This docum ent does not reflect the intent or official position of the bill sponsor or House of Representatives.
STORAGE NAME: h0755a.CJS
DATE: 4/4/2023
HOUSE OF REPRESENTATIVES STAFF ANALYSIS
BILL #: CS/HB 755 Asbestos and Silica Claims
SPONSOR(S): Civil Justice Subcommittee, Fabricio
TIED BILLS: IDEN./SIM. BILLS: SB 1260
REFERENCE ACTION ANALYST STAFF DIRECTOR or
BUDGET/POLICY CHIEF
1) Civil Justice Subcommittee 12 Y, 5 N, As CS Mathews Jones
2) Judiciary Committee
SUMMARY ANALYSIS
Asbestos is the name given to six naturally-occurring fibrous minerals resistant to chemical, thermal, and
electricity damage historically used in construction, manufacturing, and fireproofing. When handled, asbestos
separates into microscopic particles, exposure to which may cause cancer and other diseases, including lung
cancer, mesothelioma, and asbestosis, which can take 20 to 40 years to develop following initial exposure.
Lawsuits against asbestos manufacturers and distributors began in the 1970s, and by the 1990s, these
corporations began filing for reorganization under Chapter 11 of the United States Bankruptcy Code in the
hopes of escaping their asbestos injury liability. In 1994, Congress enacted 11 U.S.C. s. 524(g) to create a
comprehensive, statutory mechanism for addressing asbestos liabilities in bankruptcy reorganization
proceedings.
Florida’s Asbestos and Silica Compensation Fairness Act (Act) allows the filing of an asbestos lawsuit against
a solvent defendant in the state if the claimant is domiciled in Florida or the asbestos exposure that
substantially contributed to the exposed person’s physical impairment occurred in the state. The statute of
limitations to file an asbestos lawsuit does not begin to run until the exposed person discovers, or through
exercising reasonable diligence should have discovered, his or her asbestos-related physical impairment.
CS/HB 755 adds extra requirements for a claimant seeking to recover damages for an asbestos or silica
related injury under the Act. Specifically, the bill requires a claimant to file a sworn statement within 30 days of
initiating a lawsuit alleging an asbestos or silica related injury. The bill requires the statement to include an
extensive list of detailed information related to the exposure of the claimant to the asbestos or silica or, if the
exposure was through another person, that person’s exposure. However, the bill shields the information
provided in the claimant’s statement from being admissible at trial.
The bill is unlikely to have any fiscal impact on state or local governments and has an effective date of July 1,
2023.
STORAGE NAME: h0755a.CJS PAGE: 2
DATE: 4/4/2023
FULL ANALYSIS
I. SUBSTANTIVE ANALYSIS
A. EFFECT OF PROPOSED CHANGES:
Background
Asbestos
Asbestos is the commercial name given to six naturally-occurring fibrous minerals resistant to chemical,
thermal, and electricity damage historically used in consumer goods including textiles, paper, toys,
brake pads, shoes, and home appliances, and by the construction and ship-building industries as
roofing, flooring, wallboard, insulation, and fireproofing.
1
When handled, asbestos separates into
microscopic, circulating particles, exposure
2
to which may cause cancer and other diseases, including
lung cancer, mesothelioma,
3
and asbestosis,
4
which can take 20 to 40 years to develop following initial
exposure.
5
As early as the 1930s, many asbestos industry executives knew of the occupational hazard asbestos
exposure posed.
6
However, given the prolonged latency period of asbestos-related diseases and that
the average working-class American of the day would not expect to live past 60 years of age, the
executives did not give the risks serious attention.
7
Further, given the legal standards of the day,
8
the
executives had little reason to contemplate corporate liability for harms occurring decades into the
future, and thus did not advertise what they knew.
9
By 1970, however, published medical evidence conclusively showed that some workers exposed to
asbestos would, over time, contract asbestosis, lung cancer, or mesothelioma and be increasingly
disabled by these conditions.
10
After 1973, asbestos use declined sharply as knowledge of the
exposure risks spread and the new Occupational Safety and Health Administration (“OSHA”)
11
called
for its removal. Despite the decline in use, a leading epidemiological study found that, by 1979, at least
27.5 million Americans had suffered asbestos exposure.
12
Asbestos Litigation
1
Centers for Disease Control and Prevention: National Institute for Occupational Safety and Health (NIOSH), Asbestos,
https://www.cdc.gov/niosh/topics/asbestos/default.html (last visited Mar. 30, 2023).
