 10 microns in diameter.

(26) "Serve" means to serve notice on a party in compliance with

Rule 21a, Texas Rules of Civil Procedure.

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

dioxide, including alpha quartz, cristobalite, and tridymite.

(28) "Silica-related injury" means personal injury or death

allegedly caused, in whole or in part, by inhalation of silica.

(29) "Silicosis" means interstitial fibrosis of the lungs caused

by inhalation of silica, including:

(A) acute silicosis, which may occur after exposure to very high

levels of silica within a period of months to five years after

the initial exposure;

(B) accelerated silicosis; and

(C) chronic silicosis.

Added by Acts 2005, 79th Leg., Ch.

97, Sec. 2, eff. September 1, 2005.

Sec. 90.002. PULMONARY FUNCTION TESTING. Pulmonary function

testing required by this chapter must be interpreted by a

physician:

(1) who is licensed in this state or another state of the United

States;

(2) who is board certified in pulmonary medicine, internal

medicine, or occupational medicine; and

(3) whose license and certification were not on inactive status

at the time the testing was interpreted.

Added by Acts 2005, 79th Leg., Ch.

97, Sec. 2, eff. September 1, 2005.

Sec. 90.003. REPORTS REQUIRED FOR CLAIMS INVOLVING

ASBESTOS-RELATED INJURY. (a) A claimant asserting an

asbestos-related injury must serve on each defendant the

following information:

(1) a report by a physician who is board certified in pulmonary

medicine, occupational medicine, internal medicine, oncology, or

pathology and whose license and certification were not on

inactive status at the time the report was made stating that:

(A) the exposed person has been diagnosed with malignant

mesothelioma or other malignant asbestos-related cancer; and

(B) to a reasonable degree of medical probability, exposure to

asbestos was a cause of the diagnosed mesothelioma or other

cancer in the exposed person; or

(2) a report by a physician who is board certified in pulmonary

medicine, internal medicine, or occupational medicine and whose

license and certification were not on inactive status at the time

the report was made that:

(A) verifies that the physician or a medical professional

employed by and under the direct supervision and control of the

physician:

(i) performed a physical examination of the exposed person, or

if the exposed person is deceased, reviewed available records

relating to the exposed person's medical condition;

(ii) took a detailed occupational and exposure history from the

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

person knowledgeable about the alleged exposure or exposures that

form the basis of the action; and

(iii) took a detailed medical and smoking history that includes

a thorough review of the exposed person's past and present

medical problems and their most probable cause;

(B) sets out the details of the exposed person's occupational,

exposure, medical, and smoking history and verifies that at least

10 years have elapsed between the exposed person's first exposure

to asbestos and the date of diagnosis;

(C) verifies that the exposed person has:

(i) a quality 1 or 2 chest x-ray that has been read by a

certified B-reader according to the ILO system of classification

as showing:

(a) bilateral small irregular opacities (s, t, or u) with a

profusion grading of 1/1 or higher, for an action filed on or

after May 1, 2005;

(b) bilateral small irregular opacities (s, t, or u) with a

profusion grading of 1/0 or higher, for an action filed before

May 1, 2005; or

(c) bilateral diffuse pleural thickening graded b2 or higher

including blunting of the costophrenic angle; or

(ii) pathological asbestosis graded 1(B) or higher under the

criteria published in "Asbestos-Associated Diseases," 106

Archives of Pathology and Laboratory Medicine 11, Appendix 3

(October 8, 1982);

(D) verifies that the exposed person has asbestos-related

pulmonary impairment as demonstrated by pulmonary function

testing showing:

(i) forced vital capacity below the lower limit of normal or

below 80 percent of predicted and FEV1/FVC ratio (using actual

values) at or above the lower limit of normal or at or above 65

percent; or

(ii) total lung capacity, by plethysmography or timed gas

dilution, below the lower limit of normal or below 80 percent of

predicted;

(E) verifies that the physician has concluded that the exposed

person's medical findings and impairment were not more probably

the result of causes other than asbestos exposure revealed by the

exposed person's occupational, exposure, medical, and smoking

history; and

(F) is accompanied by copies of all ILO classifications,

pulmonary function tests, including printouts of all data, flow

volume loops, and other information demonstrating compliance with

the equipment, quality, interpretation, and reporting standards

set out in this chapter, lung volume tests, diagnostic imaging of

the chest, pathology reports, or other testing reviewed by the

physician in reaching the physician's conclusions.

