# Title 32 — Judicial Remedies

## Chapter 32-46.2 — Asbestos Civil Actions

### § 32-46.2-01. Definitions.

In this chapter, unless the context otherwise requires:
1. "AMA guides" means the "Guides to the Evaluation of Permanent Impairment",
American medical association, (6th edition).
2. "Asbestos action" means the same as that term is defined in section 32-46.1-01.
3. "Asbestosis" means bilateral diffuse interstitial fibrosis of the lungs caused by
inhalation of asbestos fibers.
4. "Board-certified in internal medicine" means a licensed physician who is certified by
the American board of internal medicine or the American osteopathic board of internal
medicine.
5. "Board-certified in occupational medicine" means a licensed physician who is certified
in the specialty of occupational medicine by the American board of preventive
medicine or the specialty of occupational/environmental medicine by the American
osteopathic board of preventive medicine.
6. "Board-certified in oncology" means a licensed physician who is certified in the
subspecialty of medical oncology by the American board of internal medicine or the
American osteopathic board of internal medicine.
7. "Board-certified in pathology" means a licensed physician who holds primary
certification in anatomic pathology or clinical pathology from the American board of
pathology or the American osteopathic board of pathology and whose professional
practice is principally in the field of pathology and involves regular evaluation of
pathology materials obtained from surgical or postmortem specimens.
8. "Board-certified in pulmonary medicine" means a licensed physician who is certified in
the specialty of pulmonary medicine by the American board of internal medicine or the
American osteopathic board of internal medicine.
9. "Certified B-reader" means an individual who is certified as a national institute for
occupational safety and health final or B-reader of x-rays under title 42, Code of
Federal Regulations, part 37.51(b).
10. "Chest x-ray" means chest films taken in accordance with all applicable state and
federal regulatory standards and taken in the posterior-anterior view.
11. "DLCO" means diffusing capacity of the lung for carbon monoxide, which is the
measurement of carbon monoxide transfer from inspired gas to pulmonary capillary
blood.
12. "Exposed individual" means an individual whose exposure to asbestos is the basis for
an asbestos action.
13. "FEV1" means forced expiratory volume in the first second, which is the maximal
volume of air expelled in one second during performance of simple spirometric tests.
14. "FEV1/FVC" means the ratio between the actual values for FEV1 over FVC.
15. "FVC" means forced vital capacity, which is the maximal volume of air expired with
maximum effort from a position of full inspiration.
16. "ILO system" and "ILO scale" mean the radiological ratings and system for the
classification of chest x-rays of the international labour office provided in "Guidelines
for the Use of ILO International Classification of Radiographs of Pneumoconioses"
(2011).
17. "Nonmalignant condition" means any condition that may be caused by asbestos other
than a diagnosed cancer.
18. "Official statements of the American thoracic society" means the lung function testing
standards set forth in the technical standards of the American thoracic society,
including "Standardization of Spirometry" (2019), "Standardisation of the Measurement
of Lung Volumes" (2005), "Standards for Single-breath Carbon Monoxide Uptake in
the Lung" (2017), and "Interpretive Strategies for Lung Function Tests" (2005).
19. "Pathological evidence of asbestosis" means a statement by a board-certified
pathologist that more than one representative section of lung tissue uninvolved with

