Dismissal for Failure to Establish Prima-Facie Evidence of Physical Impairment With Respect to an Asbestos Claim or Silica Claim; Procedure; Evidentiary Requirements

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  4. Asbestos and Silica Claims
  5. Dismissal for Failure to Establish Prima-Facie Evidence of Physical Impairment With Respect to an Asbestos Claim or Silica Claim; Procedure; Evidentiary Requirements

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Subject to the provisions of Code Section 51-14-12:

  1. Any asbestos claim or silica claim pending in this state on May 1, 2007, shall be dismissed within 180 days after May 1, 2007, without prejudice unless:
    1. All parties stipulate by no less than 60 days prior to the commencement of trial that the plaintiff has established prima-facie evidence of physical impairment with respect to an asbestos claim or silica claim; or
    2. The trial court in which the complaint was initially filed issues an order that the plaintiff has established prima-facie evidence of physical impairment with respect to an asbestos claim or silica claim. Such an order shall be issued only if the following conditions and procedures are met:
      1. By no less than 60 days prior to the commencement of trial, the plaintiff files with the trial court and serves on each defendant named in the complaint or on counsel designated by each defendant the medical documentation necessary to establish prima-facie evidence of physical impairment;
      2. Within 30 days of service of plaintiff's documentation establishing prima-facie evidence of physical impairment, any defendant may file an opposition with the trial court challenging plaintiff's prima-facie evidence of physical impairment. To the extent any such opposition is based upon the medical opinion of a licensed physician, that physician shall be a qualified physician, as that term is defined in subparagraph (A) of paragraph (19) of Code Section 51-14-3, and shall be either a board certified internist, a board certified pathologist, a board certified pulmonologist, a board certified occupational medicine physician, a board certified oncologist, or a certified B-reader. Defendant's opposition shall be filed with the trial court and served on plaintiff's counsel and each defendant;
      3. If a defendant does not file an opposition within the time permitted, the trial court shall determine if the plaintiff has established prima-facie evidence of physical impairment in a timely manner based on the papers and documentation submitted to the trial court;
      4. If a defendant files an objection, then within ten days of service of defendant's opposition, the plaintiff may file a reply with the trial court. The reply must be served on each defendant; and
      5. The trial court shall determine if the plaintiff has established prima-facie evidence of physical impairment in a timely manner based on the papers and documentation submitted to the trial court. A hearing will be conducted only if the trial court so orders on its own motion or if, in the exercise of discretion, the trial court grants a party's request for a hearing. No testimony shall be taken at the hearing. A decision of the trial court not to grant a request for a hearing may not be appealed and does not constitute reversible error. If the trial court determines that the plaintiff has failed to establish prima-facie evidence of physical impairment, it shall dismiss the plaintiff's complaint without prejudice;

      In the event a trial is scheduled to commence in less than 60 days after May 1, 2007, a trial court can shorten the deadlines contained in this paragraph as necessary in order to make a determination regarding the prima-facie evidence of physical impairment before trial commences; and

    1. The plaintiff in any asbestos claim or silica claim filed in this state on or after May 1, 2007, shall file together with the complaint a medical report (which shall be in the form of an affidavit) and accompanying documentation setting forth the medical findings necessary to establish prima-facie evidence of physical impairment as provided in paragraph (17) or (18) of Code Section 51-14-3. In addition, the plaintiff's complaint shall allege with specificity that the plaintiff satisfies the prima-facie evidence of physical impairment with respect to an asbestos claim or silica claim.
    2. Within 90 days of service of plaintiff's complaint, any defendant may file an opposition with the trial court challenging plaintiff's prima-facie evidence of physical impairment. To the extent any such opposition is based upon the medical opinion of a licensed physician, that physician shall be a qualified physician, as that term is defined in subparagraph (A) of paragraph (19) of Code Section 51-14-3, and shall be either a board certified internist, a board certified pathologist, a board certified pulmonologist, a board certified occupational medicine physician, a board certified oncologist, or a certified B-reader. Defendant's opposition shall be filed with the trial court and served on plaintiff's counsel and each defendant.
    3. If the defendant does not file an opposition challenging plaintiff's prima-facie evidence of physical impairment within the time permitted, the trial court shall determine if the plaintiff has established prima-facie evidence of physical impairment based on the papers and documentation submitted to the trial court. The trial court's decision shall be made in a timely manner.
    4. If the defendant files an objection, the plaintiff may file a reply with the trial court within ten days of service of defendant's opposition. The reply must be served on each defendant.
    5. The trial court shall determine if the plaintiff has established prima-facie evidence of physical impairment with respect to an asbestos claim or silica claim in a timely manner based on the papers and documentation submitted to the trial court. A hearing will be conducted only if the trial court so orders on its own motion, or if, in the exercise of discretion, the trial court grants a party's request for a hearing. No testimony shall be taken at the hearing. A decision of the trial court not to grant a request for a hearing may not be appealed and does not constitute reversible error. If the trial court determines that the plaintiff has failed to establish prima-facie evidence of physical impairment, it shall dismiss the plaintiff's complaint without prejudice.

(Code 1981, §51-14-6, enacted by Ga. L. 2007, p. 4, § 1/SB 182.)


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