Amends the CPLR by adding a new article for asbestos related actions

Summary of specific provisions

Section 1: Creates new Article 99 of the CPLR:

§ 9901. Definitions

§ 9902: Requires the disclosure of all pending and anticipated asbestos trust claims by a plaintiff within 30 days of commencing an action, and not later than 180 days prior to trial. Requires plaintiff to produce supporting documents related to prior and current trust claims.

§ 9903: Subsection 1: Allows defendant, by order to show cause (OSC), to request the court compel plaintiff to attempt recovery from appropriate trusts. The plaintiff must attempt recovery or prove affirmatively that recovery is not possible. Plaintiffs claim is stayed until the OSC is complied with.

Subsection 2: Requires court to certify that required discovery is complete, and that no trial date be set or trial commenced until such certification is made. Requires a schedule of all trust claims be reflected in a "Trust Claims Order" to be entered with the court not less than 30 days prior to trial.

§ 9904: Permits defendants to seek disclosure from Asbestos Trusts, and requires claimant to assist in such discovery by providing consent or expression of permission if required.

§ 9905: Holds that Trust Claims, Claims Material, and related discovery materials are presumptively relevant, authentic, and discoverable in tort actions,

§ 9906: Requires that liability be determined prior to damages in asbes- tos tort actions.

§ 9907: Holds there shall be a rebuttable presumption that pending trust claims will result in compensation for the claimant.

§ 9908: Entitles defendants to a set-off or credit of the full value of the trust claims which the claimant has recovered.

§ 9909: Provides for the reversal of set-offs and credits if pending claims do not result in payment. Requires defendants to repay plaintiffs for the value of the set-offs on a several basis.

§ 9910: Subsection 1: Allows the court to consolidate asbestos claims with the consent of all parties. In the absence of such consent, The court may only aggregate claims relating to members of the exposed claimant's household. Subsection 2: Prohibits the mass aggregation of asbestos claims. Subsection 3: Permits consolidation of cases by court order for pretrial or discovery purposes

§ 9911: Holds that the court shall decline to exercise jurisdiction over an asbestos action if it would be more properly heard in a forum outside New York; outlines conditions the court is to consider when making such determination.

§ 9912: Provides for sanctions by the court for non-compliance.

Section 2. Amends the Civil Practice Law and Rules to require disclosure of expert witnesses on or before the filing of the note of issue.

Section 3: Effective date.

Justification

The United States Supreme Court has described asbestos litigation in this country as a "crisis"; Asbestos litigation has forced an estimated eighty-five employers into bankruptcy. The rate of asbestos-driven bank- ruptcies has accelerated in recent years. Between 2000 and 2004, there were more asbestos-related bankruptcy filings than in either of the prior two decades; Personal injury lawyers have responded to these bank- ruptcies by expanding their search for solvent defendants. The number of asbestos defendants now includes, over 8,500 companies, including many small and medium size companies, in industries that cover eighty-five percent Of the U.S. economy. Asbestos claimants often seek compensation for alleged asbestos-related conditions from both civil defendants that remain solvent and from trusts or claims facilities formed in asbestos bankruptcy proceedings. There is limited coordination and transparency between these two paths to recovery. This lack of transparency raises a strong potential for fraud and abuse, as plaintiffs may allege facts intended to maximize recoveries against trusts created through the bank- ruptcy system and differing or even conflicting facts to maximize recov- eries against tort system defendants.

It is in the interest of justice that there be transparency with, respect to claims made in the bankruptcy system and in civil asbestos litigation to address the potential for fraud and duplicate payments (whether by trusts or solvent companies). Presentation of inconsistent or fraudulent claims data may deprive injured claimants of compensation in favor of those who have not been injured by asbestos products. The current lack of transparency in the tort system may result in businesses

in this state being unfairly penalized and deprived of their right to set-off and other equitable and legal rights.

Prior legislative history

2013-2014; A. 7930.

Fiscal implications

None.

Effective date

This act shall take effect on the one hundred eightieth day.