S T A T E O F N E W Y O R K
________________________________________________________________________
53
2019-2020 Regular Sessions
I N A S S E M B L Y
(PREFILED)
January 9, 2019
___________
Introduced by M. of A. BUCHWALD, OTIS, SCHIMMINGER, THIELE, STIRPE,
WOERNER, FAHY, ORTIZ, PICHARDO, D'URSO, BRONSON, ARROYO, LAVINE,
CUSICK, RIVERA, QUART, NIOU, SANTABARBARA, RICHARDSON, MIKULIN --
Multi-Sponsored by -- M. of A. FERNANDEZ, SIMON -- 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.
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD01068-01-9
A. 53 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 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.
A. 53 3
(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
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
A. 53 4
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.