House Judiciary & Civil Jurisprudence Committee
Hearing on Interim Charge 4
February 8, 2012
To the Honorable Members of the House Judiciary & Civil Jurisprudence Committee:
The Texas Civil Justice League (TCJL) appreciates the opportunity to present this written testimony in response to the committee’s fourth charge to study the degree of transparency in asbestos bankruptcy trusts and how it affects litigation of asbestos exposure claims in Texas courts. This testimony will provide an overview of the creation and operation of asbestos bankruptcy trusts, analyze their effect on asbestos litigation in Texas, and discuss potential policy options to address those effects.
Since the U.S. Fifth Circuit Court of Appeals ruling in Borel v. Fiberboard Paper Prod. Corp in 1973, which subjected asbestos manufacturers to strict liability for personal injury resulting from exposure to asbestos, asbestos litigation has become far and away the largest and most expensive products liability litigation in United States history. By the mid-2000s, more than 700,000 people had filed claims in federal and state courts across the country. As one of the leading heavy manufacturing, petrochemical, and energy production states, Texas attracted more asbestos litigation than any other state between 1988 and 2005. Although no one knows for sure how many individual claims currently exist, the judge of the Texas multidistrict litigation (MDL) court for asbestos claims has reported that 7,959 cases are currently pending on the MDL docket, 1517 (about 19%) of which are active cases. The number of individual asbestos claims is substantially greater, since many asbestos cases have multiple plaintiffs. The MDL judge has estimated the number of inactive claims at between 25,000 and 84,000. The number of individual active claims is much smaller but still numbers in the thousands.
The vast majority of active claims involve malignancies allegedly caused by exposure to asbestos or asbestos containing products. Virtually all of the inactive claims are referred to as”unimpaired” because the claimants have no symptoms of an asbestos-related disease and do not meet the medical criteria for impairment established by the Legislature in 2005. For purposes of this discussion of the committee’s charge pertaining to bankruptcy trusts, we will focus on the active claims and the effect of bankruptcy trusts on the ultimate resolution of these claims.
A Brief History of Bankruptcy Trusts
Approximately 100 U.S. businesses have filed for bankruptcy because of liabilities associated with asbestos litigation, using the special, Congressionally created asbestos trust process. This process is available in no other contextâ€”the statute applies only in the context of asbestos. Under this process, an entity can remain as a “going concern” while all of its liabilities for asbestos-related bodily injury claims are channeled into the trust for all time.
The first of these, the insulation manufacturer Johns-Manville Corp., occurred in 1982. As increasing numbers of companies followed Johns-Manville into bankruptcy, thereby limiting their ability to settle asbestos claims on a dollar-for-dollar basis, claimants began suing secondary and tertiary manufacturers and related entities as well. For the most part, these defendants had peripheral market shares, made asbestos-containing products, or used various products that may have contained asbestos in their own businesses. Since asbestos was heavily used in the U.S. from the 1930s to the 1970s as a highly effective fire-resistant insulation in a wide variety of products ranging from roofing and building materials to automotive parts, the potential targets for second and third generation asbestos lawsuits included hundreds if not thousands of businesses that had previously used asbestos in the ordinary course of business and often in response to government-mandated safety standards. It is thus common for asbestos lawsuits to name dozens of potentially liable defendants for purposes of enhancing the amount of insurance available for paying compensation to injured claimants. Many defendants have long since used up their insurance and are thus for these purposes “self insured.”
Sixty-three of the 96 bankruptcy filings have established or proposed to establish asbestos victim compensation trust funds. As of 2008, these trusts contained an estimated $36.48 billion in assets available for compensation payments. This total has recently been estimated to be upwards of $60 billion, but by any reckoning the resources that have been set aside to compensate injured claimants are staggering. Despite the enormous amount of money set aside in these funds, however, the total amount of compensation claims significantly exceeds available trust assets. According to a recent study by the RAND Institute of Civil Justice, most trusts have established a payment schedule that assigns compensation values in relation to the degree of impairment alleged in the claim. Studies of some trust payment histories indicate that the median payment percentage is about 25% of the claim, with a range from 1 to 100%. Claimants can file for and receive compensation from multiple trusts, so claimants may in actuality recover substantial amounts through the trust mechanism. RAND found that through 2008, the largest 26 trusts paid $10.9 billion on 2.4 million claims.
