60-4902. Same; claim requirements.
60-4902
60-4902. Same; claim requirements.(a) Physical impairment of the exposed person shall be anessentialelement in any civilaction alleging a silica or asbestos claim.
(b) No person shallbring or maintain a civil action alleging an asbestos claim based on anonmalignant condition in the absence of a prima facie showing of physicalimpairment as a result of a medical condition to which exposure to asbestos wasa substantial contributing factor. Such a prima facie showing shall include:
(1) Evidence confirming that the diagnosing, competent medical authority hastaken, or has directly supervised the taking of, a medically appropriateoccupational, exposure, medical and smoking history from the exposed person or,if that person is deceased, from a person who is knowledgeable about theexposures that form the basis for the claim.
(2) Evidence sufficient to demonstrate that at least 10 years have elapsedbetween the date of first exposure to asbestos and the date of diagnosis.
(3) A determination by a competent medical authority, on the basis of amedical examination and pulmonary function testing, that the exposed person hasa permanent respiratory impairment rating of at least class 2 as defined by andevaluated pursuant to the AMA guides to the evaluation of permanent impairment.
(4) A diagnosis by a competent medical authority of asbestosis or diffusepleural thickening, based at a minimum on radiological or pathologicalevidence of asbestosis, or radiological evidence of diffuse pleural thickening.
(5) A determination by a competent medical authority that asbestosis ordiffuse pleural thickening, rather than chronic obstructive pulmonary disease,is a substantial contributing factor to the exposed person's physicalimpairment, based at a minimum on a determination that the exposed person has:
(A) Total lung capacity, by plethysmography or timed gas dilution, below thepredicted lower limit of normal;
(B) forced vital capacity below the lower limit of normal and a ratio of FEV1to FVC that is equal to or greater than the predicted lower limit of normal; or
(C) a chest x-ray showing small, irregular opacities of s, t or u, graded atleast 2/1 on the ILO scale.
(6) A diagnosis by a competent medical authority that the exposed person'smedical findings and impairment were proximately caused by asbestos exposure,asrevealed by the exposed person's occupational, exposure, medical and smokinghistory. A diagnosis which only states that the medical findings and impairmentare consistent with or compatible with exposure to asbestos does not meet therequirements of this paragraph.
(c) No person shall bring or maintain a civil action alleging an asbestosclaim which is based upon an asbestos-related cancer in the absence of a primafacie showing which shall include all of the following minimum requirements;
(1) A diagnosis by a competent medical authority, who is board certified inpathology, pulmonary medicine, gastroenterology or oncology, of a primaryasbestos-related cancer and that exposure to asbestos was a substantialcontributing factor to the condition.
(2) Evidence sufficient to demonstrate that at least 10 years have elapsedbetween the date of first exposure to asbestos and the date of diagnosis of theprimary asbestos-related cancer.
(3) A diagnosis by a competent medical authority that the exposed person'sasbestos-related cancer was proximately caused by asbestos exposure, asrevealed by the exposed person's occupational, exposure, medical, and smokinghistory. A diagnosis which only states that the lung cancer is consistent withor compatible with exposure to asbestos does not meet the requirements of thissubsection.
(d) In a civil action alleging an asbestos claim based upon mesothelioma, noprima facie showing is required.
(e) (1) No person shall bring or maintain a civil action alleging a silicaclaim based on a nonmalignant condition in the absence of a prima facie showingthat the:
(A) Exposed person has a physical impairment;
(B) physical impairment is a result of a medical condition; and
(C) person's exposure is a substantial contributing factor to the medicalcondition.
(2) The prima facie evidence shall include:
(A) Evidence confirming that a competent medical authority has taken, or hasdirectly supervised the taking of, a medically appropriate occupational,exposure and smoking history of the exposed person from the exposed person or,if that person is deceased, from the person who is most knowledgeable aboutthe exposures that form the basis of the silica claim for a nonmalignantcondition, including the general nature and duration of the exposure, to extentknown;
(B) if the claim is based upon a respiratory impairment, a diagnosis by acompetent medical authority, based on a medical examination and pulmonaryfunction testing of the exposed person:
(i) The exposed person has a permanent respiratory impairment rating of atleast class 2 as defined by and evaluated pursuant to the AMA guides to theevaluation of permanent impairment; and
(ii) the exposed person has silicosis based at a minimum on radiological orpathological evidence of silicosis.
(C) A diagnosis by a competent medical authority that the exposed person'smedical findings and impairment were proximately caused by silica as revealedby the exposed person's occupational, exposure, medical and smoking history. Adiagnosis which only states that the medical findings and impairment areconsistent with or compatible with exposure to silica does not meet therequirements of this paragraph.
