60-4903. Same; filing of prima facie evidence of claim.
60-4903
60-4903. Same; filing of prima facie evidence ofclaim.(a) The plaintiff in any civil action alleging a silica orasbestos claim shallfile within 60 days of the filing of the complaint or petition or other initialpleading a written report and supporting test results constituting prima facieevidence of the exposed person's physical impairment. The written report andsupporting test results shall meet the minimum requirements specified inK.S.A. 2009 Supp.60-4902, and amendments thereto. The defendant has 120 daysfrom the date theprima facie evidence of the exposed person's physical impairment is profferedor 120 days from the date of the first responsive pleading, whichever is later,to challenge the adequacy of the proffered prima facie evidence of the physicalimpairment for failure to comply with the minimum requirements specified inK.S.A. 2009 Supp.60-4902, and amendments thereto. If the defendant makes thatchallenge anduses a physician to do so, the physician must meet the requirements specifiedinK.S.A. 2009 Supp.60-4901, and amendments thereto.
(b) If the defendant challenges the adequacy of the prima facie evidence ofthe exposed person's physical impairment as provided in subsection (a), thecourt shall determine from all of the evidence submitted whether the profferedprima facie evidence meets the minimum requirements specified in K.S.A. 2009Supp. 60-4902, andamendments thereto. The court shall resolve the issue of whether the plaintiffhas made the prima facie showing required by applying the standard forresolving a motion for summary judgment.
(c) The court shall dismiss the plaintiff's claim without prejudice upon afinding of failure to make the prima facie showing required by K.S.A. 2009Supp. 60-4902, andamendments thereto. Any plaintiff whose case has been dismissed withoutprejudice under this subsection may move to reinstate such case if theplaintiff makes a prima facie showing that meets the minimum requirementsspecified inK.S.A. 2009 Supp.60-4902, and amendments thereto.
(d) All silica and asbestos claims filed on or after the effective date ofthis act shall include a sworn information form containing:
(1) the claimant's name, address, date of birth, social security number andmarital status;
(2) the exposed person's name, last address, date of birth, social securitynumber and marital status;
(3) if the claimant alleges exposure to asbestos through another person'sexposure, thename, address, date of birth, social security number, marital status, for eachperson by which claimant alleges exposure (hereafter the "index person") andthe claimant's relationship to each such person;
(4) for each alleged exposure of the exposed person and for each indexperson, the specific location and manner of each such exposure; the beginningand ending dates of each such exposure; and the identity of the manufacturerof the specific asbestos or silica product to which the exposed person or indexperson was exposed;
(5) the occupation and name of employer of the exposed person at the time ofeach alleged exposure;
(6) if the silica or asbestos claim involves more than one claimant, theidentity of the defendant or defendants against whom each claimant asserts aclaim;
(7) the specific disease related to silica or asbestos claimed to exist; and
(8) any supporting documentation of the condition claimed to exist, anddocumentation to support the claimant or index person's identification of thesilica or asbestos product that such person was exposed to. Such documentationshall include copies of the x-ray, pulmonary function tests (includingprintouts of the flow volume loops, volume time curves, DLCO graphs, and datafor all trials and all other elements required to demonstrate compliance withthe equipment, quality, interpretation and reporting standards set forthherein), lung volume tests, reports of x-ray examinations, diagnostic imagingof the chest, pathology reports, or other testing reviewed by the diagnosing,competent medical authority in reaching the physician's conclusions.
(e) A separate information form must be filed for each claimant alleging asilica or asbestos claim.
History: L. 2006, ch. 196, § 3; July 1.