What's happening
This bill requires plaintiffs in asbestos-related lawsuits to file and disclose all asbestos trust claims, increasing transparency and fairness in litigation.
Why it matters
Ensures full disclosure of all asbestos trust claims. Plaintiffs must investigate and file all possible trust claims and disclose related documentation to all parties, making it harder to withhold information about prior or potential compensation for asbestos exposure.
Gives courts and defendants new tools to challenge and verify claims. Defendants can identify possible additional trust claims the plaintiff should file and ask the court to order the plaintiff to do so, potentially delaying trial until compliance, which can affect case timelines and strategy.
Makes trust claim materials broadly admissible and removes privilege. Any documentation submitted to asbestos trusts can be used in court to show alternative sources of exposure or allocate responsibility, and such documents cannot be withheld as privileged, increasing the evidentiary pool for all parties.
Imposes significant penalties for noncompliance. Plaintiffs who fail to meet the disclosure requirements risk sanctions—including vacating judgments and reopening cases if undisclosed trust claims are filed after a verdict—raising the stakes for transparency and completeness in asbestos litigation.
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Who cares
Headline styles
Require Asbestos Claim Transparency
Plain English, a few words. Used as the page title.
Sponsors
No co-sponsors yet.
History
- Referred to judiciary
Companion bill
The same bill in the other chamber. A bill becomes law when one version passes both houses and the governor signs it, so either number can carry it.
Ensure Fair Asbestos Lawsuits
In Assembly Committee · Judiciary · Sponsor David Buchwald
Full text
4 pagesUnderlined is new[Struck] is removedOfficial text on nysenate.gov ↗
STATE OF NEW YORK
7659
IN SENATE
February 4, 2020
Introduced by Sen. BRESLIN -- read twice and ordered printed, and when printed to be committed to the Committee on Judiciary
AN ACT to amend the civil practice law and rules, in relation to truth and fairness in asbestos litigation
The People of the State of New York, represented in Senate and Assembly, do enact as follows:
Section 1. The civil practice law and rules is amended by adding a new article 99 to read as follows:
ARTICLE 99
TRUTH IN ASBESTOS TRUST CLAIMS Section 9901. Definitions.
9902. Requirement to make trust claims.
9903. Notice of trust claim; production of trust claim material.
9904. Failure to make trust claim or provide notice and trust
claim material.
9905. Identification of additional asbestos trust claims by
defendants.
9906. Evidence of trust claims.
9907. Motion for sanctions.
§ 9901. Definitions. As used in this article: (1) "Asbestos trust" means a government-approved or court-approved trust, qualified settlement fund, compensation fund or claims facility created as a result of an administrative or legal action, a court-approved bankruptcy, or pursuant to 11 U.S.C. 524(g) or 11 U.S.C. 1121(a) or other applicable provision of law, that is intended, in whole or in part, to provide compensation to claimants arising out of, based on, or related to the health effects of exposure to asbestos.
(2) "Trust claim" means any filing with, submission to or claim against an asbestos trust seeking recovery of compensation or damages for or arising from the health effects of exposure to asbestos.
(3) "Trust claim material" means any and all documentation filed or submitted by or on behalf of a claimant as part of or in connection with a trust claim, including:
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD01068-01-9
S. 7659 2
(a) documentation, materials and information that a claimant submits or provides to an asbestos trust for the purpose of demonstrating asbestos exposure, the health effects of exposure to asbestos, or the validity of a trust claim; and
(b) claim forms and other materials that an asbestos trust requires in order to support a trust claim.
§ 9902. Requirement to make trust claims. (1) Except as provided by subdivision four of this section, a claimant who has filed an action to recover damages for or arising from an asbestos-related injury, and any person who is representing the claimant and/or has a fiduciary duty to the claimant for the claim, including but not limited to the claimant's representatives, agents, counsel and assigns, shall conduct an investigation and file all trust claims that can be made by the claimant not later than forty-five days after the claimant's commencement of the action.
(2) A claimant may file a motion seeking relief from the obligation to make a trust claim otherwise required by this section if the fees and expenses, including attorney's fees, for filing the trust claim exceed the claimant's reasonably anticipated recovery from the asbestos trust.
(3) If a claimant files a motion under subdivision two of this section, the court shall determine whether the claimant's fees and expenses, including attorney's fees, for making the trust claim exceed the claimant's reasonably anticipated recovery from the asbestos trust. If the court determines that the claimant's fees and expenses exceed the claimant's reasonably anticipated recovery, the claimant is not required to make the trust claim but shall provide the court with a verified statement of the exposed person's exposure history, usage or other connection to asbestos that is covered by each asbestos trust against which a claim is not required.
