S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   6032
 
                        2017-2018 Regular Sessions
 
                           I N  A S S E M B L Y
 
                             February 21, 2017
                                ___________
 
 Introduced  by  M. of A. SIMOTAS, SCHIMMINGER, MOSLEY, McDONALD, SKARTA-
   DOS, COOK, OTIS, FAHY, SANTABARBARA, WOERNER, CUSICK,  QUART  --  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. 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

              

 A. 6032                             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.

 A. 6032                             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.

 A. 6032                             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

 A. 6032                             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.