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.
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
CHAPTER 30A
ASBESTOS BANKRUPTCY TRUST CLAIMS TRANSPARENCY ACT
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
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) 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
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 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.