§ 9903. Notice of trust claim; production of trust claim material. (1) A claimant in an action to recover damages for or arising from an asbestos-related injury shall serve on each party a sworn statement, under penalty of perjury, and trust claim material relating to, each trust claim made by or on behalf of the exposed person. The sworn statement must:
(a) identify each trust claim made by or on behalf of the exposed person;
(b) state the amount of any trust claim payment made or to be made to compensate for the exposed persons' injury; and
(c) state the date each trust claim was made or is to be made and whether a request for individual or enhanced review or for a deferral, delay, suspension, or tolling of the claim has been submitted to the asbestos trust.
(2) The claimant shall serve the sworn statement and trust claim material required by subdivision one of this section not later than thirty days after the commencement of discovery.
(3) The sworn statement and trust claim material required to be served under subdivision one of this section are in addition to any notice or materials required to be served or produced as part of discovery and under any other law, rule, order, or applicable agreement.
(4) If a claimant discovers that the sworn statement or trust claim material provided by the claimant under this section were incomplete or incorrect at the time the sworn statement or trust claim material was served or that the sworn statement or trust claim material as served is no longer complete and correct, the claimant shall supplement the sworn statement and the production of trust claim material. The claimant shall
S. 7659 3
serve the supplemental sworn statement or trust claim material reasonably promptly after the claimant discovers the necessity for the supplementation, but not later than the thirtieth day after the date the claimant discovers the necessity for the supplementation.
§ 9904. Failure to make trust claim or provide notice and trust claim material. (1) A court may not commence trial in an action to recover damages for or arising from an asbestos-related injury unless the claimant has:
(a) made each trust claim as required by this article; and
(b) served the sworn statement, and trust claim material relating to, those trust claims in accordance with section ninety-nine hundred three of this article.
(2) This section shall not be construed to require that the claimant receive payment of a trust claim from an asbestos trust before a judgment is rendered in the action.
§ 9905. Identification of additional asbestos trust claims by defendants. (1) Not less than ninety days before trial, if a defendant identifies an asbestos trust claim not produced by the claimant that the defendant reasonably believes the claimant may file, the defendant shall confer with the claimant and thereafter may move the court for an order to require the claimant to file the additional trust claim. The defendant shall produce or describe any documentation the defendant possesses or of which the defendant is aware in support of the motion. If a defendant has previously filed a motion under this section, the court shall not grant a subsequent motion if the defendant knew that the claimant met the criteria for payment for the additional trust claim identified in the subsequent motion at the time the earlier motion was filed.
(2) Within 10 days of receiving the defendant's motion, the claimant shall, for each asbestos trust claim identified by the defendant, do one of the following:
(a) file the asbestos trust claims;
(b) file a written response with the court stating the reason there is insufficient evidence for the claimant to file the asbestos trust claims; or
(c) file a written response with the court requesting a determination that the fees and expenses, including attorney's fees for filing the asbestos trust claims exceed the claimant's reasonably anticipated recovery from the asbestos trust.
(3)(a) Within 10 days of the claimant filing a written response to the defendant's motion, the court shall determine if there is sufficient basis for the claimant to file the asbestos trust claim identified in the motion. If the court determines that there is a sufficient basis for the claimant to file an asbestos trust claim identified by the defendant, the court shall order the claimant to file the asbestos trust claim identified and stay the asbestos action until the claimant files the asbestos trust claim and produces all related trust claim materials.
(b) if the court determines that the cost of submitting an asbestos trust claim identified by the defendant exceeds the claimant's reasonably anticipated recovery, the court shall stay the asbestos action until the claimant files with the court and provides all parties with a verified statement of the claimant's history of exposure, usage, or other connection to asbestos covered by that asbestos trust.
§ 9906. Evidence of trust claims. (1) Trust claim material is presumed to be authentic, relevant and admissible in evidence in an action to which this article applies.
S. 7659 4
(2) Claims of privilege shall not apply to any trust claim material in an action to which this article applies.
(3) A party may use the trust claim material to prove:
(a) an alternate source for the cause of the exposed person's injury, death or loss;
(b) a basis to allocate responsibility for the exposed person's injury, death, or loss; or
(c) any other issue relevant to adjudication of a claim asserted in the action.
§ 9907. Motion for sanctions. (1) On the motion of a defendant or judgement debtor seeking sanctions or other relief in an action to recover damages for or arising from the health effects of exposure to asbestos, and after reasonable notice to the parties, the court may impose any sanction provided by court rule or law, including, but not limited to, vacating a judgement rendered in the action, for a claimant's failure to comply with the disclosure requirements of section ninety-nine hundred three of this article.
