|SAME AS||SAME AS A10964|
|COSPNSR||AKSHAR, BOYLE, BRESLIN, DEFRANCISCO, GALLIVAN, GOLDEN, GRIFFO, HELMING, MARCHIONE, O'MARA, ORTT, RANZENHOFER, SEPULVEDA, SEWARD, VALESKY|
|Add Art 99 §§9901 - 9907, CPLR|
|Relates to truth and fairness in asbestos litigation; provides for requirements in trust claims.|
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STATE OF NEW YORK ________________________________________________________________________ 2511--A 2017-2018 Regular Sessions IN SENATE 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: 1 Section 1. The civil practice law and rules is amended by adding a new 2 article 99 to read as follows: 3 ARTICLE 99 4 TRUTH IN ASBESTOS TRUST CLAIMS 5 Section 9901. Definitions. 6 9902. Requirement to make trust claims. 7 9903. Notice of trust claim; production of trust claim material. 8 9904. Failure to make trust claim or provide notice and trust 9 claim material. 10 9905. Identification of additional asbestos trust claims by 11 defendants. 12 9906. Evidence of trust claims. 13 9907. Motion for sanctions. 14 § 9901. Definitions. As used in this article: (1) "Asbestos trust" 15 means a government-approved or court-approved trust, qualified settle- 16 ment fund, compensation fund or claims facility created as a result of 17 an administrative or legal action, a court-approved bankruptcy, or 18 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. LBD07815-03-8S. 2511--A 2 1 provision of law, that is intended, in whole or in part, to provide 2 compensation to claimants arising out of, based on, or related to the 3 health effects of exposure to asbestos. 4 (2) "Trust claim" means any filing with, submission to or claim 5 against an asbestos trust seeking recovery of compensation or damages 6 for or arising from the health effects of exposure to asbestos. 7 (3) "Trust claim material" means any and all documentation filed or 8 submitted by or on behalf of a claimant as part of or in connection with 9 a trust claim, including: 10 (a) documentation, materials and information that a claimant submits 11 or provides to an asbestos trust for the purpose of demonstrating asbes- 12 tos exposure, the health effects of exposure to asbestos, or the validi- 13 ty of a trust claim; and 14 (b) claim forms and other materials that an asbestos trust requires in 15 order to support a trust claim. 16 § 9902. Requirement to make trust claims. (1) Except as provided by 17 subdivision four of this section, a claimant who has filed an action to 18 recover damages for or arising from an asbestos-related injury, and any 19 person who is representing the claimant and/or has a fiduciary duty to 20 the claimant for the claim, including but not limited to the claimant's 21 representatives, agents, counsel and assigns, shall conduct an investi- 22 gation and file all trust claims that can be made by the claimant not 23 later than forty-five days after the claimant's commencement of the 24 action. 25 (2) A claimant may file a motion seeking relief from the obligation to 26 make a trust claim otherwise required by this section if the fees and 27 expenses, including attorney's fees, for filing the trust claim exceed 28 the claimant's reasonably anticipated recovery from the asbestos trust. 29 (3) If a claimant files a motion under subdivision two of this 30 section, the court shall determine whether the claimant's fees and 31 expenses, including attorney's fees, for making the trust claim exceed 32 the claimant's reasonably anticipated recovery from the asbestos trust. 33 If the court determines that the claimant's fees and expenses exceed the 34 claimant's reasonably anticipated recovery, the claimant is not required 35 to make the trust claim but shall provide the court with a verified 36 statement of the exposed person's exposure history, usage or other 37 connection to asbestos that is covered by each asbestos trust against 38 which a claim is not required. 39 § 9903. Notice of trust claim; production of trust claim material. (1) 40 A claimant in an action to recover damages for or arising from an asbes- 41 tos-related injury shall serve on each party a sworn statement, under 42 penalty of perjury, and trust claim material relating to, each trust 43 claim made by or on behalf of the exposed person. The sworn statement 44 must: 45 (a) identify each trust claim made by or on behalf of the exposed 46 person; 47 (b) state the amount of any trust claim payment made or to be made to 48 compensate for the exposed persons' injury; and 49 (c) state the date each trust claim was made or is to be made and 50 whether a request for individual or enhanced review or for a deferral, 51 delay, suspension, or tolling of the claim has been submitted to the 52 asbestos trust. 53 (2) The claimant shall serve the sworn statement and trust claim mate- 54 rial required by subdivision one of this section not later than thirty 55 days after the commencement of discovery.S. 2511--A 3 1 (3) The sworn statement and trust claim material required to be served 2 under subdivision one of this section are in addition to any notice or 3 materials required to be served or produced as part of discovery and 4 under any other law, rule, order, or applicable agreement. 5 (4) If a claimant discovers that the sworn statement or trust claim 6 material provided by the claimant under this section were incomplete or 7 incorrect at the time the sworn statement or trust claim material was 8 served or that the sworn statement or trust claim material as served is 9 no longer complete and correct, the claimant shall supplement the sworn 10 statement and the production of trust claim material. The claimant shall 11 serve the supplemental sworn statement or trust claim material reason- 12 ably promptly after the claimant discovers the necessity for the supple- 13 mentation, but not later than the thirtieth day after the date the 14 claimant discovers the necessity for the supplementation. 