(f) (1) No person shall bring or maintain a civil action alleging thatsilica caused that person to contract lung cancerin the absence of a prima facie evidence showing that the:
(A) Exposed person has lung cancer; and
(B) the person's exposure is a substantial contributing factor to the lungcancer.
(2) The prima facie evidence shall include:
(A) A diagnosis by a competent medical authority that:
(i) The exposed person has primary lung cancer; and
(ii) exposure to silica is a substantial contributing factor to the cancer.
(B) Evidence sufficient to demonstrate that at least 10 years have elapsedbetween the date of first exposure to silica and the date of diagnosis of thecancer.
(C) Evidence of the exposed person's substantial occupational exposure tosilica.
(D) A diagnosis by a competent medical authority that the exposed person'slung cancer was proximately caused by silica exposure, as revealed by theexposed person's occupational, exposure, medical and smoking history. Adiagnosis which only states that the lung cancer is consistent with orcompatible with exposure to silica does not meet the requirements of thisparagraph.
(g) (1) No person shall bring or maintain a civil action alleging asilica or asbestos claim based on wrongful death of an exposed person, in theabsence of a prima facie showing that the:
(A) Death of the exposed person was the result of a physical impairment;
(B) death and physical impairment were the result of a medical condition; and
(C) person's exposure to silica or asbestos was a substantialcontributingfactor to the medical condition.
(2) The prima facie evidence shall include:
(A) A diagnosis by a competent medical authority that exposure to silica orasbestos was a substantial contributing factor to the death of the exposedperson;
(B) evidence sufficient to demonstrate that at least 10 years have elapsedbetween the date of first exposure to asbestos and the date of death of theexposed person; or, in the case of a wrongful death based on silica-relatedcancer, evidence sufficient to demonstrate that at least 10 years have elapsedbetween the date of first exposure to silica and the date of diagnosis of thecancer.
(C) Evidence of the exposed person's substantial occupational exposure tosilica or exposure to asbestos.
(D) A diagnosis by a competent medical authority that the exposed person'sdeath was proximately caused by silica or asbestos exposure, as revealed by theexposed person's occupational, exposure, medical and smoking history. Adiagnosis which only states that the medical findings and impairment areconsistent with orcompatible with exposure to silica or asbestos does not meet the requirementsofthisparagraph.
(3) To the extent otherwise permitted by state law, if an heir files a civilactionthat alleges a silica or asbestos claim based on wrongful death and furtheralleges in the action that the death was the result of living with an exposedperson who, if the civil action had been filed by the exposed person, wouldhave met the requirements specified in subparagraph (C) of paragraph (2) ofsubsection (g) of this section, and amendments thereto, and that the decedentlived with the exposed person specified in subsection (kk) ofK.S.A. 2009 Supp.60-4901, andamendments thereto, for silica claims, or with the exposed person during thetime of the exposed person's exposure to asbestos for asbestos claims, thedecedent is considered as having satisfied the requirements specified insubparagraph (C) of paragraph (2) of subsection (g) of this section andamendments thereto.
(4) In a civil action alleging an asbestos claim for wrongful death of anexposed person based on mesothelioma, no prima facie showing is required.
(h) Evidence relating to physical impairment under this section, includingpulmonary function testing and diffusing studies, shall be consistent with thetechnical recommendations for examinations, testing procedures, qualityassurance, quality control and equipment incorporated in the AMA guides to theevaluation of permanent impairment and reported as set forth in 20 C.F.R. Pt.404, Subpt. P, App. 1, Part A, Sec. 3.00 E. and F., as in effect on March 1,2006 and theinterpretive standards set forth in the official statement of the Americanthoracic society entitled, "lung function testing: Selection of referencevalues and interpretive strategies," as in effect on March 1, 2006.
(i) (1) The court's findings and decision on the prima facie showing thatmeets the requirements of subsections (b) through (h) of this section shallnot:
(A) Result in any presumption at trial that the exposed person has aphysical impairment that is caused by a condition related to silica or asbestosexposure.
(B) Be conclusive as to the liability of any defendant in the case.
(C) Be admissible at trial.
(2) If the trier of fact is a jury:
(A) The court shall not instruct the jury with respect to the court'sfindingsor decision on the prima facie showing; and
(B) neither counsel for any party nor a witness shall inform the jury orpotential jurors of the prima facie showing.
(j) A court may consolidate for trial any number and type of silica orasbestos claims with the consent of all the parties. In the absence of suchconsent, the court may consolidate for trial only claims relating to theexposed person and members of such person's past or present household.
History: L. 2006, ch. 196, § 2; July 1.