Docstoc

Senator_s_ Brown SENATE BILL NO. 2373 AN ACT TO REQUIRE

Document Sample
Senator_s_ Brown SENATE BILL NO. 2373 AN ACT TO REQUIRE Powered By Docstoc
					MISSISSIPPI LEGISLATURE                            REGULAR SESSION 2013

By:   Senator(s) Brown                             To:   Judiciary, Division A




                                SENATE BILL NO. 2373



 1         AN ACT TO REQUIRE CLAIMANTS IN ASBESTOS TORT ACTIONS TO MAKE
 2    CERTAIN DISCLOSURES PERTAINING TO ASBESTOS TRUST CLAIMS THAT HAVE
 3    BEEN SUBMITTED TO ASBESTOS TRUST ENTITIES FOR THE PURPOSE OF
 4    COMPENSATING THE CLAIMANT FOR ASBESTOS EXPOSURE; TO DEFINE CERTAIN
 5    TERMS; TO REQUIRE CLAIMANTS TO PROVIDE CERTAIN INFORMATION AND
 6    PROVIDE THE TIME PERIOD THEREFOR; TO SPECIFY THE TIME FOR FILING
 7    CERTAIN MOTIONS AND RESPONSES; TO PROVIDE FOR SEVERABILITY AND
 8    PREEMPTION; TO PROVIDE STATEMENTS OF FINDINGS AND INTENT; AND FOR
 9    RELATED PURPOSES.
10         BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:

11         SECTION 1.     The following words and phrases shall have the

12    meanings ascribed herein, unless the context clearly indicates

13    otherwise:
14               (a)    "Asbestos tort action" means a tort action based on

15    an asbestos claim.

16               (b)    "Asbestos trust" means and encompasses all trust

17    entities, claims agents, or claims processing facilities that are

18    created pursuant to the jurisdiction of a United States bankruptcy

19    court and Section 524(g) of Chapter 11 of the United States

20    Bankruptcy Code, 11 USCS 524(g), or other applicable provision of
21    law, that are formed for the purpose of compensating claimants

      S. B. No. 2373      *SS26/R718*            ~ OFFICIAL ~             G1/2
      13/SS26/R718
      PAGE 1 (crl\np)
22   asserting eligible asbestos claims, and that are in existence on

23   the date initially set for trial in the asbestos tort action.

24              (c)    "Asbestos trust claim" means any claim for

25   compensation by an exposed person or the exposed person's

26   representative against any asbestos trust.

27              (d)    "Cancer" means a malignant condition.

28              (e)    "Claimant" means any person asserting an asbestos

29   claim or asbestos trust claim. "Claimant" includes a plaintiff,

30   counterclaimant, cross-claimant, or third-party plaintiff.

31              (f)    "Exposed person" means any person whose exposure to

32   asbestos or to asbestos-containing products is the basis for an

33   asbestos claim.

34              (g)    "Noncancer" means a nonmalignant condition.

35              (h)    "Proof of claim" means any form of documentation

36   that a potential claimant against an asbestos trust submits or

37   provides to the asbestos trust that attests to or asserts the

38   existence of any liquidated or unliquidated asbestos claim that
39   the claimant may have against the asbestos trust or its

40   predecessors under any theory of law.

41              (i)    "Trust claims material" means documents

42   constituting an asbestos trust claim, including, but not limited

43   to, claim forms, proofs of claim, and informational material

44   required by an asbestos trust to be submitted by a claimant in

45   order to have the claim evaluated by the asbestos trust and relied



     S. B. No. 2373      *SS26/R718*            ~ OFFICIAL ~
     13/SS26/R718
     PAGE 2 (crl\np)
46   upon by the asbestos trust in making its compensation

47   determination.

48        SECTION 2.     (1)    (a)   (i)   Within thirty (30) days after the

49   commencement of discovery in an asbestos tort action that is not

50   otherwise barred or deferred under applicable law or within thirty

51   (30) days of the effective date of this section with respect to an

52   asbestos tort action that is pending on that effective date and in

53   which discovery has commenced, a claimant shall provide to all of

54   the parties in the action a sworn statement by the claimant, under

55   penalty of perjury, identifying all existing asbestos trust claims

56   made by or on behalf of the claimant and all trust claims material

57   pertaining to each identified asbestos trust claim.           The sworn

58   statement shall disclose the date on which each asbestos trust

59   claim against the relevant asbestos trust was made and whether any

60   request for a deferral, delay, suspension, or tolling of the

61   asbestos trust claims process has been submitted.

