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A05978 Summary:

COSPNSRMosley, Steck, Otis, Cook, Montesano
MLTSPNSRGalef, Magee, McDonald, Skartados
Add Art 99 SS9901 - 9912, amd S3101, CPLR
Relates to asbestos related actions.
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A05978 Text:

                STATE OF NEW YORK
                               2015-2016 Regular Sessions
                   IN ASSEMBLY
                                      March 9, 2015
        Introduced  by  M.  of  A.  SCHIMMINGER -- read once and referred to the
          Committee on Judiciary
        AN ACT to amend the civil practice law and rules in relation to asbestos
          related actions
          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                          ASBESTOS RELATED ACTIONS
     5  Section 9901. Definitions.
     6          9902. Disclosure of asbestos trust claims.
     7          9903. Additional trust claims by order to show cause.
     8          9904. Discovery of other materials.
     9          9905. Trust claims and claims material.
    10          9906. Bifurcation.
    11          9907. Presumption of compensation.
    12          9908. Set-offs.
    13          9909. Reversal of set-offs.
    14          9910. Consolidation of claims.
    15          9911. Forum non-conveniens.
    16          9912. Sanctions for non-compliance.
    17    § 9901. Definitions. As used in this article:
    18    (1)  "Asbestos"  means  chrysotile,  amosite,  crocidolite,  tremolite
    19  asbestos,  anthophyllite  asbestos,  actinolite  asbestos,   asbestiform
    20  winchite,  asbestiform  richterite,  asbestiform amphibole minerals, and
    21  any of these minerals that have  been  chemically  treated  or  altered,
    22  including all minerals defined as asbestos in 29 C.F.R. 1910 at the time
    23  an asbestos claim is made.
    24    (2) "Asbestos claim" means any claim for damages, losses, indemnifica-
    25  tion,  contribution,  restitution,  or  other  relief of whatever nature
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.

        A. 5978                             2
     1  (including punitive damages) arising out of, based on,  or  in  any  way
     2  related  to the alleged health effects associated with the inhalation or
     3  ingestion of asbestos, to the extent such claims  are  recognized  under
     4  state inhalation or ingestion of asbestos, to the extent such claims are
     5  recognized under state law including, but not limited to:
     6    a. loss of consortium;
     7    b. loss of support;
     8    c. personal injury or death;
     9    d. mental or emotional injury;
    10    e. risk or fear of disease or other injury;
    11    f. the costs of medical monitoring or surveillance; or
    12    g.  any  claim made by or on behalf of any person exposed to asbestos,
    13  or a representative, spouse, parent, child, or  other  relative  of  the
    14  exposed person.
    15    The  term  "asbestos  claim" does not include a claim for compensatory
    16  benefits pursuant to a workers' compensation law or a veterans' benefits
    17  program.
    18    (3) "Claimant" means any party asserting an asbestos claim,  including
    19  a  plaintiff, counterclaimant, cross-claimant, or third-party plaintiff;
    20  if a claim is brought through or  on  behalf  of  an  estate,  the  term
    21  includes  the  claimant's  decedent; if a claim is brought through or on
    22  behalf of a minor or  incompetent,  the  term  includes  the  claimant's
    23  parent or guardian.
    24    (4) "Exposed person" means a person whose claimed exposure to asbestos
    25  is the basis for an asbestos claim.
    26    (5)  "Asbestos action" means any civil proceeding seeking compensation
    27  directly or derivatively as a result, in whole or in part,  of  exposure
    28  to asbestos.
    29    (6)  "Trust claims and claims material" means all documents and infor-
    30  mation, including but not limited to claim forms and supplementary mate-
    31  rial, relevant or related to pending or potential claims against  asbes-
    32  tos trusts.
    33    (7)  "Trust  governance  documents"  means  documents  which determine
    34  eligibility and payment levels for the asbestos trusts and include trust
    35  distribution procedures, plans of reorganization and related orders.
    36    (8) "Asbestos trusts" means all trusts or claims  facilities,  created
    37  as  a  result  of  bankruptcies  or other settlements, including but not
    38  limited to all trusts created pursuant to § 524(g) of Title  11,  United
    39  States  Code,  intended  to  provide  compensation to claimants alleging
    40  claims as a result of asbestos exposure.
    41    § 9902. Disclosure of asbestos trust claims.  Within  thirty  days  of
    42  commencing  an  asbestos  action  not otherwise barred or deferred under
    43  state law, and in no event less than one hundred eighty  days  prior  to
    44  trial  of  that action, a claimant shall provide to all parties a state-
    45  ment of any and all existing  or  anticipated  claims  against  asbestos
    46  trusts.  Such statement shall be in addition to any existing preliminary
    47  disclosure  requirements  otherwise  imposed  by  existing   preliminary
    48  disclosure  requirements  otherwise  imposed by law or applicable agree-
    49  ment, ruling or  judicial  order.    Furthermore,  such  statement  must
    50  include under penalty of perjury an attestation by the claimant that the
    51  statement is based on a good faith investigation of all potential claims
    52  against  asbestos  trusts.  Counsel  must  certify  that  he  or she has
    53  conducted a good faith investigation of  all  potential  claims  against
    54  asbestos trusts. The statement shall also disclose when the claim was or
    55  will be made and whether there has been any request for deferral, delay,
    56  suspension or tolling of the asbestos trust claims process. In the event

