Revision: Dec. 8, 2017, 11:58 a.m.
SB 335 - AS INTRODUCED
SENATE BILL 335
SPONSORS: Sen. French, Dist 7; Sen. Reagan, Dist 17; Sen. Avard, Dist 12; Rep. Hill, Merr. 3; Rep. Wells, Merr. 25
This bill requires the plaintiff in any asbestos action to make disclosures of asbestos trust claims.
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Explanation: Matter added to current law appears in bold italics.
Matter removed from current law appears [in brackets and struckthrough.]
Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.
STATE OF NEW HAMPSHIRE
In the Year of Our Lord Two Thousand Eighteen
Be it Enacted by the Senate and House of Representatives in General Court convened:
ASBESTOS TRUST CLAIMS TRANSPARENCY
507-H:1 Definitions. In this chapter:
I. "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.
II. "Asbestos action" means a claim for damages or other relief, including but not limited to declaratory or equitable relief, presented in a civil action arising out of, based on, or related to the health effects of exposure to asbestos and any derivative claim made by or on behalf of a person exposed to asbestos or a representative, spouse, parent, child, or other relative of that person.
III. "Asbestos trust" means a government-approved or court-approved trust, qualified settlement fund, compensation fund, or claims facility created as a result of an administrative or legal action, a court-approved bankruptcy, or a plan of reorganization pursuant to 11 U.S.C. section 524(g) or 11 U.S.C. section 1121(a) or other applicable provision of law, that is intended, in whole or in part, to provide compensation to claimants arising out of, based on, or related to the health effects of exposure to asbestos.
IV. "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, and any person who is representing the plaintiff or has a fiduciary duty to the plaintiff for the action, including, but not limited to, the plaintiff's representatives, agents, counsel, and assigns.
V. "Trust claim materials" means all documents and information filed or submitted by or on behalf of the plaintiff as part of or related to a claim against an asbestos trust, including, but not limited to, a final executed proof of claim, claims forms and supplementary materials, affidavits, depositions and trial testimony, work history, medical and health records, documents demonstrating asbestos exposure or the health effects of exposure to asbestos or the validity of a trust claim or other materials that an asbestos trust requires in order to support the trust claim, documents reflecting the status of a claim against an asbestos trust, and if the trust claim has settled, all documents relating to the settlement of the asbestos trust claim.
VI. "Trust governance documents" means all documents that relate to eligibility and payment levels, including claims payment matrices, trust distribution procedures, or plans for reorganization, for an asbestos trust.
507-H:2 Required Disclosures by Plaintiff.
I. Within 30 days after an asbestos action is filed, the plaintiff and any person who is representing the plaintiff or has a fiduciary duty to the plaintiff with respect to the asbestos action shall do all of the following:
(a) Conduct an investigation and file all asbestos trust claims that can be made by the plaintiff;
(b) Provide the court and parties with a sworn statement signed by plaintiff and plaintiff's counsel in the asbestos action, under penalties of perjury, indicating that an investigation of asbestos trust claims has been conducted by the plaintiff and any person who is representing the plaintiff or has a fiduciary duty to the plaintiff with respect to the asbestos action and further indicating that all asbestos trust claims that can be made by the plaintiff or on the plaintiffs behalf have been completed and filed. A deferral or placeholder claim that is missing documentation for the asbestos trust to review and pay the claim does not meet the requirements of this paragraph. The sworn statement shall indicate whether there has been a request to delay, suspend, withdraw, or otherwise alter the standing of an asbestos trust claim, and provide the status and disposition of each asbestos trust claim, including the amount of any trust claim payment made or to be made to plaintiff;
(c) Provide all parties with all trust claim materials, including trust claim materials that relate to conditions other than those that are the basis for the asbestos action and all trust claim materials from all law firms connected to plaintiff in relation to exposure to asbestos, including anyone at a law firm or any fiduciaries involved in the asbestos action, any referring law firm, and any other firm or fiduciary that has filed an asbestos trust claim for the plaintiff or on the plaintiff's behalf. Documents shall be accompanied by a custodial affidavit from the asbestos trust certifying that the trust claim materials submitted to defendants are true and complete; and
(d) If the plaintiff's asbestos trust claim is based on exposure to asbestos through another individual or individuals the plaintiff shall produce all trust claim materials submitted by or on behalf of the other individual or individuals to any asbestos trust if the plaintiff is in possession, control, or custody of those trust claim materials, or if plaintiff, plaintiff's counsel, or any of plaintiff's fiduciaries are legally entitled to obtain those trust claim materials.