62                     (ii)    The submission of the sworn statement under
63   subsection (1)(a)(i) of this section shall be in addition to any

64   disclosure requirements otherwise imposed by law, civil rule,

65   court order or ruling, applicable agreement or stipulation, local

66   rule, or case management order.

67              (b)    If the claimant, subsequent to the submission of

68   the sworn statement under subsection (1)(a)(i) of this section,

69   files with or submits to any asbestos trust additional asbestos
70   trust claims not previously disclosed, the claimant shall provide

     S. B. No. 2373      *SS26/R718*                ~ OFFICIAL ~
     13/SS26/R718
     PAGE 3 (crl\np)
71   to all of the parties in the asbestos tort action an amendment

72   updating the sworn statement and identifying the additional

73   asbestos trust claims.      The claimant shall provide any amendment

74   under subsection (1)(b) of this section within thirty (30) days of

75   filing an additional asbestos trust claim with, or submitting an

76   additional asbestos trust claim to, any asbestos trust.

77              (c)    With respect to any asbestos trust claim that a

78   claimant discloses under subsection (1)(b) of this section in an

79   amendment to the sworn statement, the claimant shall provide to

80   all of the parties in the asbestos tort action all trust claims

81   material pertaining to each additional asbestos trust claim

82   identified in that amendment.     The claimant shall provide the

83   trust claims materials under subsection (1)(c) of this section

84   within thirty (30) days of filing or submitting each additional

85   asbestos trust claim.

86        (2)   Failure to provide to all of the parties in the asbestos

87   tort action all trust claims material as required by this section
88   in a timely manner shall constitute grounds for the court to

89   decline to assign an initial trial date or extend the date set for

90   trial in the action.

91        (3)   Nothing in this section prevents a court of competent

92   jurisdiction from requiring any disclosures in addition to the

93   disclosures required under this section.

94        SECTION 3.     (1)   Not less than seventy-five (75) days prior
95   to the commencement of trial, any defendant in an asbestos tort

     S. B. No. 2373      *SS26/R718*             ~ OFFICIAL ~
     13/SS26/R718
     PAGE 4 (crl\np)
 96   action may file a motion with the court, with notice to the

 97   claimant and to all of the parties in the action, for an order to

 98   stay the proceedings.     A defendant's motion to stay the

 99   proceedings shall set forth credible evidence that demonstrates

100   all of the following:

101              (a)    The identities of all asbestos trusts not

102   previously disclosed by the claimant pursuant to Section 2 of this

103   act against which the claimant has not made any asbestos trust

104   claims but against which the defendant in good faith believes the

105   claimant may make a successful asbestos trust claim;

106              (b)    The information that the defendant believes

107   supports the additional asbestos trust claims described in

108   subsection (1)(a) of this section;

109              (c)    A description of the information sufficient to meet

110   the asbestos trust claim requirements of the asbestos trusts

111   described in subsection (1)(a) of this section.

112        (2)   Notwithstanding any other provision in this section, if
113   the claimant produces additional asbestos exposure information

114   that supports the filing of an additional asbestos trust claim,

115   the defendant may file a motion to stay the proceedings under

116   subsection (1) of this section within seven (7) days of receiving

117   the additional asbestos exposure information.

118        (3)   (a)    Within fourteen (14) days after the filing of the

119   defendant's motion for an order to stay the proceedings under



      S. B. No. 2373      *SS26/R718*            ~ OFFICIAL ~
      13/SS26/R718
      PAGE 5 (crl\np)
120   subsection (1) of this section, the claimant may do any of the

121   following:

122                     (i)    File the asbestos trust claims with or submit

123   them to the asbestos trusts identified in the defendant's motion

124   for an order to stay the proceedings.       The submission to the court

125   and to all of the parties in the asbestos tort action of proof

126   demonstrating that the asbestos trust claims identified in the

127   defendant's motion to stay the proceedings have been filed with or

128   submitted to the appropriate asbestos trusts is dispositive of the

129   defendant's motion for an order to stay the proceedings.

