July 18, 2013, Introduced by Rep. Heise and referred to the Committee on Judiciary.
A bill to amend 1961 PA 236, entitled
"Revised judicature act of 1961,"
(MCL 600.101 to 600.9947) by adding chapter 30A.
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
CHAPTER 30A
ASBESTOS LITIGATION DISCLOSURE
Sec. 3005. As used in this chapter:
(a) "Asbestos" means chrysotile, amosite, crocidolite,
tremolite asbestos, anthophyllite asbestos, actinolite asbestos,
and any of these minerals that have been chemically treated or
altered.
(b) "Asbestos claim" means a claim for damages, loss,
indemnification, contribution, or other relief arising out of,
based on, or in any way related to asbestos. Asbestos claim
includes a claim made by or on behalf of an individual who has been
exposed to asbestos, or a representative, spouse, parent, child, or
other relative of the individual, for injury, including mental or
emotional injury, death, risk of disease or other injury, costs of
medical monitoring or surveillance, or any other effects on the
individual's health that are caused by the individual's exposure to
asbestos.
(c) "Asbestos tort action" means a tort action based on an
asbestos claim.
(d) "Asbestos trust" means a trust entity, claims agent, or
claims processing facility that is created under the jurisdiction
of a United States bankruptcy court and 11 USC 524(g), or other
applicable law, formed to compensate claimants who assert eligible
asbestos claims, and in existence on or before the date that the
subject asbestos tort action is initially set for trial.
(e) "Asbestos trust claim" means a claim for compensation by
an exposed person or the exposed person's representative against an
asbestos trust. If a claimant files an asbestos trust claim for
noncancer with, or submits an asbestos trust claim for noncancer
to, an asbestos trust and subsequently files an asbestos tort
action based on an asbestos claim for cancer, asbestos trust claim
means both the earlier-filed asbestos trust claim for noncancer and
the asbestos claim for cancer that is the subject of the asbestos
tort action.
(f) "Cancer" means a malignant condition.
(g) "Claimant" means a person who asserts an asbestos claim or
asbestos trust claim. Claimant includes a plaintiff,
counterclaimant, cross-claimant, or third-party plaintiff.
(h) "Exposed person" means an individual whose exposure to
asbestos or to an asbestos-containing product is the basis for an
asbestos claim.
(i) "Noncancer" means a nonmalignant condition.
(j) "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 a
liquidated or unliquidated asbestos claim that the claimant may
have against the asbestos trust or its predecessors under any
theory of law.
(k) "Tort action" means a civil action for damages for
personal injury or death. Tort action includes a product liability
action. Tort action does not include a civil action for damages for
a breach of contract or another agreement.
(l) "Trust claims material" means a document that is part of an
asbestos trust claim, including, but not limited to, a claim form,
a proof of claim, and informational material, required by an
asbestos trust to be submitted by a claimant to have the claim
evaluated by the asbestos trust and relied upon by the asbestos
trust in making its compensation determination.
Sec. 3007. (1) Within 30 days after the commencement of
discovery in an asbestos tort action that is not otherwise barred
or deferred under applicable law or, if the asbestos tort action is
pending on and discovery has commenced in the action before the
effective date of this chapter, within 30 days after the effective
date of this chapter, a claimant shall provide to all of the
parties in the action a sworn statement by the claimant, under
penalty of perjury, identifying all asbestos trust claims made by
or on behalf of the claimant and all trust claims material
pertaining to each identified asbestos trust claim. For each
asbestos trust claim disclosed, the sworn statement shall disclose
the identity of the asbestos trust against which the claim was
made, the date on which the claim was made, and whether any request
for a deferral, delay, suspension, or tolling of the asbestos trust
claims process has been submitted.
(2) A claimant shall submit a sworn statement under subsection
(1) in addition to any other disclosure requirements imposed by
law, court rule or order, or applicable agreement or stipulation.
(3) If a claimant, after submitting a sworn statement under
subsection (1), makes an additional asbestos trust claim that was
not previously disclosed, the claimant shall provide to all of the
parties in the asbestos tort action an amendment updating the sworn
statement and providing identifying information described in
subsection (1) for the additional asbestos trust claim. The
claimant shall provide an amendment under this subsection within 30
days after filing the additional asbestos trust claim with, or
submitting the additional asbestos trust claim to, an asbestos
trust.
(4) With respect to an additional asbestos trust claim
disclosed under subsection (3), the claimant shall provide to all
of the parties in the asbestos tort action all trust claims
material pertaining to the additional asbestos trust claim. The
claimant shall provide the trust claims material within 30 days
after filing or submitting the additional asbestos trust claim.
(5) If a claimant fails to provide to all of the parties in an
asbestos tort action all trust claims material as required by this
section in a timely manner, the court may decline to set an initial
trial date for the action or decline to extend the date set for
trial of the action.
(6) This section does not prevent the court in an asbestos
tort action from requiring disclosures in addition to the
disclosures required under this section.
