Bill Text: OH HB380 | 2011-2012 | 129th General Assembly | Introduced

NOTE: There are more recent revisions of this legislation. Read Latest Draft

---

Bill Title: To require claimants in asbestos tort actions to make certain disclosures pertaining to asbestos trust claims that have been submitted to asbestos trust entities for the purpose of compensating the claimant for asbestos exposure.

Spectrum: Partisan Bill (Republican 14-0)

Status: (Passed) 2013-03-27 - Effective Date [HB380 Detail]

Download: Ohio-2011-HB380-Introduced.html

---

As Introduced

129th General Assembly Regular Session 2011-2012

H. B. No. 380

Representative Blessing 

Cosponsors: Representatives Slaby, Hackett, McGregor, Adams, J. 

---

A BILL

To enact sections 2307.951, 2307.952, 2307.953, and

1

2307.954 of the Revised Code to require claimants

2

in asbestos tort actions to make certain

3

disclosures pertaining to asbestos trust claims

4

that have been submitted to asbestos trust

5

entities for the purpose of compensating the

6

claimant for asbestos exposure.

7

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:

Section 1. That sections 2307.951, 2307.952, 2307.953, and	8
2307.954 of the Revised Code be enacted to read as follows:	9

Sec. 2307.951. As used in this section and sections 2307.952	10
to 2307.954 of the Revised Code:	11

(A) "Asbestos," "asbestos claim," and "tort action" have the	12
same meanings as in section 2307.91 of the Revised Code.	13

(B) "Asbestos tort action" means a tort action based on an	14
asbestos claim.	15

(C) Except as otherwise provided in division (E) of section	16
2307.954 of the Revised Code, "asbestos trust" means and	17
encompasses all trust entities, claims agents, or claims	18
processing facilities that are created pursuant to the	19
jurisdiction of a United States bankruptcy court and section	20
524(g) of Chapter 11 of the United States Bankruptcy Code, 11	21
U.S.C. 524(g), or other applicable provision of law, that are	22
formed for the purpose of compensating claimants asserting	23
eligible asbestos claims, and that are in existence on the date	24
initially set for trial in the asbestos tort action.	25

(D) "Asbestos trust claim" means any claim for compensation	26
by an exposed person or the exposed person's representative	27
against any asbestos trust.	28

(E) "Cancer" means a malignant condition.

29

(F) "Claimant" means any person asserting an asbestos claim	30
or asbestos trust claim. "Claimant" includes a plaintiff,	31
counterclaimant, cross-claimant, or third-party plaintiff.	32

(G) "Exposed person" means any person whose exposure to	33
asbestos or to asbestos-containing products is the basis for an	34
asbestos claim.	35

(H) "Noncancer" means a nonmalignant condition.

36

(I) "Proof of claim" means any form of documentation that a	37
potential claimant against an asbestos trust submits or provides	38
to the asbestos trust that attests to or asserts the existence of	39
any liquidated or unliquidated asbestos claim that the claimant	40
may have against the asbestos trust or its predecessors under any	41
theory of law.	42

(J) "Trust claims material" means documents constituting an	43
asbestos trust claim, including, but not limited to, claim forms,	44
proofs of claim, and informational material required by an	45
asbestos trust to be submitted by a claimant in order to have the	46
claim evaluated by the asbestos trust and relied upon by the	47
asbestos trust in making its compensation determination.	48

(K) "Trust governance documents" means and encompasses all	49
documents that are set forth in the plan of reorganization and	50
related orders, terms, conditions, distribution procedures,	51
payment schedules and matrixes, evaluation paradigms and	52
adjustment formulas, and all other policies and procedures that	53
are utilized to determine a claimant's eligibility for, and the	54
amounts or levels of, payment to a claimant by an asbestos trust.	55

Sec. 2307.952. (A)(1)(a) Within thirty days after filing the	56
complaint or other initial pleading in an asbestos tort action	57
that is not otherwise barred or deferred under applicable law or	58
within thirty days of the effective date of this section with	59
respect to asbestos tort actions that are pending on that	60
effective date, a claimant shall provide to all of the parties in	61
the action a sworn statement by the claimant, under penalty of	62
perjury, identifying all existing asbestos trust claims made by or	63
on behalf of the claimant and all trust claims material pertaining	64
to each identified asbestos trust claim. The sworn statement shall	65
disclose the date on which each asbestos trust claim against the	66
relevant asbestos trust was made and whether any request for a	67
deferral, delay, suspension, or tolling of the asbestos trust	68
claims process has been submitted.	69

