S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   10964
 
                           I N  A S S E M B L Y
 
                               May 29, 2018
                                ___________
 
 Introduced  by  M.  of A. BUCHWALD, SCHIMMINGER, OTIS, THIELE, STIRPE --
   read once and referred to the Committee on Judiciary
 
 AN ACT to amend the civil practice law and rules, in relation  to  truth
   and fairness in asbestos litigation
 
   THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
 BLY, DO ENACT AS FOLLOWS:

   Section 1. The civil practice law and rules is amended by adding a new
 article 99 to read as follows:
                                ARTICLE 99
                      TRUTH IN ASBESTOS TRUST CLAIMS
 SECTION 9901. DEFINITIONS.
         9902. REQUIREMENT TO MAKE TRUST CLAIMS.
         9903. NOTICE OF TRUST CLAIM; PRODUCTION OF TRUST CLAIM MATERIAL.
         9904. FAILURE TO MAKE TRUST CLAIM OR PROVIDE  NOTICE  AND  TRUST
                CLAIM MATERIAL.
         9905. IDENTIFICATION  OF  ADDITIONAL  ASBESTOS  TRUST  CLAIMS BY
                DEFENDANTS.
         9906. EVIDENCE OF TRUST CLAIMS.
         9907. MOTION FOR SANCTIONS.
   § 9901. DEFINITIONS. AS USED IN THIS  ARTICLE:  (1)  "ASBESTOS  TRUST"
 MEANS  A  GOVERNMENT-APPROVED OR COURT-APPROVED TRUST, QUALIFIED SETTLE-
 MENT FUND, COMPENSATION FUND OR CLAIMS FACILITY CREATED AS A  RESULT  OF
 AN  ADMINISTRATIVE  OR  LEGAL  ACTION,  A  COURT-APPROVED BANKRUPTCY, OR
 PURSUANT TO 11 U.S.C. 524(G) OR 11 U.S.C. 1121(A)  OR  OTHER  APPLICABLE
 PROVISION  OF  LAW,  THAT  IS  INTENDED, IN WHOLE OR IN PART, TO PROVIDE
 COMPENSATION TO CLAIMANTS ARISING OUT OF, BASED ON, OR  RELATED  TO  THE
 HEALTH EFFECTS OF EXPOSURE TO ASBESTOS.
   (2)  "TRUST  CLAIM"  MEANS  ANY  FILING  WITH,  SUBMISSION TO OR CLAIM
 AGAINST AN ASBESTOS TRUST SEEKING RECOVERY OF  COMPENSATION  OR  DAMAGES
 FOR OR ARISING FROM THE HEALTH EFFECTS OF EXPOSURE TO ASBESTOS.
   (3)  "TRUST  CLAIM  MATERIAL" MEANS ANY AND ALL DOCUMENTATION FILED OR
 SUBMITTED BY OR ON BEHALF OF A CLAIMANT AS PART OF OR IN CONNECTION WITH
 A TRUST CLAIM, INCLUDING:
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
              