any other disease process demonstrates a pattern of peribronchiolar or parenchymal
scarring in the presence of characteristic asbestos bodies graded 1(B) or higher under
the criteria published in "Asbestos-Associated Diseases", 106 Archive of Pathology
and Laboratory Medicine 11, Appendix 3 (October 8, 1982).
20. "Plaintiff" means the same as that term is defined in section 32-46.1-01.
21. "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.
22. "Predicted lower limit of normal" means the test value that is the calculated standard
convention lying at the fifth percentile, below the upper ninety-five percent of the
reference population, based on age, height, and gender, according to the
recommendations by the American thoracic society and as referenced in the
AMA guides.
23. "Product liability action" means the same as defined in section 28-01.3-01.
24. "Pulmonary function test" means spirometry, lung volume testing, and diffusion
capacity testing, including appropriate measurements, quality control data, and
graphs, performed in accordance with the methods of calibration and techniques
provided in the AMA guides and all standards provided in the official statements of the
American thoracic society.
25. "Qualified physician" means a licensed physician who is board-certified in internal
medicine, pathology, pulmonary medicine, occupational medicine, or oncology, as may
be appropriate to the diagnostic specialty in question, and who:
a. Conducted a physical examination of the exposed individual and has taken a
detailed occupational, exposure, medical, smoking, and social history from the
exposed individual, or if the exposed individual is deceased, has reviewed the
pathology material and has taken a detailed history from the individual most
knowledgeable about the information forming the basis of the asbestos action;
b. Treated or is treating the exposed individual, and has a doctor-patient relationship
with the exposed individual at the time of the physical examination, or in the case
of a board-certified pathologist, examined tissue samples or pathological slides of
the exposed individual at the request of the treating physician;
c. Has not relied on any examinations, tests, radiographs, reports, or opinions of
any doctor, clinic, laboratory, or testing company that performed an examination,
test, radiograph, or screening of the exposed individual in violation of any law,
regulation, licensing requirement, or medical code of practice of the state in which
the examination, test, or screening was conducted; and
d. Prepared or directly supervised the preparation and final review of any medical
report under this chapter.
26. "Radiological evidence of asbestosis" means a quality 1 chest x-ray under the
ILO system, or a quality 2 chest x-ray in a death case when no pathology or quality 1
chest x-ray is available, showing bilateral small, irregular opacities (s, t, or u) occurring
primarily in the lower lung zones graded by a certified B-reader as at least 1/1 on the
ILO scale.
27. "Radiological evidence of diffuse bilateral pleural thickening" means a quality 1 chest
x-ray under the ILO system, or a quality 2 chest x-ray in a death case when no
pathology or quality 1 chest x-ray is available, showing diffuse bilateral pleural
thickening of at least b2 on the ILO scale and blunting of at least one costophrenic
angle as classified by a certified B-reader.
28. "Spirometry" means a test of air capacity of the lung through a spirometer to measure
the volume of air inspired and expired.
29. "Supporting test results" means B-reading and B-reader reports, reports of x-ray
examinations, diagnostic imaging of the chest, pathology reports, pulmonary function
tests, and all other tests reviewed by the diagnosing physician or a qualified physician
in reaching the physician's conclusions.
30. "Timed gas dilution" means a method for measuring total lung capacity in which the
subject breathes 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.
31. "Total lung capacity" means the volume of gas contained in the lungs at the end of a
maximal inspiration.
### § 32-46.2-02. Sworn information form requirement for asbestos action.

1. In addition to any requirements for asbestos actions under chapter 32-46.1, a plaintiff
in an asbestos action shall file, within forty-five days after any complaint is filed in an
asbestos action, a sworn information form signed by the plaintiff and plaintiff's counsel
specifying the evidence that provides the basis for each claim against each defendant.
The sworn information form must include the following with specificity:
a. The name, address, date of birth, marital status, occupation, smoking history,
current and past worksites, and current and past employers of the exposed
individual, and any person through whom the exposed person was exposed to
asbestos;
b. Each individual through whom the exposed individual was exposed to asbestos
and the exposed individual's relationship to each individual;
c. Each asbestos-containing product to which the individual was exposed and each
physical location at which the exposed individual was exposed, or if the plaintiff
was exposed through another individual, to which that other individual was
exposed;
d. The specific location and manner of each exposure, including for any individual
through whom the exposed individual was exposed to asbestos;
e. The beginning and ending dates of each exposure, the frequency and length of
each exposure, and the proximity of the asbestos-containing product or its use to
the exposed person and any person through whom the exposed person was
exposed to asbestos;
f. The identity of the manufacturer or seller of the specific asbestos product for each
exposure;
g. The specific asbestos-related disease claimed to exist; and
h. Any supporting documentation relating to the information required under this
section.
2. The plaintiff has a continuing duty to supplement the information required to be
disclosed in subsection 1.
3. The court shall dismiss the asbestos action without prejudice as to any defendant
whose product or premises is not identified in the required disclosures in subsection 1.
4. The court shall dismiss the asbestos action without prejudice as to all defendants if the
plaintiff and plaintiff's counsel fail to comply with this section.
### § 32-46.2-03. Requirements for asbestos action.

1. In addition to any requirements for asbestos actions under chapter 32-46.1 and the
required sworn information form required by section 32-46.2-02, a plaintiff in an
asbestos action shall include with any complaint a detailed narrative medical report,
signed by a qualified physician and accompanied by supporting test results, which
constitute prima facie evidence the exposed individual meets the requirements of this
chapter. The report may not be prepared by a lawyer or other individual working for or
on behalf of a lawyer or law firm.
2. A defendant shall have a reasonable opportunity to challenge the adequacy of the
prima facie evidence. The court shall dismiss the action without prejudice if the plaintiff
fails to comply with the requirements of this section or fails to make the prima facie
showing required by this section.
3. Until a court enters an order determining the exposed individual has established prima
facie evidence of impairment, an asbestos action is not subject to discovery, except
discovery related to establishing or challenging the prima facie evidence.