How Bankruptcy Trusts Work
The asbestos bankruptcy trust system operates independently from the tort system. It has a separate system of administration, separate limitations periods for filing a claim, a separate set of standards for determining liability and compensation amounts, and separate confidentiality requirements that make it difficult, if not impossible, to obtain a clear picture of trust payments to individual claimants and their impact on asbestos litigation as a whole. Moreover, each bankruptcy trust has its own procedures and standards, independent of every other trust. There is no oversight system in place: except for some basic balance sheet information provided to the federal bankruptcy court, neither the federal government, the federal bankruptcy trustee, the federal bankruptcy courts, nor the general public have any way of examining the trust payment process. Still, the basic pattern established by the Manville Trust holds generally true for many of them:
- Each trust is administered by one or more trustees, who take advice and counsel from a trust advisory committee commonly composed of the plaintiffs’ attorneys who represent claimants in asbestos litigation. The plaintiffs’ attorneys negotiate a trust distribution process or procedure (TDP) with the bankrupt entity. The primary issues in the negotiation of such agreements is the aggregate amount of assets that the debtor in bankruptcy will set aside to settle asbestos claims and how those assets will be distributed to claimants.
- The TDP specifies a payment schedule, which is graded by the disease alleged and commonly allows the plaintiff to choose among three options for payment. The plaintiff may: (a) accept the scheduled value for the particular disease alleged; (b) elect a so-called “quick-pay” option that requires a minimum level of documentation; or (c) undergo an individual review process in the event the claim does not satisfy the TDP’s criteria or the claim seeks a payment higher than the scheduled value, either of which may require the claimant to demonstrate a cognizable claim in the tort system.
- Generally speaking, in order to receive some compensation from a trust fund a claimant is not required to prove that exposure to the specific bankrupt debtor’s product caused the claimant’s injury in accordance with state law. As a prominent asbestos plaintiff lawyer who serves on most of the trust advisory committees currently in existence stated in a hearing in the Texas MDL court, a typical TDP by no means requires that you comply with any state’s law. . . . You do not even have to prove exposure. The trusts readily acknowledge our products were at many, many job sites and they give you the list. . . . If you worked at one, all you have to say is, I worked there. That is all. End of inquiry. No more statements. No more allegations.  For mesothelioma claims, a trust claimant need only submit a pathology report from an accredited hospital without any further evidence of exposure or causation. For the most common type of claim, asbestosis claims with or without impairment, medical and exposure criteria vary from trust to trust, but in most cases evidence of a diagnosis and occupational exposure seems to be sufficient for payment.
- TDPs commonly include a dispute resolution process (i.e., mediation and/or arbitration) to resolve contested claims. Once a claimant has received a payment from a trust fund, however, any future claim against the trust or debtor in bankruptcy is extinguished. A claimant may reject payment from the trust and proceed against the entity in the tort system, as he or she does against solvent entities, but potential recoveries are obviously limited.
Impact of Bankruptcy Trusts on Asbestos Litigation
In many states, including Texas, defendants in tort litigation are entitled to name responsible third parties (RPTs) that, while they may not be sued directly (such as a bankrupt entity or a direct employer if there is a workers’ compensation claim), may be assigned a percentage of fault for the plaintiff’s harm. It is thus desirable in asbestos litigation for solvent defendants to submit a bankrupt asbestos manufacturer to a jury for allocation of fault, thereby reducing the solvent defendant’s liability. Generally speaking, if a defendant is found to be 50% or less at fault, that defendant pays only its proportional share of damages. If a defendant is found more than 50% at fault, the defendant is jointly and severally liable for all the damages and must seek contribution from other defendants to recover amounts paid in excess of the defendan’s allocated percentage of responsibility. Moreover, liable defendants are entitled to a dollar-for-dollar credit for any settlements received by the plaintiff(s).
Asbestos bankruptcy trusts present unique challenges to the tort system as a whole and to solvent and frequently peripheral defendants in asbestos litigation in particular. Some of these challenges can be attributed to the structure and administration of the trusts, while others involve the ways in which the trusts interact with (or fail to interact with) the civil justice system.