                                                            LBD15912-02-8

 A. 10964                            2
 
   (A) DOCUMENTATION, MATERIALS AND INFORMATION THAT A  CLAIMANT  SUBMITS
 OR PROVIDES TO AN ASBESTOS TRUST FOR THE PURPOSE OF DEMONSTRATING ASBES-
 TOS EXPOSURE, THE HEALTH EFFECTS OF EXPOSURE TO ASBESTOS, OR THE VALIDI-
 TY OF A TRUST CLAIM; AND
   (B) CLAIM FORMS AND OTHER MATERIALS THAT AN ASBESTOS TRUST REQUIRES IN
 ORDER TO SUPPORT A TRUST CLAIM.
   §  9902.  REQUIREMENT  TO MAKE TRUST CLAIMS. (1) EXCEPT AS PROVIDED BY
 SUBDIVISION FOUR OF THIS SECTION, A CLAIMANT WHO HAS FILED AN ACTION  TO
 RECOVER  DAMAGES FOR OR ARISING FROM AN ASBESTOS-RELATED INJURY, AND ANY
 PERSON WHO IS REPRESENTING THE CLAIMANT AND/OR HAS A FIDUCIARY  DUTY  TO
 THE  CLAIMANT FOR THE CLAIM, INCLUDING BUT NOT LIMITED TO THE CLAIMANT'S
 REPRESENTATIVES, AGENTS, COUNSEL AND ASSIGNS, SHALL CONDUCT AN  INVESTI-
 GATION  AND  FILE  ALL TRUST CLAIMS THAT CAN BE MADE BY THE CLAIMANT NOT
 LATER THAN FORTY-FIVE DAYS AFTER  THE  CLAIMANT'S  COMMENCEMENT  OF  THE
 ACTION.
   (2) A CLAIMANT MAY FILE A MOTION SEEKING RELIEF FROM THE OBLIGATION TO
 MAKE  A  TRUST  CLAIM OTHERWISE REQUIRED BY THIS SECTION IF THE FEES AND
 EXPENSES, INCLUDING ATTORNEY'S FEES, FOR FILING THE TRUST  CLAIM  EXCEED
 THE CLAIMANT'S REASONABLY ANTICIPATED RECOVERY FROM THE ASBESTOS TRUST.
   (3)  IF  A  CLAIMANT  FILES  A  MOTION  UNDER  SUBDIVISION TWO OF THIS
 SECTION, THE COURT SHALL  DETERMINE  WHETHER  THE  CLAIMANT'S  FEES  AND
 EXPENSES,  INCLUDING  ATTORNEY'S FEES, FOR MAKING THE TRUST CLAIM EXCEED
 THE CLAIMANT'S REASONABLY ANTICIPATED RECOVERY FROM THE ASBESTOS  TRUST.
 IF THE COURT DETERMINES THAT THE CLAIMANT'S FEES AND EXPENSES EXCEED THE
 CLAIMANT'S REASONABLY ANTICIPATED RECOVERY, THE CLAIMANT IS NOT REQUIRED
 TO  MAKE  THE  TRUST  CLAIM  BUT SHALL PROVIDE THE COURT WITH A VERIFIED
 STATEMENT OF THE EXPOSED  PERSON'S  EXPOSURE  HISTORY,  USAGE  OR  OTHER
 CONNECTION  TO  ASBESTOS  THAT IS COVERED BY EACH ASBESTOS TRUST AGAINST
 WHICH A CLAIM IS NOT REQUIRED.
   § 9903. NOTICE OF TRUST CLAIM; PRODUCTION OF TRUST CLAIM MATERIAL. (1)
 A CLAIMANT IN AN ACTION TO RECOVER DAMAGES FOR OR ARISING FROM AN ASBES-
 TOS-RELATED INJURY SHALL SERVE ON EACH PARTY A  SWORN  STATEMENT,  UNDER
 PENALTY  OF  PERJURY,  AND  TRUST CLAIM MATERIAL RELATING TO, EACH TRUST
 CLAIM MADE BY OR ON BEHALF OF THE EXPOSED PERSON.  THE  SWORN  STATEMENT
 MUST:
   (A)  IDENTIFY  EACH  TRUST  CLAIM  MADE BY OR ON BEHALF OF THE EXPOSED
 PERSON;
   (B) STATE THE AMOUNT OF ANY TRUST CLAIM PAYMENT MADE OR TO BE MADE  TO
 COMPENSATE FOR THE EXPOSED PERSONS' INJURY; AND
   (C)  STATE  THE  DATE  EACH  TRUST CLAIM WAS MADE OR IS TO BE MADE AND
 WHETHER A REQUEST FOR INDIVIDUAL OR ENHANCED REVIEW OR FOR  A  DEFERRAL,
 DELAY,  SUSPENSION,  OR  TOLLING  OF THE CLAIM HAS BEEN SUBMITTED TO THE
 ASBESTOS TRUST.
   (2) THE CLAIMANT SHALL SERVE THE SWORN STATEMENT AND TRUST CLAIM MATE-
 RIAL REQUIRED BY SUBDIVISION ONE OF THIS SECTION NOT LATER  THAN  THIRTY
 DAYS AFTER THE COMMENCEMENT OF DISCOVERY.
   (3) THE SWORN STATEMENT AND TRUST CLAIM MATERIAL REQUIRED TO BE SERVED
 UNDER  SUBDIVISION  ONE OF THIS SECTION ARE IN ADDITION TO ANY NOTICE OR
 MATERIALS REQUIRED TO BE SERVED OR PRODUCED AS  PART  OF  DISCOVERY  AND
 UNDER ANY OTHER LAW, RULE, ORDER, OR APPLICABLE AGREEMENT.
   (4)  IF  A  CLAIMANT DISCOVERS THAT THE SWORN STATEMENT OR TRUST CLAIM
 MATERIAL PROVIDED BY THE CLAIMANT UNDER THIS SECTION WERE INCOMPLETE  OR
 INCORRECT  AT  THE  TIME THE SWORN STATEMENT OR TRUST CLAIM MATERIAL WAS
 SERVED OR THAT THE SWORN STATEMENT OR TRUST CLAIM MATERIAL AS SERVED  IS
 NO  LONGER COMPLETE AND CORRECT, THE CLAIMANT SHALL SUPPLEMENT THE SWORN
 STATEMENT AND THE PRODUCTION OF TRUST CLAIM MATERIAL. THE CLAIMANT SHALL

