NY State Senate Bill 2017-S2511A

Archive: Last Bill Status - In Senate Committee Rules Committee

Introduced
- In Committee Assembly
- In Committee Senate
- On Floor Calendar Assembly
- On Floor Calendar Senate
- Passed Assembly
- Passed Senate
Delivered to Governor
Signed By Governor

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Actions

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	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Jun 08, 2018	print number 2511a
Jun 08, 2018	amend and recommit to rules
Jun 07, 2018	committee discharged and committed to rules
Mar 06, 2018	reported and committed to finance
Jan 03, 2018	referred to judiciary
Jan 13, 2017	referred to judiciary

Votes

- Mar 6, 2018 - Judiciary Committee Vote
  S2511A
  
  10
  
  Aye
  
  7
  
  Nay
  
  5
  
  Aye with Reservations
  
  0
  
  Absent
  
  1
  
  Excused
  
  0
  
  Abstained
  - - Judiciary Committee Vote: Mar 6, 2018
      
      aye (10)
      
      Amedore
      
      Bonacic
      
      Boyle
      
      Breslin
      
      Croci
      
      Jacobs
      
      Montgomery
      
      O'Mara
      
      Phillips
      
      Ranzenhofer
      
      nay (7)
      
      Avella
      
      Bailey
      
      Dilan
      
      Hoylman-Sigal
      
      Kavanagh
      
      Savino
      
      Stavisky
      
      aye wr (5)
      
      Hamilton
      
      Hannon
      
      Kaminsky
      
      Lanza
      
      Serino
      
      excused (1)
      
      LaValle

Bill Amendments

Original

A (Active)

co-Sponsors

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2017-S2511 - Details

See Assembly Version of this Bill:: A10964
Current Committee:: Senate Rules
Law Section:: Civil Practice Law and Rules
Laws Affected:: Add Art 99 §§9901 - 9907, CPLR
Versions Introduced in 2019-2020 Legislative Session:: S7659, A53

2017-S2511 - Summary

Relates to truth and fairness in asbestos litigation; provides for requirements in trust claims.

2017-S2511 - Sponsor Memo

                                 BILL NUMBER:  S2511

 TITLE OF BILL :  An act to amend the civil practice law and rules, in
relation to truth and fairness in asbestos litigation

 PURPOSE OF THE BILL :

The bill will amend the CPLR to promote truth and fairness in the
judicial system and improve the transparency of asbestos trust claims.

 SUMMARY OF SPECIFIC PROVISIONS :

Section 1: Creates new Article 99 of the CPLR entitled "Truth in
Asbestos Trust Claims".

§9901: Defines the terms used in Article 99.

§9902: Promotes truth, fairness and transparency in the judicial
system by requiring that any claimant who has filed a civil action in
the New York courts for an asbestos-related injury must file all of
the claimant's asbestos trust claims no later than 45 days after the
commencement of the civil action. This section also provides a
mechanism for claimants to avoid filing claims with certain asbestos
trust if the anticipated costs and fees associated with such a filing
would exceed the expected recovery from the asbestos trust.

§ 9903: Requires the claimant to notify all defendants in the civil
action of the filing of each asbestos trust claim 30 days after the
commencement of discovery. The section further requires that the
claimant must produce to each defendant the asbestos trust claim
materials relating to each of the asbestos trust claims filed by the
claimant.

§ 9904: Requires the claimant to timely provide notice to all
defendants of asbestos trust claims, and produce to the defendants all
related asbestos trust claim materials, prior to the commencement of
trial in the civil action. The section further provides judges in
civil actions with the discretion to impose sanctions for a claimant's
failure to comply with the requirements of § 9903.

§ 9905: Allows a defendant in the claimant's civil action to file a
motion to stay the action by identifying for the court asbestos trusts
not disclosed by the claimant against which the defendant has a
reasonable basis to believe that the claimant can make a trust claim.

§ 9906: Allows for the claimant to respond to a defendant's motion to
stay filed pursuant to § 9905.

§ 9907: Allows for the court to stay the civil action if it determines
that the defendant's motion was timely filed and the claimant is
likely to receive compensation for the asbestos trusts identified in
the motion. The section further provides that a court shall not stay
the action if it determines that the claimant's costs and fees are
likely to exceed the expected recovery from the identified asbestos
trust.

