Last year, we highlighted Iowa’s groundbreaking law to end over-naming of defendants in asbestos and silica litigation. Now, just a year later, three more states have followed suit: North Dakota, Tennessee, and West Virginia. All three states enacted their own versions of legislation aiming to reduce and prevent the over-naming of defendants in asbestos cases. While all three of the bills share similarities, North Dakota’s bill is the most expansive of the three.

North Dakota

On April 14, 2021, the North Dakota legislature passed House Bill 1207. The bill provides that a plaintiff in an asbestos action is required to file an affidavit signed by both the plaintiff and plaintiff’s counsel specifying the evidence for the basis of each claim against each defendant. The affidavit must include the names of employers, any person through whom exposure is alleged and the relationship to each individual, each asbestos-containing product to which the individual was exposed, and the location and manner of each exposure. The affidavit must also include the dates, frequency, proximity and length of exposure, the identity of the manufacturer or seller of the specified product, the specific asbestos-related disease and any supporting documentation relating to the information. House Bill 1207 further provides that the Plaintiff has a continuing duty to supplement the information required. It also states that a plaintiff must include a detailed medical narrative, signed by a qualified physician, including supporting test results, with any complaint.

Another notable provision of the North Dakota bill is the section addressing proof for asbestos actions involving nonmalignant conditions. House Bill 1207 provides that an action related to an alleged nonmalignant asbestos-related condition may not be filed or sustained in the absence of prima facie evidence that asbestos was a substantial contributing factor to the exposed individual’s impairment. Further, the prima facie showing must be made as to each defendant and include a medical report showing evidence of asbestosis or bilateral pleural thickening, rather than COPD, and contain a detailed exposure history, including places of employment and exposure to airborne contaminants. The bill specifically states that the all-too-familiar “medical findings and impairment are consistent with or compatible with exposure to asbestos” language does not satisfy the requirements of the narrative medical report. For malignant conditions, the bill also requires a plaintiff to make a prima facie case that asbestos exposure was a substantial contributing factor for the malignant condition. This prima facie case must be made against each defendant and must also include a detailed medical narrative including a diagnosis of a malignant, asbestos-related condition and an opinion that the injured party’s exposure to asbestos was a substantial contributing factor to the malignancy and not a result of other causes. Again, the catch-all language regarding diagnosis does not satisfy the requirement of the bill.

Finally, and most notably, House Bill 1207 establishes a bare metal defense for product defendants stating, “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.” The addition of this defense will prove significantly impactful to the number of product defendants whose products never contained asbestos and were only altered after purchase. House Bill 1207 went into effect on August 1, 2021 and will apply to all asbestos actions filed on or after that date.

West Virginia

Similarly, on April 15, 2021, West Virginia Governor Jim Justice signed into law HB 2495 which establishes the Asbestos and Silica Claims Priorities Act, § 55-7G-4 of the Code of West Virginia, aimed at preventing over-naming of defendants. Notably, West Virginia has one of the highest average number of defendants named on asbestos complaints. The Act requires asbestos plaintiffs to file a sworn information form within 60 days of the filing of a complaint that provides the evidentiary basis and supporting documentation for each claim including but not limited to: locations of alleged exposures, names/brands of products to which exposures are alleged, exposure dates, and frequency of exposure. Importantly, the Act mandates that a court shall dismiss plaintiff’s claims “as to any defendant whose product or premises is not identified in the required disclosures.” The Act became effective on June 29, 2021 and stands to impact asbestos and silica claims filed after the effective date. The passage of this bill is increasingly important in light of the backlog of cases pending in Kanawha County, W.Va. With this bill, defendants are hopeful that the number of new claims filed will decrease and the backlog dockets will be addressed at a faster pace.

Tennessee  

Finally, on April 30, 2021, Tennessee Governor, Bill Lee, signed Senate Bill 873 into law. Senate Bill 873 provides that a plaintiff in an asbestos action, alleging either a nonmalignant or malignant impairment, is required to file an affidavit providing evidence for each claim, against each defendant, within 30 days of filing the complaint. The bill requires that the affidavit contain among other things, the occupation, smoking history, work history of the injured party or of the party through which the injured party was allegedly exposed to asbestos and the relation of that person, each asbestos-containing product to which the injured party was exposed, and each location at which the exposure took place. The affidavit must also include the specific location and manner of each exposure, first and last date of exposure, frequency of exposure, the manufacturer or seller of the asbestos product, the specific disease claimed to exist and supporting documentation to establish the basis for each claim. Like the North Dakota and West Virginia bills, the Tennessee Bill also imposes a continuing duty to supplement.

This new wave of legislation to prohibit the over-naming of defendants instills optimism that legislators are growing weary of seeing unverified claims clogging up court dockets and in return, projecting greater suspicion on the meritorious claims, something those in the defense arena have been highlighting for a number of years. Defendants can only hope that other states with similar runaway asbestos dockets begin to follow the examples of Iowa, North Dakota, Tennessee and West Virginia.

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