§76-94. Prerequisite of prima facie showing in asbestos claims -
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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:
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: 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).