(b) The detailed occupational and exposure history required by

Subsection (a)(2)(A)(ii) must describe:

(1) the exposed person's principal employments and state whether

the exposed person was exposed to airborne contaminants,

including asbestos fibers and other dusts that can cause

pulmonary impairment; and

(2) the nature, duration, and frequency of the exposed person's

exposure to airborne contaminants, including asbestos fibers and

other dusts that can cause pulmonary impairment.

(c) If a claimant's pulmonary function test results do not meet

the requirements of Subsection (a)(2)(D)(i) or (ii), the claimant

may serve on each defendant a report by a physician who is board

certified in pulmonary medicine, internal medicine, or

occupational medicine and whose license and certification were

not on inactive status at the time the report was made that:

(1) verifies that the physician has a physician-patient

relationship with the exposed person;

(2) verifies that the exposed person has a quality 1 or 2 chest

x-ray that has been read by a certified B-reader according to the

ILO system of classification as showing bilateral small irregular

opacities (s, t, or u) with a profusion grading of 2/1 or higher;

(3) verifies that the exposed person has restrictive impairment

from asbestosis and includes the specific pulmonary function test

findings on which the physician relies to establish that the

exposed person has restrictive impairment;

(4) verifies that the physician has concluded that the exposed

person's medical findings and impairment were not more probably

the result of causes other than asbestos exposure revealed by the

exposed person's occupational, exposure, medical, and smoking

history; and

(5) is accompanied by copies of all ILO classifications,

pulmonary function tests, including printouts of all data, flow

volume loops, and other information demonstrating compliance with

the equipment, quality, interpretation, and reporting standards

set out in this chapter, lung volume tests, diagnostic imaging of

the chest, pathology reports, or other testing reviewed by the

physician in reaching the physician's conclusions.

(d) If a claimant's radiologic findings do not meet the

requirements of Subsection (a)(2)(C)(i), the claimant may serve

on each defendant a report by a physician who is board certified

in pulmonary medicine, internal medicine, or occupational

medicine and whose license and certification were not on inactive

status at the time the report was made that:

(1) verifies that the physician has a physician-patient

relationship with the exposed person;

(2) verifies that the exposed person has asbestos-related

pulmonary impairment as demonstrated by pulmonary function

testing showing:

(A) either:

(i) forced vital capacity below the lower limit of normal or

below 80 percent of predicted and total lung capacity, by

plethysmography, below the lower limit of normal or below 80

percent of predicted; or

(ii) forced vital capacity below the lower limit of normal or

below 80 percent of predicted and FEV1/FVC ratio (using actual

values) at or above the lower limit of normal or at or above 65

percent; and

(B) diffusing capacity of carbon monoxide below the lower limit

of normal or below 80 percent of predicted;

(3) verifies that the exposed person has a computed tomography

scan or high-resolution computed tomography scan showing either

bilateral pleural disease or bilateral parenchymal disease

consistent with asbestos exposure;

(4) verifies that the physician has concluded that the exposed

person's medical findings and impairment were not more probably

the result of causes other than asbestos exposure as revealed by

the exposed person's occupational, exposure, medical, and smoking

history; and

(5) is accompanied by copies of all computed tomography scans,

ILO classifications, pulmonary function tests, including

printouts of all data, flow volume loops, and other information

demonstrating compliance with the equipment, quality,

interpretation, and reporting standards set out in this chapter,

lung volume tests, diagnostic imaging of the chest, pathology

reports, or other testing reviewed by the physician in reaching

the physician's conclusions.

Added by Acts 2005, 79th Leg., Ch.

97, Sec. 2, eff. September 1, 2005.

