(C) Except as otherwise provided in division (E) of section | 16 |
2307.954 of the Revised Code, "asbestos trust" means and | 17 |
encompasses all trust entities, claims agents, or claims | 18 |
processing facilities that are created pursuant to the | 19 |
jurisdiction of a United States bankruptcy court and section | 20 |
524(g) of Chapter 11 of the United States Bankruptcy Code, 11 | 21 |
U.S.C. 524(g), or other applicable provision of law, that are | 22 |
formed for the purpose of compensating claimants asserting | 23 |
eligible asbestos claims, and that are in existence on the date | 24 |
initially set for trial in the asbestos tort action. | 25 |
(J) "Trust claims material" means documents constituting an | 43 |
asbestos trust claim, including, but not limited to, claim forms, | 44 |
proofs of claim, and informational material required by an | 45 |
asbestos trust to be submitted by a claimant in order to have the | 46 |
claim evaluated by the asbestos trust and relied upon by the | 47 |
asbestos trust in making its compensation determination. | 48 |
Sec. 2307.952. (A)(1)(a) Within thirty days after filing the | 49 |
complaint or other initial pleading in an asbestos tort action | 50 |
that is not otherwise barred or deferred under applicable law or | 51 |
within thirty days of the effective date of this section with | 52 |
respect to asbestos tort actions that are pending on that | 53 |
effective date, a claimant shall provide to all of the parties in | 54 |
the action a sworn statement by the claimant, under penalty of | 55 |
perjury, identifying all existing asbestos trust claims made by or | 56 |
on behalf of the claimant and all trust claims material pertaining | 57 |
to each identified asbestos trust claim. The sworn statement shall | 58 |
disclose the date on which each asbestos trust claim against the | 59 |
relevant asbestos trust was made and whether any request for a | 60 |
deferral, delay, suspension, or tolling of the asbestos trust | 61 |
claims process has been submitted. | 62 |
(2) If the claimant, subsequent to the submission of the | 68 |
sworn statement under division (A)(1)(a) of this section, files | 69 |
with or submits to any asbestos trust additional asbestos trust | 70 |
claims not previously disclosed, the claimant shall provide to all | 71 |
of the parties in the asbestos tort action an amendment updating | 72 |
the sworn statement and identifying the additional asbestos trust | 73 |
claims. The claimant shall provide any amendment under division | 74 |
(A)(2) of this section within thirty days of filing an additional | 75 |
asbestos trust claim with, or submitting an additional asbestos | 76 |
trust claim to, any asbestos trust. | 77 |
(3) With respect to any asbestos trust claim that a claimant | 78 |
discloses under division (A)(2) of this section in an amendment to | 79 |
the sworn statement, the claimant shall provide to all of the | 80 |
parties in the asbestos tort action all trust claims material | 81 |
pertaining to each additional asbestos trust claim identified in | 82 |
that amendment. The claimant shall provide the trust claims | 83 |
materials under division (A)(3) of this section within thirty days | 84 |
of filing or submitting each additional asbestos trust claim. | 85 |
(1) File the asbestos trust claims with or submit them to the | 114 |
asbestos trusts identified in the defendant's motion for an order | 115 |
to stay the proceedings. The submission to the court and to all of | 116 |
the parties in the asbestos tort action of proof demonstrating | 117 |
that the asbestos trust claims identified in the defendant's | 118 |
motion to stay the proceedings have been filed with or submitted | 119 |
to the appropriate asbestos trusts is dispositive of the | 120 |
defendant's motion for an order to stay the proceedings. | 121 |
Alternatively, the defendant may withdraw the motion brought under | 122 |
division (A) of this section. | 123 |
(2) File with the court a response to the defendant's motion | 124 |
for an order to stay the proceedings requesting a determination by | 125 |
the court that the information supporting the asbestos trust | 126 |
claims against the asbestos trusts identified in the defendant's | 127 |
motion for an order to stay the proceedings should be modified | 128 |
prior to the filing of an asbestos trust claim with, or the | 129 |
submission of an asbestos trust claim to, an asbestos trust or | 130 |
that there is insufficient information to file or submit the | 131 |
asbestos trust claim identified in the defendant's motion for an | 132 |
order to stay the proceedings. | 133 |
(C) If the defendant has met its burden under division (A) of | 134 |
this section and if the claimant files a response pursuant to | 135 |
division (B)(2) of this section, the court shall determine if a | 136 |
successful asbestos trust claim could be submitted in good faith | 137 |