130   Alternatively, the defendant may withdraw the motion brought under

131   subsection (1) of this section.

132                     (ii)    File with the court a response to the

133   defendant's motion for an order to stay the proceedings requesting

134   a determination by the court that the information supporting the

135   asbestos trust claims against the asbestos trusts identified in

136   the defendant's motion for an order to stay the proceedings should
137   be modified prior to the filing of an asbestos trust claim with,

138   or the submission of an asbestos trust claim to, an asbestos trust

139   or that there is insufficient information to file or submit the

140   asbestos trust claim identified in the defendant's motion for an

141   order to stay the proceedings.

142                     (iii)   File with the court a response to the

143   defendant's motion for an order to stay the proceedings requesting
144   a determination by the court that the claimant's or attorney's

      S. B. No. 2373      *SS26/R718*              ~ OFFICIAL ~
      13/SS26/R718
      PAGE 6 (crl\np)
145   fees and expenses to prepare the asbestos claim form and file or

146   submit the asbestos trust claim identified in the defendant's

147   motion for an order to stay the proceedings exceed the claimant's

148   reasonably anticipated recovery from the asbestos trust claim.

149              (b)    A submission by the claimant under subsection

150   (3)(a)(ii) or (iii) of this section does not constitute a waiver

151   of the attorney-client privilege or work product privilege.

152        (4)   (a)    If the defendant has met its burden under

153   subsection (1) of this section and if the claimant files a

154   response pursuant to subsection (3)(a)(ii) of this section, the

155   court shall determine by a preponderance of the evidence if a

156   successful asbestos trust claim could be submitted in good faith

157   to each asbestos trust identified in the defendant's motion for an

158   order to stay the proceedings brought under subsection (1) of this

159   section.   The claimant has the burden of proof, by a preponderance

160   of the evidence, to demonstrate that the information set forth by

161   the defendant pursuant to subsection (1)(b) and (c) of this
162   section should be modified prior to the filing of an asbestos

163   trust claim with, or the submission of an asbestos trust claim to,

164   each asbestos trust identified in the defendant's motion or that

165   the asbestos trust claim should not be filed with or submitted to

166   the asbestos trust because a successful asbestos trust claim

167   cannot be made in good faith.

168              (b)    If the defendant files a motion to stay the
169   proceedings and if the claimant files a response pursuant to

      S. B. No. 2373      *SS26/R718*            ~ OFFICIAL ~
      13/SS26/R718
      PAGE 7 (crl\np)
170   subsection (3)(a)(iii) of this section, the court shall determine

171   if the claimant's or attorney's fees and expenses to prepare the

172   asbestos claim form and file or submit the asbestos trust claim

173   identified in the defendant's motion for an order to stay the

174   proceedings exceed the claimant's reasonably anticipated recovery

175   from the asbestos trust claim.    If the court determines that the

176   claimant's or attorney's fees and expenses exceed the claimant's

177   reasonably anticipated recovery from the asbestos trust claim, the

178   court shall require the claimant to file with the court a verified

179   statement of the claimant's exposure history to the asbestos

180   products covered by that asbestos trust.

181        (5)   If the court determines that there is a good faith basis

182   for filing an asbestos trust claim with, or submitting an asbestos

183   trust claim to, an asbestos trust identified in the defendant's

184   motion for an order to stay the proceedings brought under

185   subsection (1) of this section, the court shall stay the

186   proceedings until the claimant files the asbestos trust claims
187   with or submits them to the asbestos trusts identified in the

188   defendant's motion for an order to stay the proceedings and has

189   otherwise met the obligations set forth in this section and

190   Section 2 of this act.

191        SECTION 4.   (1)    A noncancer asbestos trust claim and a

192   cancer asbestos trust claim are based on distinct injuries caused

193   by a person's exposure to asbestos.    A noncancer asbestos trust
194   claim that is subject to disclosure under Section 2 or 3 of this

      S. B. No. 2373    *SS26/R718*              ~ OFFICIAL ~
      13/SS26/R718
      PAGE 8 (crl\np)
195   act or is identified in this section means the noncancer asbestos

196   claim that is the subject of the asbestos tort action in which the

197   defendant seeks discovery pursuant to Sections 1 through 4 of this

198   act.    If a claimant previously filed a noncancer asbestos trust

199   claim with, or submitted a noncancer asbestos trust claim to, an

200   asbestos trust and subsequently filed an asbestos tort action

201   based on a cancer asbestos claim, a cancer asbestos trust claim

202   that is subject to disclosure under Section 2 or 3 of this act or

203   is identified in this section means both the earlier filed

204   noncancer asbestos trust claim and the cancer asbestos claim that

205   is the subject of the subsequent asbestos tort action.