(2) If the claimant, claimant's counsel, or any other person on the claimant's behalf files an asbestos trust claim or claims after the claimant obtains a judgement in the action, and the asbestos trust was in existence at the time the claimant obtained the judgement, the court, on motion by a defendant or judgement debtor seeking sanctions or other relief, has jurisdiction to reopen the judgement in the action and adjust the judgement by the amount of any subsequent asbestos trust payments obtained by or on behalf of the claimant and order any other relief to the parties that the court deems just and proper.
(3) A defendant or judgement debtor shall file any motion under this section within a reasonable time and not more than one year after the judgement was entered in the action.
§ 2. This act shall take effect on the thirtieth day after it shall have become a law, and shall apply to all actions commenced on or after such date.
Reflowed for reading: line numbers and page breaks removed. Cite the official text.
Sponsor's memo
Title of bill
An act to amend the civil practice law and rules, in relation to truth and fairness in asbestos litigation
Purpose of the bill
The bill will amend the Civil Practice Law and Rules to improve the transparency of asbestos trust claims.
Summary of specific provisions
Section one creates a new Article 99 of the CPLR entitled "Truth in Asbestos Trust Claims."
Read the full memo (1,594 words)
§ 9901: Defines the terms used in Article 99.
§ 9902: Requires that any claimant who has filed a civil action in the New York courts for an asbestos related injury must file all of the claimant's asbestos trust claims no later than 45 days after the commencement of the civil action. This section also provides a mechanism for claimants to avoid filing claims with certain asbestos trusts if the anticipated costs and fees associated with such a filing would exceed the expected recovery from the asbestos trust.
§ 9903: Requires the claimant to notify all defendants in the civil action of the filing of each asbestos trust claim 30 days after the commencement of discovery. The section further requires that the claim- ant must produce to each defendant the asbestos trust claim materials relating to each of the asbestos trust claims filed by the claimant.
§ 9904: Requires the trust claims to be made and the sworn statements and asbestos trust claim materials, prior to the commencement of trial in an asbestos related civil action.
§ 9905: Allows a defendant to, not less than 90 days before trial, request that the court require a claimant to file an additional asbestos trust claim that the claimant has not already filed. Provides mech- anisms for the claimant to respond to the motion. Allows the court to determine whether there is a sufficient basis for making the additional asbestos trust claim.
§ 9906: Provides rules for considering trust claim material evidence.
§ 9907: Allows for the filing of a motion for sanctions against the claimant if it is determines that the claimant made additional changes undisclosed asbestos trust claims after a judgement was rendered in the claimant's civil action. Also, this section allows for an adjustment of a judgement in asbestos cases up to one year after the judgement to account for any asbestos trust payments actually obtained by the claim- ant in connections with a trust claim filed after the judgement.
Section two sets the effective date.
Justification
The purpose of this bill is to promote fairness in the civil justice system by promoting transparency in New York courts with respect to when trust compensation is available. This legislation promotes the principle that plaintiffs should not receive duplicate compensation for the same injury from asbestos civil claims and in asbestos lawsuits.
Under New York law, defendants in a civil action should only be respon- sible for their proportionate shares of a claimant's noneconomic damages such as pain and suffering, which is typically the largest component of damages asserted by asbestos claimants, unless a defendant's share of fault exceeds 50% in which case the defendant is liable for the loss. The bill furthers this goal and promotes greater fairness in the judi- cial system by prohibiting claimants and their lawyers from delaying asbestos trust submissions until after their court cases have been resolved, thereby depriving defendants of materials and evidence during the discovery process that could mitigate their liability. Claimants instead would be required to promptly submit claims to appropriate bank- ruptcy trusts in advance of trial and to make their claims-submission materials available to state court defendants.
Widespread use of asbestos products ended several decades ago. Due to long latency periods from exposure to the onset of an asbestos-related disease, however, asbestos-related personal injury claims continue to be brought in large numbers today in New York's court systems. However, in recent years, there has been a fundamental shift in the way asbestos claimants are compensated.
First, the litigation landscape has changed dramatically, as the largest and historically most culpable defendants have declared bankruptcy and exited the civil justice system. In response to this phenomenon, plain- tiffs' lawyers have cast an ever-widening net in the search for solvent defendants. Over 8,500 companies, many of small and medium size, involv- ing a broad variety of industries, have now been sued in asbestos liti- gation. The relative fault of these defendants, who used to be peripher- al defendants prior to the bankruptcies - if they were sued at all - is marginal as compared to the former, now bankrupt, target defendants.