§ 9908: Provides that asbestos trust claim materials are presumed to
be authentic, relevant and discoverable in the civil action.

§ 9909: Allows for the filing of a motion for sanctions against the
claimant if it is determined that the claimant made additional
un-disclosed asbestos trust claims after a judgment was rendered in
the claimant's civil action.

 JUSTIFICATION :

The purpose of this bill is to promote fairness in the civil justice
system by curing a procedural deficiency in the New York courts that
currently limits transparency between asbestos civil actions and
federal asbestos compensation trusts. The bill would ensure that
defendants in asbestos lawsuits in New York courts are no longer
subject to disproportionate liability for claims for which claimants
are also entitled to compensation from asbestos bankruptcy trusts.

Under New York law and public policy, defendants in a civil action
should only be responsible for their proportionate shares of a
claimant's noneconomic damages such as pain and suffering - typically
the largest component of damages asserted by asbestos claimants -
unless a defendant's share of fault exceeds 50%. The bill furthers
this goal, and promotes greater fairness in the judicial system, by
prohibiting claimants and their lawyers from delaying asbestos trust
submissions until after their court cases have been resolved, thereby
depriving defendants of materials and evidence during the discovery
process that could mitigate their liability. Claimants instead would
be required to promptly submit claims to appropriate bankruptcy trusts
in advance of trial, and to make their claims-submission materials
available to state court defendants. Courts would be authorized to
stay the scheduling of trials in civil actions until a claimant
complies with these requirements.

Widespread use of asbestos products ended several decades ago. Due to
long latency periods from exposure to the onset of an asbestos-related
disease, however, asbestos-related personal injury claims continue to
be brought in large numbers today in New York's court systems. But in
recent years there has been a fundamental shift in the way asbestos
claimants are compensated.

First, the litigation landscape has changed dramatically, as the
largest and historically most culpable defendants have declared
bankruptcy and exited the civil justice system. In response to this
phenomenon, plaintiffs' lawyers have cast an ever-widening net in the
search for solvent defendants. Over 8,500 companies, many of small and
medium size, involving a broad variety of industries, have now been
sued in asbestos litigation. The relative fault of these defendants,
who used to be peripheral defendants prior to the bankruptcies- if
they were sued at all -is marginal as compared to the former, now
bankrupt, target defendants.

Second, the former target defendants have been replaced by bankruptcy
trusts. Beginning in 1982 with asbestos giant Johns-Manville, over 100
former asbestos manufacturers, including most of the largest and
historically most culpable companies, have exited the civil justice
system through bankruptcy. As part of their bankruptcy proceedings,
these companies set up trusts. These trusts, which operate
independently of the civil justice system, pay billions of dollars
each year to asbestos claimants that concurrently file claims in the
civil justice system, and will continue to pay tens of billions of
additional dollars for years to come. Since 2008, asbestos bankruptcy
trusts have paid over $17 billion to asbestos claimants.

As a result, there are now two paths to compensation for asbestos
claimants, the civil justice system and the trust system, and there is
very little transparency between them. A typical asbestos claimant
collectively can recover hundreds of thousands of dollars from
numerous trusts by submitting documentation establishing the
claimant's disease level and degree of exposure to asbestos from
products manufactured by the bankrupt company. Because these claims
and their supporting submissions can be used as evidence in the civil
justice system by defendants to demonstrate that their own levels of
fault are minimal or non-existent, plaintiffs' attorneys seek to avoid
providing this information to the defendants in civil actions even

though state discovery rules mandate the timely production of this
evidence.

One tactic that has emerged is that plaintiff law firms are delaying
their clients' submission of trust claims until after their state
court cases against solvent defendants have been concluded. This is
made possible by "statute of limitations" provisions instituted and
maintained by the trusts that permit an asbestos claimant a minimum of
3 years from the date of their disease diagnoses to file compensation
claims with the trusts. Plaintiff law firms use this 3-year window to
first file a civil complaint in New York courts and collect damages
from solvent defendants in the civil action, waiting until afterward
to file their bankruptcy trust claims with no coordination of
liability or payments between the two compensation systems. This
practice is intended to, and does, unfairly distort and inflate the
liabilities of solvent civil defendants by facilitating the
suppression of evidence in asbestos actions currently being litigated
in New York courts.