        A. 5978                             3
     1  information  obtained  subsequent  to  the  submission  of the statement
     2  supports the filing of additional claims against  asbestos  trusts,  the
     3  claimant shall update the statement by amendment filed and served within
     4  thirty  days  of  the receipt of the additional information.  A claimant
     5  shall also produce to all parties within the time  period  specified  in
     6  this section in such asbestos action the following additional materials:
     7    1.  As  to  any  claims  already asserted against asbestos trusts, the
     8  claimant must produce final executed proofs of claim together  with  any
     9  supporting  materials  used  to  support such claim against the asbestos
    10  trusts. A claimant must also produce all documents or information  rele-
    11  vant  or  related  to  such claims asserted against the asbestos trusts,
    12  including, but not limited to work  histories,  affidavits,  depositions
    13  and  trial  testimony  of the claimant and others as well as all medical
    14  documentation (including  but  not  limited  to  x-rays,  test  results,
    15  doctors' reports and pathology results).
    16    2.  As  to any claims that a claimant has not yet asserted against the
    17  asbestos trusts but has disclosed pursuant to the requirements  of  this
    18  regarding  potential  claims, all materials described in subdivision one
    19  of this section shall be produced, including, at the time of its filing,
    20  the final executed proof of claim.
    21    3. Claimant's asbestos action shall be stayed in  its  entirety  until
    22  such  time as the claimant certifies that all anticipated claims against
    23  asbestos trusts have been filed and that the claimant has satisfied  the
    24  requirements of this section.
    25    § 9903. Additional trust claims by order to show cause. 1. Any defend-
    26  ant may proceed by order to show cause ("OSC") in the court hearing such
    27  asbestos  action  setting  forth the names of additional asbestos trusts
    28  against which the plaintiff has not made, but  which  the  defendant  in
    29  good  faith  believes  the claimant can make a successful claim. The OSC
    30  shall set forth the factual basis for the claim describing the  evidence
    31  sufficient  to  meet  the asbestos trust distribution procedure require-
    32  ments to file valid claims against such asbestos trust and the amount of
    33  money the trust should pay for the claim. In response, within  ten  days
    34  thereafter, the claimant shall:
    35    a.  File the claim with the asbestos trust as set forth by the defend-
    36  ant's notice which will be dispositive as to the OSC as to  that  trust;
    37  or
    38    b.  Show  cause  before  the  court hearing such asbestos action for a
    39  determination that (A) the proof of claim should be  modified  and  then
    40  submitted,  or  (B)  that  there  is insufficient evidence to permit the
    41  claim to be filed in good faith  under  the  applicable  asbestos  trust
    42  distribution  procedures.  The  court  hearing the asbestos action shall
    43  decide the issue on the  basis  of  declarations,  deposition  excerpts,
    44  interrogatory  responses,  and  such  other  evidence as the court deems
    45  appropriate. The claimant shall have the  burden  of  proving  that  the
    46  claim  should  be  modified  and  then  submitted or should not be filed
    47  because it does not  meet  the  asbestos  trust  distribution  procedure
    48  requirements.  If  the court hearing the asbestos action determines that
    49  there is a good faith basis for filing the  claim,  the  claimant  shall
    50  promptly  file  the claim with the asbestos trust as it was submitted by
    51  the defendant or as modified by the court hearing the  asbestos  action.
    52  The  claimant's  asbestos  action shall be stayed until such time as the
    53  claimant certifies that claimant has complied with the court's order and
    54  has disclosed the materials required to be disclosed by section  ninety-
    55  nine hundred two of this article.

