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Am. H. B. No. 380 As Reported by the House Judiciary and Ethics CommitteeAs Reported by the House Judiciary and Ethics Committee
129th General Assembly | Regular Session | 2011-2012 |
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Cosponsors:
Representatives Slaby, Hackett, McGregor, Adams, J.
A BILL
To enact sections 2307.951, 2307.952, 2307.953, and
2307.954 of the Revised Code to require claimants
in asbestos tort actions to make certain
disclosures pertaining to asbestos trust claims
that have been submitted to asbestos trust
entities for the purpose of compensating the
claimant for asbestos exposure.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:
Section 1. That sections 2307.951, 2307.952, 2307.953, and
2307.954 of the Revised Code be enacted to read as follows:
Sec. 2307.951. As used in this section and sections 2307.952
to 2307.954 of the Revised Code:
(A) "Asbestos," "asbestos claim," and "tort action" have the
same meanings as in section 2307.91 of the Revised Code.
(B) "Asbestos tort action" means a tort action based on an
asbestos claim.
(C) Except as otherwise provided in division (E) of section
2307.954 of the Revised Code, "asbestos trust" means and
encompasses all trust entities, claims agents, or claims
processing facilities that are created pursuant to the
jurisdiction of a United States bankruptcy court and section
524(g) of Chapter 11 of the United States Bankruptcy Code, 11
U.S.C. 524(g), or other applicable provision of law, that are
formed for the purpose of compensating claimants asserting
eligible asbestos claims, and that are in existence on the date
initially set for trial in the asbestos tort action.
(D) "Asbestos trust claim" means any claim for compensation
by an exposed person or the exposed person's representative
against any asbestos trust.
(E) "Cancer" means a malignant condition.
(F) "Claimant" means any person asserting an asbestos claim
or asbestos trust claim. "Claimant" includes a plaintiff,
counterclaimant, cross-claimant, or third-party plaintiff.
(G) "Exposed person" means any person whose exposure to
asbestos or to asbestos-containing products is the basis for an
asbestos claim.
(H) "Noncancer" means a nonmalignant condition.
(I) "Proof of claim" means any form of documentation that a
potential claimant against an asbestos trust submits or provides
to the asbestos trust that attests to or asserts the existence of
any liquidated or unliquidated asbestos claim that the claimant
may have against the asbestos trust or its predecessors under any
theory of law.
(J) "Trust claims material" means documents constituting an
asbestos trust claim, including, but not limited to, claim forms,
proofs of claim, and informational material required by an
asbestos trust to be submitted by a claimant in order to have the
claim evaluated by the asbestos trust and relied upon by the
asbestos trust in making its compensation determination.
Sec. 2307.952. (A)(1)(a) Within thirty days after filing the
complaint or other initial pleading in an asbestos tort action
that is not otherwise barred or deferred under applicable law or
within thirty days of the effective date of this section with
respect to asbestos tort actions that are pending on that
effective date, a claimant shall provide to all of the parties in
the action a sworn statement by the claimant, under penalty of
perjury, identifying all existing asbestos trust claims made by or
on behalf of the claimant and all trust claims material pertaining
to each identified asbestos trust claim. The sworn statement shall
disclose the date on which each asbestos trust claim against the
relevant asbestos trust was made and whether any request for a
deferral, delay, suspension, or tolling of the asbestos trust
claims process has been submitted.
(b) The submission of the sworn statement under division
(A)(1)(a) of this section shall be in addition to any disclosure
requirements otherwise imposed by law, civil rule, court order or
ruling, applicable agreement or stipulation, local rule, or case
management order.
(2) If the claimant, subsequent to the submission of the
sworn statement under division (A)(1)(a) of this section, files
with or submits to any asbestos trust additional asbestos trust
claims not previously disclosed, the claimant shall provide to all
of the parties in the asbestos tort action an amendment updating
the sworn statement and identifying the additional asbestos trust
claims. The claimant shall provide any amendment under division
(A)(2) of this section within thirty days of filing an additional
asbestos trust claim with, or submitting an additional asbestos
trust claim to, any asbestos trust.