 A. 10964                            3
 
 SERVE THE SUPPLEMENTAL SWORN STATEMENT OR TRUST CLAIM  MATERIAL  REASON-
 ABLY PROMPTLY AFTER THE CLAIMANT DISCOVERS THE NECESSITY FOR THE SUPPLE-
 MENTATION,  BUT  NOT  LATER  THAN  THE  THIRTIETH DAY AFTER THE DATE THE
 CLAIMANT DISCOVERS THE NECESSITY FOR THE SUPPLEMENTATION.
   §  9904. FAILURE TO MAKE TRUST CLAIM OR PROVIDE NOTICE AND TRUST CLAIM
 MATERIAL. (1) A COURT MAY NOT COMMENCE TRIAL IN  AN  ACTION  TO  RECOVER
 DAMAGES FOR OR ARISING FROM AN ASBESTOS-RELATED INJURY UNLESS THE CLAIM-
 ANT HAS:
   (A) MADE EACH TRUST CLAIM AS REQUIRED BY THIS ARTICLE; AND
   (B)  SERVED THE SWORN STATEMENT, AND TRUST CLAIM MATERIAL RELATING TO,
 THOSE TRUST CLAIMS IN ACCORDANCE WITH SECTION NINETY-NINE HUNDRED  THREE
 OF THIS ARTICLE.
   (2)  THIS  SECTION SHALL NOT BE CONSTRUED TO REQUIRE THAT THE CLAIMANT
 RECEIVE PAYMENT OF A TRUST CLAIM FROM AN ASBESTOS TRUST BEFORE  A  JUDG-
 MENT IS RENDERED IN THE ACTION.
   §  9905. IDENTIFICATION OF ADDITIONAL ASBESTOS TRUST CLAIMS BY DEFEND-
 ANTS. (1) NOT LESS THAN NINETY DAYS BEFORE TRIAL, IF A DEFENDANT IDENTI-
 FIES AN ASBESTOS TRUST CLAIM NOT  PRODUCED  BY  THE  CLAIMANT  THAT  THE
 DEFENDANT REASONABLY BELIEVES THE CLAIMANT MAY FILE, THE DEFENDANT SHALL
 CONFER  WITH THE CLAIMANT AND THEREAFTER MAY MOVE THE COURT FOR AN ORDER
 TO REQUIRE THE CLAIMANT TO FILE THE ADDITIONAL TRUST CLAIM. THE  DEFEND-
 ANT  SHALL PRODUCE OR DESCRIBE ANY DOCUMENTATION THE DEFENDANT POSSESSES
 OR OF WHICH THE DEFENDANT IS AWARE  IN  SUPPORT  OF  THE  MOTION.  IF  A
 DEFENDANT  HAS  PREVIOUSLY  FILED A MOTION UNDER THIS SECTION, THE COURT
 SHALL NOT GRANT A SUBSEQUENT MOTION  IF  THE  DEFENDANT  KNEW  THAT  THE
 CLAIMANT  MET  THE  CRITERIA  FOR PAYMENT FOR THE ADDITIONAL TRUST CLAIM
 IDENTIFIED IN THE SUBSEQUENT MOTION AT THE TIME THE EARLIER  MOTION  WAS
 FILED.
   (2)  WITHIN  10 DAYS OF RECEIVING THE DEFENDANT'S MOTION, THE CLAIMANT
 SHALL, FOR EACH ASBESTOS TRUST CLAIM IDENTIFIED BY THE DEFENDANT, DO ONE
 OF THE FOLLOWING:
   (A) FILE THE ASBESTOS TRUST CLAIMS;
   (B) FILE A WRITTEN RESPONSE WITH THE COURT STATING THE REASON THERE IS
 INSUFFICIENT EVIDENCE FOR  THE  CLAIMANT  TO  FILE  THE  ASBESTOS  TRUST
 CLAIMS; OR
   (C)  FILE A WRITTEN RESPONSE WITH THE COURT REQUESTING A DETERMINATION
 THAT THE FEES AND EXPENSES, INCLUDING ATTORNEY'S  FEES  FOR  FILING  THE
 ASBESTOS  TRUST  CLAIMS  EXCEED  THE  CLAIMANT'S  REASONABLY ANTICIPATED
 RECOVERY FROM THE ASBESTOS TRUST.
   (3)(A) WITHIN 10 DAYS OF THE CLAIMANT FILING A WRITTEN RESPONSE TO THE
 DEFENDANT'S MOTION, THE COURT SHALL DETERMINE  IF  THERE  IS  SUFFICIENT
 BASIS  FOR  THE  CLAIMANT TO FILE THE ASBESTOS TRUST CLAIM IDENTIFIED IN
 THE MOTION. IF THE COURT DETERMINES THAT THERE IS A SUFFICIENT BASIS FOR
 THE CLAIMANT TO FILE AN ASBESTOS TRUST CLAIM IDENTIFIED BY  THE  DEFEND-
 ANT, THE COURT SHALL ORDER THE CLAIMANT TO FILE THE ASBESTOS TRUST CLAIM
 IDENTIFIED  AND  STAY   THE ASBESTOS ACTION UNTIL THE CLAIMANT FILES THE
 ASBESTOS TRUST CLAIM AND PRODUCES ALL RELATED TRUST CLAIM MATERIALS.
   (B) IF THE COURT DETERMINES THAT THE COST OF  SUBMITTING  AN  ASBESTOS
 TRUST  CLAIM  IDENTIFIED BY THE DEFENDANT EXCEEDS THE CLAIMANT'S REASON-
 ABLY ANTICIPATED RECOVERY, THE COURT  SHALL  STAY  THE  ASBESTOS  ACTION
 UNTIL  THE CLAIMANT FILES WITH THE COURT AND PROVIDES ALL PARTIES WITH A
 VERIFIED STATEMENT OF THE CLAIMANT'S  HISTORY  OF  EXPOSURE,  USAGE,  OR
 OTHER CONNECTION TO ASBESTOS COVERED BY THAT ASBESTOS TRUST.
   § 9906. EVIDENCE OF TRUST CLAIMS. (1) TRUST CLAIM MATERIAL IS PRESUMED
 TO  BE  AUTHENTIC,  RELEVANT  AND ADMISSIBLE IN EVIDENCE IN AN ACTION TO
 WHICH THIS ARTICLE APPLIES.