Sec. 90.004. REPORTS REQUIRED FOR CLAIMS INVOLVING

SILICA-RELATED INJURY. (a) A claimant asserting a

silica-related injury must serve on each defendant a report by a

physician who is board certified in pulmonary medicine, internal

medicine, oncology, pathology, or, with respect to a claim for

silicosis, occupational medicine and whose license and

certification were not on inactive status at the time the report

was made that:

(1) verifies that the physician or a medical professional

employed by and under the direct supervision and control of the

physician:

(A) performed a physical examination of the exposed person, or

if the exposed person is deceased, reviewed available records

relating to the exposed person's medical condition;

(B) took a detailed occupational and exposure history from the

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

person knowledgeable about the alleged exposure or exposures that

form the basis of the action; and

(C) took a detailed medical and smoking history that includes a

thorough review of the exposed person's past and present medical

problems and their most probable cause;

(2) sets out the details of the exposed person's occupational,

exposure, medical, and smoking history;

(3) verifies that the exposed person has one or more of the

following:

(A) a quality 1 or 2 chest x-ray that has been read by a

certified B-reader according to the ILO system of classification

as showing:

(i) bilateral predominantly nodular opacities (p, q, or r)

occurring primarily in the upper lung fields, with a profusion

grading of 1/1 or higher, for an action filed on or after May 1,

2005; or

(ii) bilateral predominantly nodular opacities (p, q, or r)

occurring primarily in the upper lung fields, with a profusion

grading of 1/0 or higher, for an action filed before May 1, 2005;

(B) pathological demonstration of classic silicotic nodules

exceeding one centimeter in diameter as published in "Diseases

Associated with Exposure to Silica and Nonfibrous Silicate

Minerals," 112 Archives of Pathology and Laboratory Medicine 7

(July 1988);

(C) progressive massive fibrosis radiologically established by

large opacities greater than one centimeter in diameter; or

(D) acute silicosis; and

(4) is accompanied by copies of all ILO classifications,

pulmonary function tests, including printouts of all data, flow

volume loops, and other information demonstrating compliance with

the equipment, quality, interpretation, and reporting standards

set out in this chapter, lung volume tests, diagnostic imaging of

the chest, pathology reports, or other testing reviewed by the

physician in reaching the physician's conclusions.

(b) If the claimant is asserting a claim for silicosis, the

report required by Subsection (a) must also verify that:

(1) there has been a sufficient latency period for the

applicable type of silicosis;

(2) the exposed person has at least Class 2 or higher impairment

due to silicosis, according to the American Medical Association

Guides to the Evaluation of Permanent Impairment and reported in

20 C.F.R. Part 404, Subpart P, Appendix 1, Part (A), Sections

3.00(E) and (F)(2003); and

(3) the physician has concluded that the exposed person's

medical findings and impairment were not more probably the result

of causes other than silica exposure revealed by the exposed

person's occupational, exposure, medical, and smoking history.

(c) If the claimant is asserting a claim for silica-related lung

cancer, the report required by Subsection (a) must also:

(1) include a diagnosis that the exposed person has primary lung

cancer and that inhalation of silica was a substantial

contributing factor to that cancer; and

(2) verify that at least 15 years have elapsed from the date of

the exposed person's first exposure to silica until the date of

diagnosis of the exposed person's primary lung cancer.

(d) If the claimant is asserting a claim for any disease other

than silicosis and lung cancer alleged to be related to exposure

to silica, the report required by Subsection (a) must also verify

that the physician has diagnosed the exposed person with a

disease other than silicosis or silica-related lung cancer and

has concluded that the exposed person's disease is not more

probably the result of causes other than silica exposure.

(e) The detailed occupational and exposure history required by

Subsection (a)(1)(B) must describe:

(1) the exposed person's principal employments and state whether

the exposed person was exposed to airborne contaminants,

including silica and other dusts that can cause pulmonary

impairment; and

(2) the nature, duration, and frequency of the exposed person's

exposure to airborne contaminants, including silica and other

dusts that can cause pulmonary impairment.

Added by Acts 2005, 79th Leg., Ch.

97, Sec. 2, eff. September 1, 2005.