        A. 5978                             4
     1    2.  Not  later than sixty (60) days before the scheduled trial date of
     2  an asbestos action, the court hearing such asbestos action must  certify
     3  in  writing  that the discovery described in section ninety-nine hundred
     4  two of this article is complete.   Furthermore, no  trial  date  may  be
     5  assigned  nor  trial commenced absent certification of the completion of
     6  discovery and a determination that all additional asbestos trust  claims
     7  required  to  be  made  in response to an OSC have been submitted to the
     8  relevant asbestos trust or trusts. A  schedule  of  all  asbestos  trust
     9  claims  made  shall be reflected in a "trust claims order" which must be
    10  entered no later than thirty (30) days prior to trial. The trust  claims
    11  order shall be deemed to be a final order and may be amended only upon a
    12  showing of mistake, inadvertence, surprise, excusable neglect or fraud.
    13    §  9904.  Discovery  of  other materials. In addition to the mandatory
    14  disclosure requirements  of  this  chapter,  additional  disclosure  and
    15  discovery  of  information relevant to the asbestos action may be sought
    16  by any mechanism provided by the applicable rules  of  civil  procedure.
    17  Defendants in an asbestos action may also seek discovery from the asbes-
    18  tos trusts. The claimant shall assist in any discovery from the asbestos
    19  trusts  and  provide whatever consent or expression of permission as may
    20  be required by the asbestos trusts for release of such  information  and
    21  materials.  Claims of privilege and/or confidentiality by claimants will
    22  not preclude discovery by defendants under this chapter.
    23    § 9905. Trust claims and claims  material.  Trust  claims  and  claims
    24  material  (as  well  as  related  discovery materials) are presumptively
    25  relevant to and discoverable in an asbestos action and shall be presumed
    26  by the court to be authentic. Notwithstanding any other provision of law
    27  or agreement, no claims of privilege shall apply  to  trust  claims  and
    28  claims materials, and such trust claims and claims materials may be used
    29  by  the  parties  in  the  asbestos action to prove, without limitation,
    30  alternative causation for the claimant's asbestos exposure  as  well  as
    31  serve as a basis to allocate responsibility for the claimant's claim.
    32    §  9906. Bifurcation. In an asbestos action, unless agreed upon by all
    33  counsel involved, the liability phase of a trial shall always be  deter-
    34  mined prior to the determination of related damages, if any.
    35    § 9907. Presumption of compensation. In the event a matter proceeds to
    36  trial before the claimant has received a decision from an asbestos trust
    37  or  trusts,  as to each such claim, there shall be a rebuttable presump-
    38  tion that the claimant will receive the compensation specified  for  his
    39  or  her claimed disease or injury in the relevant trust governance docu-
    40  ments. The court shall take judicial notice of these documents  and  the
    41  payment  amounts  specified  therein.  For  each such pending claim, the
    42  court shall establish an attributed value that will be used for purposes
    43  of calculation of verdict or settlement set-offs or credits, subject  to
    44  the  adjustment  specified  in section ninety-nine hundred eight of this
    45  article.
    46    § 9908. Set-offs.   The defendants will be  entitled  to  set-offs  or
    47  credits  of  the  full  value  of  the trust claims against any judgment
    48  rendered against them in the asbestos action. In the event that a co-de-
    49  fendant settles or otherwise resolves the  asbestos  claims  against  it
    50  prior  to verdict, if a release or releases are obtained for the benefit
    51  of asbestos trusts the defendants remaining in the asbestos  action  may
    52  pursue those claims by assignment according to whatever rights were held
    53  by  claimants.  To  the  extent that any applicable law provides broader
    54  relief to the defendants than is  set  forth  herein,  nothing  in  this
    55  provision  shall  prohibit  any  defendant  from  pursuing  such broader
    56  relief.

