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I first saw the asbestos issue back in 1984, more than 20 years ago, when then-Senator Gary Hart of colorado brought in Johns-Manville. And this very tough issue has been very elusive for more than two decades, and it has mounted in problems, reaching a situation where we now have some 74 companies which have gone into bankruptcy, thousands of individuals who have been exposed to asbestos, with deadly diseases--mesothelioma and cancer--and who are not being compensated. And about two-thirds of the claims, oddly enough, are being filed by people who are unimpaired. The number of asbestos defendants has risen sharply from about 300 in the 1980s to more than 8,400 today, and most are users of the product. It spans some 85 percent of the U.S. economy. Some 60,000 workers have lost their jobs. Employees' retirement funds are said to have shrunken by some 25 percent. And beyond any question, the issue is one of catastrophic proportions.--Chairman Arlen Specter, at a January 11, 2005, Senate Judiciary Committee Hearing.
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This is the latency, diagnostic, exposure and medical criteria required of an asbestos claim for each of the nine disease levels. Levels I through V include nonmalignant asbestos-related disease or conditions and levels VI through IX include malignant diseases.
Latency: Claimants must provide a statement from a doctor or a history of exposure stating that at least ten years elapsed from the date of the initial exposure to the date of the initial diagnosis of any asbestos-related injury.
Diagnostic Criteria: This section sets forth diagnostic criteria that track the typical elements of a medical diagnosis, such as an in-person physical examination by the claimant's doctor, a thorough review of the claimant's medical, smoking and exposure history by the claimant's doctor, and a review of other potential causes of the claimant's illness.
For levels I through V, the claimant must provide a diagnosis based on an in-person physical examination by the claimant's doctor providing the diagnosis, an evaluation of smoking history and exposure history before making a diagnosis, an x-ray reading by a certified B-reader. Level III through V claims must also include a pulmonary function test. For deceased Level I through V claimants, the claim must include a physician's report based on pathological evidence or an x-ray reading by a certified B-reader. For levels VI through IX, the claimant must provide a diagnosis based on a physical examination or on findings by a board-certified pathologist. For deceased Level VI through IX claimants, the claim must include a diagnosis of the disease by a board-certified pathologist and a physician's report based upon a review of the claimant's medical records.
Exposure Criteria: A claimant must demonstrate meaningful and credible evidence of exposure to asbestos in the United States, its territories or possessions, or while a United States citizen, while an employee of an entity organized under any Federal or State law regardless of location, or while a United States citizen while serving on any United States flagged or owned ship, provided the exposure results from such employment or service.
Proof of Exposure-- The claimant may demonstrate exposure to asbestos by affidavit of the claimant (or, if deceased, a co-worker or family member of the claimant) or by alternative documentation, such as invoices, construction or similar records, or other reliable evidence.
"Take-Home" Exposure-- Alternatively, the claimant may satisfy the exposure criteria by demonstrating that the claimant was exposed to asbestos brought home by an occupationally exposed person. A claimant establishing "take home" exposure must demonstrate that: (1) the claimant lived and used the residence of an occupationally exposed person during the required exposure time; and (2) the occupationally exposed person can satisfy the exposure requirements for the level claimed. It is understood that household members may travel to a certain extent for work or vacation and still be considered as "living with" another member of the household. Except for Level IX claims, a Physicians Panel will review all "take home" exposure claims determine whether the causal relationship between the take home exposure to asbestos is comparable to the occupationally exposed person.
Exposure Presumptions-- exposure presumptions prescribe time periods in which workers employed in specific industries or occupations were substantially exposed to asbestos. A claimant must demonstrate that the claimant worked in the industry for the relevant time period to be entitled to the presumption. However, these presumptions are not conclusive of substantial exposure to asbestos and may be rebutted by information to the contrary. Further, even if the claimant can demonstrate entitlement to a presumption of exposure, the claimant must still satisfy the exposure and medical criteria requirements.
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