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In a previous blog post, we highlighted Iowa’s novel law to end over-naming of defendants in asbestos and silica litigation. Since then, North Dakota, Tennessee, and West Virginia each enacted their own legislation aimed at curbing the number of defendants named in a given toxic tort suit. These bills share similarities, but they also differ from one another, too.

NORTH DAKOTA

On April 14, 2021, the North Dakota legislature passed House Bill 1207.[1] This Bill requires a plaintiff in an asbestos action to file a sworn affidavit signed by both the plaintiff and his or her attorney(s) specifying the evidence that provides the basis for each claim against each named defendant. The evidence required includes:

• names of employers
• every person through whom exposure is alleged
• plaintiff’s relationship to each of those individuals
• each asbestos-containing product to which the individual was exposed
• length of exposure for each product
• dates, frequency, proximity, and length of each exposure
• identity of the manufacturer or seller of each specified product
• the specific asbestos-related disease plaintiff claims to have
• supporting documentation for all the above

House Bill 1207 continues to up the ante and put pressure on a plaintiff by requiring medical proof of the cause of plaintiff’s condition that goes above and beyond the underwhelming language of “exposure to asbestos was a substantial contributing factor” to the plaintiff’s impairment. The prima facia showing must be made as to each defendant and must include a detailed narrative medical report, signed by a qualified physician, that includes: the diagnosis of the malignant asbestos-related condition, a statement that exposure to asbestos was a substantial contributing factor to the exposed individual’s malignant condition (and not “more probably” the result of other causes), and a detailed explanation for that opinion.

For allegations pertaining to non-malignant conditions, the same detailed narrative medical report is needed, but there must also be evidence of asbestosis or bilateral pleural thickening (rather than a diagnosis of COPD exclusively), a detailed occupational and exposure history identifying not only the places of employment but also the exposures to airborne containments therein, and a thorough review of the exposed individual’s detailed medical, social, and smoking history.

Where House Bill 1207 is particularly strong on plaintiffs in the defense of product defendants. The Bill states that “a product liability defendant in an asbestos action may not be liable from a later-added asbestos-containing product made or sold by a third party.” This added language will significantly impact product defendants who did not manufacture asbestos-containing products but whose products were altered by another party after the original product was purchased.

If a Plaintiff fails to provide such information, the court will dismiss the action without prejudice for any defendant whose product or premises was not identified and/or supported by evidentiary documentation.

WEST VIRGINIA

On April 15, 2021, West Virginia Governor Jim Justice signed House Bill 2495 into law.[2] This bill gives life to the Asbestos and Silica Claims Priorities Act (§ 55-7G-4 of the Code of West Virginia), which is aimed at preventing the over-naming of defendants. As clarification of this purpose, the Bill states that “a defendant in an asbestos or silica action shall be afforded a reasonable opportunity before trial to challenge the adequacy of the prima facie evidence that an allegedly exposed person must meet.”

Like North Dakota, West Virginia now requires a plaintiff to file, under oath, a detailed form identifying the evidentiary basis and supporting documentation for each claim. Should a claimant fail to comply, the court will dismiss without prejudice the claims against any defendant lacking the requisite information. Surprisingly, this bill retroactively requires plaintiffs in claims filed before the effective date of the amendments to the article to file a detailed information form.

TENNESSEE

On April 30, 2021, Tennessee Governor Bill Lee signed Senate Bill 873 into law.[3] This Bill follows in West Virginia’s footsteps by requiring a plaintiff to file an information form, attested to by the plaintiff, stating the evidentiary basis for each claim against each defendant named in the lawsuit. Some of the information required on the form includes:

• each asbestos-containing product to which the person was exposed
• the physical location at which the person was exposed to asbestos
• if the person was secondarily exposed through another person
• the specific asbestos-related disease claimed to exist
• supporting documentation establishing the basis for each of the aforementioned claims

If a plaintiff fails to meet the required disclosures, their asbestos claim will be dismissed without prejudice against any defendant whose product or premises was not identified.

THE TAKEAWAY

In states without “over-naming” legislation, new defendants continue to be added to toxic tort lawsuits to replace those that have filed for bankruptcy. According to Citizens Against Lawsuit Abuse, the costs of over-naming effects the economies of all 50 states.[4] In 2021, the total national cost of over-naming was projected to be $160 billion. Moreover, over-naming impacted approximately 2 million jobs and $435 billion in economic output. With only Iowa, North Dakota, West Virginia, and Tennessee passing legislation to limit frivolous over-naming, it remains to be seen which states, if any, will jump on this bandwagon.

[1] House Bill No. 1207, Sixty-seventh Legislative Assembly of North Dakota, https://www.legis.nd.gov/assembly/67-2021/documents/21-0434-05000.pdf (Jan. 26, 2022)

[2] Asbestos and Silica Claims Priorities Act, § 55-7G-4 of the Code of West Virginia, https://www.wvlegislature.gov/Bill_Text_HTML/2021_SESSIONS/RS/bills/HB2495%20SUB%20ENR.pdf (Jan. 26, 2022)

[3] https://legiscan.com/TN/text/SB0873/id/2389457

[4] Projected National Lawsuit Abuse Costs: January-November 2021, Citizens Against Lawsuit Abuse, https://cala.com/lawsuit-abuse-calculator/ (Jan. 26 2022).