### § 32-46.2-04. Elements of proof for asbestos action involving nonmalignant conditions.

An asbestos action related to an alleged nonmalignant asbestos-related condition may not
be brought or maintained in the absence of prima facie evidence the exposed individual has a
physical impairment for which asbestos exposure was a substantial contributing factor. The
prima facie showing must be made as to each defendant and include a detailed narrative
medical report signed by a qualified physician that includes the following:
1. Radiological or pathological evidence of asbestosis or radiological evidence of diffuse
bilateral pleural thickening or a high-resolution computed tomography scan showing
evidence of asbestosis or diffuse pleural thickening;
2. A detailed occupational and exposure history from the exposed individual or, if the
individual is deceased, from the individual most knowledgeable about the exposures
that form the basis of the action, including identification of all of the exposed
individual's places of employment and exposures to airborne contaminants and
whether each place of employment involved exposures to airborne contaminants,
including asbestos fibers or other disease-causing dusts, that may cause pulmonary
impairment, and the nature, duration, and level of any exposure;
3. A detailed medical, social, and smoking history from the exposed individual or, if the
individual is deceased, from the individual most knowledgeable, including a thorough
review of the past and present medical problems of the exposed individual;
4. Evidence verifying at least fifteen years have elapsed between the exposed
individual's date of first exposure to asbestos and the date of diagnosis;
5. Evidence from an individual medical examination and pulmonary function testing of the
exposed individual or, if the exposed individual is deceased, based upon the
individual's medical records, the exposed individual has or the deceased individual had
a permanent respiratory impairment rating of at least class 2 as defined by the AMA
guides or reported significant changes year to year in lung function for FVC, FEV1, or
DLCO as defined by the American thoracic society's "Interpretative Strategies for Lung
Function Tests", 26 European Respiratory Journal 948-68, 961-62, table 12 (2005);
6. Evidence that asbestosis or diffuse bilateral pleural thickening, rather than chronic
obstructive pulmonary disease, is a substantial contributing factor to the exposed
individual's physical impairment, based on a determination the exposed individual has
any of the following:
a. FVC below the predicted lower limit of normal and FEV1/FVC ratio (using twenty
actual values) at or above the predicted lower limit of normal;
b. Total lung capacity, by plethysmography or timed gas dilution, below the predicted
lower limit of normal; or
c. A chest x-ray showing bilateral small, irregular opacities (s, t, or u) graded by a
twenty-four certified B-reader as at least 2/1 on the ILO scale; and
7. A statement that the qualified physician signing the detailed narrative medical report
has concluded exposure to asbestos was a substantial contributing factor to the
exposed individual's physical impairment and not more probably the result of other
causes. An opinion that the medical findings and impairment are consistent with or
compatible with exposure to asbestos, or words to that effect, does not satisfy this
subsection.
### § 32-46.2-05. Elements of proof for asbestos action involving malignant conditions.

1. An asbestos action related to an alleged asbestos-related malignant condition may not
be brought or maintained in the absence of prima facie evidence that the exposed
individual has a malignant condition for which asbestos exposure was a substantial
contributing factor. The prima facie showing must be made as to each defendant and
include a detailed narrative medical report signed by a qualified physician that includes
all of the following:
a. A diagnosis that the exposed person has a malignant asbestos-related condition;
and
b. A statement that exposure to asbestos was a substantial contributing factor to the
exposed individual's malignant condition and not more probably the result of

other causes, and a detailed explanation for that opinion. An opinion that the
malignant condition is consistent with or compatible with exposure to asbestos, or
words to that effect, does not satisfy this subdivision.
2. The court shall hold an evidentiary hearing and determine if the exposed person has
established a prima facie showing of cancer to which exposure to asbestos was a
substantial contributing factor.
### § 32-46.2-06. Evidence of physical impairment - Procedures - Limitation.

1. Evidence relating to the prima facie showings required under this chapter does not
create a presumption the exposed individual has an asbestos-related impairment and
is not conclusive as to the liability of any defendant.
2. Evidence may not be offered at trial and the jury may not be informed of:
a. The grant or denial of a motion to dismiss an asbestos action under this chapter;
or
b. The provisions of this chapter with respect to what constitutes a prima facie
showing of asbestos impairment.
3. Evidence relating to physical impairment offered in an asbestos action governed by
this chapter:
a. Must comply with the quality controls, equipment requirements, methods of
calibration, and techniques set forth in the AMA guides and all standards set forth
in the official statements of the American thoracic society; and
b. May not be obtained under the condition the plaintiff or exposed individual retains
the legal services of an attorney or law firm.
4. In the absence of consent from all parties, a court may consolidate for trial only
asbestos actions relating to the exposed individual and members of that individual's
household.
5. A product liability defendant in an asbestos action may not be liable for exposures from
a later-added asbestos-containing product made or sold by a third party.
### § 32-46.2-07. Statute of limitations.

1. The period of limitations for an asbestos action that is not barred as of August 1, 2021,
may not accrue, nor may the running of limitations commence, before the earlier of the
date:
a. The exposed individual received a medical diagnosis of an asbestos-related
impairment;
b. The exposed individual discovered facts that would have led a reasonable
individual to obtain a medical diagnosis with respect to the existence of an
asbestos-related impairment; or
c. The date of death of the exposed individual having an asbestos-related
impairment.
2. This section does not revive or extend limitations with respect to any claim for
asbestos-related impairment that was time-barred on August 1, 2021.