to each asbestos trust identified in the defendant's motion for an | 138 |
order to stay the proceedings brought under division (A) of this | 139 |
section. The claimant has the burden of proof, by a preponderance | 140 |
of the evidence, to demonstrate that the information set forth by | 141 |
the defendant pursuant to divisions (A)(2) and (3) of this section | 142 |
should be modified prior to the filing of an asbestos trust claim | 143 |
with, or the submission of an asbestos trust claim to, each | 144 |
asbestos trust identified in the defendant's motion or that the | 145 |
asbestos trust claim should not be filed with or submitted to the | 146 |
asbestos trust because a successful asbestos trust claim cannot be | 147 |
made in good faith. | 148 |
(D) If the court determines that there is a good faith basis | 149 |
for filing an asbestos trust claim with, or submitting an asbestos | 150 |
trust claim to, an asbestos trust identified in the defendant's | 151 |
motion for an order to stay the proceedings brought under division | 152 |
(A) of this section, the court shall stay the proceedings until | 153 |
the claimant files the asbestos trust claims with or submits them | 154 |
to the asbestos trusts identified in the defendant's motion for an | 155 |
order to stay the proceedings and has otherwise met the | 156 |
obligations set forth in this section and section 2307.952 of the | 157 |
Revised Code. | 158 |
Sec. 2307.954. (A) A noncancer asbestos trust claim and a | 159 |
cancer asbestos trust claim are based on distinct injuries caused | 160 |
by a person's exposure to asbestos. A noncancer asbestos trust | 161 |
claim that is subject to disclosure under section 2307.952 or | 162 |
2307.953 of the Revised Code or is identified in this section | 163 |
means the noncancer asbestos claim that is the subject of the | 164 |
asbestos tort action in which the defendant seeks discovery | 165 |
pursuant to sections 2307.951 to 2307.954 of the Revised Code. If | 166 |
a claimant previously filed a noncancer asbestos trust claim with, | 167 |
or submitted a noncancer asbestos trust claim to, an asbestos | 168 |
trust and subsequently filed an asbestos tort action based on a | 169 |
cancer asbestos claim, a cancer asbestos trust claim that is | 170 |
subject to disclosure under section 2307.952 or 2307.953 of the | 171 |
Revised Code or is identified in this section means both the | 172 |
earlier filed noncancer asbestos trust claim and the cancer | 173 |
asbestos claim that is the subject of the subsequent asbestos tort | 174 |
action. | 175 |
(B) Asbestos trust claims and the information that is the | 176 |
subject of disclosure under section 2307.952 or 2307.953 of the | 177 |
Revised Code are presumed to be authentic, relevant to, and | 178 |
discoverable in an asbestos tort action. Notwithstanding any | 179 |
agreement or confidentiality provision, trust claims material are | 180 |
presumed to not be privileged. The parties in the asbestos tort | 181 |
action may introduce at trial any trust claims material to prove | 182 |
alternative causation for the exposed person's claimed injury, | 183 |
death, or loss to person, to prove a basis to allocate | 184 |
responsibility for the claimant's claimed injury, death, or loss | 185 |
to person, and to prove issues relevant to an adjudication of the | 186 |
asbestos claim, unless the exclusion of the trust claims material | 187 |
is otherwise required by the rules of evidence. An asbestos trust | 188 |
claim rejected by an asbestos trust may be excluded as evidence if | 189 |
the exclusion is required by the rules of evidence. | 190 |
(C) In addition to the disclosure requirements set forth in | 191 |
sections 2307.952 and 2307.953 of the Revised Code, the parties to | 192 |
the asbestos tort action may seek additional disclosure and | 193 |
discovery of information relevant to the action by any mechanism | 194 |
provided by any applicable section of the Revised Code, the Rules | 195 |
of Civil Procedure, any local rule, or any case management order. | 196 |
In addition to the disclosure described in this division, any | 197 |
defendant in the asbestos tort action also may seek discovery of | 198 |
the claimant's asbestos trust claims directly from the asbestos | 199 |
trusts involved. | 200 |
(D) In an asbestos tort action, upon the filing by a | 201 |
defendant or judgment debtor of an appropriate motion seeking | 202 |
sanctions or other relief, the court may impose any sanction | 203 |
provided by a law of this state, including, but not limited to, | 204 |
vacating a judgment rendered in an asbestos tort action for a | 205 |
claimant's failure to comply with the disclosure requirements of | 206 |
this section and sections 2307.952 and 2307.953 of the Revised | 207 |
Code. | 208 |
(E)(1) If subsequent to obtaining a judgment in an asbestos | 209 |
tort action in this state a claimant files any additional asbestos | 210 |
