(1) Within 90 days after the day on which the plaintiff files the complaint in an asbestos action alleging a nonmalignant condition, the plaintiff shall file a detailed narrative medical report and diagnosis, signed under oath by a qualified physician and accompanied by supporting test results, constituting prima facie evidence that the exposed individual has a physical impairment for which exposure to asbestos was a substantial contributing factor.
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Terms Used In Utah Code 78B-6-2403

  • AMA guides: means the edition of the American Medical Association's Guides to the Evaluation of Permanent Impairment in effect at the time of the performance of an examination or test on an exposed individual. See Utah Code 78B-6-2401
  • Asbestos: means chrysotile, amosite, crocidolite, tremolite asbestos, anthophyllite asbestos, actinolite asbestos, asbestiform winchite, asbestiform richterite, asbestiform amphibole minerals, and any of these minerals that have been chemically treated or altered, including all minerals defined as asbestos in 29 C. See Utah Code 78B-6-2401
  • Asbestos action: means a claim for damages or other civil or equitable relief presented in a civil action resulting from, based on, or related to:
              (4)(a)(i) the health effects of exposure to asbestos, including:
                   (4)(a)(i)(A) loss of consortium;
                   (4)(a)(i)(B) wrongful death;
                   (4)(a)(i)(C) mental or emotional injury;
                   (4)(a)(i)(D) risk or fear of disease or other injury; and
                   (4)(a)(i)(E) costs of medical monitoring or surveillance; and
              (4)(a)(ii) any other derivative claim made by or on behalf of an individual exposed to asbestos or a representative, spouse, parent, child, or other relative of that individual. See Utah Code 78B-6-2401
  • Asbestosis: means bilateral diffuse interstitial fibrosis of the lungs caused by the inhalation of asbestos fibers. See Utah Code 78B-6-2401
  • ATS testing standards: means the official technical statements from the American Thoracic Society for pulmonary function testing in effect at the time of the performance of an examination or test on an exposed individual. See Utah Code 78B-6-2401
  • Chest x-ray: means a chest film taken in accordance with applicable state and federal laws and taken in the posterior-anterior view. See Utah Code 78B-6-2401
  • Complaint: A written statement by the plaintiff stating the wrongs allegedly committed by the defendant.
  • Defendant: In a civil suit, the person complained against; in a criminal case, the person accused of the crime.
  • Discovery: Lawyers' examination, before trial, of facts and documents in possession of the opponents to help the lawyers prepare for trial.
  • Equal: means , with respect to biological sex, of the same value. See Utah Code 68-3-12.5
  • Evidence: Information presented in testimony or in documents that is used to persuade the fact finder (judge or jury) to decide the case for one side or the other.
  • Exposed individual: means an individual whose exposure to asbestos is the basis for the asbestos action. See Utah Code 78B-6-2401
  • FVC: means the maximal volume of air expired with maximum effort from a position of full inspiration. See Utah Code 78B-6-2401
  • ILO system: means the system for the classification of chest x-rays provided in the International Labour Office's Guidelines for the Use of ILO International Classification of Radiographs of Pneumoconioses in effect at the time of the performance of an examination or test on an exposed individual. See Utah Code 78B-6-2401
  • Law firm: means a person that employs a lawyer. See Utah Code 78B-6-2401
  • Lawyer: means an individual who is authorized to provide legal services in any state or territory of the United States. See Utah Code 78B-6-2401
  • Nonmalignant condition: means a condition that may be caused by asbestos other than a diagnosed cancer. See Utah Code 78B-6-2401
  • Pathological evidence of asbestosis: means a statement by a board-certified physician in pathology that more than one representative section of lung tissue demonstrates a pattern of peribronchiolar or parenchymal scarring in the presence of characteristic asbestos bodies and there is no other more likely explanation for the presence of the fibrosis. See Utah Code 78B-6-2401
  • Plaintiff: The person who files the complaint in a civil lawsuit.
  • Plaintiff: means :
         (22)(a) the person bringing the asbestos action, including a personal representative if the asbestos action is brought by an estate; or
         (22)(b) a conservator or next friend if the asbestos action is brought on behalf of a minor or legally incapacitated individual. See Utah Code 78B-6-2401
  • Plethysmography: means the test for determining lung volume in which the exposed individual is enclosed in a chamber equipped to measure pressure, flow, or volume change. See Utah Code 78B-6-2401
  • Predicted lower limit of normal: means the fifth percentile of healthy populations based on age, height, and gender as referenced in the AMA guides. See Utah Code 78B-6-2401
  • Qualified physician: means a licensed physician who:
         (26)(a) is a board-certified physician in internal medicine, a board-certified physician in occupational medicine, a board-certified physician in pathology, or a board-certified physician in pulmonary medicine, as is appropriate to the diagnostic specialty in question;
         (26)(b)
              (26)(b)(i) conducted a physical examination of the exposed individual and took a detailed occupational, exposure, medical, smoking, and social history from the exposed individual; or
              (26)(b)(ii) if the exposed individual is deceased, reviewed the pathology material and took a detailed history from the individual most knowledgeable about the information forming the basis of the asbestos action;
         (26)(c)
              (26)(c)(i) treated the exposed individual and had a physician-patient relationship with the exposed individual at the time of the physical examination; or
              (26)(c)(ii) if the licensed physician is a board-certified physician in pathology, examined tissue samples or pathological slides of the exposed individual;
         (26)(d) prepared or directly supervised the preparation and final review of a medical report under this part; and
         (26)(e) has not relied on any examinations, tests, radiographs, reports, or opinions of a doctor, clinic, laboratory, or testing company that performed an examination, test, radiograph, or screening of the exposed individual in violation of a law, regulation, licensing requirement, or medical ethics requirement of the state in which the examination, test, radiograph, or screening of the exposed individual was conducted. See Utah Code 78B-6-2401
  • Radiological evidence of diffuse bilateral pleural thickening: means a quality 1 or 2 chest x-ray showing diffuse bilateral pleural thickening of at least b2 on the ILO system and blunting of at least one costophrenic angle as classified by a certified B reader. See Utah Code 78B-6-2401
  • State: when applied to the different parts of the United States, includes a state, district, or territory of the United States. See Utah Code 68-3-12.5
  • Supporting test results: means a report by a certified B reader, x-ray examinations, diagnostic imaging of the chest, pathology reports, pulmonary function testing, and other tests, which are reviewed by the diagnosing physician or qualified physician in reaching the physician's conclusions. See Utah Code 78B-6-2401
  • Timed gas dilution: means a method for measuring total lung capacity in which the individual breaths into a spirometer containing a known concentration of an inert and insoluble gas for a specific time and the concentration of that inert and insoluble gas in the lung is compared to the concentration of that type of gas in the spirometer. See Utah Code 78B-6-2401
  • Total lung capacity: means the volume of gas contained in the lungs at the end of the maximal inspiration. See Utah Code 78B-6-2401
  • Trial: A hearing that takes place when the defendant pleads "not guilty" and witnesses are required to come to court to give evidence.
(2) A defendant shall have a reasonable opportunity before trial to challenge the adequacy of the prima facie evidence required under this section.
(3) A court shall dismiss an asbestos action without prejudice upon a finding that the plaintiff failed to make the prima facie showing required by this section.
(4) To make a prima facie showing under Subsection (1), the detailed narrative medical report and diagnosis shall include:

