Okla. Stat. tit. 76, § 76-94

Detailed occupational and exposure history - Evidence standards.

A. No person shall have an asbestos claim placed on any active

trial roster in this state, or brought to trial in this state, or

conduct discovery in an asbestos claim in this state, in the absence

of a prima facie showing of asbestos-related malignancy or

impairment as shown by service on each defendant of the information

listed in either paragraph 1 or 2 of this subsection:

1. A report by a physician who is board-certified in pulmonary

medicine, occupational medicine, internal medicine, oncology, or

pathology at the time of issuing the relevant medical report

concluding:

a. the exposed person has been diagnosed with

mesothelioma or other asbestos-related malignancy,

b. to a reasonable degree of medical certainty, exposure

to asbestos was a proximate cause of the diagnosed

mesothelioma or other asbestos-related malignancy,

accompanied by a conclusion that the exposed person's

medical findings were not more probably the result of

other causes revealed by the exposed person's

employment and medical history. A conclusion that the

exposed person's physical impairment or impairments

are "consistent with" or "compatible with"

mesothelioma or other asbestos-related malignancy does

not meet the requirements of this section, and

c. for malignant asbestos-related conditions other than

mesothelioma, that the exposed person has an

underlying nonmalignant asbestos-related condition and

Oklahoma Statutes - Title 76. Torts Page 58

that at least fifteen (15) years have elapsed between

the date of first exposure to asbestos and the date of

diagnosis of the malignancy; or

2. A report by a physician who is board-certified in pulmonary

medicine, internal medicine, occupational medicine, or pathology

that:

a. the exposed person has been diagnosed with a

nonmalignant asbestos-related condition, and

b. confirms that a physician actually treating or who

treated the exposed person, or who has or who had a

doctor-patient relationship with the exposed person or

a medical professional employed by and under the

direct supervision and control of such physician:

(1) performed a physical examination of the exposed

person, or if the exposed person is deceased,

reviewed available records relating to the

exposed person's medical condition,

(2) took an occupational and exposure history from

the exposed person or from a person knowledgeable

about the alleged exposure or exposures that form

the basis of the action, and

(3) took a medical and smoking history that includes

a review of the exposed person's significant past

and present medical problems relevant to the

exposed person's impairment or disease,

c. sets out sufficient details of the exposed person's

occupational, exposure, medical, and smoking history

to form the basis for a medical diagnosis of an

asbestos-related condition and confirms that at least

fifteen (15) years have elapsed between the exposed

person's first exposure to asbestos and the date of

diagnosis,

d. confirms that the exposed person has a pathological

diagnosis of asbestosis graded 1(B) or higher under

the criteria published in "Asbestos-Associated

Diseases", 106 Archives of Pathology and Laboratory

Medicine 11, Appendix 3 (October 8, 1982), as amended

from time to time, or

e. confirms that the exposed person's chest x-ray shows

bilateral small irregular opacities (s, t, or u) with

a profusion grading of 2/2 or higher on the ILO system

of classification, or

f. confirms that the exposed person has radiological

evidence of asbestosis and/or pleural thickening

showing:

(1) bilateral small irregular opacities (s, t, or u)

with a profusion grading of 1/1 or higher, or

Oklahoma Statutes - Title 76. Torts Page 59
shows

bilateral small irregular opacities (s, t, or u) with

a profusion grading of 2/2 or higher on the ILO system

of classification, or

f. confirms that the exposed person has radiological

evidence of asbestosis and/or pleural thickening

showing:

(1) bilateral small irregular opacities (s, t, or u)

with a profusion grading of 1/1 or higher, or

Oklahoma Statutes - Title 76. Torts Page 59

(2) bilateral diffuse pleural thickening graded

extent b2 or higher, including blunting of the

costophrenic angle, and

g. (1) confirms that in cases described in subparagraph

d or f of this paragraph, the exposed person has

or had physical impairment rated at least Class 2

pursuant to the AMA Guides to the Evaluation of

Permanent Impairment (5th Edition) (dated

November 2000) demonstrating:

(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, or

(c) if the claimant's medical condition or

process prevents the pulmonary function test

from being performed or makes the results of

such test an unreliable indicator of

physical impairment, a board-certified

physician in pulmonary medicine,

occupational medicine, internal medicine,

oncology, or pathology, independent from the

physician providing the report required

herein, must provide a report which states

to a reasonable degree of medical certainty

that the claimant has a nonmalignant

asbestos-related condition causing physical

impairment equivalent to subdivision (a) or

(b) of this division and states the reasons

why the pulmonary function test would be an

unreliable indicator of physical impairment.