The tort system is designed to allocate fault fairly among parties responsible for the claimant’s harm and to promote the public policy objective that a responsible party should only pay for the harm it actually causes. Most of these parties are presumably joined in the lawsuit, but others are not, such as bankrupt entities, employers who are immune from suit under the workers’ compensation system, or parties that have settled with the plaintiff(s). If a party is not joined, the jury may still consider that party’s fault and assign a percentage of responsibility to the party, but sufficient evidence must be adduced in trial in order to list them on the jury submission form. The Texas asbestos MDL judge has ruled that in all claims, a defendant seeking to submit the fault of a bankrupt asbestos manufacturer must prove the same level of exposure to asbestos as a claimant must prove in order to recover against the solvent defendant.
Naming a bankrupt entity as a responsible third party in asbestos has proven difficult in many states, including Texas. The 2011 RAND report indicates some of the reasons for this difficulty:
- Defense attorneys often report that meeting evidentiary standards for jury submission is virtually impossible because trust claims, even if they have been filed prior to trial, do not contain the information necessary to determine proximity, frequency, and duration of exposure under Texas law. As discussed above, most trusts simply do not require any evidence of exposure in a mesothelioma or cancer claim (which constitute the vast majority of active asbestos cases moving through the system), and many trusts (such as the Manville Trust itself) either do not cooperate with discovery requests or are no longer in a position to provide the required documentation.
- In the absence of uniformity in the type of exposure and medical criteria information submitted to the trusts, the plaintiff is the best source of information about specific details of the plaintiff’s exposure. But discovering whether the plaintiff has been exposed to a product made by or on the premises of a bankrupt entity may still be difficult. One prominent asbestos plaintiffs’ firm, for example, has advised its clients as follows: â€œDo NOT mention product names that are not listed on your Work History Sheets. The defense attorney will jump at a chance to blame your exposure on companies that were not sued in your case.â€ While this tactic is certainly understandable in terms of maximizing the liability of solvent and potentially peripheral defendants, it may not promote the larger objective of distributing fault fairly to all responsible parties.
- On the other hand, asbestos plaintiff’s attorneys argue that defendants may obtain information from bankrupt entities in the ordinary course of discovery, just like they do in other tort cases. They also argue that trust claims and payments are discoverable for purposes of obtaining settlement credits (discussed at greater length below). As part of the master discovery order in the Texas asbestos MDL, claimants are required to disclose claim forms they have submitted. While Texas law does not compel claimants to file all trust claims prior to trial, the MDL master discovery order asks claimants to identify trusts from which they anticipate seeking compensation. Defense attorneys indicate, however, that plaintiffs routinely avoid this request by stating that they defer pursuing any potential trust payments until after trial. Defense attorneys indicate that many trusts do not cooperate with requests to verify whether a particular claimant has filed a claim, so in the absence of voluntary identification, potential trust claims may not be discoverable in a timely fashion, much less whether sufficient evidence of the fault of the bankrupt entity behind the trust may be discoverable. It may be possible to obtain a subpoena for this information, but it is unclear whether a subpoena is a practicable method of obtaining discovery in the context of the asbestos MDL. For example, a typical trust provision, this one from the Babcock and Wilcox TDP, reads as follows:
6.5. Confidentiality of Claimant’s Submissions. All submissions to the PI Trust by a holder of a PI Trust Claim of a proof of claim form and materials related thereto shall be treated as made in the course of settlement discussions between the holder and the PI Trust, and intended by the parties to be confidential and to be protected by all applicable state and federal privileges, including but not limited to those directly applicable to settlement discussions. The PI Trust will preserve the confidentiality of such claimant submissions, and shall disclose the contents thereof only in response to a valid subpoena of such materials by the Bankruptcy Court. The PI Trust shall on its own initiative or upon request of the claimant in question take all necessary and appropriate steps to preserve said privileges before the Bankruptcy Court and before those courts having appellate jurisdiction related thereto. 
While some courts have ruled in favor of defendants seeking to discover this information, it is often extremely costly and burdensome to seek production of materials from the potentially dozens of trusts to which a claimant might reasonably apply.
- Each trust establishes its own limitations period or specific time limit in which a claimant must file a trust claim. These deadlines may or may not be tied to the statute of limitation and may often be tolled by filing some type of information statement or other document that effectively holds a claimant’s place in line for an indefinite period of time. Thus if a claimant waits to file trust claims until after he or she has recovered damages at trial or as the result of a settlement, it is possible that the claimant will recover more than the amount determined through the tort system. On the other hand, a claimant that waits too long may find that his or her payment is reduced as a result of the volume of claims activity at a given time. Some claimants file early claims with some trusts, but defer filing with other trusts until after the conclusion of the litigation. In any event, there is little incentive for a claimant to file early (unless the claimant has an immediate need for the money, in which case early filing may be necessary) because trust payments will generally be subtracted from the claimant’s recovery and may help a defendant load liability on the bankrupt entity at trial. Some jurisdictions, such as Montgomery County, Pennsylvania, and New York City, compel a claimant to file all available trust claims prior to trial. These requirements, however, are often observed in the breach and are not easily enforceable.
