HB-5456, As Passed Senate, March 15, 2018



























     A bill to amend 1961 PA 236, entitled


"Revised judicature act of 1961,"


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




                             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) Not later than 180 days before the initial date


set for the trial of an asbestos action, 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 indicating that an


investigation has been conducted and that, based on information


reasonably available to the plaintiff and plaintiff's counsel, all


asbestos trust claims that can be made by the plaintiff or any


person on the plaintiff's behalf have been completed and filed. If


the plaintiff or plaintiff's counsel later becomes aware that


additional trust claims can be filed, the sworn statement must be


supplemented under subsection (2). 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 an affidavit


certifying that the trust claims materials submitted are true and




     (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) Not less than 60 days before trial, the


defendant shall confer with the plaintiff if the defendant believes


the plaintiff has not filed all asbestos trust claims as required


under section 3012. After conferring with the plaintiff under this


subsection, the defendant may move the court for an order to


require the plaintiff to file additional trust claims. The motion


must identify the asbestos trust claims that the defendant believes

the plaintiff can file. The defendant shall produce or describe the


information it possesses or is aware of in support of the motion.


If the defendant has previously filed a motion under this section,


the court shall not grant a subsequent motion if the defendant knew


that the plaintiff met the criteria for payment for the additional


trust claim identified in the subsequent motion at the time the


earlier motion was filed.


     (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 written response with the court stating why there


is insufficient evidence for the plaintiff to file the asbestos


trust claims.


     (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) Within 10 days after the plaintiff files a written


response to the defendant's motion, the court shall determine if


there is sufficient basis for the plaintiff to file the asbestos


trust claims identified in the motion. If the court determines that


there is a sufficient basis for the plaintiff to file the 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




     (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 may be used to prove, without limitation,


an alternative source for the cause of the plaintiff's alleged harm


and may serve as a basis to allocate responsibility for the


plaintiff's alleged harm.


     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. However,


this chapter does not apply to a pending asbestos action in which


trial has been scheduled to occur before November 1, 2018.


     (2) If the application of this chapter would


unconstitutionally affect a vested right, this chapter must only be


applied prospectively.