(3) With respect to any asbestos trust claim that a claimant
discloses under division (A)(2) of this section in an amendment to
the sworn statement, the claimant shall provide to all of the
parties in the asbestos tort action all trust claims material
pertaining to each additional asbestos trust claim identified in
that amendment. The claimant shall provide the trust claims
materials under division (A)(3) of this section within thirty days
of filing or submitting each additional asbestos trust claim.
(B) Failure to provide to all of the parties in the asbestos
tort action all trust claims material as required by this section
in a timely manner shall constitute grounds for the court to
decline to assign an initial trial date or extend the date set for
trial in the action.
(C) Nothing in this section prevents a court of competent
jurisdiction from requiring any disclosures in addition to the
disclosures required under this section.
Sec. 2307.953. (A) Any defendant in an asbestos tort action
may file a motion with the court, with notice to the claimant and
to all of the parties in the action, for an order to stay the
proceedings. A defendant's motion to stay the proceedings shall
set forth credible evidence that demonstrates all of the
following:
(1) The identities of all asbestos trusts not previously
disclosed by the claimant pursuant to section 2307.952 of the
Revised Code against which the claimant has not made any asbestos
trust claims but against which the defendant in good faith
believes the claimant may make a successful asbestos trust claim;
(2) The information that the defendant believes supports the
additional asbestos trust claims described in division (A)(1) of
this section;
(3) A description of the information sufficient to meet the
asbestos trust claim requirements of the asbestos trusts described
in division (A)(1) of this section.
(B) Within fourteen days after the filing of the defendant's
motion for an order to stay the proceedings under division (A) of
this section, the claimant may do either of the following:
(1) File the asbestos trust claims with or submit them to the
asbestos trusts identified in the defendant's motion for an order
to stay the proceedings. The submission to the court and to all of
the parties in the asbestos tort action of proof demonstrating
that the asbestos trust claims identified in the defendant's
motion to stay the proceedings have been filed with or submitted
to the appropriate asbestos trusts is dispositive of the
defendant's motion for an order to stay the proceedings.
Alternatively, the defendant may withdraw the motion brought under
division (A) of this section.
(2) File with the court a response to the defendant's motion
for an order to stay the proceedings requesting a determination by
the court that the information supporting the asbestos trust
claims against the asbestos trusts identified in the defendant's
motion for an order to stay the proceedings should be modified
prior to the filing of an asbestos trust claim with, or the
submission of an asbestos trust claim to, an asbestos trust or
that there is insufficient information to file or submit the
asbestos trust claim identified in the defendant's motion for an
order to stay the proceedings.
(C) If the defendant has not met its burden under division
(A) of this section and if the claimant files a response pursuant
to division (B)(2) of this section, the court shall determine if a
successful asbestos trust claim could be submitted in good faith
to each asbestos trust identified in the defendant's motion for an
order to stay the proceedings brought under division (A) of this
section. The claimant has the burden of proof, by a preponderance
of the evidence, to demonstrate that the information set forth by
the defendant pursuant to divisions (A)(2) and (3) of this section
should be modified prior to the filing of an asbestos trust claim
with, or the submission of an asbestos trust claim to, each
asbestos trust identified in the defendant's motion or that the
asbestos trust claim should not be filed with or submitted to the
asbestos trust because a successful asbestos trust claim cannot be
made in good faith.
(D) If the court determines that there is a good faith basis
for filing an asbestos trust claim with, or submitting an asbestos
trust claim to, an asbestos trust identified in the defendant's
motion for an order to stay the proceedings brought under division
(A) of this section, the court shall stay the proceedings until
the claimant files the asbestos trust claims with or submits them
to the asbestos trusts identified in the defendant's motion for an
order to stay the proceedings and has otherwise met the
obligations set forth in this section and section 2307.952 of the
Revised Code.