trust claim with, or submits any additional asbestos trust claim | 211 |
to, an asbestos trust that was in existence at the time the | 212 |
claimant obtained that judgment, the trial court, upon the filing | 213 |
by a defendant or judgment debtor of an appropriate motion seeking | 214 |
sanctions or other relief, has jurisdiction to reopen its judgment | 215 |
in the asbestos tort action and do either of the following: | 216 |
(2) As used in division (E) of this section, "asbestos trust" | 221 |
means and encompasses all trust entities, claims agents, or claims | 222 |
processing facilities that are created pursuant to the | 223 |
jurisdiction of a United States bankruptcy court and section | 224 |
524(g) of Chapter 11 of the United States Bankruptcy Code, 11 | 225 |
U.S.C. 524(g), or other applicable provision of law and that are | 226 |
formed for the purpose of compensating claimants asserting | 227 |
eligible asbestos claims. | 228 |
Section 3. (A) If any provision that constitutes the whole or | 237 |
part of a section of the Revised Code enacted by this act or if | 238 |
any application of any provision that constitutes the whole or | 239 |
part of a section of the Revised Code enacted by this act is held | 240 |
invalid, the invalidity does not affect other provisions of the | 241 |
section or applications of other provisions of the section that | 242 |
can be given effect without the invalid provision or application. | 243 |
To this end, the provisions that constitute the whole or part of | 244 |
the sections of the Revised Code enacted by this act and their | 245 |
applications are independent and severable. | 246 |
(B) If any provision that constitutes the whole or part of a | 247 |
section of the Revised Code enacted by this act or if any | 248 |
application of any provision that constitutes the whole or part of | 249 |
a section of the Revised Code enacted by this act is held to be | 250 |
preempted by federal law, the preemption does not affect other | 251 |
provisions of the section or applications of other provisions of | 252 |
the section that can be given effect without the preempted | 253 |
provision or application. To this end, the provisions that | 254 |
constitute the whole or part of the sections of the Revised Code | 255 |
enacted by this act and their applications are independent and | 256 |
severable. | 257 |
(E) There is limited coordination and transparency between | 277 |
these two paths to recovery. Ohio courts have already experienced | 278 |
the problem of instances of claimants failing to provide | 279 |
information and materials regarding asbestos trust claims that | 280 |
they have commenced. This lack of transparency creates a strong | 281 |
potential for abuse of the judicial process, as plaintiffs may | 282 |
allege facts intended to maximize recoveries from trusts created | 283 |
through the bankruptcy system while also alleging different or | 284 |
conflicting facts to maximize recoveries from tort system | 285 |
defendants. | 286 |
(I) New asbestos trusts are being formed and are anticipated | 297 |
to be funded with approximately thirty billion dollars in assets. | 298 |
As a consequence, it is critical to the interests of justice and | 299 |
to the economy of the state of Ohio that the distribution of these | 300 |
assets be made in a manner that incorporates full and consistent | 301 |
disclosure when recovery is sought through an asbestos tort action | 302 |
in Ohio against solvent companies or through a trust claim against | 303 |
a bankrupt entity. All relevant asbestos exposure information | 304 |
should be made available in a timely manner so that solvent | 305 |
companies do not unnecessarily absorb the liabilities of bankrupt | 306 |
trust entities that are not subject to tort actions. Transparency | 307 |
will help ensure that all responsible parties are allocated an | 308 |
equitable share of any liability and will encourage injured | 309 |
persons to promptly seek an appropriate recovery from all | 310 |
appropriate sources. | 311 |
(J) The General Assembly has established apportionment of | 312 |
liability as a public policy. Pursuant to Ohio apportionment of | 313 |
liability law, bankrupt entities are currently assigned a | 314 |
proportion of liability by the trier of fact. As a consequence, | 315 |
this act furthers this existing public policy of the State of Ohio | 316 |
by ensuring that asbestos tort actions are resolved on the basis | 317 |
of all available evidence and on the full merits. With the advent | 318 |
of an increasing number of significant asbestos trusts, it is | 319 |
apparent that asbestos trusts and the claimants asserting claims | 320 |
against them will be primary sources of information and evidence | 321 |
that will ensure that Ohio's public policy of apportionment of | 322 |
liability and of civil trials based upon all available evidence | 323 |
will be protected and promoted. | 324 |