II. The plaintiff and plaintiff's counsel have a continuing duty to supplement the information and materials required under paragraph I. The supplementation shall be made within 30 days after the plaintiff, plaintiff's counsel or any other fiduciary 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. The requirements of this paragraph are in addition to any notice or materials to be served or produced as part of discovery and under any other law, rule, order, or applicable agreement.
III. The court may dismiss the asbestos action if the plaintiff or plaintiff's counsel fail to comply with this section.
507-H:3 Identification of Additional or Alternative Asbestos Trusts by Defendant.
I. A defendant may file a motion requesting a stay of the asbestos action on or before the later of the sixtieth day before the date trial in the action is set to commence or other such time that the defendant has a good faith basis to request a stay. The motion shall identify the asbestos trust claims not previously identified that the defendant believes the plaintiff can file.
II. Within 10 days of receiving the defendant's motion, the plaintiff shall:
(a) File the asbestos trust claims;
(b) File a response with the court stating the reason there is insufficient evidence for the plaintiff to file the asbestos trust claims; or
(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.
III.(a) If the court determines that there is a sufficient basis for the plaintiff to file an asbestos trust claim identified in the motion to stay, the court shall stay the asbestos action until the plaintiff files the asbestos trust claim and produces all related trust claim materials.
(b) If the court determines that the cost of submitting an asbestos trust claim 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, usage, or other connection to asbestos covered by that asbestos trust.
IV. No asbestos action may be set for trial until at least 60 days after the plaintiff complies with the requirements of this section.
507-H:4 Discovery; Use of Materials.
I. Trust claim materials and trust governance documents are presumed to be relevant and authentic, and are admissible in evidence. No claims of privilege apply to trust claim materials or trust governance documents.
II. A defendant in an asbestos action may seek discovery from an asbestos trust. The plaintiff or plaintiff's counsel 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 claim materials or other expression of permission that may be required by the asbestos trust to release information and materials sought by a defendant.
III. Trust claim materials that are sufficient to entitle a claim to consideration for payment under the applicable trust governance documents are sufficient to support a jury finding that the plaintiff was exposed to products for which the trust was established to provide compensation and that such exposure was a substantial contributing factor in causing the plaintiff's injury.
507-H:5 Trust Record; Valuation of Asbestos Trust Claims; Judicial Notice; Setoff.
I. Not less than 30 days before trial in an asbestos action, the court shall enter into the record a document that identifies every asbestos trust claim made by the plaintiff or on the plaintiff's behalf.
II. If a plaintiff proceeds to trial in an asbestos action before an asbestos trust claim is resolved, there is a rebuttable presumption that the plaintiff is entitled to, and will receive, the compensation specified in the trust governance documents applicable to his or her claim at the time of trial. The court shall take judicial notice that the trust governance documents specify compensation amounts and payment percentages and shall establish an attributed value to the plaintiff's asbestos trust claims.
III. In an asbestos action in which damages are awarded and setoffs are permitted under applicable law, a defendant is entitled to a setoff or credit in the amount the plaintiff has been awarded from an asbestos trust identified in paragraph I, and the amount of the valuation established under paragraph II. If multiple defendants are found liable for damages, the court shall distribute the amount of setoff or credit proportionally between the defendants, according to the liability of each defendant.
507-H:6 Failure to Provide Information; Sanctions.
I. If the plaintiff, plaintiff's counsel, or any fiduciary or person on the plaintiff's behalf files an asbestos trust claim after the plaintiff obtains a judgment in an asbestos action, and that asbestos trust was in existence at the time the plaintiff obtained the judgment, the trial court, on motion by a defendant or judgment debtor seeking sanctions or other relief, has jurisdiction to reopen the judgment in the asbestos action and adjust the judgment by the amount of subsequent asbestos trust payments obtained by the plaintiff and order other relief to the parties that the court considers just and proper.
II. A defendant or judgment debtor shall file a motion under this section within a reasonable time and not more than one year after the judgment was entered.