(2) Alternatively and not to be used in conjunction

with subdivision (c) of division (1) of this

subparagraph, if an exposed person's medical

conditions or processes prevent a physician from

being able to diagnose or evaluate that exposed

person sufficiently to make a determination as to

whether that exposed person meets the

requirements of subparagraph f of this paragraph,

the claimant may serve on each defendant a report

by a physician who is board-certified in

pulmonary medicine, occupational medicine,

internal medicine, oncology, or pathology at the

time the report was made that:

Oklahoma Statutes - Title 76. Torts Page 60

(a) verifies that the physician has or had a

doctor-patient relationship with the exposed

person, and

(b) verifies that the exposed person has

asbestos-related pulmonary impairment as

demonstrated by pulmonary function testing

showing:

(i) forced vital capacity below the lower

limit of normal and total lung

capacity, by plethysmography, below the

lower limit of normal, or

(ii) forced vital capacity below the lower

limit of normal and FEV1/FVC ratio

(using actual values) at or above the

lower limit of normal, and
sed person has

asbestos-related pulmonary impairment as

demonstrated by pulmonary function testing

showing:

(i) forced vital capacity below the lower

limit of normal and total lung

capacity, by plethysmography, below the

lower limit of normal, or

(ii) forced vital capacity below the lower

limit of normal and FEV1/FVC ratio

(using actual values) at or above the

lower limit of normal, and

(c) verifies that the exposed person has a chest

x-ray and computed tomography scan or high-

resolution computed tomography scan read by

the physician or a physician who is board-

certified in pulmonary medicine,

occupational medicine, internal medicine,

oncology, pathology, or radiology showing

either bilateral pleural disease or

bilateral parenchymal disease diagnosed and

reported as being a consequence of asbestos

exposure,

h. confirms that the physician has concluded that the

exposed person's medical findings and impairment were

not more probably the result of causes other than

asbestos exposure as revealed by the exposed person's

occupational, exposure, medical, and smoking history,

and

i. is accompanied by the relevant radiologist's reports,

pulmonary function tests, including printouts of all

data, flow volume loops, and other information to the

extent such has been performed demonstrating

compliance with the equipment, quality,

interpretation, and reporting standards set out in the

Asbestos and Silica Claims Priorities Act, lung volume

tests, diagnostic imaging of the chest, pathology

reports, or other testing reviewed by the physician in

reaching the physician's conclusions. Upon request,

the relevant computed tomography scans and/or chest x-

rays will be made available for review.

B. The detailed occupational and exposure history required

herein must describe:

Oklahoma Statutes - Title 76. Torts Page 61

1. The exposed person's principal employments where it was

likely there was exposure to airborne contaminants (including

asbestos, silica, and other disease-causing dusts, mists, fumes, and

airborne contaminants) that can cause pulmonary injury; and

2. Identification of the general nature, duration, and

frequency of the exposed person's exposure to airborne contaminants,

including asbestos and other dusts that can cause pulmonary injury.

C. All evidence and reports used in presenting the prima facie

showing required in this section, including pulmonary function

testing and diffusing studies, if any:

1. Must comply with the technical recommendations for

examinations, testing procedures, quality assurance, quality

controls, and equipment in the AMA's Guidelines to the Evaluation of

Permanent Impairment and the most current version of the Official

Statements of the American Thoracic Society regarding lung function

testing. Testing performed in a hospital or other medical facility

that is fully licensed and accredited by all appropriate regulatory

bodies in the state in which the facility is located is presumed to

meet the requirements of this act. This presumption may be rebutted

by evidence demonstrating that the accreditation or licensing of the

hospital or other medical facility has lapsed, or providing specific

facts demonstrating that the technical recommendations for

examinations, testing procedures, quality assurance, quality

control, and equipment have not been followed;

2. Must not be obtained through testing or examinations that

violate any applicable law, regulation, licensing requirement, or

medical code of practice;

3. Must not be obtained under the condition that the exposed

person retains legal services in exchange for the examination,

testing, or screening;

4. Shall not result in any presumption at trial that the

exposed person is impaired by an asbestos or silica-related

condition; and

5. Shall not be conclusive as to the liability of any

defendant.

D. The conclusion that a prima facie showing has been made is

not admissible at trial.