This unfairness recently was documented in detailed,
evidence-supported findings by a federal bankruptcy judge in
connection with the Garlock asbestos bankruptcy. See In re Garlock
Sealing Techs, LLC, 504 B.R. 71 (W.D.N.C. Bankr. 2014). That judge
found that asbestos litigation nationally has been "infected with the
manipulation of exposure evidence" by plaintiff law firms. Citing
specific cases, including those within New York's own judicial system,
the bankruptcy judge concluded that a pervasive practice exists to
suppress exposure evidence in New York courts and courts across the
nation.

Since 2012, eight other state legislatures have passed similar
asbestos bankruptcy trust transparency laws in reaction to this
growing problem. In New York, courts already have mandated through
standing discovery orders the disclosure of trust submissions that
have been made by claimants. These requirements, however, do not
address the delayed-submission phenomenon to which this bill is
addressed. This bill seeks to close the trust-instituted procedural
loophole in order to help ensure that the parties and the court have
full access to exposure evidence needed to establish the equitable
allocation of liability to defendants in the civil justice system.

The solution to this problem is straightforward - require asbestos
claimants and their attorneys to file asbestos trust claims
concurrently with the active civil lawsuit and furnish their
submissions to the defendants in the civil action in advance of any
trial in a New York court. Accordingly, this bill would promote
fairness in the civil justice system by requiring asbestos claimants
to 1) timely file their trust claims; 2) provide notice to defendants
in the civil action of the filing of the trust claims, and; 3) produce
to those defendants the trust materials and documentation submitted by
the claimants to support their trust claims.

Historically, New York State has always been a leader in implementing
innovative and successful legislation and court administrative
procedures to efficiently and equitably adjudicate civil litigation.
This situation should be no different. This bill neither denies the
avenue to justice for deserving asbestos claimants nor does it let
current responsible asbestos defendants off the hook. The bill simply
promotes fairness by requiring that the finders of fact in New York's
judicial system have the full complement of evidence to correctly
allocate liability among culpable parties from both compensation
systems. This bill furthers the goal of creating a legal environment
for all New Yorkers, creating new and better standards for
transparency, efficiency and justice.

 EFFECTIVE DATE :
This act shall take effect 30 days after it becomes law and will apply
to all civil actions filed thereafter.

2017-S2511 - Bill Text download pdf

                            
 
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   2511
 
                        2017-2018 Regular Sessions
 
                             I N  S E N A T E
 
                             January 13, 2017
                                ___________
 
 Introduced  by  Sens.  BONACIC,  DeFRANCISCO  --  read twice and ordered
   printed, and when printed to be committed to the Committee on  Judici-
   ary
 
 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. MOTION TO STAY.
         9906. RESPONSE TO MOTION TO STAY.
         9907. STAY OF PROCEEDINGS.
         9908. EVIDENCE OF TRUST CLAIMS.
         9909. MOTION FOR SANCTIONS.
   § 9901. DEFINITIONS. AS USED IN THIS ARTICLE:
   (1) "ASBESTOS TRUST" MEANS  A  GOVERNMENT-APPROVED  OR  COURT-APPROVED
 TRUST,  QUALIFIED  SETTLEMENT FUND, COMPENSATION FUND OR CLAIMS FACILITY
 CREATED AS A RESULT OF AN ADMINISTRATIVE OR LEGAL  ACTION,  A  COURT-AP-
 PROVED 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.
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD07815-01-7

 S. 2511                             2
 
   (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:
   A. DOCUMENTATION, MATERIALS AND INFORMATION THAT A CLAIMANT SUBMITS OR
 PROVIDES TO AN ASBESTOS TRUST FOR THE PURPOSE OF DEMONSTRATING  ASBESTOS
 EXPOSURE, THE HEALTH EFFECTS OF EXPOSURE TO ASBESTOS, OR THE VALIDITY 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 TIMELY FILE ALL TRUST CLAIMS THAT CAN BE MADE BY  THE  CLAIM-
 ANT.
   (2) A CLAIMANT, 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,
 MUST  MAKE  EACH  TRUST CLAIM REQUIRED UNDER THIS SECTION NOT LATER THAN
 FORTY-FIVE DAYS AFTER THE CLAIMANT'S COMMENCEMENT OF THE ACTION.
   (3) 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.
   (4) IF A CLAIMANT FILES A  MOTION  UNDER  SUBDIVISION  THREE  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 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
 ASBESTOS-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 STATE-
 MENT 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 PERSON'S 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.

