Rep. Norm Thurston — Voting Record

Bill

Number

H.B. 403 Second Substitute (2016GS)

Sponsor

Rep. Wilson, B.

Final action

Governor Signed 3/29/2016

Outcome

Became law — signed by Gov. Gary R. Herbert

Summary

What it does

• This bill:
• requires asbestos plaintiffs to investigate and file all asbestos bankruptcy trust claims and provide parties with all trust claims materials after commencement of an asbestos-related lawsuit.

Every vote on this bill

Bill text

ASBESTOS LITIGATION TRANSPARENCY ACT
GENERAL SESSION
STATE OF UTAH
Chief Sponsor: Brad R. Wilson
Senate Sponsor: 
J. Stuart Adams
LONG TITLE
General Description:
This bill enacts transparency requirements with respect to asbestos bankruptcy trust
claims in civil asbestos actions. 
Highlighted Provisions:
This bill:
▸ requires asbestos plaintiffs to investigate and file all asbestos bankruptcy trust
claims and provide parties with all trust claims materials after commencement of an
asbestos-related lawsuit. 
Money Appropriated in this Bill:
None
Other Special Clauses:
None
Utah Code Sections Affected:
ENACTS:
78B-6-2001
, Utah Code Annotated 1953
78B-6-2002
, Utah Code Annotated 1953
78B-6-2003
, Utah Code Annotated 1953
78B-6-2004
, Utah Code Annotated 1953
78B-6-2005
, Utah Code Annotated 1953
78B-6-2006
, Utah Code Annotated 1953
78B-6-2007
, Utah Code Annotated 1953
78B-6-2008
, Utah Code Annotated 1953
78B-6-2009
, Utah Code Annotated 1953
78B-6-2010
, Utah Code Annotated 1953
Be it enacted by the Legislature of the state of Utah:
Section 1. Section 
78B-6-2001
 is enacted to read:
Part 20. Asbestos Bankruptcy Trust Claims Transparency Act 
 78B-6-2001.
Title.
This part is referred to as the "Asbestos Bankruptcy Trust Claims Transparency Act."
Section 2. Section 
78B-6-2002
 is enacted to read:
 78B-6-2002.
Legislative findings -- Purpose. 
(1) The Legislature finds that:
(a) approximately 100 employers have declared bankruptcy at least partially due to
asbestos-related liability;
(b) these bankruptcies have resulted in a search for more solvent companies by
claimants, resulting in over 10,000 companies being named as asbestos defendants, including
many small- and medium-sized companies, in industries that cover 85% of the United States
economy;
(c) scores of trusts have been established in asbestos-related bankruptcy proceedings to
form a multi-billion dollar asbestos bankruptcy trust compensation system outside of the tort
system, and new asbestos trusts continue to be formed;
(d) asbestos claimants often seek compensation from solvent defendants in civil
actions and trusts or claims facilities formed in asbestos-related bankruptcy proceedings;
(e) there is limited coordination and transparency between these two paths to recovery,
which has resulted in the suppression of evidence in asbestos actions and potential fraud; and
(f) justice is promoted by transparency with respect to asbestos bankruptcy trust claims
in civil asbestos actions.
(2) This part is enacted to:
(a) provide transparency with respect to asbestos bankruptcy trust claims in civil
asbestos actions; and
(b) reduce the opportunity for fraud or suppression of evidence in asbestos actions.
Section 3. Section 
78B-6-2003
 is enacted to read:
 78B-6-2003.
Definitions.
As used in this part:
(1) "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,
including all minerals defined as asbestos in 29 C.F.R. Sec. 1910 at the time the asbestos action
is filed.
(2) (a) "Asbestos action" means a claim for damages or other civil or equitable relief
presented in a civil action resulting from, based on, or related to:
(i) the health effects of exposure to asbestos, including:
(A) loss of consortium;
(B) wrongful death;
(C) mental or emotional injury;
(D) risk or fear of disease or other injury; and
(E) costs of medical monitoring or surveillance; and
(ii) any other 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.
(b) "Asbestos action" does not include a claim for workers' compensation or veterans'
benefits.
(3) "Asbestos trust" means a:
(a) government-approved or court-approved trust that is intended to provide
compensation to claimants arising out of, based on, or related to the health effects of exposure
to asbestos or asbestos-containing products;
(b) qualified settlement fund that is intended to provide compensation to claimants