Sec. 90.005. PROHIBITED BASIS FOR DIAGNOSIS. (a) For purposes

of this chapter, a physician may not, as the basis for a

diagnosis, rely on the reports or opinions of any doctor, clinic,

laboratory, or testing company that performed an examination,

test, or screening of the exposed person's medical condition that

was conducted in violation of any law, regulation, licensing

requirement, or medical code of practice of the state in which

the examination, test, or screening was conducted.

(b) If a physician relies on any information in violation of

Subsection (a), the physician's opinion or report does not comply

with the requirements of this chapter.

Added by Acts 2005, 79th Leg., Ch.

97, Sec. 2, eff. September 1, 2005.

Sec. 90.006. SERVING REPORTS. (a) In an action filed on or

after the date this chapter becomes law, a report prescribed by

Section 90.003 or 90.004 must be served on each defendant not

later than the 30th day after the date that defendant answers or

otherwise enters an appearance in the action.

(b) In an action pending on the date this chapter becomes law

and in which the trial, or any new trial or retrial following

motion, appeal, or otherwise, commences on or before the 90th day

after the date this chapter becomes law, a claimant is not

required to serve a report on any defendant unless a mistrial,

new trial, or retrial is subsequently granted or ordered.

(c) In an action pending on the date this chapter becomes law

and in which the trial, or any new trial or retrial following

motion, appeal, or otherwise, commences after the 90th day after

the date this chapter becomes law, a report must be served on

each defendant on or before the earlier of the following dates:

(1) the 60th day before trial commences; or

(2) the 180th day after the date this chapter becomes law.

Added by Acts 2005, 79th Leg., Ch.

97, Sec. 2, eff. September 1, 2005.

Sec. 90.007. MOTION TO DISMISS. (a) In an action filed on or

after the date this chapter becomes law, if a claimant fails to

timely serve a report on a defendant, or serves on the defendant

a report that does not comply with the requirements of Section

90.003 or 90.004, the defendant may file a motion to dismiss the

claimant's asbestos-related claims or silica-related claims. The

motion must be filed on or before the 30th day after the date the

report is served on the defendant. If a claimant fails to serve

a report on the defendant, the motion must be filed on or before

the 30th day after the date the report was required to be served

on the defendant under Section 90.006. If the basis of the

motion is that the claimant has served on the defendant a report

that does not comply with Section 90.003 or 90.004, the motion

must include the reasons why the report does not comply with that

section.

(b) A claimant may file a response to a motion to dismiss on or

before the 15th day after the date the motion to dismiss is

served. A report required by Section 90.003 or 90.004 may be

filed, amended, or supplemented within the time required for

responding to a motion to dismiss. The service of an amended or

supplemental report does not require the filing of an additional

motion to dismiss if the reasons stated in the original motion to

dismiss are sufficient to require dismissal under this chapter.

(c) Except as provided by Section 90.010(d) or (e), if the court

is of the opinion that a motion to dismiss is meritorious, the

court shall, by written order, grant the motion and dismiss all

of the claimant's asbestos-related claims or silica-related

claims, as appropriate, against the defendant. A dismissal under

this section is without prejudice to the claimant's right, if

any, to assert claims for an asbestos-related injury or a

silica-related injury in a subsequent action.

(d) On the filing of a motion to dismiss under this section, all

further proceedings in the action are stayed until the motion is

heard and determined by the court.

(e) On the motion of a party showing good cause, the court may

shorten or extend the time limits provided in this section for

filing or serving motions, responses, or reports.

Added by Acts 2005, 79th Leg., Ch.

97, Sec. 2, eff. September 1, 2005.

Sec. 90.008. VOLUNTARY DISMISSAL. Before serving a report

required by Section 90.003 or 90.004, a claimant seeking damages

arising from an asbestos-related injury or silica-related injury

may voluntarily dismiss the claimant's action. If a claimant

files a voluntary dismissal under this section, the claimant's

voluntary dismissal is without prejudice to the claimant's right

to file a subsequent action seeking damages arising from an

asbestos-related injury or a silica-related injury.

Added by Acts 2005, 79th Leg., Ch.