Second, the former target defendants have been replaced by bankruptcy trusts. Beginning in 1982 with asbestos giant Johns-Manville, over 100 former asbestos manufacturers, including most of the largest and histor- ically most culpable companies, have exited the civil justice system through bankruptcy. As part of their bankruptcy proceedings, these companies set up trusts. These trusts, which operate independently of the civil justice system, pay billions of dollars each year to asbestos claimants that concurrently file claims in the civil justice system, and will continue to pay tens of billions of additional dollars for years to come. Since 2008, asbestos bankruptcy trusts have paid over $17 billion to asbestos claimants.
As a result, there are now two paths to compensation for asbestos claim- ants, the civil justice system and the trust system, and there is very little transparency between them. A typical asbestos claimant collec- tively can recover hundreds of thousands of dollars from numerous trusts by submitting documentation establishing the claimant's disease level and degree of exposure to asbestos from products manufactured by the bankrupt company. Because these claims and their supporting submissions can be used as evidence in the civil justice system by defendants, plaintiffs' attorneys may seek to avoid providing this information to the defendants in civil actions even when state discovery rules mandate the timely production of this evidence.
One tactic that has emerged is that plaintiff law firms are delaying their clients' submission of trust claims until after their state court cases against solvent defendants have been concluded. This is made possible by "statute of limitations" provisions instituted and main- tained by the trusts that permit an asbestos claimant a minimum of 3 years from the date of their disease diagnoses to file compensation claims with the trusts. Plaintiff law firms use this 3-year window to first file a civil complaint in New York courts and collect damages from solvent defendants in the civil action, waiting until afterward to file their bankruptcy trust claims with no coordination of liability or payments between the two compensation systems. This practice can unfair- ly distort and inflate the liabilities of solvent civil defendants by facilitating the suppression of evidence in asbestos actions currently being litigated in New York courts.
This unfairness recently was documented in detailed, evidence-supported findings by a federal bankruptcy judge in connection with the Garlock asbestos bankruptcy. See In re Garlock Sealing Techs, LLC, 504 B.R. 71 (W.D.N.C. Bankr. 2014), the judge in that case found that asbestos liti- gation nationally has been "infected with the manipulation of exposure evidence" by plaintiff law firms. Citing specific cases, including those within New York's own judicial system, the bankruptcy judge concluded that a pervasive practice exists to suppress exposure evidence in New York courts and courts across the nation.
Since 2012, eight other state legislatures have passed similar asbestos bankruptcy trust transparency laws in reaction to this growing problem. In New York, courts already have mandated through standing discovery orders the disclosure of trust submissions that have been made by claim- ants. These requirements, however, do not address the delayed-submission phenomenon to which this bill is addressed. This bill seeks to close the trust-instituted procedural loophole in order to help ensure that the parties and the court have full access to exposure evidence needed to establish the equitable allocation of liability to defendants in the civil justice system. The solution to this problem is straightforward, which is to require asbestos claimants and their attorneys to file asbestos trust claims concurrently with the active civil lawsuit and furnish their submissions to the defendants in the civil action in advance of any trial in a New York court. Accordingly, this bill would promote fairness in the civil justice system by requiring asbestos claimants to 1) timely file their trust claims; 2) provide notice to defendants in the civil action of the filing of the trust claims, and; 3) produce to those defendants the trust materials and documentation submitted by the claimants to support their trust claims.
Historically, New York State has always been a leader in implementing innovative and successful legislation and court administrative proce- dures to efficiently and equitably adjudicate civil litigation. This situation should be no different. This bill neither denies the avenue to justice for deserving asbestos claimants, nor does it let current responsible asbestos defendants off the hook. The bill simply promotes fairness by requiring that the finders of fact in New York's judicial system have the full complement of evidence to correctly allocate liability among culpable parties from both compensation systems. This bill furthers the goal of creating a legal environment for all New York- ers, creating new and better standards for transparency, efficiency and justice.
Legislative history
2018 Session S.2511A (Bonacic) - Passed Judiciary, Discharged from Finance, Died in Rules
Fiscal implications
None.
Effects on fines, terms of imprisonment or other penal sanctions
None - the sanctions authorized in the bill are all civil sanctions, not criminal penal sanctions.
Effective date
This act shall take effect 30 days after it becomes law.
Summaries, headlines and scores are AI-generated from the official bill text. How we score bills. Source: NYS Open Legislation.