Sec. 2307.954. (A) A noncancer asbestos trust claim and a
cancer asbestos trust claim are based on distinct injuries caused
by a person's exposure to asbestos. A noncancer asbestos trust
claim that is subject to disclosure under section 2307.952 or
2307.953 of the Revised Code or is identified in this section
means the noncancer asbestos claim that is the subject of the
asbestos tort action in which the defendant seeks discovery
pursuant to sections 2307.951 to 2307.954 of the Revised Code. If
a claimant previously filed a noncancer asbestos trust claim with,
or submitted a noncancer asbestos trust claim to, an asbestos
trust and subsequently filed an asbestos tort action based on a
cancer asbestos claim, a cancer asbestos trust claim that is
subject to disclosure under section 2307.952 or 2307.953 of the
Revised Code or is identified in this section means both the
earlier filed noncancer asbestos trust claim and the cancer
asbestos claim that is the subject of the subsequent asbestos tort
action.
(B) Asbestos trust claims and the information that is the
subject of disclosure under section 2307.952 or 2307.953 of the
Revised Code are presumed to be authentic, relevant to, and
discoverable in an asbestos tort action. Notwithstanding any
agreement or confidentiality provision, trust claims material are
presumed to not be privileged. The parties in the asbestos tort
action may introduce at trial any trust claims material to prove
alternative causation for the exposed person's claimed injury,
death, or loss to person, to prove a basis to allocate
responsibility for the claimant's claimed injury, death, or loss
to person, and to prove issues relevant to an adjudication of the
asbestos claim, unless the exclusion of the trust claims material
is otherwise required by the rules of evidence. An asbestos trust
claim rejected by an asbestos trust may be excluded as evidence if
the exclusion is required by the rules of evidence.
(C) In addition to the disclosure requirements set forth in
sections 2307.952 and 2307.953 of the Revised Code, the parties to
the asbestos tort action may seek additional disclosure and
discovery of information relevant to the action by any mechanism
provided by any applicable section of the Revised Code, the Rules
of Civil Procedure, any local rule, or any case management order.
In addition to the disclosure described in this division, any
defendant in the asbestos tort action also may seek discovery of
the claimant's asbestos trust claims directly from the asbestos
trusts involved.
(D) In an asbestos tort action, upon the filing by a
defendant or judgment debtor of an appropriate motion seeking
sanctions or other relief, the court may impose any sanction
provided by a law of this state, including, but not limited to,
vacating a judgment rendered in an asbestos tort action for a
claimant's failure to comply with the disclosure requirements of
this section and sections 2307.952 and 2307.953 of the Revised
Code.
(E)(1) If subsequent to obtaining a judgment in an asbestos
tort action in this state a claimant files any additional asbestos
trust claim with, or submits any additional asbestos trust claim
to, an asbestos trust that was in existence at the time the
claimant obtained that judgment, the trial court, upon the filing
by a defendant or judgment debtor of an appropriate motion seeking
sanctions or other relief, has jurisdiction to reopen its judgment
in the asbestos tort action and do either of the following:
(a) Adjust the judgment by the amount of any subsequent
asbestos trust payments obtained by the claimant;
(b) Order any other relief to the parties that the court
considers just and proper.
(2) As used in division (E) of this section, "asbestos trust"
means and encompasses all trust entities, claims agents, or claims
processing facilities that are created pursuant to the
jurisdiction of a United States bankruptcy court and section
524(g) of Chapter 11 of the United States Bankruptcy Code, 11
U.S.C. 524(g), or other applicable provision of law and that are
formed for the purpose of compensating claimants asserting
eligible asbestos claims.
Section 2. Sections 2307.951 to 2307.954 of the Revised Code,
as enacted by this act, apply to asbestos tort actions filed on or
after the effective date of this act and to pending asbestos tort
actions in which trial has not commenced as of the effective date
of this act.
As used in this section, "asbestos tort action" has the same
meaning as in section 2307.951 of the Revised Code, as enacted by
this act.