        A. 5978                             5
     1    § 9909. Reversal of set-offs.  In the event that defendants  obtain  a
     2  credit  or  reduction  in a verdict because of the attributed value of a
     3  claim pending but not yet paid against an asbestos trust, and the  claim
     4  giving  rise to that attributed value is rejected in whole or in part by
     5  the relevant asbestos trust or trusts, those defendants shall pay to the
     6  claimant,  on  a  several basis, their respective share of the discount.
     7  The defendants shall make payment within  one  hundred  eighty  days  of
     8  service of evidence of rejection or reduction of the claim.
     9    § 9910. Consolidation of claims.  1. A court may consolidate for trial
    10  any  number  and  type  of  asbestos  claims with the consent of all the
    11  parties. In the absence of such consent, the court may  consolidate  for
    12  trial only asbestos claims relating to the exposed person and members of
    13  his or her household.
    14    2.  No class action or any other form of mass aggregation claim filing
    15  relating to more than one exposed person, except claims relating to  the
    16  exposed  person  and members of his or her household, shall be permitted
    17  for asbestos claims.
    18    3. The provisions of this section do  not  preclude  consolidation  of
    19  cases by court order for pretrial or discovery purposes.
    20    §  9911.  Forum non-conveniens.   As to any asbestos claim filed on or
    21  after the effective date of this article, or  that  is  pending  on  the
    22  effective  date  of this article but that has not commenced trial or any
    23  new trial or retrial following motion, appeal,  or  otherwise  with  the
    24  presentation  of  evidence  to  the trier of fact prior to the effective
    25  date of this article, if the court in which the asbestos claim is  pend-
    26  ing, on written motion of a party, finds that in the interest of justice
    27  and  for  the convenience of the parties a claim or action to which this
    28  article applies would be more properly heard  in  a  forum  outside  New
    29  York,  the  court  shall  decline  to  exercise  jurisdiction  under the
    30  doctrine of forum non-conveniens and shall stay or dismiss the claim  or
    31  action.  In  determining whether to grant a motion to stay or dismiss an
    32  action under the doctrine of a forum  non-conveniens,  the  court  shall
    33  consider whether:
    34    1.  an  alternate  forum  exists  in  which the claim or action may be
    35  tried;
    36    2. the alternate forum provides an adequate remedy;
    37    3. maintenance of the claim or action in  the  courts  of  this  state
    38  would work a substantial injustice to the moving party;
    39    4.  the  alternate forum, as a result of the submission of the parties
    40  or otherwise, can exercise jurisdiction over all the defendants properly
    41  joined to the plaintiff's claim;
    42    5. the balance of the private interests of the parties and the  public
    43  interest  of the state predominate in favor of the claim or action being
    44  brought in an alternate forum; and
    45    6. the stay or dismissal would not result in unreasonable  duplication
    46  or proliferation of litigation.
    47    § 9912. Sanctions for non-compliance.  Failure by a claimant to comply
    48  with  the  discovery  requirements  outlined  in this chapter shall be a
    49  basis for sanctions against the claimant, including, at  the  discretion
    50  of  the  court,  upon  a  finding  that the claimant willfully failed to
    51  comply with the requirements of this chapter, dismissal of the  asbestos
    52  action with prejudice.
    53    §  2.  Subparagraph  (i)  of paragraph 1 of subdivision (d) of section
    54  3101 of the civil practice law and rules, as amended by chapter  184  of
    55  the laws of 1988, is amended to read as follows:

        A. 5978                             6
     1    (i) Upon request, each party shall identify each person whom the party
     2  expects  to  call  as  an  expert witness at trial and shall disclose in
     3  reasonable detail the subject matter on which each expert is expected to
     4  testify, the substance of the facts and opinions on which each expert is
     5  expected  to  testify,  the  qualifications of each expert witness and a
     6  summary of the grounds for each expert's opinion.  A party who  has  the
     7  burden  of  proof  on  a claim, cause of action, damage or defense shall
     8  serve its response to an expert demand pursuant to this  section  on  or
     9  before  the filing of the note of issue. Such party has until the filing
    10  of the note of issue to serve such response regardless of how early  the
    11  demand  is  made.  Any opposing party shall serve its answering response
    12  pursuant to this section no later than sixty days after  the  filing  of
    13  the  note  of issue. Any amended or supplemental expert disclosure shall
    14  be allowed only with the permission of the court. A party who  fails  to
    15  comply with this rule is precluded from offering the testimony and opin-
    16  ions  of  the  expert for whom a timely response has not been given. The
    17  statutory stay for disclosure pursuant to subdivision (b) of rule  thir-
    18  ty-two  hundred  fourteen of this chapter upon the service of a disposi-
    19  tive motion under rule thirty-two hundred eleven of this  chapter  shall
    20  not  apply  to  the  service  of these expert responses. Any motion by a
    21  party to preclude, or limit expert testimony pursuant to  this  section,
    22  must  be  made  as soon as practicable but no later than forty-five days
    23  after the party's receipt of the expert disclosure or the motion will be
    24  waived. However, where a party for good cause shown retains an expert an
    25  insufficient period of time before the commencement  of  trial  to  give
    26  appropriate  notice  thereof, the party shall not thereupon be precluded
    27  from introducing the expert's testimony at the trial solely  on  grounds
    28  of  noncompliance  with this paragraph. In that instance, upon motion of
    29  any party, made before or at trial, or on its own initiative, the  court
    30  may make whatever order may be just. In an action for medical, dental or
    31  podiatric malpractice, a party, in responding to a request, may omit the
    32  names  of  medical, dental or podiatric experts but shall be required to
    33  disclose  all  other  information  concerning  such  experts   otherwise
    34  required by this paragraph.
    35    § 3. This act shall take effect on the one hundred eightieth day after
    36  it shall have become a law.
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