Section 78B-6-2403 - Requirements for asbestos action alleging nonmalignant condition - Evidence(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.(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: (a)(i) radiological evidence of asbestosis or pathological evidence of asbestosis;(ii) radiological evidence of diffuse bilateral pleural thickening; or(iii) a high-resolution computed tomography scan showing evidence of asbestosis or diffuse pleural thickening;(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: (i) the exposed individual's principal places of employment;(ii) the exposed individual's exposure to airborne contaminants; and(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;(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;(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;(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;(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:(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;(ii) total lung capacity, by plethysmography or timed gas dilution, below the predicted lower limit of normal; or(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(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: (a) shall comply with the quality controls, equipment requirements, methods of calibration, and techniques provided in the AMA guides and ATS testing standards;(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;(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;(d) does not create a presumption that the exposed individual has an asbestos-related injury or impairment; and(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: (a) the grant or denial of a motion to dismiss an asbestos action under this section; or(b) the requirements of a prima facie showing under this section.(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.(b) The parties to an asbestos action may conduct discovery in regard to establishing or challenging a prima facie showing under this section.Added by Chapter 80, 2023 General Session ,§ 3, eff. 5/3/2023.