- It is possible for plaintiffs’ counsel to manipulate the claims process to avoid disclosing or making trust claims that may offset the claimant’s recovery of damages from solvent defendants. One 2007 case in Ohio, Kananian, et al. v. Lorillard Tobacco Company (Case No. CV 442750), demonstrates this. One of the defendants in the case sought discovery of the claimant’s trust payments, resulting in a lengthy and expensive litigation process to compel production of materials and records relating to the payments. The defendant discovered that the claimant had recovered significant amounts from both the Manville and Celotex trusts upon a representation that the claimant was exposed specifically to their products. It was proved in court that the claimant’s attorney had fraudulently claimed compensation from various trusts based on inconsistent and conflicting information about the claimant’s exposure history. These positions further conflicted with the claimant’s alleged exposure to asbestos at the defendant Lorillard’s premises. The judge in the case later stated, â€œI never expected to see lawyers lie like this . . . it was lies upon lies upon lies.â€ While no one is suggesting that this type of extreme fraud always occurs throughout the system, this and other cases (such as the Warfield case in Maryland, in which the court withdrew the trial date because of trust claims fraud) demonstrate the problems associated with 63 independent trusts that do not share information and from whom information is not readily available and discoverable. This Byzantine system might have been more understandable in an earlier time of technological limitations, but there seems to be no plausible reason why trust claims information cannot be aggregated, searched, and cross-checked to assure that the information is credible, consistent, and pertinent to the products that are the subject of litigation.
Policy Considerations: What Might Be Done?
In ordinary litigation in Texas a non-settling defendant is entitled to a dollar-for-dollar credit against the final judgment for any settlements entered into prior to the judgment. The purpose of the credit, or offset, is to assure that the claimant only recovers once for the injury (the “single satisfaction” rule). In a similar manner, insurers commonly exercise a right of subrogation to recover amounts paid in insurance benefits on behalf of the claimant from the proceeds of the judgment, and defendants frequently seek contribution and indemnity from other defendants for payments in excess of their percentage of responsibility. This complex interlocking system of credits, subrogation, and contribution and indemnity is designed to make the claimant whole while assuring that each responsible party pays only its proportional share of the claimant’s damages.
As we have seen, however, because of the large number of potentially liable bankrupt entities, the lack of transparency in the trust claims process, and the timing of trust claims and payments, asbestos litigation can distort this system. Without a full accounting of bankruptcy trust payments paid or anticipated to be paid, solvent defendants may well be left to pay more than their proportionate share of the claimant’s damages. It is also possible that in some cases claimants may receive more compensation than they are entitled to under the single satisfaction rule.
There are a number of possible policy alternatives that, either singly or in combination, could address these problems and bring the asbestos litigation system into closer conformity with state policy. These alternatives include the following:
- Transparency. As previously noted, in the Texas asbestos MDL claimants are already required to disclose trust payments received in advance of trial and are asked to disclose trusts from which the claimant may reasonably be expected to receive payments in the future. Whether this information is actually disclosed and made available to a defendant is at best uncertain, and the evidence suggests that solvent defendants are unable to obtain credit for all trust payments to which the claimant is entitled and ultimately receives. In some cases, consequently, a claimant may well recover more than once for the same injury. This problem could be addressed by allowing defendants to ask the court to stay further proceedings in the litigation until the claimant has filed claims with all bankruptcy trusts from which the claimant may reasonable expect compensation. Additional statutory requirements mandating discovery of claim information and additional material evidence from the bankruptcy trusts might also be considered to facilitate the full and fair disclosure of all relevant information.
- Limitations. As we have seen, each bankruptcy trust has different rules for when claims must be filed and what constitutes a â€œclaimâ€ for purposes of tolling the limitations period. These timeframes do not coincide with the statutory limitations period governing the timely filing of a lawsuit. The evidence suggests that claimants frequently defer filing claims with bankruptcy trusts until they have received a settlement or final judgment in the lawsuit. This problem could be addressed by requiring a claimant to file with all potentially available bankruptcy trusts within a specified period after the lawsuit is filed and prior to trial. If a claimant failed to do so, a defendant could then offer evidence at trial of the prospective trust payments for consideration by the jury in considering alternative causation and damages.