(b) The submission of the sworn statement under division	70
(A)(1)(a) of this section shall be in addition to any disclosure	71
requirements otherwise imposed by law, civil rule, court order or	72
ruling, applicable agreement or stipulation, local rule, or case	73
management order.	74

(2) If the claimant, subsequent to the submission of the	75
sworn statement under division (A)(1)(a) of this section, files	76
with or submits to any asbestos trust additional asbestos trust	77
claims not previously disclosed, the claimant shall provide to all	78
of the parties in the asbestos tort action an amendment updating	79
the sworn statement and identifying the additional asbestos trust	80
claims. The claimant shall provide any amendment under division	81
(A)(2) of this section within thirty days of filing an additional	82
asbestos trust claim with, or submitting an additional asbestos	83
trust claim to, any asbestos trust.	84

(3) With respect to any asbestos trust claim that a claimant	85
discloses under division (A)(2) of this section in an amendment to	86
the sworn statement, the claimant shall provide to all of the	87
parties in the asbestos tort action all trust claims material	88
pertaining to each additional asbestos trust claim identified in	89
that amendment. The claimant shall provide the trust claims	90
materials under division (A)(3) of this section within thirty days	91
of filing or submitting each additional asbestos trust claim.	92

(B) Failure to provide to all of the parties in the asbestos	93
tort action all trust claims material as required by this section	94
in a timely manner shall constitute grounds for the court to	95
decline to assign an initial trial date or extend the date set for	96
trial in the action.	97

(C) Nothing in this section prevents a court of competent	98
jurisdiction from requiring any disclosures in addition to the	99
disclosures required under this section.	100

Sec. 2307.953. (A) Any defendant in an asbestos tort action	101
may file a motion with the court, with notice to the claimant and	102
to all of the parties in the action, for an order to stay the	103
proceedings. A defendant's motion to stay the proceedings shall	104
set forth credible evidence that demonstrates all of the	105
following:	106

(1) The identities of all asbestos trusts not previously	107
disclosed by the claimant pursuant to section 2307.952 of the	108
Revised Code against which the claimant has not made any asbestos	109
trust claims but against which the defendant in good faith	110
believes the claimant may make a successful asbestos trust claim;	111

(2) The information that the defendant believes supports the	112
additional asbestos trust claims described in division (A)(1) of	113
this section;	114

(3) A description of the information sufficient to meet the	115
asbestos trust claim requirements of the asbestos trusts described	116
in division (A)(1) of this section.	117

(B) Within fourteen days after the filing of the defendant's	118
motion for an order to stay the proceedings under division (A) of	119
this section, the claimant may do either of the following:	120

(1) File the asbestos trust claims with or submit them to the	121
asbestos trusts identified in the defendant's motion for an order	122
to stay the proceedings. The submission to the court and to all of	123
the parties in the asbestos tort action of proof demonstrating	124
that the asbestos trust claims identified in the defendant's	125
motion to stay the proceedings have been filed with or submitted	126
to the appropriate asbestos trusts is dispositive of the	127
defendant's motion for an order to stay the proceedings.	128
Alternatively, the defendant may withdraw the motion brought under	129
division (A) of this section.	130

(2) File with the court a response to the defendant's motion	131
for an order to stay the proceedings requesting a determination by	132
the court that the information supporting the asbestos trust	133
claims against the asbestos trusts identified in the defendant's	134
motion for an order to stay the proceedings should be modified	135
prior to the filing of an asbestos trust claim with, or the	136
submission of an asbestos trust claim to, an asbestos trust or	137
that there is insufficient information to file or submit the	138
asbestos trust claim identified in the defendant's motion for an	139
order to stay the proceedings.	140

(C) If the defendant has not met its burden under division	141
(A) of this section and if the claimant files a response pursuant	142
to division (B)(2) of this section, the court shall determine if a	143
successful asbestos trust claim could be submitted in good faith	144
to each asbestos trust identified in the defendant's motion for an	145
order to stay the proceedings brought under division (A) of this	146
section. The claimant has the burden of proof, by a preponderance	147
of the evidence, to demonstrate that the information set forth by	148
the defendant pursuant to divisions (A)(2) and (3) of this section	149
should be modified prior to the filing of an asbestos trust claim	150
with, or the submission of an asbestos trust claim to, each	151
asbestos trust identified in the defendant's motion or that the	152
asbestos trust claim should not be filed with or submitted to the	153
asbestos trust because a successful asbestos trust claim cannot be	154
made in good faith.	155