 S. 2511                             3
 
   (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
 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.
   (5) IF A CLAIMANT HAS SETTLED WITH A  PARTY,  FOR  UP  TO  FIVE  YEARS
 FOLLOWING THE DATE OF THE SETTLEMENT, THE SETTLED PARTY CAN REQUEST, AND
 THE  CLAIMANT  SHALL  PROVIDE,  A SUPPLEMENTAL SWORN STATEMENT AND TRUST
 CLAIM MATERIAL RELATING TO EACH TRUST CLAIM MADE BY OR ON BEHALF OF  THE
 CLAIMANT AS OF THE DATE OF THE SETTLED PARTY'S REQUEST.
   §  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)  IF A CLAIMANT RECEIVED COMPENSATION FROM AN ASBESTOS TRUST FOR AN
 INJURY THAT ALSO GAVE RISE TO A JUDGMENT AGAINST  A  DEFENDANT  FOR  THE
 SAME  INJURY  AND THE CLAIMANT FAILED TO SERVE THE REQUIRED SWORN STATE-
 MENT AND TRUST CLAIM MATERIAL AS REQUIRED BY SECTION NINETY-NINE HUNDRED
 THREE OF THIS ARTICLE, THE COURT, ON A DEFENDANT'S OR JUDGMENT  DEBTOR'S
 MOTION, AND AFTER REASONABLE NOTICE TO THE PARTIES, MAY IMPOSE AN APPRO-
 PRIATE  SANCTION, INCLUDING, BUT NOT LIMITED TO, SETTING ASIDE THE JUDG-
 MENT AND ORDERING A NEW TRIAL.
   (3) THIS SECTION MAY 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. MOTION TO STAY.  (1) A DEFENDANT MAY FILE A MOTION  REQUESTING
 A  STAY  OF  THE  PROCEEDINGS UNDER SECTION NINETY-NINE HUNDRED SEVEN OF
 THIS ARTICLE ON OR BEFORE THE LATER OF:
   A. THE SIXTIETH DAY BEFORE THE DATE TRIAL IN  THE  ACTION  IS  SET  TO
 COMMENCE; OR
   B. THE FIFTEENTH DAY AFTER THE DATE THE DEFENDANT FIRST OBTAINS ASBES-
 TOS-EXPOSURE INFORMATION THAT COULD SUPPORT AN ADDITIONAL ASBESTOS TRUST
 CLAIM BY THE CLAIMANT.
   (2)  THE  MOTION  DESCRIBED  BY  SUBDIVISION  ONE OF THIS SECTION MUST
 INCLUDE:
   A. A LIST OF ASBESTOS TRUSTS NOT DISCLOSED  BY  THE  CLAIMANT  AGAINST
 WHICH  THE DEFENDANT IN GOOD FAITH HAS A REASONABLE BASIS TO BELIEVE THE
 CLAIMANT MAY MAKE A SUCCESSFUL TRUST CLAIM; AND
   B. INFORMATION SUPPORTING THE  ADDITIONAL  TRUST  CLAIM  DESCRIBED  BY
 PARAGRAPH  A OF THIS SUBDIVISION, INCLUDING INFORMATION THAT MAY BE USED
 TO MEET THE TRUST CLAIM REQUIREMENTS OF AN ASBESTOS TRUST  DESCRIBED  BY
 SUCH PARAGRAPH A.