206          (2)   Asbestos trust claims and the information that is the

207   subject of disclosure under Section 2 or 3 of this act are

208   presumed to be authentic, relevant to, and discoverable in an

209   asbestos tort action.     Notwithstanding any agreement or

210   confidentiality provision, trust claims material are presumed to

211   not be privileged.     The parties in the asbestos tort action may
212   introduce at trial any trust claims material to prove alternative

213   causation for the exposed person's claimed injury, death, or loss

214   to person, to prove a basis to allocate responsibility for the

215   claimant's claimed injury, death, or loss to person, and to prove

216   issues relevant to an adjudication of the asbestos claim, unless

217   the exclusion of the trust claims material is otherwise required

218   by the rules of evidence.



      S. B. No. 2373      *SS26/R718*            ~ OFFICIAL ~
      13/SS26/R718
      PAGE 9 (crl\np)
219         (3)   In addition to the disclosure requirements set forth in

220   Sections 2 and 3 of this act, the parties to the asbestos tort

221   action may seek additional disclosure and discovery of information

222   relevant to the action by any mechanism provided by any applicable

223   section of law, the Rules of Civil Procedure, any local rule, or

224   any case management order.      In addition to the disclosure

225   described in this division, any defendant in the asbestos tort

226   action also may seek discovery of the claimant's asbestos trust

227   claims directly from the asbestos trusts involved.

228         (4)   In an asbestos tort action, upon the filing by a

229   defendant or judgment debtor of an appropriate motion seeking

230   sanctions or other relief, the court may impose any sanction

231   provided by a law of this state, including, but not limited to,

232   vacating a judgment rendered in an asbestos tort action for a

233   claimant's failure to comply with the disclosure requirements of

234   this section and Sections 2 and 3 of this act.

235         (5)   (a)    If subsequent to obtaining a judgment in an
236   asbestos tort action in this state a claimant files any additional

237   asbestos trust claim with, or submits any additional asbestos

238   trust claim to, an asbestos trust that was in existence at the

239   time the claimant obtained that judgment, the trial court, upon

240   the filing by a defendant or judgment debtor of an appropriate

241   motion seeking sanctions or other relief, has jurisdiction to

242   reopen its judgment in the asbestos tort action and do either of
243   the following:

      S. B. No. 2373       *SS26/R718*            ~ OFFICIAL ~
      13/SS26/R718
      PAGE 10 (crl\np)
244                      (i)    Adjust the judgment by the amount of any

245   subsequent asbestos trust payments obtained by the claimant;

246                      (ii)    Order any other relief to the parties that

247   the court considers just and proper.

248               (b)    As used in subsection (5) of this section,

249   "asbestos trust" means and encompasses all trust entities, claims

250   agents, or claims processing facilities that are created pursuant

251   to the jurisdiction of a United States bankruptcy court and

252   Section 524(g) of Chapter 11 of the United States Bankruptcy Code,

253   11 USCS 524(g), or other applicable provision of law and that are

254   formed for the purpose of compensating claimants asserting

255   eligible asbestos claims.

256         (6)   A defendant or judgment debtor shall file any motion

257   under this section within a reasonable time and not more than one

258   year after the judgment was entered or taken.

259         SECTION 5.     Sections 1 through 4 of this act apply to

260   asbestos tort actions filed on or after July 1, 2013, and to
261   pending asbestos tort actions in which trial has not commenced as

262   of that date.

263         As used in this section, "asbestos tort action" has the same

264   meaning as in Section 1 of this act.