arising out of, based on, or related to the health effects of exposure to asbestos or
asbestos-containing products;
(c) compensation fund or claims facility created as a result of an administrative or legal
action that is intended to provide compensation to claimants arising out of, based on, or related
to the health effects of exposure to asbestos or asbestos-containing products;
(d) court-approved bankruptcy that is intended to provide compensation to claimants
arising out of, based on, or related to the health effects of exposure to asbestos or
asbestos-containing products; or
(e) plan of reorganization or trust pursuant to 11 U.S.C. Sec. 524(g) or 11 U.S.C. Sec.
1121(a) or other applicable provision of law that is intended to provide compensation to
claimants arising out of, based on, or related to the health effects of exposure to asbestos or
asbestos-containing products.
(4) "Plaintiff" means:
(a) the person bringing the asbestos action, including a personal representative if the
asbestos action is brought by an estate; or
(b) a conservator or next friend if the asbestos action is brought on behalf of a minor or
legally incapacitated individual.
(5) "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:
(a) claims forms and supplementary materials;
(b) affidavits;
(c) depositions and trial testimony;
(d) work history;
(e) medical and health records;
(f) documents reflecting the status of a claim against an asbestos trust; and
(g) all documents relating to the settlement of the trust claim if the trust claim has
settled.
(6) "Trust governance documents" means all documents that relate to eligibility and
payment levels, including:
(a) claims payment matrices; and
(b) trust distribution procedures or plans for reorganization for an asbestos trust.
(7) "Veterans' benefits" means a program for benefits in connection with military
service administered by the Veterans Administration under United States Code, Title 38,
Veterans Benefits.
(8) (a) "Workers' compensation" means a program administered by the United States or
a state to provide benefits, funded by a responsible employer or the employer's insurance
carrier, for occupational diseases or injuries or for disability or death caused by occupational
diseases or injuries.
(b) "Workers' compensation" includes the Longshore and Harbor Workers'
Compensation Act, 33 U.S.C. Sec. 901 et seq., and Federal Employees' Compensation Act, 5
U.S.C. Sec. 8101 et seq.
(c) "Workers' compensation" does not include the Federal Employers' Liability Act, 45
U.S.C. Sec. 51 et seq.
Section 4. Section 
78B-6-2004
 is enacted to read:
 78B-6-2004.
Required disclosures by plaintiff. 
(1) For each asbestos action filed in this state, the plaintiff shall provide all parties with
a sworn statement identifying all asbestos trust claims that have been filed by the plaintiff or by
anyone on the plaintiff's behalf, including claims with respect to asbestos-related conditions
other than those that are the basis for the asbestos action or that potentially could be filed by the
plaintiff against an asbestos trust.
(a) The sworn statement shall be provided no later than 120 days prior to the date set
for trial for the asbestos action.
(b) For each asbestos trust claim or potential asbestos trust claim identified in the
sworn statement, the statement shall include the name, address and contact information for the
asbestos trust, the amount claimed or to be claimed by the plaintiff, the date the plaintiff filed
the claim, the disposition of the claim and whether there has been a request to defer, delay,
suspend, or toll the claim.
(c) The sworn statement shall include an attestation from the plaintiff, under penalties
of perjury, that the sworn statement is complete and based on a good faith investigation of all
potential claims against asbestos trusts.
(2) The plaintiff shall make available to all parties all trust claims materials for each
asbestos trust claim that has been filed by the plaintiff or by anyone on the plaintiff's behalf
against an asbestos trust, including any asbestos-related disease.
(3) The plaintiff shall supplement the information and materials provided pursuant to
this section within 90 days after the plaintiff files an additional asbestos trust claim,
supplements an existing asbestos trust claim or receives additional information or materials
