HB-5456, As Passed House, February 8, 2018




















January 30, 2018, Introduced by Reps. Wentworth, Webber, Cole, Lower, Lucido, Lilly, Rendon, LaFave, Vaupel, Iden, Theis, Barrett, Glenn and Chatfield and referred to the Committee on Michigan Competitiveness.


     A bill to amend 1961 PA 236, entitled


"Revised judicature act of 1961,"


(MCL 600.101 to 600.9947) by adding chapter 30A.








     Sec. 3010. This chapter may be referred to and cited as the


"asbestos bankruptcy trust claims transparency act".


     Sec. 3011. As used in this chapter:


     (a) "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.


     (b) "Asbestos action" means a claim for damages or other civil


or equitable relief presented in a civil action that arises out of,


is based on, or is related to the health effects of exposure to


asbestos, and any other derivative claim made by or on behalf of an


individual exposed to asbestos or a representative, spouse, parent,


child, or other relative of the individual.


     (c) "Asbestos trust" means a government-approved or court-


approved trust, qualified settlement fund, compensation fund, or


claims facility that is created as a result of an administrative or


legal action, a court-approved bankruptcy, or under 11 USC 524(g),


11 USC 1121(a), or another applicable provision of law and that is


intended to provide compensation to claimants arising out of, based


on, or related to the health effects of exposure to asbestos.


     (d) "Person" means an individual, partnership, corporation,


association, governmental entity, or other legal entity.


     (e) "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.


     (f) "Trust claims materials" means a final executed proof of


claim and all other documents and information related to a claim


against an asbestos trust, including claims forms and supplementary


materials, affidavits, depositions and trial testimony, work


history, and medical and health records, all documents that reflect


the status of a claim against an asbestos trust, and, if the trust


claim has settled, all documents that relate to the settlement of

the trust claim.


     (g) "Trust governance documents" means all documents that


relate to eligibility and payment levels, including claims payment


matrices, trust distribution procedures, and plans for


reorganization, for an asbestos trust.


     Sec. 3012. (1) Within 30 days after an asbestos action is


filed, or within 30 days after the effective date of this chapter,


whichever is later, the plaintiff shall do all of the following:


     (a) Provide the court and parties with a sworn statement


signed by the plaintiff and plaintiff's counsel, under penalty of


perjury, indicating that an investigation of all asbestos trust


claims has been conducted and that all asbestos trust claims that


can be made by the plaintiff or any person on the plaintiff's


behalf have been completed and filed. A deferral or placeholder


claim that is missing necessary documentation for the asbestos


trust to review and pay the claim does not meet the requirements of


this subdivision. The sworn statement must indicate whether there


has been a request to defer, delay, suspend, or toll, withdraw, or


otherwise alter the standing of any asbestos trust claim, and


provide the status and disposition of each asbestos trust claim.


     (b) Provide all parties with all trust claims materials,


including trust claims materials that relate to conditions other


than those that are the basis for the asbestos action and including


all trust claims materials from all law firms connected to the


plaintiff in relation to exposure to asbestos, including anyone at


a law firm involved in the asbestos action, any referring law firm,


and any other law firm that has filed an asbestos trust claim for

the plaintiff or on the plaintiff's behalf. Documents provided


under this subdivision must be accompanied by a custodial affidavit


from the asbestos trust certifying that the trust claims materials


submitted are true and complete.


     (c) If the plaintiff's asbestos trust claim is based on


exposure to asbestos through another individual, produce all trust


claims materials submitted by the other individual to any asbestos


trust if the materials are available to the plaintiff or


plaintiff's counsel.


     (2) A plaintiff has a continuing duty to supplement the


information and materials required to be provided under subsection


(1), and shall do so within 30 days after the plaintiff or a person


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.


     (3) The court may dismiss the asbestos action if the plaintiff


fails to comply with this section.


     Sec. 3013. (1) A defendant in an asbestos action may file a


motion requesting a stay of the proceeding on or before the later


of the sixtieth day before trial of the action is set to commence


or any other time that the defendant has a good-faith basis to


request a stay. The motion must identify the asbestos trust claims


not previously identified that the defendant believes the plaintiff


can file.


     (2) Within 10 days after receiving a motion under subsection


(1), the plaintiff shall do 1 of the following:


     (a) File the asbestos trust claims.

     (b) File a response with the court stating why there is


insufficient evidence for the plaintiff to file the asbestos trust




     (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.


     (3) If the court determines that there is a sufficient basis


for the plaintiff to file an asbestos trust claim that is the


subject of a motion under subsection (1), the court shall stay the


asbestos action until the plaintiff files the asbestos trust claim


and produces all related trust claims materials.


     (4) If the court determines that the cost of submitting an


asbestos trust claim that is the subject of a motion under


subsection (1) 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 to, usage


of, or other connection to asbestos covered by the asbestos trust.


     (5) The court shall not schedule the asbestos action for trial


sooner than 60 days after the plaintiff complies with this section.


     Sec. 3014. (1) Trust claims materials and trust governance


documents are presumed to be relevant and authentic, and are


admissible in evidence in an asbestos action. A claim of privilege


does not apply to trust claims materials or trust governance




     (2) A defendant in an asbestos action may seek discovery from


an asbestos trust. The plaintiff 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 materials or other


expression of permission that may be required by the asbestos trust


to release information and materials sought by a defendant.


     (3) Trust 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, under applicable law,


the exposure is a substantial contributing factor in causing the


plaintiff's injury.


     Sec. 3015. (1) If a plaintiff or person on the plaintiff's


behalf files an additional asbestos trust claim after obtaining a


judgment in an asbestos action, and if that asbestos trust was in


existence at the time the plaintiff obtained the judgment, the


trial court, on a motion by a defendant or judgment debtor seeking


sanctions or other relief, has jurisdiction to reopen and adjust


the judgment by the amount of any subsequent asbestos trust


payments obtained by the plaintiff and order any other relief that


the court considers proper.


     (2) A defendant or judgment debtor shall file any motion under


this section within a reasonable time and not more than 1 year


after the judgment was entered.


     Sec. 3016. (1) This chapter applies to asbestos actions filed


on or after the effective date of this chapter. This chapter also


applies to any pending asbestos actions in which trial has not

commenced on or before the effective date of this chapter.


     (2) If the application of this chapter would


unconstitutionally affect a vested right, this chapter must only be


applied prospectively.