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February 23, 2006
ADM File No. 2003-47
Proposed Administrative Order
Regarding Asbestos-Related
Disease Litigation
On order of the Court, upon consideration of the petition of certain interested parties
in asbestos-related disease litigation, this is to advise that the Court is considering adopting
a proposed administrative order regarding asbestos-related disease litigation (see
Alternatives A and B below). Before determining whether either proposal should be
adopted, changed before adoption, or rejected, this notice is given to afford interested
persons the opportunity to comment on the form or the merits of the proposal or to suggest
alternatives. The Court welcomes the views of all. This matter also will be considered at
a public hearing. The notices and agendas for public hearings are posted at
www.courts.michigan.gov/supremecourt.
Publication of these alternative proposals does not mean that the Court will issue an
order on the subject, nor does it imply probable adoption of the proposal in its present form.
Alternative A
1. This order applies to all asbestos-related disease personal injury actions
pending or to be filed in Michigan courts. For purposes of this order,
"asbestos-related disease personal injury actions" include all cases in which
it is alleged that a party has suffered personal injury caused by exposure to
asbestos, regardless of the theory of recovery. Until the transfer of the action
under paragraph 2 of this order, the parties to such an action shall include the
words "Asbestos Case" on the top right-hand corner of the first page of any
papers subsequently filed in the action.
2. Each court in which an asbestos-related disease personal injury action is
pending shall enter an order changing venue of the action to the Third Judicial
Circuit within 14 days of the date of this order. Upon the filing of a new
asbestos-related disease personal injury action, the court shall enter an order
changing venue to the Third Judicial Circuit within 14 days after the action is
filed. The court shall send a copy of the order to the State Court
Administrator. A party who objects to the transfer of an action under this
paragraph may raise the objection by filing a motion in the Third Judicial
Circuit. Such a motion must be filed within 14 days after the transfer of the
action.
3. Proceedings in each action transferred under this order shall be conducted in
accordance with orders as may be entered by the Third Judicial Circuit.
Orders entered by the court in which the action was originally filed that are
inconsistent with orders entered by the Third Judicial Circuit are superseded.
The Third Judicial Circuit shall cooperate with the State Court Administrator
in monitoring the proceedings in the actions.
4. If discovery proceedings have been conducted in an action before a transfer
under this order, those discovery materials remain part of the record in the
action in which they were produced, and may be used in further proceedings
where otherwise appropriate notwithstanding the transfer under this rule.
5. All cases transferred to or filed in the Third Judicial Circuit shall be placed
either on the active or inactive docket. A case shall be placed on the active
docket only if one of the following occurs:
(a) The plaintiff files an affidavit of a physician stating that the person
whose alleged injury forms the basis for the action, including a
decedent in a wrongful death action, has been diagnosed with
mesothelioma, lung cancer, or some other malignancy as a result of
exposure to asbestos; or
(b) The plaintiff files materials satisfying the ABA standard for
nonmalignant asbestos-related disease claims (February 2003) as
follows:
I. The filing of any civil action alleging personal injury for asbestos-
related nonmalignant disease must be accompanied by a detailed
narrative Medical Report and Diagnosis signed by the diagnosing
doctor, that:
1. Verifies that the doctor or a medical professional employed by
and under the direct supervision and control of the diagnosing
doctor has taken:
a. A detailed occupational and exposure history from the
person (claimant) whose alleged injury forms the basis
for the action or, if that person is deceased, from the
person most knowledgeable about the exposures that
form the basis for the action. The history shall include
all the principal employments and exposures of the
claimant involving exposures to airborne contaminants.
It should indicate whether each employment involved
exposure to airborne contaminants (including, but not
limited to, asbestos fibers, and other disease causing
dusts) that can cause pulmonary impairment and the
nature, duration, and level of any such exposure; and
b. A detailed medical and smoking history that includes a
thorough review of the claimant's past and present
medical problems, and their most probable cause.
2. Sets out the details of the occupational, medical, and smoking
history, and verifies that at least 15 years have elapsed between
the claimant's first exposure to asbestos and the time of
diagnosis.