 S. 2511                             4
 
   § 9906. RESPONSE TO MOTION TO STAY.  (1) NOT LATER THAN THE FOURTEENTH
 DAY  AFTER  THE  DATE THE DEFENDANT FILES A MOTION TO STAY UNDER SECTION
 NINETY-NINE HUNDRED FIVE OF  THIS  ARTICLE,  THE  CLAIMANT  MAY  FILE  A
 RESPONSE:
   A.  STATING  AND  PROVIDING  PROOF  THAT THE CLAIMANT HAS MADE A TRUST
 CLAIM IDENTIFIED IN THE DEFENDANT'S MOTION AND SERVED THE  SWORN  STATE-
 MENT,  AND  TRUST CLAIM MATERIAL RELATING TO, THE CLAIM AS PRESCRIBED BY
 SECTION NINETY-NINE HUNDRED THREE OF THIS ARTICLE; OR
   B. REQUESTING A DETERMINATION BY THE COURT THAT THE FEES AND EXPENSES,
 INCLUDING ATTORNEY'S FEES, FOR FILING A TRUST CLAIM  IDENTIFIED  IN  THE
 MOTION  EXCEED  THE  CLAIMANT'S REASONABLY ANTICIPATED RECOVERY FROM THE
 ASBESTOS TRUST.
   (2) IF THE CLAIMANT FILES A RESPONSE MAKING A REQUEST UNDER  PARAGRAPH
 B  OF SUBDIVISION ONE OF THIS SECTION, THE COURT SHALL DETERMINE WHETHER
 THE CLAIMANT'S FEES AND EXPENSES, INCLUDING ATTORNEY'S FEES, FOR  MAKING
 THE  RELEVANT  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 ANTIC-
 IPATED 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 TO ASBESTOS THAT IS COVERED  BY  THE  ASBESTOS
 TRUST.
   §  9907.  STAY OF PROCEEDINGS.   (1) THE COURT SHALL GRANT A MOTION TO
 STAY UNDER SECTION NINETY-NINE HUNDRED FIVE OF THIS ARTICLE IF THE COURT
 DETERMINES THE MOTION WAS TIMELY FILED AND THE  CLAIMANT  IS  LIKELY  TO
 RECEIVE  COMPENSATION  FROM  AN ASBESTOS TRUST IDENTIFIED BY THE MOTION.
 THE STAY SHALL CONTINUE UNTIL  THE  CLAIMANT  PROVIDES  PROOF  THAT  THE
 CLAIMANT  HAS  MADE  THE  CLAIM  AND SERVED A SWORN STATEMENT, AND TRUST
 CLAIM MATERIAL RELATING TO, THE CLAIM AS PRESCRIBED BY  SECTION  NINETY-
 NINE HUNDRED THREE OF THIS ARTICLE.
   (2)  THE  COURT  MAY NOT STAY THE PROCEEDINGS IF, WITH RESPECT TO EACH
 TRUST CLAIM IDENTIFIED IN THE MOTION:
   A. THE COURT DETERMINES THAT THE CLAIMANT HAS SATISFIED  THE  REQUIRE-
 MENTS  OF  SUBDIVISION  ONE OF SECTION NINETY-NINE HUNDRED THREE OF THIS
 ARTICLE; OR
   B. THE COURT MAKES A DETERMINATION DESCRIBED BY  SUBDIVISION  FOUR  OF
 SECTION  NINETY-NINE  HUNDRED  TWO OR SUBDIVISION TWO OF SECTION NINETY-
 NINE HUNDRED SIX OF THIS ARTICLE.
   § 9908. EVIDENCE OF  TRUST  CLAIMS.    (1)  TRUST  CLAIM  MATERIAL  IS
 PRESUMED  TO  BE  AUTHENTIC,  RELEVANT, AND DISCOVERABLE IN AN ACTION TO
 WHICH THIS ARTICLE APPLIES.
   (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 INJURY,
 DEATH, OR LOSS; OR
   C. ANY OTHER ISSUE RELEVANT TO ADJUDICATION OF A CLAIM ASSERTED IN THE
 ACTION.
   §  9909.  MOTION  FOR SANCTIONS.   (1) ON THE MOTION OF A DEFENDANT OR
 JUDGMENT DEBTOR SEEKING SANCTIONS  OR  OTHER  RELIEF  IN  AN  ACTION  TO
 RECOVER  DAMAGES  FOR  OR ARISING FROM THE HEALTH EFFECTS OF EXPOSURE TO
 ASBESTOS, THE COURT MAY IMPOSE ANY SANCTION PROVIDED BY  COURT  RULE  OR
 LAW,  INCLUDING, BUT NOT LIMITED TO, VACATING A JUDGMENT RENDERED IN THE