     (4)(a)

          (4)(a)(i) radiological evidence of asbestosis or pathological evidence of asbestosis;
          (4)(a)(ii) radiological evidence of diffuse bilateral pleural thickening; or
          (4)(a)(iii) a high-resolution computed tomography scan showing evidence of asbestosis or diffuse pleural thickening;
     (4)(b) a detailed occupational and exposure history from the exposed individual, or the individual most knowledgeable about the exposed individual’s exposure to asbestos if the exposed individual is deceased, that includes:

          (4)(b)(i) the exposed individual’s principal places of employment;
          (4)(b)(ii) the exposed individual’s exposure to airborne contaminants; and
          (4)(b)(iii) whether the exposed individual’s principal places of employment involved any exposure to airborne contaminants, including asbestos fibers or other disease-causing dusts or fumes that may cause a physical impairment and the nature, duration, and level of that exposure;
     (4)(c) a detailed medical, social, and smoking history from the exposed individual, or the individual most knowledgeable about the exposed individual’s exposure to asbestos if the exposed individual is deceased, that includes a thorough review of the past and present medical problems of the exposed individual and the likely cause of the medical problems;
     (4)(d) evidence verifying that at least 15 years have passed between the exposed individual’s date of first exposure to asbestos and the date of diagnosis;
     (4)(e) evidence that the exposed individual has a permanent respiratory impairment rating of at least class 2 as defined by and evaluated in accordance with the AMA guides;
     (4)(f) evidence that asbestosis or diffuse bilateral pleural thickening, rather than chronic obstructive pulmonary disease, is a substantial factor to the exposed individual’s physical impairment based on a determination that the exposed individual has:

          (4)(f)(i) FVC below the predicted lower limit of normal and a FEV1/FVC ratio, using actual values, equal to or above the predicted lower limit of normal;
          (4)(f)(ii) total lung capacity, by plethysmography or timed gas dilution, below the predicted lower limit of normal; or
          (4)(f)(iii) a chest x-ray showing bilateral small, irregular opacities, classified by width as s, t, or u, and graded by a certified B reader as at least 2/1 on the ILO system; and
     (4)(g) a statement from the qualified physician that exposure to asbestos was a substantial contributing factor to the exposed individual’s physical impairment and was likely not the result of any other cause.
(5) A statement by the qualified physician that the exposed individual’s physical impairment is consistent with, or compatible with, an exposure to asbestos, or words to that effect, does not satisfy the requirements under Subsection (4)(g).
(6) Evidence relating to the prima facie showing under this section:

     (6)(a) shall comply with the quality controls, equipment requirements, methods of calibration, and techniques provided in the AMA guides and ATS testing standards;
     (6)(b) may not be based on testing or examination that violates a law, regulation, licensing requirement, or medical ethics requirement of the state in which the test or examination was conducted;
     (6)(c) may not be obtained under the condition that the plaintiff retains the services of the lawyer or law firm sponsoring the examination, test, or screening;
     (6)(d) does not create a presumption that the exposed individual has an asbestos-related injury or impairment; and
     (6)(e) is not conclusive as to the liability of any defendant.
(7) A party in an asbestos action may not offer evidence at trial regarding, and the jury may not be informed of:

     (7)(a) the grant or denial of a motion to dismiss an asbestos action under this section; or
     (7)(b) the requirements of a prima facie showing under this section.
(8)

     (8)(a) Except as provided in Subsection (8)(b), a plaintiff may not commence discovery against any defendant in an asbestos action until a court enters an order determining that the plaintiff has established a prima facie showing under this section.
     (8)(b) The parties to an asbestos action may conduct discovery in regard to establishing or challenging a prima facie showing under this section.
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