3. Verifies that the claimant has:
a. A quality 1 chest x-ray taken in accordance with all
applicable state and federal regulatory standards (in a
death case where no pathology is available, the necessary
radiologic findings may be made with a quality 2 film if
a quality 1 film is not available), and that the x-ray has
been read by a certified B-reader according to the
International Labor Office (ILO) system of classification
as showing bilateral small irregular opacities (s, t, or u)
graded 1/0 or higher or bilateral diffuse pleural
thickening graded b2 or higher including blunting of the
costophrenic angle; or
b. Pathological asbestosis graded 1(B) or higher under the
criteria published in the [Asbestos-Associated
Diseases], Special Issue of the Archives of
Pathology and Laboratory Medicine, Volume 106,
Number 11, Appendix 3 (October 8, 1982).
4. Verifies that the claimant has asbestos-related pulmonary
impairment as demonstrated by Pulmonary Function Testing,
performed using equipment, methods of calibration and
technique that meet the criteria incorporated in the AMA
Guides to the Evaluation of Permanent Impairment (5th ed) and
reported as set forth in 20 CFR 404, Subpt P, App 1, Part (A) §
3.00 (E) and (F), and the interpretative standards set forth in the
Official Statement of the American Thoracic Society entitled
"Lung Function Testing: Selection of Reference Values And
Interpretative Strategies" as published in Am Rev Resp Dis
1991:144:1202-1218 that shows:
a. Forced Vital Capacity below the lower limit of normal
and FEV1/FVC ratio (using actual values) at or above
the lower limit of normal; or
b. Total Lung Capacity, by plethysmography or timed gas
dilution, below the lower limit of normal.
c. Where the Pulmonary Function Test results do not meet
the requirements of (a) or (b), above, a claimant may
submit an additional report, by a board-certified
pulmonologist, internist, or occupational physician that
states:
1) That the doctor has a doctor-patient relationship
with the claimant; and
2) That the claimant has a quality 1 chest x-ray taken
in accordance with all applicable state and federal
regulatory standards (in a death case where no
pathology is available, the necessary radiologic
findings may be made with a quality 2 film if a
quality 1 film is not available), and that the x-ray
has been read by a certified B-reader according to
the ILO system of classification as showing
bilateral small irregular opacities (s, t, or u)
graded 2/1 or higher; and
3) That the claimant has restrictive impairment from
asbestosis and sets forth in detail the specific
pulmonary function test findings that the doctor
relies upon to establish that the claimant has
restrictive impairment; and
4) That the physician shall submit the reports and
readouts from all pulmonary function, lung
volume, diffusing capacity, or other testing relied
upon for the report's conclusions. Such tests must
comply with the equipment, quality, and reporting
standards set forth herein.
5. Verifies that the doctor has concluded that the claimant's
medical findings and impairment were not more probably the
result of other causes revealed by claimant's employment and
medical history.
II. Copies of the B-reading, the pulmonary function tests (including
printouts of the flow volume loops and all other elements required to
demonstrate compliance with the equipment, quality, interpretation,
and reporting standards set forth herein) and the diagnosing physician's
detailed narrative Medical Report and Diagnosis shall be filed with the
court and served on all other parties. Failure to do so, or demonstration
by any party that the reports do not satisfy the standards set forth
herein, shall result in the case being placed on or transferred to the
inactive docket.
6. For cases on the inactive docket, no further proceedings shall
occur and no discovery shall be ordered, although the parties
may voluntarily engage in discovery. A case shall remain on
the inactive docket until one of the following occurs:
(a) The case is transferred to the active docket upon motion
of a party and satisfaction of the requirements of
paragraph 5;
(b) The case is dismissed by stipulation of the parties; or
(c) The case is dismissed by order on the court's own
motion, or on motion of a party, after notice to all parties
and an opportunity to be heard.
7. For cases on the active docket, after the close of discovery, the
Third Judicial Circuit shall conduct a settlement conference or
conferences. If settlement is not reached as to all claims, the
Third Judicial Circuit shall enter an order changing venue to the
court in which the action was originally filed, or if appropriate
to some other court, for further proceedings. A copy of the
order shall be sent to the State Court Administrator. Cases on
the active docket shall not be joined with cases from the
inactive docket for settlement or any other purpose.
8. MCR 2.222, MCR 2.223, and MCR 2.224 do not apply to
changes of venue pursuant to this order.
Staff Comment: The proposed Administrative Order provides for
consolidation of all asbestos-related disease personal injury actions in the Third Judicial
Circuit. It further provides for active and inactive dockets, based on the severity of the
alleged injury, as measured in part by the February 2003 American Bar Association standard
for nonmalignant asbestos-related disease claims.
The staff comment is not an authoritative construction by the Court.