 S. 2511                             5
 
 ACTION, FOR A CLAIMANT'S FAILURE TO COMPLY WITH THE DISCLOSURE  REQUIRE-
 MENTS 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(S)  AFTER  THE  CLAIMANT
 OBTAINS  A  JUDGMENT  IN  THE  ACTION,  AND THE ASBESTOS TRUST(S) WAS IN
 EXISTENCE AT THE TIME THE CLAIMANT OBTAINED THE JUDGMENT, THE COURT,  ON
 MOTION  BY  A  DEFENDANT  OR  JUDGMENT DEBTOR SEEKING SANCTIONS OR OTHER
 RELIEF, HAS JURISDICTION TO REOPEN THE JUDGMENT IN THE ACTION AND ADJUST
 THE JUDGMENT 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 JUDGMENT DEBTOR SHALL FILE ANY  MOTION  UNDER  THIS
 SECTION  WITHIN  A  REASONABLE TIME AND NOT MORE THAN ONE YEAR AFTER THE
 JUDGMENT WAS ENTERED IN THE ACTION.
   § 2. This act shall take effect on the thirtieth day  after  it  shall
 have  become  law,  and shall apply to all actions commenced on or after
 such date.

co-Sponsors

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2017-S2511A (ACTIVE) - Details

See Assembly Version of this Bill:: A10964
Current Committee:: Senate Rules
Law Section:: Civil Practice Law and Rules
Laws Affected:: Add Art 99 §§9901 - 9907, CPLR
Versions Introduced in 2019-2020 Legislative Session:: S7659, A53

2017-S2511A (ACTIVE) - Summary

Relates to truth and fairness in asbestos litigation; provides for requirements in trust claims.

2017-S2511A (ACTIVE) - Sponsor Memo

                                
 
BILL NUMBER: S2511A

SPONSOR: BONACIC
 
TITLE OF BILL:  An act to amend the civil practice law and rules, in
relation to truth and fairness in asbestos litigation

 
PURPOSE OF THE BILL:

The bill will amend the Civil Practice Law and Rules to improve the
transparency of asbestos trust claims.

 
SUMMARY OF SPECIFIC PROVISIONS:

Section one creates new Article 99 of the CPLR entitled "Truth in Asbes-
tos Trust Claims".

§ 9901: Defines the terms used in Article 99.

§ 9902: Requires that any claimant who has filed a civil action in the
New York courts for an asbestos related injury must file all of the
claimant's asbestos trust claims no later than 45 days after the

commencement of the civil action. This section also provides a mechanism
for claimants to avoid filing claims with certain asbestos trusts if the
anticipated costs and fees associated with such a filing would exceed
the expected recovery from the asbestos trust.

§ 9903: Requires the claimant to notify all defendants in the civil
action of the filing of each asbestos trust claim 30 days after the
commencement of discovery. The section further requires that the claim-
ant must produce to each defendant the asbestos trust claim materials
relating to each of the asbestos trust claims filed by the claimant.

§ 9904: Requires the trust claims to be made and the sworn statements
and asbestos trust claim materials, prior to the commencement of trial
in an asbestos related civil action.

§ 9905: Allows a defendant to, not less than 90 days before trial,
request that the court require a claimant to file an additional asbestos
trust claim that the claimant has not already filed.  Provides mech-
anisms for the claimant to respond to the motion and the court to deter-
mine whether there is a sufficient basis for making the additional
asbestos trust claim.

§ 9906: Provides rules for considering trust claim material evidence.

§ 9907: Allows for the filing of a motion for sanctions against the
claimant if it is determines that the claimant made additional changes
undisclosed asbestos trust claims after a judgement was rendered in the
claimant's civil action. Also, this section allows for an adjustment of
a judgement in asbestos cases up to one year after the judgement to
account for any asbestos trust payments actually obtained by the claim-
ant in connections with a trust claim filed after the judgement.

Section two sets the effective date.

 
JUSTIFICATION:

The purpose of this bill is to promote fairness in the civil justice
system by promoting transparency in New York courts with respect to when
trust compensation is available. This legislation promotes the principle
that plaintiffs should not receive duplicate compensation for the same
injury from asbestos civil claims and in asbestos lawsuits.

