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

North Dakota § 32-46.2-04

• Jurisdiction: North Dakota
• Title 32: Judicial Remedies
• Ch. 32-46.2: Asbestos Civil Actions

Text

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.