- Responsible Third Party Designation. The Texas asbestos MDL court has taken the position that bankrupt entities may be named as responsible third parties, but that a defendant must meet the dose requirement prescribed by the Borg-Warner decision in order for the bankrupt entity to be submitted to the jury for allocation of fault. In order to meet that evidentiary standard, a solvent defendant would need extensive discovery from bankruptcy trusts, many of which, the evidence suggests, do not cooperate with discovery requests even in the face of a subpoena that compels production. This problem could be addressed in different ways. One option would be to create a process specific to asbestos litigation by which a solvent defendant can obtain a court order compelling a trust to disclose relevant information. This might be coupled with additional specific statutory direction regarding the specific categories of information that must be disclosed by a bankruptcy trust in response to a discovery request or subpoena. In order to address the Borg-Warner causation issue, the statute could further specify that the receipt of compensation from a bankruptcy trust for a malignancy claim creates a presumption that the Borg-Warner standard has been met with respect to the bankrupt entityâ€™s product sufficient to submit the entity to the jury for allocation of fault.
In response to these problems, a few jurisdictions such as West Virginia have attempted to compel a claimant to file claims with all trusts from which compensation may be available prior to trial. The Ohio Legislature is currently considering legislation that:
- requires a claimant within 30 days of filing an asbestos lawsuit to provide defendants sworn statement identifying all trust claims, including any request to a trust for a deferral, delay, suspension, or tolling of the trust claims process to a date in the future;
- requires a claimant to amend the statement to reflect any trust filings made subsequent to the initial disclosure;
- requires a claimant to provide trust claims materials to defendants, including claim forms, proofs of claim, and other materials required or relied upon by trusts;
- allows a defendant to file a motion with the court to stay the proceedings if the defendant presents credible evidence of trust claims that the defendant believes in good faith could be successfully prosecuted by the claimant;
- requires a claimant either to submit trust claims identified by the defendant in the motion to stay or to file a response contesting the defendant’s motion;
- if the claimant contests the motion, places the burden of proof on the claimant to demonstrate why the trust claims cannot be made in good faith;
- authorizes the court, if it finds that there is a good faith basis for filing the additional trust claims, to stay the proceedings until the claimant files the claims;
- creates a presumption that asbestos trust claims materials are not privileged, are relevant, are authentic, and may be introduced at trial by any party to prove alternative causation of the claimant’s injury or to allocate responsibility for the claimant’s injury unless their exclusion is otherwise required by evidentiary rules;
- requires the trial court, upon motion filed by a defendant or judgment debtor, to reopen and adjust a final judgment to offset the amount of any subsequent asbestos trust payments obtained by the claimant.
The Ohio legislation is substantially similar to legislation filed during the 82nd Legislature (HB 2034/SB 1202). One primary difference between these proposals is that under the Texas bill, the trial court would have been empowered to reduce the claimant’s recovery by the estimated value of pending trust claims. If the claimant did not subsequently receive that amount, the court could modify the judgment once the claims were resolved.
In an effort to assist the committee in considering policy alternatives in this area, TCJL has requested the following information from its members:
- What kind of information do plaintiffs report in response to the MDL requirement that they disclose trust payments already received?
- What kind of information do plaintiffs report in response to the MDL requirement that they disclose bankruptcy trusts to which they plan to apply for compensation?
- Are you aware of instances in which plaintiffs applied for trust payments after settlement or judgment?
- To what extent does the failure to disclose prospective trust payments affect Texas cases coming out of the MDL for trial?
- Does the trust issue affect inactive claims or is its impact primarily found in mesothelioma and cancer claims?
- To what extent is subrogation relevant to the treatment of bankruptcy trust claims? How, if at all, does subrogation work in the asbestos/silica context?
- What is the appropriate evidentiary standard for the submission of a bankrupt entity to the jury for allocation of fault?
- What are the difficulties in obtaining discovery from bankruptcy trusts and the underlying bankrupt entities? Is the subpoena process workable or should a different procedure be considered?
TCJL appreciates the opportunity to offer this written testimony and to work with the committee on the resolution of these issues. As we receive additional information related to this charge, we will share it with the committee and committee staff.