97, Sec. 2, eff. September 1, 2005.

Sec. 90.009. JOINDER OF CLAIMANTS. Unless all parties agree

otherwise, claims relating to more than one exposed person may

not be joined for a single trial.

Added by Acts 2005, 79th Leg., Ch.

97, Sec. 2, eff. September 1, 2005.

Sec. 90.010. MULTIDISTRICT LITIGATION PROCEEDINGS. (a) The MDL

rules apply to any action pending on the date this chapter

becomes law in which the claimant alleges personal injury or

death from exposure to asbestos or silica unless:

(1) the action was filed before September 1, 2003, and trial has

commenced or is set to commence on or before the 90th day after

the date this chapter becomes law, except that the MDL rules

shall apply to the action if the trial does not commence on or

before the 90th day after the date this chapter becomes law;

(2) the action was filed before September 1, 2003, and the

claimant serves a report that complies with Section 90.003 or

90.004 on or before the 90th day after the date this chapter

becomes law; or

(3) the action was filed before September 1, 2003, and the

exposed person has been diagnosed with malignant mesothelioma,

other malignant asbestos-related cancer, or malignant

silica-related cancer.

(b) If the claimant fails to serve a report complying with

Section 90.003 or 90.004 on or before the 90th day after the date

this chapter becomes law under Subsection (a)(2), the defendant

may file a notice of transfer to the MDL pretrial court. If the

MDL pretrial court determines that the claimant served a report

that complies with Section 90.003 or 90.004 on or before the 90th

day after the date this chapter becomes law, the MDL pretrial

court shall remand the action to the court in which the action

was filed. If the MDL pretrial court determines that the report

was not served on or before the 90th day after the date this

chapter becomes law or that the report served does not comply

with Section 90.003 or 90.004, the MDL pretrial court shall

retain jurisdiction over the action pursuant to the MDL rules.

(c) In an action transferred to an MDL pretrial court in which

the exposed person is living and has been diagnosed with

malignant mesothelioma, other malignant asbestos-related cancer,

malignant silica-related cancer, or acute silicosis, the MDL

pretrial court shall expedite the action in a manner calculated

to provide the exposed person with a trial or other disposition

in the shortest period that is fair to all parties and consistent

with the principles of due process. The MDL pretrial court

should, as far as reasonably possible, ensure that such action is

brought to trial or final disposition within six months from the

date the action is transferred to the MDL pretrial court,

provided that all discovery and case management requirements of

the MDL pretrial court have been satisfied.

(d) In an action pending on the date this chapter becomes law

that is transferred to or pending in an MDL pretrial court and in

which the claimant does not serve a report that complies with

Section 90.003 or 90.004, the MDL pretrial court shall not

dismiss the action pursuant to this chapter but shall retain

jurisdiction over the action under the MDL rules. The MDL

pretrial court shall not remand such action for trial unless:

(1) the claimant serves a report complying with Section 90.003

or 90.004; or

(2)(A) the claimant does not serve a report that complies with

Section 90.003 or 90.004;

(B) the claimant serves a report complying with Subsection

(f)(1); and

(C) the court, on motion and hearing, makes the findings

required by Subsection (f)(2).

(e) In an action filed on or after the date this chapter becomes

law that is transferred to an MDL pretrial court and in which the

claimant does not serve on a defendant a report that complies

with Section 90.003 or 90.004, the MDL pretrial court shall, on

motion by a defendant, dismiss the action under Section 90.007

unless:

(1) the claimant serves a report that complies with Subsection

(f)(1); and

(2) the court, on motion and hearing, makes the findings

required by Subsection (f)(2).

