(a) No asbestos action related to an alleged nonmalignant asbestos-related condition may be brought or maintained in the absence of prima facie evidence that the exposed person has a physical impairment for which asbestos exposure was a substantial contributing factor. The plaintiff shall make a prima facie showing of claim for each defendant and include a detailed narrative medical report and diagnosis signed under oath by a qualified physician that includes all of the following:

Terms Used In Tennessee Code 29-34-704

  • Asbestosis: means bilateral diffuse interstitial fibrosis of the lungs caused by inhalation of asbestos fibers. See Tennessee Code 29-34-702
  • Chest x-ray: means chest films taken in accordance with all applicable state and federal regulatory standards and taken in the posterior-anterior view. See Tennessee Code 29-34-702
  • Defendant: In a civil suit, the person complained against; in a criminal case, the person accused of the crime.
  • 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. See Tennessee Code 29-34-702
  • 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 person: means a person whose exposure to asbestos or to asbestos-containing products is the basis for an asbestos action. See Tennessee Code 29-34-702
  • FVC: means the maximal volume of air expired with maximum effort from a position of full inspiration. See Tennessee Code 29-34-702
  • Person: includes a corporation, firm, company or association. See Tennessee Code 1-3-105
  • Plaintiff: The person who files the complaint in a civil lawsuit.
  • 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 (95%) of the reference population, based on age, height, and gender, according to the recommendations by the American Thoracic Society and as referenced in the applicable AMA Guides to the Evaluation of Permanent Impairment, primarily National Health and Nutrition Examination Survey (NHANES) predicted values, or as amended. See Tennessee Code 29-34-702
  • Probable cause: A reasonable ground for belief that the offender violated a specific law.
  • Qualified physician: means a board-certified internist, pathologist, pulmonary specialist, or specialist in occupational and environmental medicine, as may be appropriate to the actual diagnostic specialty in question, who:
    (A) Has conducted a physical examination of the exposed person and has taken or has directed to be taken under the physician's supervision, direction and control, a detailed occupational, exposure, medical, smoking, and social history from the exposed person, or the physician has reviewed the pathology material and has taken or has directed to be taken under the physician's supervision, direction and control, a detailed history from the person most knowledgeable about the information forming the basis of the asbestos action. See Tennessee Code 29-34-702
  • Radiological evidence of diffuse bilateral pleural thickening: means a quality 1 or 2 chest x-ray under the ILO system, showing diffuse bilateral pleural thickening of at least b2 on the ILO scale and blunting of at least one (1) costophrenic angle as classified by a certified B-reader. See Tennessee Code 29-34-702
  • signed: includes a mark, the name being written near the mark and witnessed, or any other symbol or methodology executed or adopted by a party with intention to authenticate a writing or record, regardless of being witnessed. See Tennessee Code 1-3-105
  • 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. See Tennessee Code 29-34-702
  • Total lung capacity: means the volume of gas contained in the lungs at the end of a maximal inspiration. See Tennessee Code 29-34-702
  • Year: means a calendar year, unless otherwise expressed. See Tennessee Code 1-3-105
(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 person or, if that person is deceased, from the person most knowledgeable about the exposures that form the basis of the action, including identification of all of the exposed person’s principal 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 or fumes, 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 person or, if that person is deceased, from the person most knowledgeable, including a thorough review of the past and present medical problems of the exposed person and their most probable cause;
(4) Evidence verifying that at least fifteen (15) years have elapsed between the exposed person’s date of first exposure to asbestos and the date of diagnosis;
(5) Evidence from a personal medical examination and pulmonary function testing of the exposed person or, if the exposed person is deceased, from the person’s medical records, that the exposed person has or the deceased person had a permanent respiratory impairment rating of at least Class 2 as defined by and evaluated pursuant to the AMA’s Guides to the Evaluation of Permanent Impairment 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) and as updated;
(6) Evidence that asbestosis or diffuse bilateral pleural thickening, rather than chronic obstructive pulmonary disease, is a substantial factor to the exposed person’s physical impairment, based on a determination the exposed person has:

(A) Forced vital capacity below the predicted lower limit of normal and FEV1/FVC ratio (using 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 certified B-reader as at least 2/1 on the ILO scale; and
(7) The specific conclusion of the qualified physician signing the report that exposure to asbestos was a substantial contributing factor to the exposed person’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 the requirements of this subdivision (a)(7).
(b) If the alleged nonmalignant asbestos-related condition is a result of an exposed person living with or having extended contact with another exposed person who, if the asbestos action had been filed by the other exposed person would have met the requirements of subdivision (a)(2), and the exposed person alleges extended contact with the other exposed person during the relevant time period, the detailed narrative medical report and diagnosis shall include all of the information required by subsection (a), except that the exposure history required under subdivision (a)(2) shall describe the exposed person’s history of exposure to the other exposed person.
  Previous section
Next section  
 Part 7 Contents