§ 76-94. Prerequisite of prima facie showing in asbestos claims - Detailed occupational and exposure history - Evidence standards.

A.  No person shall have an asbestos claim placed on any active trial roster in this state, or brought to trial in this state, or conduct discovery in an asbestos claim in this state, in the absence of a prima facie showing of asbestos-related malignancy or impairment as shown by service on each defendant of the information listed in either paragraph 1 or 2 of this subsection:

1.  A report by a physician who is board-certified in pulmonary medicine, occupational medicine, internal medicine, oncology, or pathology at the time of issuing the relevant medical report concluding:

a.the exposed person has been diagnosed with mesothelioma or other asbestos-related malignancy,

b.to a reasonable degree of medical certainty, exposure to asbestos was a proximate cause of the diagnosed mesothelioma or other asbestos-related malignancy, accompanied by a conclusion that the exposed person's medical findings were not more probably the result of other causes revealed by the exposed person's employment and medical history.  A conclusion that the exposed person's physical impairment or impairments are "consistent with" or "compatible with" mesothelioma or other asbestos-related malignancy does not meet the requirements of this section, and

c.for malignant asbestos-related conditions other than mesothelioma, that the exposed person has an underlying nonmalignant asbestos-related condition and that at least fifteen (15) years have elapsed between the date of first exposure to asbestos and the date of diagnosis of the malignancy; or

2.  A report by a physician who is board-certified in pulmonary medicine, internal medicine, occupational medicine, or pathology that:

a.the exposed person has been diagnosed with a nonmalignant asbestos-related condition, and

b.confirms that a physician actually treating or who treated the exposed person, or who has or who had a doctor-patient relationship with the exposed person or a medical professional employed by and under the direct supervision and control of such physician:

(1)performed a physical examination of the exposed person, or if the exposed person is deceased, reviewed available records relating to the exposed person's medical condition,

(2)took an occupational and exposure history from the exposed person or from a person knowledgeable about the alleged exposure or exposures that form the basis of the action, and

(3)took a medical and smoking history that includes a review of the exposed person's significant past and present medical problems relevant to the exposed person's impairment or disease,

c.sets out sufficient details of the exposed person's occupational, exposure, medical, and smoking history to form the basis for a medical diagnosis of an asbestos-related condition and confirms that at least fifteen (15) years have elapsed between the exposed person's first exposure to asbestos and the date of diagnosis,

d.confirms that the exposed person has a pathological diagnosis of asbestosis graded 1(B) or higher under the criteria published in "Asbestos-Associated Diseases", 106 Archives of Pathology and Laboratory Medicine 11, Appendix 3 (October 8, 1982), as amended from time to time, or

e.confirms that the exposed person's chest x-ray shows bilateral small irregular opacities (s, t, or u) with a profusion grading of 2/2 or higher on the ILO system of classification, or

f.confirms that the exposed person has radiological evidence of asbestosis and/or pleural thickening showing:

(1)bilateral small irregular opacities (s, t, or u) with a profusion grading of 1/1 or higher, or

(2)bilateral diffuse pleural thickening graded extent b2 or higher, including blunting of the costophrenic angle, and

g.(1)confirms that in cases described in subparagraph d or f of this paragraph, the exposed person has or had physical impairment rated at least Class 2 pursuant to the AMA Guides to the Evaluation of Permanent Impairment (5th Edition) (dated November 2000) demonstrating:

(a)forced vital capacity below the lower limit of normal and FEV1/FVC ratio (using actual values) at or above the lower limit of normal, or

(b)total lung capacity, by plethysmography or timed gas dilution, below the lower limit of normal, or

(c)if the claimant's medical condition or process prevents the pulmonary function test from being performed or makes the results of such test an unreliable indicator of physical impairment, a board-certified physician in pulmonary medicine, occupational medicine, internal medicine, oncology, or pathology, independent from the physician providing the report required herein, must provide a report which states to a reasonable degree of medical certainty that the claimant has a nonmalignant asbestos-related condition causing physical impairment equivalent to subdivision (a) or (b) of this division and states the reasons why the pulmonary function test would be an unreliable indicator of physical impairment.