Alternative B
1. This order applies to all asbestos-related disease personal injury actions
pending or to be filed in Michigan courts. For purposes of this order,
"asbestos-related disease personal injury actions" include all cases in which
it is alleged that a party has suffered personal injury caused by exposure to
asbestos, regardless of the theory of recovery. Until the transfer of the action
under paragraph 2 of this order, the parties to such an action shall include the
words "Asbestos Case" on the top right-hand corner of the first page of any
papers subsequently filed in the action.
2. Each court in which an asbestos-related disease personal injury action is
pending shall enter an order changing venue of the action to the Third Judicial
Circuit within 14 days of the date of this order. Upon the filing of a new
asbestos-related disease personal injury action, the court shall enter an order
changing venue to the Third Judicial Circuit within 14 days after the action is
filed. The court shall send a copy of the order to the State Court
Administrator. A party who objects to the transfer of an action under this
paragraph may raise the objection by filing a motion in the Third Judicial
Circuit. Such a motion must be filed within 14 days after the transfer of the
action.
3. Proceedings in each action transferred under this order shall be conducted in
accordance with orders as may be entered by the Third Judicial Circuit.
Orders entered by the court in which the action was originally filed that are
inconsistent with orders entered by the Third Judicial Circuit are superseded.
The Third Judicial Circuit shall cooperate with the State Court Administrator
in monitoring the proceedings in the actions.
4. If discovery proceedings have been conducted in an action before a transfer
under this order, those discovery materials remain part of the record in the
action in which they were produced, and may be used in further proceedings
where otherwise appropriate notwithstanding the transfer under this rule.
5. All cases transferred to or filed in the Third Judicial Circuit shall be classified
as either Tier I or Tier II cases. A case shall be classified as Tier I only if one
of the following occurs:
(a) The plaintiff files a medical report or affidavit of a physician stating
that the person whose alleged injury forms the basis for the action,
including a decedent in a wrongful death action, has been diagnosed
with mesothelioma, lung cancer, or some other malignancy as a result
of exposure to asbestos; or
(b) The plaintiff files materials satisfying the ABA standard for
nonmalignant asbestos-related disease claims (February 2003) as
follows:
I. The filing of any civil action alleging personal injury for
asbestos-related nonmalignant disease must be accompanied by
a detailed narrative Medical Report and Diagnosis signed by the
diagnosing doctor, that:
1. Verifies that the doctor or a medical professional
employed by and under the direct supervision and
control of the diagnosing doctor has taken:
a. A detailed occupational and exposure history
from the person (claimant) whose alleged injury
forms the basis for the action or, if that person is
deceased, from the person most knowledgeable
about the exposures that form the basis for the
action. The history shall include all of the
principal employments and exposures of the
claimant involving exposures to airborne
contaminants. It should indicate whether each
employment involved exposure to airborne
contaminants (including, but not limited to,
asbestos fibers, and other disease causing dusts)
that can cause pulmonary impairment and the
nature, duration, and level of any such exposure;
and
b. A detailed medical and smoking history that
includes a thorough review of the claimant's past
and present medical problems, and their most
probable cause.
2. Sets out the details of the occupational, medical, and
smoking history, and verifies that at least 15 years have
elapsed between the claimant's first exposure to asbestos
and the time of diagnosis.
3. Verifies that the claimant has:
a. A quality 1 chest x-ray taken in accordance with
all applicable state and federal regulatory
standards (in a death case where no pathology is
available, the necessary radiologic findings may
be made with a quality 2 film if a quality 1 film is
not available), and that the x-ray has been read by
a certified B-reader according to the International
Labor Office (ILO) system of classification as
showing bilateral small irregular opacities (s, t, or
u) graded 1/0 or higher or bilateral diffuse pleural
thickening graded b2 or higher including blunting
of the costophrenic angle; or
b. Pathological asbestosis graded 1(B) or higher
under the criteria published in the [Asbestos-
Associated Diseases], Special Issue of the
Archives of Pathology and Laboratory Medicine,
Volume 106, Number 11, Appendix 3 (October 8,
1982).