2
Asbestos exposure can be occupational or non-occupational. Non-occupational exposure includes domestic exposure, common in
family members of a person occupationally exposed. See Nonhlanhla Tlotleng, et al., The Significance of Non-Occupational Asbestos
Exposure in Women with Mesolthelioma, Respirology Case Reports, Vol. 7 (2020),
https://www.ncbi.nlm.nih.gov/pmc/articles/PMC6246071/ (last visited Mar. 30, 2023).
3
Mesothelioma is an aggressive cancer occurring in the thin tissue layer covering the majority of the internal organs, known as the
mesothelium. Mesothelioma most often affects the tissue surrounding the lungs. See Mayo Clinic, Mesothelioma,
https://www.mayoclinic.org/diseases-conditions/mesothelioma/symptoms-causes/syc-20375022 (last visited Mar. 30, 2023).
4
Asbestosis is a chronic lung disease caused by inhaling asbestos fibers characterized by lung tissue scarring and shortness of breath.
As asbestosis progresses, lung tissue scarring prevents lungs from contracting and expanding normally. See Mayo Clinic, Asbestosis,
https://www.mayoclinic.org/diseases-conditions/asbestosis/symptoms-causes/syc-20354637 (last visited Mar. 30, 2023).
5
CDC, supra note 1.
6
Paul D. Carrington, Asbestos Lessons: The Unattended Consequences of Asbestos Litigation, The Review of Litigation, Vol. 26
(2007), https://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=2343&context=faculty_scholarship (last visited Mar. 30, 2023).
7
Id.
8
Tort law was not yet recognized as the primary means of discouraging management from consciously taking employee health and
safety risks, and courts interpreted applicable statutes of limitation as starting to run when the harm occurred. It was only after 1960 that
tort law began to predominantly govern the relationship between employees and corporations, and courts began to interpret statutes of
limitation to start running only when the victim discovers the harm. Id.
9
Carrington, supra note 6.
10
Id.
11
Congress created OSHA with the Occupational Safety and Health Act of 1970 to ensure safe working conditions for American
workers by setting and enforcing workplace standards and providing training, outreach, education, and assistance. See United States
Department of Labor, Occupational Safety and Health Administration, About OSHA, https://www.osha.gov/aboutosha (last visited Mar.
30, 2023).
12
See Carrington, supra note 6, citing William Nicholson, et al., Occupational Exposure to Asbestos: Population at Risk and Projected
Mortality 1980-2030, 3 Am. Jur. Indus. Med. 259 (1982). STORAGE NAME: h0755a.CJS PAGE: 3
DATE: 4/4/2023
In 1972, an insulation worker disabled by asbestosis and mesothelioma sued his employer, a building
materials manufacturer, for failing to warn him of asbestos exposure risks.
13
The evidence showed that
the defendant knew of the risks but had not informed the claimant, and the jury awarded the claimant a
$68,000 verdict, finding the defendant strictly liable on the basis of s. 402A of the Restatement
(Second) of Torts.
14
The Fifth Circuit affirmed the trial court’s opinion, finding that the defendant’s failure
to give “adequate warnings of the known or knowable dangers involved [in asbestos exposure]” made
asbestos an “unreasonably dangerous” product.
15
Asbestos Bankruptcy Trusts
In 1982, the Johns-Manville Corporation filed an asbestos-related bankruptcy petition, and five years
later, the Manville Personal Injury Settlement Trust was the first asbestos bankruptcy trust
established.
16
A dramatic surge in asbestos manufacturing corporations filing for bankruptcy followed
the creation of the Manville Trust, but bankruptcy courts lacked express statutory authority for the trust
scheme.
17
In 1994, Congress enacted 11 U.S.C. s. 524(g) to create a comprehensive, statutory
mechanism for addressing asbestos liabilities in bankruptcy reorganization proceedings.
18
This section
authorizes bankruptcy courts to transfer a debtor corporation’s asbestos liability to an independent trust
funded by the reorganized company, allowing the reorganized company to operate free from present
and future asbestos liability claims.
19
Since 1994, over 60 such asbestos bankruptcy trusts have been
established, paying over $17.5 billion on millions of asbestos injury claims.
20
Generally, a claimant seeking compensation from an asbestos trust must file a claim form with an injury
statement and information establishing asbestos exposure linked to the trust’s predecessor.
21
A
claimant must also submit asbestos exposure evidence, such as employment and social security
records, deposition testimony, and medical reports or records supporting a diagnosis of the specific
disease claimed.
22
A trust claim is then reviewed by a trust committee and paid when the claimant
meets exposure requirements and suffers from an asbestos-related injury linked to such exposure.
23
Payment schedules established by each trust determine the amount of compensation a claimant will
receive for a specific medical condition, and claimants may make claims from multiple trusts for a single
injury as each trust operates independently.