Section 3. (A) If any provision that constitutes the whole or
part of a section of the Revised Code enacted by this act or if
any application of any provision that constitutes the whole or
part of a section of the Revised Code enacted by this act is held
invalid, the invalidity does not affect other provisions of the
section or applications of other provisions of the section that
can be given effect without the invalid provision or application.
To this end, the provisions that constitute the whole or part of
the sections of the Revised Code enacted by this act and their
applications are independent and severable.
(B) If any provision that constitutes the whole or part of a
section of the Revised Code enacted by this act or if any
application of any provision that constitutes the whole or part of
a section of the Revised Code enacted by this act is held to be
preempted by federal law, the preemption does not affect other
provisions of the section or applications of other provisions of
the section that can be given effect without the preempted
provision or application. To this end, the provisions that
constitute the whole or part of the sections of the Revised Code
enacted by this act and their applications are independent and
severable.
Section 4. The General Assembly makes the following
statements of findings and intent:
(A) The United States Supreme Court has described asbestos
litigation in this country as a crisis.
(B) Asbestos litigation has forced an estimated eighty-five
employers into bankruptcy. The rate of asbestos-driven
bankruptcies has accelerated in recent years. Between 2000 and
2007, there were more asbestos-related bankruptcy filings than in
either of the prior two decades.
(C) Personal injury lawyers have responded to these
bankruptcies by expanding their search for solvent defendants. The
number of asbestos defendants now includes over eight thousand
five hundred companies, including many small- and medium-sized
companies, in industries that cover eighty-five per cent of the
United States economy.
(D) Asbestos claimants often seek compensation for alleged
asbestos-related conditions from civil defendants that remain
solvent in civil court tort actions and from trusts or claims
facilities formed in asbestos bankruptcy proceedings.
(E) There is limited coordination and transparency between
these two paths to recovery. Ohio courts have already experienced
the problem of instances of claimants failing to provide
information and materials regarding asbestos trust claims that
they have commenced. This lack of transparency creates a strong
potential for abuse of the judicial process, as plaintiffs may
allege facts intended to maximize recoveries from trusts created
through the bankruptcy system while also alleging different or
conflicting facts to maximize recoveries from tort system
defendants.
(F) It is in the interest of justice that there be
transparency for claims made in the bankruptcy system and for
claims made in civil asbestos litigation. Transparency will
address the potential for abuse, fraud, and duplicate and
inconsistent payments.
(G) Presentation of abusive, fraudulent, or inconsistent
claims undermines the integrity of Ohio's judicial system.
(H) The current lack of transparency in the tort system may
result in businesses in this state being unfairly penalized and
deprived of their rights.
(I) New asbestos trusts are being formed and are anticipated
to be funded with approximately thirty billion dollars in assets.
As a consequence, it is critical to the interests of justice and
to the economy of the state of Ohio that the distribution of these
assets be made in a manner that incorporates full and consistent
disclosure when recovery is sought through an asbestos tort action
in Ohio against solvent companies or through a trust claim against
a bankrupt entity. All relevant asbestos exposure information
should be made available in a timely manner so that solvent
companies do not unnecessarily absorb the liabilities of bankrupt
trust entities that are not subject to tort actions. Transparency
will help ensure that all responsible parties are allocated an
equitable share of any liability and will encourage injured
persons to promptly seek an appropriate recovery from all
appropriate sources.
(J) The General Assembly has established apportionment of
liability as a public policy. Pursuant to Ohio apportionment of
liability law, bankrupt entities are currently assigned a
proportion of liability by the trier of fact. As a consequence,
this act furthers this existing public policy of the State of Ohio
by ensuring that asbestos tort actions are resolved on the basis
of all available evidence and on the full merits. With the advent
of an increasing number of significant asbestos trusts, it is
apparent that asbestos trusts and the claimants asserting claims
against them will be primary sources of information and evidence
that will ensure that Ohio's public policy of apportionment of
liability and of civil trials based upon all available evidence
will be protected and promoted.
(K) It is the intent of the General Assembly that this act
apply to claims made against any currently operating asbestos
trusts and to any asbestos trusts created on and after the
effective date of this act.
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