265         SECTION 6.     (1)    If any provision that constitutes the whole

266   or part of a section of this act or if any application of any

267   provision that constitutes the whole or part of a section of this
268   act is held invalid, the invalidity does not affect other

      S. B. No. 2373       *SS26/R718*              ~ OFFICIAL ~
      13/SS26/R718
      PAGE 11 (crl\np)
269   provisions of the section or applications of other provisions of

270   the section that can be given effect without the invalid provision

271   or application.      To this end, the provisions that constitute the

272   whole or part of the sections of       this act and their applications

273   are independent and severable.

274         (2)   If any provision that constitutes the whole or part of a

275   section of this act or if any application of any provision that

276   constitutes the whole or part of this act is held to be preempted

277   by federal law, the preemption does not affect other provisions of

278   the section or applications of other provisions of the section

279   that can be given effect without the preempted provision or

280   application.       To this end, the provisions that constitute the

281   whole or part of the sections of this act and their applications

282   are independent and severable.

283         SECTION 7.     The Legislature makes the following statements of

284   findings and intent:

285               (a)    The United States Supreme Court in Amchem Products,
286   Inc. v Windsor (1997), 521 United States 591 has described

287   asbestos litigation in this country as a crisis.

288               (b)    To date, approximately one hundred (100) employers

289   have declared bankruptcy at least partially due to

290   asbestos-related liability, as found in a 2011 report by the

291   United States Government Accountability Office.

292               (c)    These bankruptcies have resulted in the search for
293   more solvent companies.       Researchers for the RAND Corporation

      S. B. No. 2373        *SS26/R718*            ~ OFFICIAL ~
      13/SS26/R718
      PAGE 12 (crl\np)
294   estimated in a 2005 report that the number of asbestos defendants

295   now includes over eight thousand five hundred (8,500) companies,

296   including many small- and medium-sized companies, in industries

297   that cover eighty-five percent (85%) of the United States economy.

298               (d)    Asbestos claimants often seek compensation for

299   alleged asbestos-related conditions from civil defendants that

300   remain solvent in civil court tort actions and from trusts or

301   claims facilities formed in asbestos bankruptcy proceedings.

302               (e)    There is limited coordination and transparency

303   between these two (2) paths to recovery.      The courts have already

304   experienced the problem of instances of claimants failing to

305   provide information and materials regarding asbestos trust claims

306   that they have commenced.

307               (f)    It is in the interest of justice that there be

308   transparency for claims made in the bankruptcy system and for

309   claims made in civil asbestos litigation.

310               (g)    The current lack of transparency in the tort system
311   may result in businesses in this state being unfairly penalized

312   and deprived of their rights.

313               (h)    New asbestos trusts continue to be formed.   The

314   2011 report prepared by the United States Government

315   Accountability Office estimated that current trusts control more

316   than approximately Thirty-six Billion Dollars ($36,000,000.00) in

317   assets.   As a consequence, it is critical to the interests of
318   justice and to the economy of the state that the distribution of

      S. B. No. 2373       *SS26/R718*            ~ OFFICIAL ~
      13/SS26/R718
      PAGE 13 (crl\np)
319   these assets be made in a manner that incorporates full and

320   consistent disclosure when recovery is sought through an asbestos

321   tort action in this state against solvent companies or through a

322   trust claim against a bankrupt entity.       All relevant asbestos

323   exposure information should be made available in a timely manner

324   so that solvent companies do not unnecessarily absorb the

325   liabilities of bankrupt trust entities that are not subject to

326   tort actions.      Transparency will help ensure that all responsible

327   parties are allocated an equitable share of any liability and will

328   encourage injured persons to promptly seek an appropriate recovery

329   from all appropriate sources.

330               (i)    It is the intent of the Legislature that this act

331   apply to claims made against any currently operating asbestos

332   trusts and to any asbestos trusts created on and after July 1,

333   2013.

334         SECTION 8.     This act shall take effect and be in force from

335   and after July 1, 2013.




      S. B. No. 2373       *SS26/R718*               ~ OFFICIAL ~
      13/SS26/R718            ST:   Asbestos trust claims; impose restrictions.
      PAGE 14 (crl\np)

				
DOCUMENT INFO
Shared By:
Categories:
Tags:
Stats:
views:1
posted:4/18/2013
language:Latin
pages:14