24
Florida Asbestos Litigation Law
Initiating a Lawsuit
Florida’s Asbestos and Silica Compensation Fairness Act
25
(“the Act”) allows the filing of an asbestos
lawsuit against a solvent defendant in the state if the claimant is domiciled in Florida
26
or the asbestos
13
Borel v. Fibreboard Paper Prods. Corp., 493 F.2d 1076 (5th Cir. 1973).
14
Id.; Restatement (Second) Of Torts § 402A (1965) (“One who sells any product in a defective condition unreasonably dangerous to
the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer…”).
15
Borel, supra note 13.
16
Lloyd Dixon, et al., Asbestos Bankruptcy Trusts: An Overview of Trust Structure and Activity with Detailed Reports on the Largest
Trusts, Rand Institute for Civil Justice, https://www.rand.org/content/dam/rand/pubs/technical_reports/2010/RAND_TR872.pdf (last
visited Mar. 30, 2023).
17
Id.
18
United States Department of Justice, Office of Public Affairs, Justice Department Files Statement of Interest in New Asbestos Trust
Proposal (Sept. 13, 2018), https://www.justice.gov/opa/pr/justice-department-files-statement-interest-new-asbestos-trust-proposal (last
visited Mar. 30, 2023).
19
See Dixon, supra note 21.
20
Id.
21
Mark A. Behrens, Asbestos Trust Transparency, 81 Fordham. L Rev. 107 (2018),
https://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?article=5540&context=flr (last visited Mar. 30, 2023).
22
Id.
23
See Dixon, supra note 21.
24
Id; See Behrens, supra note 25.
25
Ch. 774, Part II, F.S.
26
A person domiciled in Florida has his or her true, principal, and permanent home in this state. Such a person physically lives in the
state, regards it as home, and intends to return even if currently residing elsewhere. See Legal Information Institute, Domicile,
https://www.law.cornell.edu/wex/domicile (last visited Mar. 30, 2023). STORAGE NAME: h0755a.CJS PAGE: 4
DATE: 4/4/2023
exposure that substantially contributed to the exposed person’s
27
physical impairment
28
occurred in the
state.
29
The statute of limitations
30
to file an asbestos lawsuit does not begin to run until the exposed
person discovers, or through exercising reasonable diligence should have discovered, his or her
asbestos-related physical impairment.
31
An asbestos lawsuit alleging a non-cancerous injury is a
separate cause of action from an asbestos lawsuit alleging asbestos-related cancer, and settlement of
a non-cancerous asbestos injury claim may not require as a condition of settlement the release of any
future asbestos-related cancer claim, meaning that a claimant who sues for a non-cancerous injury may
sue the same defendant again if he or she develops asbestos-related cancer in the future.
32
Discovery
A claimant bringing an asbestos lawsuit must include a written report and supporting test results with
the complaint constituting prima facie evidence
33
of the exposed person’s asbestos-related
impairment.
34
The defendant has an opportunity to challenge the evidence’s adequacy, and the court
must dismiss the asbestos lawsuit without prejudice
35
if the claimant fails to make the required prima
facie showing.
36
In addition to the written report, a claimant must file a sworn information form
containing:
The claimant’s name, date of birth, and marital status;
37
The name, address, date of birth, and marital status of each index person;
38
The specific exposure locations;
39
The alleged exposure’s beginning and ending dates;
40
The exposed person’s occupation and employer name at the time of the alleged exposure;
41
The specific asbestos-related condition alleged;
42
and
Any supporting documentation related to the asbestos lawsuit.
43
A claimant is not currently required to file a sworn statement or other information form identifying the
asbestos trust claims he or she filed or to indicate that he or she investigated all asbestos trust claims
to determine his or her claim eligibility.
44
Effect of Proposed Changes
CS/HB 755 amends s. 774.205, F.S., to require a claimant to file a sworn statement within 30 days after
filing an asbestos lawsuit. The sworn statement must specify the evidence that provides the basis for
27
“Exposed person” means a person whose asbestos exposure is the basis for an asbestos lawsuit or trust claim. S. 774.203(13), F.S.
28
Physical impairment, to which asbestos exposure was a substantial contributing factor, is an essential element of an asbestos
lawsuit. A prima facie showing of physical impairment must include evidence verifying that a qualified physician took the exposed
person’s detailed occupational and exposure history, including identification of all of the exposed person’s principal employment places
and exposures to airborne contaminants, and a detailed medical and smoking history, including a thorough review of the exposed
person’s past and present medical problems and their most likely cause. S. 774.204(2)(a) and (b), F.S.
29
S. 774.205(1), F.S.
30
A statute of limitations bars the filing of a civil or criminal cause of action after a certain period of time following an injury or offense.