(2)Alternatively and not to be used in conjunction with subdivision (c) of division (1) of this subparagraph, if an exposed person's medical conditions or processes prevent a physician from being able to diagnose or evaluate that exposed person sufficiently to make a determination as to whether that exposed person meets the requirements of subparagraph f of this paragraph, the claimant may serve on each defendant a report by a physician who is board-certified in pulmonary medicine, occupational medicine, internal medicine, oncology, or pathology at the time the report was made that:

(a)verifies that the physician has or had a doctor-patient relationship with the exposed person, and

(b)verifies that the exposed person has asbestos-related pulmonary impairment as demonstrated by pulmonary function testing showing:

(i)forced vital capacity below the lower limit of normal and total lung capacity, by plethysmography, below the lower limit of normal, or

(ii)forced vital capacity below the lower limit of normal and FEV1/FVC ratio (using actual values) at or above the lower limit of normal, and

(c)verifies that the exposed person has a chest x-ray and computed tomography scan or high-resolution computed tomography scan read by the physician or a physician who is board-certified in pulmonary medicine, occupational medicine, internal medicine, oncology, pathology, or radiology showing either bilateral pleural disease or bilateral parenchymal disease diagnosed and reported as being a consequence of asbestos exposure,

h.confirms that the physician has concluded that the exposed person's medical findings and impairment were not more probably the result of causes other than asbestos exposure as revealed by the exposed person's occupational, exposure, medical, and smoking history, and

i.is accompanied by the relevant radiologist's reports, pulmonary function tests, including printouts of all data, flow volume loops, and other information to the extent such has been performed demonstrating compliance with the equipment, quality, interpretation, and reporting standards set out in the Asbestos and Silica Claims Priorities Act, lung volume tests, diagnostic imaging of the chest, pathology reports, or other testing reviewed by the physician in reaching the physician's conclusions.  Upon request, the relevant computed tomography scans and/or chest x-rays will be made available for review.

B.  The detailed occupational and exposure history required herein must describe:

1.  The exposed person's principal employments where it was likely there was exposure to airborne contaminants (including asbestos, silica, and other disease-causing dusts, mists, fumes, and airborne contaminants) that can cause pulmonary injury; and

2.  Identification of the general nature, duration, and frequency of the exposed person's exposure to airborne contaminants, including asbestos and other dusts that can cause pulmonary injury.

C.  All evidence and reports used in presenting the prima facie showing required in this section, including pulmonary function testing and diffusing studies, if any:

1.  Must comply with the technical recommendations for examinations, testing procedures, quality assurance, quality controls, and equipment in the AMA's Guidelines to the Evaluation of Permanent Impairment and the most current version of the Official Statements of the American Thoracic Society regarding lung function testing.  Testing performed in a hospital or other medical facility that is fully licensed and accredited by all appropriate regulatory bodies in the state in which the facility is located is presumed to meet the requirements of this act.  This presumption may be rebutted by evidence demonstrating that the accreditation or licensing of the hospital or other medical facility has lapsed, or providing specific facts demonstrating that the technical recommendations for examinations, testing procedures, quality assurance, quality control, and equipment have not been followed;

2.  Must not be obtained through testing or examinations that violate any applicable law, regulation, licensing requirement, or medical code of practice;

3.  Must not be obtained under the condition that the exposed person retains legal services in exchange for the examination, testing, or screening;

4.  Shall not result in any presumption at trial that the exposed person is impaired by an asbestos or silica-related condition; and

5.  Shall not be conclusive as to the liability of any defendant.

D.  The conclusion that a prima facie showing has been made is not admissible at trial.

Added by Laws 2013, 1st Ex.Sess., c. 21, § 6, emerg. eff. Sept. 10, 2013.

Note

NOTE:  Text formerly resided under repealed Title 76, § 64, which was derived from Laws 2009, c. 228, § 58, which was held unconstitutional by the Oklahoma Supreme Court in the case of Douglas v. Cox Retirement Properties, Inc., 2013 OK 37, 302 P.2d 789 (Okla. 2013).