(f) In an action in which the claimant seeks remand for trial

under Subsection (d)(2) or denial of a motion to dismiss under

Subsection (e):

(1) the claimant shall serve on each defendant a report that:

(A) complies with the requirements of Sections 90.003(a)(2)(A),

(B), (E), and (F) and 90.003(b) or Sections 90.004(a)(1), (2),

and (4) and 90.004(e); and

(B) verifies that:

(i) the physician making the report has a physician-patient

relationship with the exposed person;

(ii) pulmonary function testing has been performed on the

exposed person and the physician making the report has

interpreted the pulmonary function testing;

(iii) the physician making the report has concluded, to a

reasonable degree of medical probability, that the exposed person

has radiographic, pathologic, or computed tomography evidence

establishing bilateral pleural disease or bilateral parenchymal

disease caused by exposure to asbestos or silica; and

(iv) the physician has concluded that the exposed person has

asbestos-related or silica-related physical impairment comparable

to the impairment the exposed person would have had if the

exposed person met the criteria set forth in Section 90.003 or

90.004; and

(2) the MDL pretrial court shall determine whether:

(A) the report and medical opinions offered by the claimant are

reliable and credible;

(B) due to unique or extraordinary physical or medical

characteristics of the exposed person, the medical criteria set

forth in Sections 90.003 and 90.004 do not adequately assess the

exposed person's physical impairment caused by exposure to

asbestos or silica; and

(C) the claimant has produced sufficient credible evidence for a

finder of fact to reasonably find that the exposed person is

physically impaired as the result of exposure to asbestos or

silica to a degree comparable to the impairment the exposed

person would have had if the exposed person met the criteria set

forth in Section 90.003 or 90.004.

(g) A court's determination under Subsection (f) shall be made

after conducting an evidentiary hearing at which the claimant and

any defendant to the action may offer supporting or controverting

evidence. The parties shall be permitted a reasonable

opportunity to conduct discovery before the evidentiary hearing.

(h) The court shall state its findings under Subsection (f)(2)

in writing and shall address in its findings:

(1) the unique or extraordinary physical or medical

characteristics of the exposed person that justify the

application of this section; and

(2) the reasons the criteria set forth in Sections 90.003 and

90.004 do not adequately assess the exposed person's physical

impairment caused by exposure to asbestos or silica.

(i) Any findings made by a court under Subsection (f) are not

admissible for any purpose at a trial on the merits.

(j) Subsections (d)(2) and (e)-(i) apply only in exceptional and

limited circumstances in which the exposed person does not

satisfy the medical criteria of Section 90.003 or 90.004 but can

demonstrate meaningful asbestos-related or silica-related

physical impairment that satisfies the requirements of Subsection

(f). Subsections (d)(2) and (e)-(i) have limited application and

shall not be used to negate the requirements of this chapter.

(k) On or before September 1, 2010, each MDL pretrial court

having jurisdiction over cases to which this chapter applies

shall deliver a report to the governor, lieutenant governor, and

the speaker of the house of representatives stating:

(1) the number of cases on the court's multidistrict litigation

docket as of August 1, 2010;

(2) the number of cases on the court's multidistrict litigation

docket as of August 1, 2010, that do not meet the criteria of

Section 90.003 or 90.004, to the extent known;

(3) the court's evaluation of the effectiveness of the medical

criteria established by Sections 90.003 and 90.004;

(4) the court's recommendation, if any, as to how medical

criteria should be applied to the cases on the court's

multidistrict litigation docket as of August 1, 2010; and

(5) any other information regarding the administration of cases

in the MDL pretrial courts that the court deems appropriate.

Added by Acts 2005, 79th Leg., Ch.

97, Sec. 2, eff. September 1, 2005.

Sec. 90.011. BANKRUPTCY. Nothing in this chapter is intended to

affect the rights of any party in a bankruptcy proceeding or

affect the ability of any person to satisfy the claim criteria

for compensable claims or demands under a trust established

pursuant to a plan of reorganization under Chapter 11 of the

United States Bankruptcy Code (11 U.S.C. Section 1101 et seq.).

Added by Acts 2005, 79th Leg., Ch.

97, Sec. 2, eff. September 1, 2005.

Sec. 90.012. SUPREME COURT RULEMAKING. The supreme court may

promulgate amendments to the Texas Rules of Civil Procedure

regarding the joinder of claimants in asbestos-related actions or

silica-related actions if the rules are consistent with Section

90.009.

Added by Acts 2005, 79th Leg., Ch.

97, Sec. 2, eff. September 1, 2005.

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