related to any claim or potential claim against an asbestos trust.
(4) Failure by the plaintiff to make available to all parties all trust claims materials as
required by this part shall constitute grounds for the court to extend the trial date in an asbestos
action.
Section 5. Section 
78B-6-2005
 is enacted to read:
 78B-6-2005.
Discovery -- Use of materials. 
(1) Trust claims materials and trust governance documents are presumed to be relevant
and authentic and are admissible in evidence. Claims of privilege may not apply to any trust
claims materials or trust governance documents.
(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
or other expression of permission that may be required by the asbestos trust to release
information and materials sought by a defendant.
Section 6. Section 
78B-6-2006
 is enacted to read:
 78B-6-2006.
Scheduling trial -- Stay of action. 
(1) A court shall stay an asbestos action if the court finds that the plaintiff has failed to
make the disclosures required under Section 
78B-6-2004
 within 120 days prior to the trial date.
(2) If, in the disclosures required by Section 
78B-6-2004
, a plaintiff identifies a
potential asbestos trust claim, the judge may stay the asbestos action until the plaintiff files the
asbestos trust claim and provides all parties with all trust claims materials for the claim. The
plaintiff shall also state whether there has been a request to defer, delay, suspend, or toll the
claim against the asbestos trust.
Section 7. Section 
78B-6-2007
 is enacted to read:
 78B-6-2007.
Identification of additional or alternative asbestos trusts by
defendant. 
(1) Not less than 90 days before trial, if a defendant identifies an asbestos trust claim
not previously identified by the plaintiff that the defendant reasonably believes the plaintiff can
file, the defendant shall meet and confer with plaintiff to discuss why defendant believes
plaintiff has an additional asbestos trust claim. The defendant may move the court for an order
to require the plaintiff to file the asbestos trust claim after the meeting. The defendant shall
produce or describe the documentation it possesses or is aware of in support of the motion.
(2) Within 10 days of receiving the defendant's motion under Subsection (1), the
plaintiff shall, for each asbestos trust claim identified by the defendant, do one of the
following:
(a) file the asbestos trust claim;
(b) file a written response with the court setting forth the reasons why there is
insufficient evidence for the plaintiff to file the asbestos trust claim; or
(c) file a written response with the court requesting a determination that the plaintiff's
expenses or attorney's fees and expenses to prepare and file the asbestos trust claim identified
in the defendant's motion exceed the plaintiff's reasonably anticipated recovery from the trust.
(3) (a) If the court determines that there is a sufficient basis for the plaintiff to file the
asbestos trust claim identified by the defendant, the court shall order the plaintiff to file the
asbestos trust claim and shall stay the asbestos action until the plaintiff files the asbestos trust
claim and provides all parties with all trust claims materials no later than 30 days before trial.
(b) If the court determines that the plaintiff's expenses or attorney's fees and expenses
to prepare and file the asbestos trust claim identified in the defendant's motion exceed the
plaintiff's reasonably anticipated recovery from the asbestos trust, 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 the asbestos trust.
Section 8. Section 
78B-6-2008
 is enacted to read:
 78B-6-2008.
Valuation of asbestos trust claims. 
If a plaintiff proceeds to trial in an asbestos action before an asbestos trust claim is
resolved, the filing of the asbestos trust claim may be considered as relevant and admissible
evidence.
Section 9. Section 
78B-6-2009
 is enacted to read:
 78B-6-2009.
Failure to provide information -- Sanctions. 
A plaintiff who fails to provide all of the information required under this part is subject
to sanctions as provided in the Utah Rules of Civil Procedure and any other relief for the
defendants that the court considers just and proper.
Section 10. Section 
78B-6-2010
 is enacted to read:
 78B-6-2010.
Application.
This part applies to asbestos actions filed on or after May 10, 2016.