HOUSE BILL No. 5456

 

 

January 30, 2018, Introduced by Reps. Wentworth, Webber, Cole, Lower, Lucido, Lilly, Rendon, LaFave, Vaupel, Iden, Theis, Barrett, Glenn and Chatfield and referred to the Committee on Michigan Competitiveness.

 

     A bill to amend 1961 PA 236, entitled

 

"Revised judicature act of 1961,"

 

(MCL 600.101 to 600.9947) by adding chapter 30A.

 

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

 

CHAPTER 30A

 

ASBESTOS BANKRUPTCY TRUST CLAIMS TRANSPARENCY ACT

 

     Sec. 3010. This chapter may be referred to and cited as the

 

"asbestos bankruptcy trust claims transparency act".

 

     Sec. 3011. As used in this chapter:

 

     (a) "Asbestos" means chrysotile, amosite, crocidolite,

 

tremolite asbestos, anthophyllite asbestos, actinolite asbestos,

 

asbestiform winchite, asbestiform richterite, asbestiform amphibole

 

minerals, and any of these minerals that have been chemically

 

treated or altered.

 

     (b) "Asbestos action" means a claim for damages or other civil

 

or equitable relief presented in a civil action that arises out of,

 

is based on, or is related to the health effects of exposure to

 

asbestos, and any other derivative claim made by or on behalf of an

 

individual exposed to asbestos or a representative, spouse, parent,

 

child, or other relative of the individual.

 

     (c) "Asbestos trust" means a government-approved or court-

 

approved trust, qualified settlement fund, compensation fund, or

 

claims facility that is created as a result of an administrative or

 

legal action, a court-approved bankruptcy, or under 11 USC 524(g),

 

11 USC 1121(a), or another applicable provision of law and that is

 

intended to provide compensation to claimants arising out of, based

 

on, or related to the health effects of exposure to asbestos.

 

     (d) "Person" means an individual, partnership, corporation,

 

association, governmental entity, or other legal entity.

 

     (e) "Plaintiff" means the person bringing the asbestos action,

 

including a personal representative if the asbestos action is

 

brought by an estate, or a conservator or next friend if the

 

asbestos action is brought on behalf of a minor or legally

 

incapacitated individual.

 

     (f) "Trust claims materials" means a final executed proof of

 

claim and all other documents and information related to a claim

 

against an asbestos trust, including claims forms and supplementary

 

materials, affidavits, depositions and trial testimony, work

 

history, and medical and health records, all documents that reflect

 

the status of a claim against an asbestos trust, and, if the trust

 

claim has settled, all documents that relate to the settlement of

the trust claim.

 

     (g) "Trust governance documents" means all documents that

 

relate to eligibility and payment levels, including claims payment

 

matrices, trust distribution procedures, and plans for

 

reorganization, for an asbestos trust.

 

     Sec. 3012. (1) Within 30 days after an asbestos action is

 

filed, or within 30 days after the effective date of this chapter,

 

whichever is later, the plaintiff shall do all of the following:

 

     (a) Provide the court and parties with a sworn statement

 

signed by the plaintiff and plaintiff's counsel, under penalty of

 

perjury, indicating that an investigation of all asbestos trust

 

claims has been conducted and that all asbestos trust claims that

 

can be made by the plaintiff or any person on the plaintiff's

 

behalf have been completed and filed. A deferral or placeholder

 

claim that is missing necessary documentation for the asbestos

 

trust to review and pay the claim does not meet the requirements of

 

this subdivision. The sworn statement must indicate whether there

 

has been a request to defer, delay, suspend, or toll, withdraw, or

 

otherwise alter the standing of any asbestos trust claim, and

 

provide the status and disposition of each asbestos trust claim.

 

     (b) Provide all parties with all trust claims materials,

 

including trust claims materials that relate to conditions other

 

than those that are the basis for the asbestos action and including

 

all trust claims materials from all law firms connected to the

 

plaintiff in relation to exposure to asbestos, including anyone at

 

a law firm involved in the asbestos action, any referring law firm,

 

and any other law firm that has filed an asbestos trust claim for

the plaintiff or on the plaintiff's behalf. Documents provided

 

under this subdivision must be accompanied by a custodial affidavit

 

from the asbestos trust certifying that the trust claims materials

 

submitted are true and complete.

