COMPARISON OF MAJOR PROVISIONS OF MODEL FEDERAL
MEDICAL CRITERIA ASBESTOS BILL
AND TEXAS ASBESTOS REFORM
Issue
Application
Model Federal Criteria Bill
Federal & state court cases
Texas Reform
Texas state court cases
Reporting
Physician
Doctor rendering exam report and
diagnosis must be a treating
physician & have or had
doctor/patient relationship
Physical examination by the
reporting physician is required, but
doctor/patient
relationship
or
rendition of treatment is required
only for certain provisions
NonMust have abnormal pulmonary Must have one of the following:
malignancy
function (PFT) result and either
1. Abnormal PFT and either
impairment - (a) 1/1 x-ray, (b) bilateral pleural
(a) 1/1 (1/0 for cases
asbestos
thickening with blunting of the
pending on enactment), (b)
costophrenic
angle,
or
(c)
bilateral pleural thickening
pathological asbestosis [if a person
and angle blunting, or (c)
has #2 or #3 from the Texas bill,
pathological asbestosis
he necessarily will have an
2. 2/1 radiology and report
abnormal PFT and 1/1 or bilateral
must
be
by treating
pleural disease; so they don’t
physician and verification of
really add anything]
restrictive impairment
3. Abnormal PFT, abnormal
Specifies a 15 year period since
diffusing capacity, and CT
initial exposure
scan
showing
bilateral
pleural or parenchymal
disease from asbestos, with
report from a treating
physician
with
doctor/patient relationship
Specifies a 10 year period since
initial exposure
Mesothelioma Requires
a
diagnosis
of
mesothelioma based on pathology
and examination and report by a
treating physician that it was
caused by asbestos
Does not require a physical exam,
but a report verified by a boardcertified physician that the exposed
person has mesothelioma that was
caused by asbestos
Lung Cancer
Does not require a physical exam,
but with respect to asbestos,
requires a report verified by a
board-certified physician that the
Specifies medical criteria for lung
cancer due to asbestos and silica,
and requires exam, diagnosis as a
primary cancer, and report by a
treating physician
exposed person has a malignancy
that was caused by asbestos. With
respect to silica, requires a primary
lung cancer and 15 year latency
Prohibited
Requires that (1) exam and x-rays Requires that exam and x-rays not
basis
for not be in violation of state law or be in violation of state law or
diagnosis
regulation, (2) getting exam and x- regulation
rays not require retaining lawyer
sponsoring the exam
Time
serving
reports
for New cases – file with initial New cases - within 30 days of
pleading. Pending cases – within service on a defendant. Pending
60 days of enactment
cases – within earlier of 180 days of
enactment or 60 days prior to trial
MDL
proceedings
Joint
Several
Does not alter federal practice and All cases filed since July 2003 are
does not require for state court in the state asbestos MDL, and
cases
silica cases are going to silica MDL
for all pre-trial proceedings. For
unimpaired cases pending when
asbestos bill was enacted, all go to
the MDL where they will be abated
until impairment manifests, or
plaintiff may voluntarily dismiss
& Several liability only, with Omnibus 2003 reform specifies
application of settlement credits
joint liability only if a defendant is
found more than 50% at fault.
Dollar for dollar settlement credit.
Punitive
damages
Does not address them.
Omnibus 2003 reform requires
clear and convincing evidence, and
a unanimous verdict as to liability
and quantum for puntives
Limitations
Action accrues on the earlier of Action accrues on the earlier of
when a person (1) is diagnosed filing a complying report or the
with impairment or asbestos/silica date of death.
malignancy, (2) knew or should
have known of facts that would
have led a reasonable person to get
a diagnosis, or (3) date of death
Experts
Makes physician experts subject to Does not address this issue.
the jurisdiction of state licensing
boards of state in which expert is
providing testimony
Collateral
source
paymets
Deduct collateral source payments Does not address collateral source
from the amount of judgment
payments.
Insurability of Does not address the issue.
persons
on
whose behalf
reports
are
filed
Requires that filing of report on a
person’s behalf does not affect the
person’s insurability.