4. Verifies that the claimant has asbestos-related pulmonary
impairment as demonstrated by Pulmonary Function
Testing, performed using equipment, methods of
calibration and techniques that meet the criteria
incorporated in the AMA Guides to the Evaluation of
Permanent Impairment (5th ed) and reported as set forth
in 20 CFR 404, Subpt P, App 1, Part (A) § 3.00 (E) and
(F), and the interpretative standards set forth in the
Official Statement of the American Thoracic Society
entitled "Lung Function Testing: Selection of Reference
Values And Interpretative Strategies" as published in
Am Rev Resp Dis 1991:144:1202-1218 that shows:
a. Forced Vital Capacity below the lower limit of
normal and FEV1/FVC ratio (using actual values)
at or above the lower limit of normal; or
b. Total Lung Capacity, by plethysmography or
timed gas dilution, below the lower limit of
normal.
c. Where the Pulmonary Function Test results do
not meet the requirements of (a) or (b), above, a
claimant may submit an additional report, by a
board-certified pulmonologist, internist, or
occupational physician that states:
1) That the doctor has a doctor-patient
relationship with the claimant; and
2) That the claimant has a quality 1 chest x-
ray taken in accordance with all applicable
state and federal regulatory standards (in a
death case where no pathology is
available, the necessary radiologic
findings may be made with a quality 2 film
if a quality 1 film is not available), and
that the x-ray has been read by a certified
B-reader according to the ILO system of
classification as showing bilateral small
irregular opacities (s, t, or u) graded 2/1 or
higher; and
3) That the claimant has restrictive
impairment from asbestosis and sets forth
in detail the specific pulmonary function
test findings that the doctor relies upon to
establish that the claimant has restrictive
impairment; and
4) That the physician shall submit the reports
and readouts from all pulmonary function,
lung volume, diffusing capacity, or other
testing relied upon for the report's
conclusions. Such tests must comply with
the equipment, quality, and reporting
standards set forth herein.
5. Verifies that the doctor has concluded that the claimant's
medical findings and impairment were not more
probably the result of other causes revealed by claimant's
employment and medical history.
II. Copies of the B-reading, the pulmonary function tests
(including printouts of the flow volume loops and all other
elements required to demonstrate compliance with the
equipment, quality, interpretation, and reporting standards set
forth herein) and the diagnosing physician's detailed narrative
Medical Report and Diagnosis shall be filed with the court and
served on all other parties. Failure to do so, or demonstration
by any party that the reports do not satisfy the standards set
forth herein, shall result in the case being classified as a Tier II
case.
6. All Tier I cases shall be resolved independently, either by judgment or
dispositive order, before any Tier II case may be docketed for further
proceedings, although the parties in a Tier II case voluntarily may engage in
discovery.
7. A plaintiff in a Tier II case may voluntarily place his or her case on an inactive
docket. For cases on the inactive docket, no further proceedings shall occur
and no discovery shall be ordered, although the parties may voluntarily engage
in discovery. A case shall remain on the inactive docket until one of the
following occurs:
(a) The case is transferred to the active docket upon motion of a party;
(b) The case is dismissed by stipulation of the parties; or
(c) The case is dismissed by order on the court's own motion, or on motion
of a party, after notice to all parties and an opportunity to be heard.
8. For cases on the active docket, after the close of discovery, the Third Judicial
Circuit shall conduct a settlement conference or conferences. If settlement is
not reached as to all claims, the Third Judicial Circuit shall enter an order
changing venue to the court in which the action was originally filed, or if
appropriate to some other court, for further proceedings. A copy of the order
shall be sent to the State Court Administrator. Cases on the active docket
shall not be joined with cases from the inactive docket for settlement or any
other purpose.
9. MCR 2.222, MCR 2.223, and MCR 2.224 do not apply to changes of venue
pursuant to this order.
Staff Comment: The proposed Administrative Order provides for
consolidation of all asbestos-related disease personal injury actions in the Third Judicial
Circuit. It further provides for active and voluntary inactive dockets, based on the severity
of the alleged injury, as measured in part by the February 2003 American Bar Association
standard for nonmalignant asbestos-related disease claims.
The staff comment is not an authoritative construction by the Court.
A copy of this order will be given to the Secretary of the State Bar and to the State
Court Administrator so that they can make the notifications specified in MCR 1.201.
Comments on these proposals may be sent to the Supreme Court Clerk in writing or
electronically by June 1, 2006, at P.O. Box 30052, Lansing, MI 48909, or
MSC_clerk@courts.mi.gov. When filing a comment, please refer to ADM File No.
2003-47. Your comments and the comments of others will be posted at
www.courts.mi.gov/supremecourt/resources/administrative/index.htm.