HB-5456, As Passed Senate, March 15, 2018

 

 

 

 

 

 

 

 

 

 

 

SENATE SUBSTITUTE FOR

 

HOUSE BILL NO. 5456

 

 

 

 

 

 

 

 

 

 

 

 

     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) Not later than 180 days before the initial date

 

set for the trial of an asbestos action, 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 indicating that an

 

investigation has been conducted and that, based on information

 

reasonably available to the plaintiff and plaintiff's counsel, all

 

asbestos trust claims that can be made by the plaintiff or any

 

person on the plaintiff's behalf have been completed and filed. If

 

the plaintiff or plaintiff's counsel later becomes aware that

 

additional trust claims can be filed, the sworn statement must be

 

supplemented under subsection (2). 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 an affidavit

 

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) Not less than 60 days before trial, the

 

defendant shall confer with the plaintiff if the defendant believes

 

the plaintiff has not filed all asbestos trust claims as required

 

under section 3012. After conferring with the plaintiff under this

 

subsection, the defendant may move the court for an order to

 

require the plaintiff to file additional trust claims. The motion

 

must identify the asbestos trust claims that the defendant believes

the plaintiff can file. The defendant shall produce or describe the

 

information it possesses or is aware of in support of the motion.

 

If the defendant has previously filed a motion under this section,

 

the court shall not grant a subsequent motion if the defendant knew

 

that the plaintiff 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 after receiving a motion under subsection

 

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

 

     (a) File the asbestos trust claims.

 

     (b) File a written 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) Within 10 days after the plaintiff files a written

 

response to the defendant's motion, the court shall determine if

 

there is sufficient basis for the plaintiff to file the asbestos

 

trust claims identified in the motion. If the court determines that

 

there is a sufficient basis for the plaintiff to file the 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 may be used to prove, without limitation,

 

an alternative source for the cause of the plaintiff's alleged harm

 

and may serve as a basis to allocate responsibility for the

 

plaintiff's alleged harm.

 

     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. However,

 

this chapter does not apply to a pending asbestos action in which

 

trial has been scheduled to occur before November 1, 2018.

 

     (2) If the application of this chapter would

 

unconstitutionally affect a vested right, this chapter must only be

 

applied prospectively.