See Legal Information Institute, Statute of Limitations, https://www.law.cornell.edu/wex/statute_of_limitations (last visited Mar. 30,
2023).
31
S. 774.206(1), F.S.
32
S. 774.206(2), F.S.
33
Prima facie evidence is evidence sufficient to establish a fact or raise a presumption unless disproved or rebutted. See Legal
Information Institute, Prima Facie, https://www.law.cornell.edu/wex/prima_facie (last visited Mar. 30, 2023).
34
S. 774.205(2), F.S.
35
When a case is dismissed without prejudice, the plaintiff is free to file another lawsuit based on the same grounds. See Legal
Information Institute, Dismissal Without Prejudice, https://www.law.cornell.edu/wex/dismissal_without_prejudice (last visited Mar. 30,
2023).
36
S. 774.205(1), F.S.
37
S. 774.205(3)(a), F.S.
38
An index person is the person by which a plaintiff claims asbestos exposure if alleging such exposure through another’s testimony or
by other than direct or bystander exposure to a product. S. 774.205(3)(b), F.S.
39
S. 774.205(3)(c), F.S.
40
S. 774.205(3)(d), F.S.
41
S. 774.205(3)(e), F.S.
42
S. 774.205(3)(f), F.S.
43
S. 774.205(3)(g), F.S.
44
See generally ch. 774, F.S. STORAGE NAME: h0755a.CJS PAGE: 5
DATE: 4/4/2023
each claim against each defendant. The bill requires a claimant to provide additional specific
information and related discovery documents within 30 days of initiating a lawsuit. The claimant’s sworn
statement must include all of the following information:
The name, address, date of birth, marital status, occupation, smoking history, current and past
worksites, current and past employers of the exposed person, and any person through whom
the exposed person alleges exposure to asbestos or silica.
The name, address, and relationship to the exposed person for each person who is
knowledgeable regarding the exposed person’s exposures to asbestos or silica.
The identity of the manufacturer or seller and specific name of each asbestos-containing
product or silica-related product, including, but not limited to, all brand and trade names to which
the exposed person was exposed.
For each specific product identified, each site and the specific location at each site, including the
address, where the exposed person was exposed to asbestos or silica.
The beginning and ending dates of each exposure, the specific manner of each exposure, the
frequency and length of time of each exposure, and the proximity of the product or its use to the
exposed person.
The specific condition related to asbestos or silica.
Any supporting documentation relating to the information required.
The contents of the claimant’s sworn statement are not admissible as evidence at trial.
As such, the bill significantly increases the requirements for a claimant to bring a lawsuit for an
asbestos or silica related claim. Moreover, under the bill, the court, upon motion by a defendant, must
dismiss the claim without prejudice as to any defendant whose product or premises is not specifically
identified in the claimant’s sworn statement. This will limit the ability of a claimant to include potential
unknown defendants in his or her claim and will instead require a claimant to specifically name each
possible defendant or company.
The bill provides an effective date of July 1, 2023.
B. SECTION DIRECTORY:
Section 1: Amends s. 774.205, F.S., relating to claimant proceedings.
Section 2: Provides an effective date of July 1, 2023.
II. FISCAL ANALYSIS & ECONOMIC IMPACT STATEMENT
A. FISCAL IMPACT ON STATE GOVERNMENT:
1. Revenues:
None.
2. Expenditures:
None.
B. FISCAL IMPACT ON LOCAL GOVERNMENTS:
1. Revenues:
None.
2. Expenditures:
None.
C. DIRECT ECONOMIC IMPACT ON PRIVATE SECTOR: STORAGE NAME: h0755a.CJS PAGE: 6
DATE: 4/4/2023
The bill may have a fiscal impact on the private sector by making it more difficult for an injured party to
bring a claim against a defendant for an alleged asbestos or silica related injury. The bill requires the
claimant to provide extensive and detailed information within 30 days of initiating the lawsuit, which
may serve as a bar to litigation for some claimants.
D. FISCAL COMMENTS:
None.
III. COMMENTS
A. CONSTITUTIONAL ISSUES:
1. Applicability of Municipality/County Mandates Provision:
Not applicable.
2. Other:
None.
B. RULE-MAKING AUTHORITY:
Not applicable.
C. DRAFTING ISSUES OR OTHER COMMENTS:
None.
IV. AMENDMENTS/COMMITTEE SUBSTITUTE CHANGES
On April 4, 2023, the Civil Justice Subcommittee adopted one amendment and reported the bill favorably
as a committee substitute. The committee substitute:
Removed the codification of the bare metal defense rule; and
Clarified that the claimant’s required statement is not admissible as evidence at trial.
This analysis is drafted to the committee substitute as passed by the Civil Justice Subcommittee.