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S02511 Summary:

BILL NOS02511A
 
SAME ASSAME AS A10964
 
SPONSORBONACIC
 
COSPNSRAKSHAR, BOYLE, BRESLIN, DEFRANCISCO, GALLIVAN, GOLDEN, GRIFFO, HELMING, MARCHIONE, O'MARA, ORTT, RANZENHOFER, SEPULVEDA, SEWARD, VALESKY
 
MLTSPNSR
 
Add Art 99 9901 - 9907, CPLR
 
Relates to truth and fairness in asbestos litigation; provides for requirements in trust claims.
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S02511 Text:



 
                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.
                                                                   LBD07815-03-8

        S. 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 claim

        S. 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.
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