Sec. 3009. (1) Not later than 75 days before the commencement
of trial of an asbestos tort action, a defendant 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
motion under this subsection must set forth credible evidence that
demonstrates all of the following:
(a) The identities of all asbestos trusts not previously
disclosed by the claimant under section 3007 against which the
claimant has not made an asbestos trust claim but against which the
defendant in good faith believes the claimant may make a successful
asbestos trust claim.
(b) The information that the defendant believes supports the
additional asbestos trust claims described in subdivision (a).
(c) A description of the information sufficient to meet the
asbestos trust claim requirements of the asbestos trusts described
in subdivision (a).
(2) Notwithstanding anything in this section to the contrary,
if a claimant produces additional asbestos exposure information
that supports making an additional asbestos trust claim, a
defendant may file a motion to stay the proceedings under
subsection (1) within 7 days after receiving the additional
asbestos exposure information.
(3) Within 14 days after a motion under subsection (1) is
filed, the claimant may do 1 or more of the following:
(a) File the asbestos trust claims with or submit the asbestos
trust claims to the asbestos trusts identified in the motion.
Submission to the court and to all of the parties in the asbestos
tort action of proof demonstrating that the asbestos trust claims
have been filed with or submitted to the appropriate asbestos
trusts is dispositive of the motion. Alternatively, the defendant
may withdraw the motion.
(b) File with the court a response to the motion requesting
the court to determine that the information supporting the asbestos
trust claims identified in the motion should be modified before an
asbestos trust claim is filed or submitted or that there is
insufficient information to file or submit the asbestos trust
claims identified in the motion.
(c) File with the court a response to the motion requesting
the court to determine that the claimant's or claimant's attorney's
fees and expenses to prepare the asbestos claim form and file or
submit the asbestos trust claim identified in the motion exceed the
claimant's reasonably anticipated recovery from the asbestos trust
claim.
(4) A filing or submission by the claimant under subsection
(3) does not waive any applicable attorney-client privilege or work
product privilege.
(5) A defendant that files a motion under this section has the
burden of proving by a preponderance of the evidence that a
successful asbestos trust claim could be made in good-faith to an
asbestos trust identified in the motion. Subject to subsections (6)
and (7), if the court determines that there is a good-faith basis
for making an asbestos trust claim with an asbestos trust
identified in the motion, the court shall stay the proceedings
until the claimant files the asbestos trust claims with or submits
the asbestos trust claims to the asbestos trusts identified in the
motion and otherwise complies with this section and section 3007.
(6) If a claimant files a response under subsection (3)(b),
the claimant has the burden of proving by a preponderance of the
evidence that the information set forth in the motion should be
modified before an asbestos trust claim is filed or submitted or
that the asbestos trust claim should not be filed or submitted
because a successful asbestos trust claim cannot be made in good
faith.
(7) If a claimant files a response under subsection (3)(c),
the court shall determine if the fees and expenses to prepare and
file or submit the asbestos trust claim identified in the motion
exceed the claimant's reasonably anticipated recovery from the
asbestos trust claim. If the court determines that the fees and
expenses exceed the reasonably anticipated recovery, the court
shall require the claimant to file with the court a verified
statement of the claimant's exposure history to the asbestos
products covered by the asbestos trust with which or to which the
asbestos trust claim could have been filed or submitted.
Sec. 3011. (1) An asbestos trust claim for noncancer and an
asbestos trust claim for cancer are based on distinct injuries
caused by an individual's exposure to asbestos.
(2) Asbestos trust claims and the information that is the
subject of disclosure under section 3007 or 3009 are presumed to be
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 or death, to prove a basis to allocate
responsibility for the claimant's claimed injury or death, or to
prove other 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.
(3) In addition to the disclosure requirements of sections
3007 and 3009, the parties to an asbestos tort action may seek
additional disclosure and discovery of information relevant to the
action by any mechanism provided by any applicable statute or court
rule or order. In addition to the disclosure described in this
subsection, a defendant in the asbestos tort action also may seek
discovery of the claimant's asbestos trust claims directly from the
asbestos trusts involved.
(4) If a defendant or judgment debtor in an asbestos tort
action files an appropriate motion seeking a sanction or other
relief, the court may impose a sanction or other relief allowed
under statute or court rule, including, but not limited to,
vacating a judgment rendered in the asbestos tort action for a
claimant's failure to comply with the disclosure requirements of
this section and sections 3007 and 3009.
(5) If, after obtaining a judgment in an asbestos tort action
in this state, a claimant files an additional asbestos trust claim
with, or submits an additional asbestos trust claim to, an asbestos
trust that was in existence at the time the claimant obtained the
judgment, and if a defendant or judgment debtor in the action files
an appropriate motion seeking sanctions or other relief, the court
may reopen the judgment and do 1 or both 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 to be just and proper.
(6) A defendant or judgment debtor shall file a motion under
this section within a reasonable time and within 1 year after the
judgment was entered.