Under New York law, defendants in a civil action should only be respon-
sible for their proportionate shares of a claimant's noneconomic damages
such as pain and suffering, which is typically the largest component of
damages asserted by asbestos claimants, unless a defendant's share of
fault exceeds 50% in which case the defendant is liable for the loss.
The bill furthers this goal and promotes greater fairness in the judi-
cial system by prohibiting claimants and their lawyers from delaying
asbestos trust submissions until after their court cases have been
resolved, thereby depriving defendants of materials and evidence during
the discovery process that could mitigate their liability. Claimants
instead would be required to promptly submit claims to appropriate bank-
ruptcy trusts in advance of trial and to make their claims-submission
materials available to state court defendants.

Widespread use of asbestos products ended several decades ago. Due to
long latency periods from exposure to the onset of an asbestos-related
disease, however, asbestos-related personal injury claims continue to be
brought in large numbers today in New York's court systems. However, in
recent years, there has been a fundamental shift in the way asbestos
claimants are compensated.

First, the litigation landscape has changed dramatically, as the largest
and historically most culpable defendants have declared bankruptcy and
exited the civil justice system. In response to this phenomenon, plain-
tiffs' lawyers have cast an ever-widening net in the search for solvent
defendants. Over 8,500 companies, many of small and medium size, involv-
ing a broad variety of industries, have now been sued in asbestos liti-
gation. The relative fault of these defendants, who used to be peripher-
al defendants prior to the bankruptcies - if they were sued at all - is
marginal as compared to the former, now bankrupt, target defendants.

Second, the former target defendants have been replaced by bankruptcy
trusts. Beginning in 1982 with asbestos giant Johns-Manville, over 100
former asbestos manufacturers, including most of the largest and histor-
ically most culpable companies, have exited the civil justice system
through bankruptcy. As part of their bankruptcy proceedings, these
companies set up trusts. These trusts, which operate independently of
the civil justice system, pay billions of dollars each year to asbestos
claimants that concurrently file claims in the civil justice system, and
will continue to pay tens of billions of additional dollars for years to
come. Since 2008, asbestos bankruptcy trusts have paid over $17 billion
to asbestos claimants.

As a result, there are now two paths to compensation for asbestos claim-
ants, the civil justice system and the trust system, and there is very
little transparency between them. A typical asbestos claimant collec-
tively can recover hundreds of thousands of dollars from numerous trusts
by submitting documentation establishing the claimant's disease level
and degree of exposure to asbestos from products manufactured by the
bankrupt company. Because these claims and their supporting submissions
can be used as evidence in the civil justice system by defendants,
plaintiffs' attorneys may seek to avoid providing this information to
the defendants in civil actions even when state discovery rules mandate
the timely production of this evidence.
One tactic that has emerged is that plaintiff law firms are delaying
their clients' submission of trust claims until after their state court
cases against solvent defendants have been concluded. This is made
possible by "statute of limitations" provisions instituted and main-
tained by the trusts that permit an asbestos claimant a minimum of 3
years from the date of their disease diagnoses to file compensation
claims with the trusts. Plaintiff law firms use this 3-year window to
first file a civil complaint in New York courts and collect damages from
solvent defendants in the civil action, waiting until afterward to file
their bankruptcy trust claims with no coordination of liability or
payments between the two compensation systems. This practice can unfair-
ly distort and inflate the liabilities of solvent civil defendants by
facilitating the suppression of evidence in asbestos actions currently
being litigated in New York courts.

This unfairness recently was documented in detailed, evidence-supported
findings by a federal bankruptcy judge in connection with the Garlock
asbestos bankruptcy. See In re Garlock Sealing Techs, LLC, 504 B.R. 71
(W.D.N.C. Bankr. 2014), the judge in that case found that asbestos liti-
gation nationally has been "infected with the manipulation of exposure
evidence" by plaintiff law firms. Citing specific cases, including those
within New York's own judicial system, the bankruptcy judge concluded
that a pervasive practice exists to suppress exposure evidence in New
York courts and courts across the nation.