(D) If the court determines that there is a good faith basis	156
for filing an asbestos trust claim with, or submitting an asbestos	157
trust claim to, an asbestos trust identified in the defendant's	158
motion for an order to stay the proceedings brought under division	159
(A) of this section, the court shall stay the proceedings until	160
the claimant files the asbestos trust claims with or submits them	161
to the asbestos trusts identified in the defendant's motion for an	162
order to stay the proceedings and has otherwise met the	163
obligations set forth in this section and section 2307.952 of the	164
Revised Code.	165

Sec. 2307.954. (A) A noncancer asbestos trust claim and a	166
cancer asbestos trust claim are based on distinct injuries caused	167
by a person's exposure to asbestos. A noncancer asbestos trust	168
claim that is subject to disclosure under section 2307.952 or	169
2307.953 of the Revised Code or is identified in this section	170
means the noncancer asbestos claim that is the subject of the	171
asbestos tort action in which the defendant seeks discovery	172
pursuant to sections 2307.951 to 2307.954 of the Revised Code. If	173
a claimant previously filed a noncancer asbestos trust claim with,	174
or submitted a noncancer asbestos trust claim to, an asbestos	175
trust and subsequently filed an asbestos tort action based on a	176
cancer asbestos claim, a cancer asbestos trust claim that is	177
subject to disclosure under section 2307.952 or 2307.953 of the	178
Revised Code or is identified in this section means both the	179
earlier filed noncancer asbestos trust claim and the cancer	180
asbestos claim that is the subject of the subsequent asbestos tort	181
action.	182

(B) Asbestos trust claims and the information that is the	183
subject of disclosure under section 2307.952 or 2307.953 of the	184
Revised Code are presumed to be authentic, relevant to, and	185
discoverable in an asbestos tort action. Notwithstanding any	186
agreement or confidentiality provision, trust claims material are	187
presumed to not be privileged. The parties in the asbestos tort	188
action may introduce at trial any trust claims material to prove	189
alternative causation for the exposed person's claimed injury,	190
death, or loss to person, to prove a basis to allocate	191
responsibility for the claimant's claimed injury, death, or loss	192
to person, and to prove issues relevant to an adjudication of the	193
asbestos claim, unless the exclusion of the trust claims material	194
is otherwise required by the rules of evidence. An asbestos trust	195
claim rejected by an asbestos trust may be excluded as evidence if	196
the exclusion is required by the rules of evidence.	197

(C) In addition to the disclosure requirements set forth in	198
sections 2307.952 and 2307.953 of the Revised Code, the parties to	199
the asbestos tort action may seek additional disclosure and	200
discovery of information relevant to the action by any mechanism	201
provided by any applicable section of the Revised Code, the Rules	202
of Civil Procedure, any local rule, or any case management order.	203
In addition to the disclosure described in this division, any	204
defendant in the asbestos tort action also may seek discovery of	205
the claimant's asbestos trust claims directly from the asbestos	206
trusts involved.	207

(D) In an asbestos tort action, upon the filing by a	208
defendant or judgment debtor of an appropriate motion seeking	209
sanctions or other relief, the court may impose any sanction	210
provided by a law of this state, including, but not limited to,	211
vacating a judgment rendered in an asbestos tort action for a	212
claimant's failure to comply with the disclosure requirements of	213
this section and sections 2307.952 and 2307.953 of the Revised	214
Code.	215

(E)(1) If subsequent to obtaining a judgment in an asbestos	216
tort action in this state a claimant files any additional asbestos	217
trust claim with, or submits any additional asbestos trust claim	218
to, an asbestos trust that was in existence at the time the	219
claimant obtained that judgment, the trial court, upon the filing	220
by a defendant or judgment debtor of an appropriate motion seeking	221
sanctions or other relief, has jurisdiction to reopen its judgment	222
in the asbestos tort action and do either of the following:	223

(a) Adjust the judgment by the amount of any subsequent	224
asbestos trust payments obtained by the claimant;	225

(b) Order any other relief to the parties that the court	226
considers just and proper.	227

(2) As used in division (E) of this section, "asbestos trust"	228
means and encompasses all trust entities, claims agents, or claims	229
processing facilities that are created pursuant to the	230
jurisdiction of a United States bankruptcy court and section	231
524(g) of Chapter 11 of the United States Bankruptcy Code, 11	232
U.S.C. 524(g), or other applicable provision of law and that are	233
formed for the purpose of compensating claimants asserting	234
eligible asbestos claims.	235

Section 2. Sections 2307.951 to 2307.954 of the Revised Code,	236
as enacted by this act, apply to asbestos tort actions filed on or	237
after the effective date of this act and to pending asbestos tort	238
actions in which trial has not commenced as of the effective date	239
of this act.	240

As used in this section, "asbestos tort action" has the same	241
meaning as in section 2307.951 of the Revised Code, as enacted by	242
this act.	243

