Senator Charles Schwertner (R-Georgetown) today filed legislation to bring much-needed transparency to claims practices involving trusts funds established to compensate persons for asbestos or silica-related illness or injury.While billions of dollars were set aside in asbestos compensation trusts, usually as a part of a bankruptcy proceeding involving an asbestos manufacturer, asbestos consumers have borne the brunt of hundreds of thousands of lawsuits claiming damages, part or all of which have already been compensated by the trusts created for that purpose. In general, Senator Schwertner’s proposed legislation would put an end to this “double dipping” and ensure that each injured claimant has fair and equal access to dwindling trust compensation.
SB 491 adds Subchapter B, Chapter 90, CPRC, to require a claimant in an asbestos or silica suit to serve notice on each party of each trust claim made by or on behalf of the claimant. The notice must be accompanied by the claim form and documentation provided to the trust to establish the person’s claim. The notice must include a sworn statement by the claimant that identifies each claim, states the date the claim was made, and states whether a request for a deferral, delay, suspension, or tolling of the claim has been submitted. The notice must be filed: (1) in an action pending on September 1, 2015 in which discovery was commenced before that date, by October 1, 2015; (2) in an action filed on or after September 1, 2015, or pending on that date in which discovery was not yet commenced, not later than 120 days before the suit was originally set for trial. If the claimant files an additional trust claim, the claimant must serve notice and information not later than 30 days after the date of the claim. Both cancer and non-cancer claims are included in the notice requirement.
If the claimant fails to comply with notice requirements, an MDL court may decline to remand the claim to a trial court for trial. If a claimant received compensation from a trust on claim that gave rise to a judgment but did not comply with the notice requirement, the court, upon a defendant’s motion, may order an appropriate sanction, including vacating the judgment and ordering a new trial. The bill further allows a defendant to file a motion, not later than 45 days prior to the original trial date, to stay a trial. The motion to stay must be accompanied by a list of undisclosed trusts that the defendant in good faith believes the claimant may make a successful claim. A defendant may also file a motion to stay at any time within 7 days after receiving notice of asbestos or silica exposure information that may give rise to a trust claim. The claimant must respond to the motion to stay within 14 days, either providing proof that notice has been given or asking the court to determine that the information is insufficient to support a trust claim identified in the motion. Alternatively, the claimant may prove that the fees and expenses, including attorney’s fees, for filing a claim identified in the motion would exceed the amount the claimant reasonably anticipates to recover from the trust. If the court determines that the cost of making the claim would exceed the claimant’s likely recovery from the trust, the claimant must provide to the court a verified statement of the claimant’s exposure to asbestos or silica that is covered by the trust.
If the court determines that a good faith basis for a stay exists, the court shall stay the action until the claimant provides proof of notice or makes the alternative showing described above. The bill further creates a presumption that trust claim information is authentic, relevant, and discoverable and is not privileged, notwithstanding a confidentiality agreement to the contrary. A party may also use the trust claim information to prove: (1) alternative causation; (2) a basis for allocating responsibility; or (3) any other relevant issue.
On a defendant’s or judgment debtor’s motion, a court may reopen and modify a judgment, after reasonable notice to the parties, by the amount of a subsequent payment to the claimant by a trust that was not noticed as required, or by the amount of a claim made after the judgment but that existed at the time of the judgment. A motion to modify must be made by the first anniversary date after the judgment is signed. If a motion is filed outside the period in which the court could otherwise modify a judgment, the court may modify the judgment on or before the 30th day after the date of the motion. Finally, the bill bars the Supreme Court from making rules that conflict with these provisions.
The bill would take effect September 1, 2015 and apply to actions pending on or filed on or after that date.