 A. 10964                            4
 
   (2) CLAIMS OF PRIVILEGE SHALL NOT APPLY TO ANY TRUST CLAIM MATERIAL IN
 AN ACTION TO WHICH THIS ARTICLE APPLIES.
   (3) A PARTY MAY USE THE TRUST CLAIM MATERIAL TO PROVE:
   (A)  AN ALTERNATE SOURCE FOR THE CAUSE OF THE EXPOSED PERSON'S INJURY,
 DEATH OR LOSS;
   (B) A BASIS TO ALLOCATE RESPONSIBILITY FOR THE EXPOSED PERSON'S  INJU-
 RY, DEATH, OR LOSS; OR
   (C)  ANY  OTHER  ISSUE RELEVANT TO ADJUDICATION OF A CLAIM ASSERTED IN
 THE ACTION.
   § 9907. MOTION FOR SANCTIONS. (1) ON THE  MOTION  OF  A  DEFENDANT  OR
 JUDGEMENT  DEBTOR  SEEKING  SANCTIONS  OR  OTHER  RELIEF IN AN ACTION TO
 RECOVER DAMAGES FOR OR ARISING FROM THE HEALTH EFFECTS  OF  EXPOSURE  TO
 ASBESTOS,  AND  AFTER  REASONABLE  NOTICE  TO THE PARTIES, THE COURT MAY
 IMPOSE ANY SANCTION PROVIDED BY COURT RULE OR LAW,  INCLUDING,  BUT  NOT
 LIMITED  TO,  VACATING  A JUDGEMENT RENDERED IN THE ACTION, FOR A CLAIM-
 ANT'S FAILURE TO COMPLY WITH  THE  DISCLOSURE  REQUIREMENTS  OF  SECTION
 NINETY-NINE HUNDRED THREE OF THIS ARTICLE.
   (2)  IF  THE  CLAIMANT, CLAIMANT'S COUNSEL, OR ANY OTHER PERSON ON THE
 CLAIMANT'S BEHALF FILES AN ASBESTOS TRUST  CLAIM  OR  CLAIMS  AFTER  THE
 CLAIMANT  OBTAINS  A JUDGEMENT IN THE ACTION, AND THE ASBESTOS TRUST WAS
 IN EXISTENCE AT THE TIME THE CLAIMANT OBTAINED THE JUDGEMENT, THE COURT,
 ON MOTION BY A DEFENDANT OR JUDGEMENT DEBTOR SEEKING SANCTIONS OR  OTHER
 RELIEF,  HAS  JURISDICTION  TO  REOPEN  THE  JUDGEMENT IN THE ACTION AND
 ADJUST THE JUDGEMENT BY THE AMOUNT  OF  ANY  SUBSEQUENT  ASBESTOS  TRUST
 PAYMENTS  OBTAINED  BY  OR ON BEHALF OF THE CLAIMANT AND ORDER ANY OTHER
 RELIEF TO THE PARTIES THAT THE COURT DEEMS JUST AND PROPER.
   (3) A DEFENDANT OR JUDGEMENT DEBTOR SHALL FILE ANY MOTION  UNDER  THIS
 SECTION  WITHIN  A  REASONABLE TIME AND NOT MORE THAN ONE YEAR AFTER THE
 JUDGEMENT WAS ENTERED IN THE ACTION.
   § 2. This act shall take effect on the thirtieth day  after  it  shall
 have  become a law, and shall apply to all actions commenced on or after
 such date.