 

     (c) If the plaintiff's asbestos trust claim is based on

 

exposure to asbestos through another individual, produce all trust

 

claims materials submitted by the other individual to any asbestos

 

trust if the materials are available to the plaintiff or

 

plaintiff's counsel.

 

     (2) A plaintiff has a continuing duty to supplement the

 

information and materials required to be provided under subsection

 

(1), and shall do so within 30 days after the plaintiff or a person

 

on the plaintiff's behalf supplements an existing asbestos trust

 

claim, receives additional information or materials related to an

 

asbestos trust claim, or files an additional asbestos trust claim.

 

     (3) The court may dismiss the asbestos action if the plaintiff

 

fails to comply with this section.

 

     Sec. 3013. (1) A defendant in an asbestos action may file a

 

motion requesting a stay of the proceeding on or before the later

 

of the sixtieth day before trial of the action is set to commence

 

or any other time that the defendant has a good-faith basis to

 

request a stay. The motion must identify the asbestos trust claims

 

not previously identified that the defendant believes the plaintiff

 

can file.

 

     (2) Within 10 days after receiving a motion under subsection

 

(1), the plaintiff shall do 1 of the following:

 

     (a) File the asbestos trust claims.

     (b) File a response with the court stating why there is

 

insufficient evidence for the plaintiff to file the asbestos trust

 

claims.

 

     (c) File a written response with the court requesting a

 

determination that the cost to file the asbestos trust claims

 

exceeds the plaintiff's reasonably anticipated recovery.

 

     (3) If the court determines that there is a sufficient basis

 

for the plaintiff to file an asbestos trust claim that is the

 

subject of a motion under subsection (1), the court shall stay the

 

asbestos action until the plaintiff files the asbestos trust claim

 

and produces all related trust claims materials.

 

     (4) If the court determines that the cost of submitting an

 

asbestos trust claim that is the subject of a motion under

 

subsection (1) exceeds the plaintiff's reasonably anticipated

 

recovery, the court shall stay the asbestos action until the

 

plaintiff files with the court and provides all parties with a

 

verified statement of the plaintiff's history of exposure to, usage

 

of, or other connection to asbestos covered by the asbestos trust.

 

     (5) The court shall not schedule the asbestos action for trial

 

sooner than 60 days after the plaintiff complies with this section.

 

     Sec. 3014. (1) Trust claims materials and trust governance

 

documents are presumed to be relevant and authentic, and are

 

admissible in evidence in an asbestos action. A claim of privilege

 

does not apply to trust claims materials or trust governance

 

documents.

 

     (2) A defendant in an asbestos action may seek discovery from

 

an asbestos trust. The plaintiff may not claim privilege or

confidentiality to bar discovery and shall provide consent at the

 

time of asbestos trust identification, including, but not limited

 

to, authorization for release of trust materials or other

 

expression of permission that may be required by the asbestos trust

 

to release information and materials sought by a defendant.

 

     (3) Trust materials that are sufficient to entitle a claim to

 

consideration for payment under the applicable trust governance

 

documents are sufficient to support a jury finding that the

 

plaintiff was exposed to products for which the trust was

 

established to provide compensation and that, under applicable law,

 

the exposure is a substantial contributing factor in causing the

 

plaintiff's injury.

 

     Sec. 3015. (1) If a plaintiff or person on the plaintiff's

 

behalf files an additional asbestos trust claim after obtaining a

 

judgment in an asbestos action, and if that asbestos trust was in

 

existence at the time the plaintiff obtained the judgment, the

 

trial court, on a motion by a defendant or judgment debtor seeking

 

sanctions or other relief, has jurisdiction to reopen and adjust

 

the judgment by the amount of any subsequent asbestos trust

 

payments obtained by the plaintiff and order any other relief that

 

the court considers proper.

 

     (2) A defendant or judgment debtor shall file any motion under

 

this section within a reasonable time and not more than 1 year

 

after the judgment was entered.

 

     Sec. 3016. (1) This chapter applies to asbestos actions filed

 

on or after the effective date of this chapter. This chapter also

 

applies to any pending asbestos actions in which trial has not

commenced on or before the effective date of this chapter.

 

     (2) If the application of this chapter would

 

unconstitutionally affect a vested right, this chapter must only be

 

applied prospectively.