Section 3. (A) If any provision that constitutes the whole or	244
part of a section of the Revised Code enacted by this act or if	245
any application of any provision that constitutes the whole or	246
part of a section of the Revised Code enacted by this act is held	247
invalid, the invalidity does not affect other provisions of the	248
section or applications of other provisions of the section that	249
can be given effect without the invalid provision or application.	250
To this end, the provisions that constitute the whole or part of	251
the sections of the Revised Code enacted by this act and their	252
applications are independent and severable.	253

(B) If any provision that constitutes the whole or part of a	254
section of the Revised Code enacted by this act or if any	255
application of any provision that constitutes the whole or part of	256
a section of the Revised Code enacted by this act is held to be	257
preempted by federal law, the preemption does not affect other	258
provisions of the section or applications of other provisions of	259
the section that can be given effect without the preempted	260
provision or application. To this end, the provisions that	261
constitute the whole or part of the sections of the Revised Code	262
enacted by this act and their applications are independent and	263
severable.	264

Section 4. The General Assembly makes the following	265
statements of findings and intent:	266

(A) The United States Supreme Court has described asbestos	267
litigation in this country as a crisis.	268

(B) Asbestos litigation has forced an estimated eighty-five	269
employers into bankruptcy. The rate of asbestos-driven	270
bankruptcies has accelerated in recent years. Between 2000 and	271
2007, there were more asbestos-related bankruptcy filings than in	272
either of the prior two decades.	273

(C) Personal injury lawyers have responded to these	274
bankruptcies by expanding their search for solvent defendants. The	275
number of asbestos defendants now includes over eight thousand	276
five hundred companies, including many small- and medium-sized	277
companies, in industries that cover eighty-five per cent of the	278
United States economy.	279

(D) Asbestos claimants often seek compensation for alleged	280
asbestos-related conditions from civil defendants that remain	281
solvent in civil court tort actions and from trusts or claims	282
facilities formed in asbestos bankruptcy proceedings.	283

(E) There is limited coordination and transparency between	284
these two paths to recovery. Ohio courts have already experienced	285
the problem of instances of claimants failing to provide	286
information and materials regarding asbestos trust claims that	287
they have commenced. This lack of transparency creates a strong	288
potential for abuse of the judicial process, as plaintiffs may	289
allege facts intended to maximize recoveries from trusts created	290
through the bankruptcy system while also alleging different or	291
conflicting facts to maximize recoveries from tort system	292
defendants.	293

(F) It is in the interest of justice that there be	294
transparency for claims made in the bankruptcy system and for	295
claims made in civil asbestos litigation. Transparency will	296
address the potential for abuse, fraud, and duplicate and	297
inconsistent payments.	298

(G) Presentation of abusive, fraudulent, or inconsistent	299
claims undermines the integrity of Ohio's judicial system.	300

(H) The current lack of transparency in the tort system may	301
result in businesses in this state being unfairly penalized and	302
deprived of their rights.	303

(I) New asbestos trusts are being formed and are anticipated	304
to be funded with approximately thirty billion dollars in assets.	305
As a consequence, it is critical to the interests of justice and	306
to the economy of the state of Ohio that the distribution of these	307
assets be made in a manner that incorporates full and consistent	308
disclosure when recovery is sought through an asbestos tort action	309
in Ohio against solvent companies or through a trust claim against	310
a bankrupt entity. All relevant asbestos exposure information	311
should be made available in a timely manner so that solvent	312
companies do not unnecessarily absorb the liabilities of bankrupt	313
trust entities that are not subject to tort actions. Transparency	314
will help ensure that all responsible parties are allocated an	315
equitable share of any liability and will encourage injured	316
persons to promptly seek an appropriate recovery from all	317
appropriate sources.	318

(J) The General Assembly has established apportionment of	319
liability as a public policy. Pursuant to Ohio apportionment of	320
liability law, bankrupt entities are currently assigned a	321
proportion of liability by the trier of fact. As a consequence,	322
this act furthers this existing public policy of the State of Ohio	323
by ensuring that asbestos tort actions are resolved on the basis	324
of all available evidence and on the full merits. With the advent	325
of an increasing number of significant asbestos trusts, it is	326
apparent that asbestos trusts and the claimants asserting claims	327
against them will be primary sources of information and evidence	328
that will ensure that Ohio's public policy of apportionment of	329
liability and of civil trials based upon all available evidence	330
will be protected and promoted.	331

(K) It is the intent of the General Assembly that this act	332
apply to claims made against any currently operating asbestos	333
trusts and to any asbestos trusts created on and after the	334
effective date of this act.	335