Texas Civil Justice League
 Texas Civil Justice League Journal, Special Report: A Texas success story: Asbestos and silica lawsuit reform, 2011, p. 4.
 Judge Mark Davidson, MDL Asbestos Court, to Governor Rick Perry, Lieutenant Governor David Dewhurst, and the Honorable Joe Straus, August 30, 2010.
 It is important to note, however, that claims of â€œunimpairedâ€ claimants are submitted to asbestos bankruptcy trusts and are paid by these trusts, despite the fact that such claims are considered â€œinactiveâ€ under Texas law. See Hearing on RPTs, October 16, 2008, Reporter’s Record, Volume 1 of 1 Volumes, Trial Court Cause No. 2004-03964, In re Asbestos Litigation, In the District Court, Harris County, Texas, 11th Judicial District, at 158-59.
 United States Government Accountability Office, Report to the Chairman of the Committee on the Judiciary, House of Representatives, Asbestos Injury Compensation: The Role and Administration of Asbestos Trusts, September 2011, at 3; see also Lloyd Dixon, et al., Asbestos Bankruptcy Trusts: An Overview of Trust Structure and Activity with Detailed Reports on the Largest Trusts (RAND Corp., 2010) at 15-18.
 Dixon et al., supra note 1, at 25; Crowell & Moring, Chart 3: Company Name, Case No., Court, Plan Status & Published Decisions, http://www.crowell.com/pdf/AsbestosChart3.pdf (listing asbestos bankruptcy trusts).
United States Government Accountability Office, supra at 3. See also Lloyd Dixon, Geoffrey McGovern, Asbestos Bankruptcy Trusts and Tort Compensation (RAND Corp, 2011) at 1.
 Charles Bates and Charles Mullin, Having Your Tort and Eating it Too (Mealy’s Bankruptcy Report 2006), http://www.bateswhite.com/media.287.pdf. It should be noted that a significant amount of the total assets available for payment of compensation claims will be used to pay transaction costs, i.e. attorney’s fees and costs.
 Dixon and McGovern, supra at 3.
 Written Statement of James L. Stengel, Esq., Orrick, Herrington & Sutcliffe LLP, Hearing on Asbestos Litigation Fraud and Abuse, House Judiciary Committee: Subcommittee on the Constitution, September 9, 2011, at 89. judiciary.house.gov/hearings/printers/112th/112-51_68187.PDF.
 United States Government Accountability Office, supra at 3.
 Dixon, McGovern, supra at 5.
 See Stengel at 91.
 See Hearing on RTPs, October 16, 2008, Reporter’s Record, Volume 1 of 1 Volumes, Trial Court Cause No. 2004-03964, In re: Asbestos Litigation, In the District Court, Harris County, Texas, 11th Judicial District, at 158-159.
 Id. at 159.
 Id. at 173-174.
 Â§33.004, Texas Civil Practice & Remedies Code.
 Â§33.013, Texas Civil Practice & Remedies Code.
 Â§33.012(b), Texas Civil Practice & Remedies Code.
 Â§33.003(b), Texas Civil Practice & Remedies Code.
 Dixon, McGovern, supra at 15-16. The Manville Trust used to make its claims database available to everyone for a fee, but has stopped doing so.
 Id., note 9 at 16.
 Id., at 17.
 See No. 2004-03964, 11th District Court of Harris County,Â In re: Asbestos Litigation, Master Discovery Order, at 8.
 Id., at 18-20.
 Id., at 18.
 Stengel, supra at 100.
 A number of TDPs contain provisions barring a plaintiff who has already recovered his or her full measure of damages from obtaining additional compensation from the trust. See Dixon, McGovern, supra at 26-27.
 Id.,at 18-19.
 Id., at 20.
 Stengel, supra at 103.
 Â§Â§33.015-33.017, Texas Civil Practice & Remedies Code.
 Such compelled production is not new. A plaintiff must already sign authorizations for defendants to receive the medical records that support the plaintiff’s claim. Medical records, arguably the most private information in existence regarding a plaintiff, are already regularly disclosed as a matter of course. A similar authorization for a trust to produce claims information would be no different in effect.
 Dixon, McGovern, supra at 22-23. The effectiveness of these orders is not clear.
 H.B. 380, 129th General Assembly, Regular Session, 2011-2012. The Ohio General Assembly passed this legislation on January 25, 2012. It is currently awaiting action by the Ohio Senate.