15 § 9904. Failure to make trust claim or provide notice and trust claim 16 material. (1) A court may not commence trial in an action to recover 17 damages for or arising from an asbestos-related injury unless the claim- 18 ant has: 19 (a) made each trust claim as required by this article; and 20 (b) served the sworn statement, and trust claim material relating to, 21 those trust claims in accordance with section ninety-nine hundred three 22 of this article. 23 (2) This section shall not be construed to require that the claimant 24 receive payment of a trust claim from an asbestos trust before a judg- 25 ment is rendered in the action. 26 § 9905. Identification of additional asbestos trust claims by defend- 27 ants. (1) Not less than ninety days before trial, if a defendant identi- 28 fies an asbestos trust claim not produced by the claimant that the 29 defendant reasonably believes the claimant may file, the defendant shall 30 confer with the claimant and thereafter may move the court for an order 31 to require the claimant to file the additional trust claim. The defend- 32 ant shall produce or describe any documentation the defendant possesses 33 or of which the defendant is aware in support of the motion. If a 34 defendant has previously filed a motion under this section, the court 35 shall not grant a subsequent motion if the defendant knew that the 36 claimant met the criteria for payment for the additional trust claim 37 identified in the subsequent motion at the time the earlier motion was 38 filed. 39 (2) Within 10 days of receiving the defendant's motion, the claimant 40 shall, for each asbestos trust claim identified by the defendant, do one 41 of the following: 42 (a) file the asbestos trust claims; 43 (b) file a written response with the court stating the reason there is 44 insufficient evidence for the claimant to file the asbestos trust 45 claims; or 46 (c) file a written response with the court requesting a determination 47 that the fees and expenses, including attorney's fees for filing the 48 asbestos trust claims exceed the claimant's reasonably anticipated 49 recovery from the asbestos trust. 50 (3)(a) Within 10 days of the claimant filing a written response to the 51 defendant's motion, the court shall determine if there is sufficient 52 basis for the claimant to file the asbestos trust claim identified in 53 the motion. If the court determines that there is a sufficient basis for 54 the claimant to file an asbestos trust claim identified by the defend- 55 ant, the court shall order the claimant to file the asbestos trust claimS. 2511--A 4 1 identified and stay the asbestos action until the claimant files the 2 asbestos trust claim and produces all related trust claim materials. 3 (b) if the court determines that the cost of submitting an asbestos 4 trust claim identified by the defendant exceeds the claimant's reason- 5 ably anticipated recovery, the court shall stay the asbestos action 6 until the claimant files with the court and provides all parties with a 7 verified statement of the claimant's history of exposure, usage, or 8 other connection to asbestos covered by that asbestos trust. 9 § 9906. Evidence of trust claims. (1) Trust claim material is presumed 10 to be authentic, relevant and admissible in evidence in an action to 11 which this article applies. 12 (2) Claims of privilege shall not apply to any trust claim material in 13 an action to which this article applies. 14 (3) A party may use the trust claim material to prove: 15 (a) an alternate source for the cause of the exposed person's injury, 16 death or loss; 17 (b) a basis to allocate responsibility for the exposed person's inju- 18 ry, death, or loss; or 19 (c) any other issue relevant to adjudication of a claim asserted in 20 the action. 21 § 9907. Motion for sanctions. (1) On the motion of a defendant or 22 judgement debtor seeking sanctions or other relief in an action to 23 recover damages for or arising from the health effects of exposure to 24 asbestos, and after reasonable notice to the parties, the court may 25 impose any sanction provided by court rule or law, including, but not 26 limited to, vacating a judgement rendered in the action, for a claim- 27 ant's failure to comply with the disclosure requirements of section 28 ninety-nine hundred three of this article. 29 (2) If the claimant, claimant's counsel, or any other person on the 30 claimant's behalf files an asbestos trust claim or claims after the 31 claimant obtains a judgement in the action, and the asbestos trust was 32 in existence at the time the claimant obtained the judgement, the court, 33 on motion by a defendant or judgement debtor seeking sanctions or other 34 relief, has jurisdiction to reopen the judgement in the action and 35 adjust the judgement by the amount of any subsequent asbestos trust 36 payments obtained by or on behalf of the claimant and order any other 37 relief to the parties that the court deems just and proper. 38 (3) A defendant or judgement debtor shall file any motion under this 39 section within a reasonable time and not more than one year after the 40 judgement was entered in the action. 41 § 2. This act shall take effect on the thirtieth day after it shall 42 have become a law, and shall apply to all actions commenced on or after 43 such date.