Since 2012, eight other state legislatures have passed similar asbestos
bankruptcy trust transparency laws in reaction to this growing problem.
In New York, courts already have mandated through standing discovery
orders the disclosure of trust submissions that have been made by claim-
ants. These requirements, however, do not address the delayed-submission
phenomenon to which this bill is addressed. This bill seeks to close the
trust-instituted procedural loophole in order to help ensure that the
parties and the court have full access to exposure evidence needed to
establish the equitable allocation of liability to defendants in the
civil justice system.

The solution to this problem is straightforward, which is to require
asbestos claimants and their attorneys to file asbestos trust claims
concurrently with the active civil lawsuit and furnish their submissions
to the defendants in the civil action in advance of any trial in a New
York court. Accordingly, this bill would promote fairness in the civil
justice system by requiring asbestos claimants to 1) timely file their
trust claims; 2) provide notice to defendants in the civil action of the
filing of the trust claims, and; 3) produce to those defendants the
trust materials and documentation submitted by the claimants to support
their trust claims.

Historically, New York State has always been a leader in implementing
innovative and successful legislation and court administrative proce-
dures to efficiently and equitably adjudicate civil litigation.  This
situation should be no different. This bill neither denies the avenue to
justice for deserving asbestos claimants, nor does it let current
responsible asbestos defendants off the hook. The bill simply promotes
fairness by requiring that the finders of fact in New York's judicial
system have the full complement of evidence to correctly allocate
liability among culpable parties from both compensation systems. This
bill furthers the goal of creating a legal environment for all New York-

ers, creating new and better standards for transparency, efficiency and
justice.

 
LEGISLATIVE HISTORY:

2017: S2511 died in Judiciary

 
FISCAL IMPLICATIONS:

None.

 
EFFECTIVE DATE:
This act shall take effect 30 days after it becomes law.

2017-S2511A (ACTIVE) - Bill Text download pdf

                            
 
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                  2511--A
 
                        2017-2018 Regular Sessions
 
                             I N  S E N A T E
 
                             January 13, 2017
                                ___________
 
 Introduced by Sens. BONACIC, AKSHAR, BOYLE, BRESLIN, DeFRANCISCO, GALLI-
   VAN,  GOLDEN,  GRIFFO,  HELMING, MARCHIONE, O'MARA, ORTT, RANZENHOFER,
   SEPULVEDA, SEWARD, VALESKY -- read twice and ordered printed, and when
   printed to be committed to the Committee on Judiciary  --  recommitted
   to the Committee on Judiciary in accordance with Senate Rule 6, sec. 8
   -- reported favorably from said committee and committed to the Commit-
   tee  on Finance -- committee discharged and said bill committed to the
   Committee on Rules --  committee  discharged,  bill  amended,  ordered
   reprinted as amended and recommitted to said committee
 
 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

  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.

                                                            LBD07815-03-8

 S. 2511--A                          2
 
 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:
   (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.

 S. 2511--A                          3
 
   (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
 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

 S. 2511--A                          4
 
 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.
   (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.

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Senate Bill S2511A

Sponsored By

Archive: Last Bill Status - In Senate Committee Rules Committee

Mar 6, 2018 - Judiciary Committee Vote

Judiciary Committee Vote: Mar 6, 2018

Bill Amendments

co-Sponsors

2017-S2511 - Details

2017-S2511 - Summary

2017-S2511 - Sponsor Memo

2017-S2511 - Bill Text download pdf

co-Sponsors

2017-S2511A (ACTIVE) - Details

2017-S2511A (ACTIVE) - Summary

2017-S2511A (ACTIVE) - Sponsor Memo

2017-S2511A (ACTIVE) - Bill Text download pdf

Comments

Senate Bill S2511A

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Sponsored By

Archive: Last Bill Status - In Senate Committee Rules Committee

Bill Amendments

co-Sponsors

2017-S2511 - Details

2017-S2511 - Summary

2017-S2511 - Sponsor Memo

2017-S2511 - Bill Text download pdf

co-Sponsors

2017-S2511A (ACTIVE) - Details

2017-S2511A (ACTIVE) - Summary

2017-S2511A (ACTIVE) - Sponsor Memo

2017-S2511A (ACTIVE) - Bill Text download pdf

Comments