SB 879 - This act establishes procedures for a claimant in a civil action for damages due to asbestos exposure to disclose claims the claimant has filed with an asbestos trust.ASBESTOS ACTION AND ASBESTOS TRUST (SECTION 537.880)
An asbestos action is any claim for damages or other relief presented in a civil action arising out of, based on, or related to the health effects of exposure to asbestos and any derivative claim. An asbestos trust is defined in the act as a government or court approved trust, qualified settlement fund, compensation fund, or claims facility created because of an administrative action, legal action, court-approved bankruptcy, or law that is intended to provide compensation to people who have experienced health effects due to asbestos exposure.
This act applies to all asbestos actions filed on or after August 28, 2022, and to asbestos actions filed before August 28, 2022, unless the trial date in the asbestos action was set before January 1, 2022, and the trial will begin on or before December 1, 2022.
The provisions of this act, excluding the provision regarding the sworn information form, shall not apply to asbestos actions filed by or on behalf of any paid, volunteer, or retired firefighter, paramedic, or emergency medical technician. Additionally, the court shall dismiss the asbestos action without prejudice if the claimant fails to comply with the requirements of such provisions.
DOCUMENT DISCLOSURE REQUIREMENTS (SECTION 537.882)
Within 30 days of filing an asbestos action, or within 30 days of August 28, 2022, for currently pending asbestos actions, a claimant shall provide the court and other parties the following documents:
(1) A sworn statement stating that an investigation has been conducted and the claimant has filed all available asbestos trust claims, and providing the status and disposition of each asbestos trust claim;
(2) All trust claim materials, as defined in the act, from all law firms connected to the claimant in relation to exposure to asbestos, including those claims related to conditions other than those that are the basis for the asbestos action; and
(3) All available trust claims filed by any individual, other than the claimant, if the claimant's asbestos action is based on exposure through that individual and the materials are available to the claimant or the claimant's counsel.
The claimant shall continually supplement the required information and documents within 30 days after filing an additional asbestos trust claim, supplementing an existing asbestos trust claim, or receiving additional trust claim materials.
PROCESS FOR FAILURE TO FILE ALL TRUST CLAIMS (SECTION 537.884)
No less than 60 days before trial in an asbestos action, if the defendant believes the claimant has not filed all the available asbestos trust claims, the defendant may file a motion with the court requesting the court to require the claimant to file additional trust claims. If a defendant has previously filed a motion, the court shall not grant any subsequent motion if the defendant knew that the claimant met the criteria for payment for the additional asbestos trust claim identified in the subsequent motion at the time the earlier motion was filed.
Within 10 days after the filing of the defendant's motion, the claimant can then either file the asbestos trust claims and produce the related trust claims materials or file a response with the court stating why there is insufficient evidence for the claimant to file the asbestos trust claims. The court shall make a determination within 10 days of the claimant's response. If the court finds that there is a sufficient basis for the claimant to file the additional asbestos trust claim, the court shall order the claimant to file the asbestos trust claim and produce all related materials within 10 days. The action shall not proceed to trial until at least 90 days after compliance.
DISCOVERY AND ADMISSIBILITY OF TRUST CLAIM MATERIALS AND TRUST GOVERNANCE DOCUMENTS (SECTIONS 537.886 AND 537.888)
Trust claim materials and trust governance documents are admissible in evidence and are presumed to be relevant and authentic. No claims of privilege apply to trust claim materials and trust governance documents. Additionally, a defendant may seek discovery against an asbestos trust, and the claimant cannot claim privilege or confidentiality in order to prohibit discovery of such materials. The claimant shall provide consent to release the trust information and materials requested by the defendant.
Trust claim materials that are sufficient to entitle a claim for payment under the applicable trust governance documents may support a jury finding that the claimant was exposed to products for which the trust was established to provide compensation and that such exposure was a substantial contributing factor in causing the claimant's injury at issue in the asbestos action.
Any trust claim materials or trust governance documents may be introduced at trial to prove issues relevant to the adjudication of the asbestos claim, including alternative causation of the injury, that an entity is a joint-tortfeasor, or other issues relevant to adjudication of the asbestos action, unless otherwise excluded by the rules of evidence.
If the claimant has asbestos trust claims that have not been resolved at the time of trial, there is a rebuttable presumption that the claimant is entitled to and will receive compensation specified in the applicable trust governance documents. The court shall take judicial notice that the trust governance documents specify compensation amounts and payment percentages and shall established a value for the claimant's asbestos trust claims. If allowed by law, the defendant may be entitled to a setoff or credit in the amount the claimant has received from an asbestos trust. The court shall distribute the amount of the setoff or credit proportionally between defendants according to the percentage of each defendant's liability. Any setoff or credit for an asbestos trust claim that has been resolved shall be the amount of actual payment received by the claimant after application of any payment percentages.
FILING OF ADDITIONAL ASBESTOS TRUST CLAIMS (SECTION 537.890)
After obtaining a judgment in an asbestos action, if a claimant files any additional asbestos trust claim with or submits any additional asbestos trust claim to an asbestos trust that was in existence at the time the claimant obtained the judgment, the claimant shall provide notice within 10 days to the defendant and the trial court. The trial court, upon the filing of a motion by the defendant or judgment debtor, shall reopen and adjust the judgment by the amount of any subsequent asbestos trust payments obtained by the claimant and order any other relief that the court considers just and proper. A defendant or judgment debtor shall be entitled to file any such motion within 3 years after the judgment was entered.
SWORN INFORMATION FORM (SECTION 537.892)
Within 30 days of filing an asbestos action, or within 30 days of August 28, 2022, for currently pending asbestos actions, the claimant shall file a sworn information form, which contains certain information detailed in the act, specifying the evidence that provides the basis for each claim against each defendant. After receiving additional information, the claimant shall supplement the required information within 10 days.
This act provides that the court on motion by a defendant shall dismiss a claimant's asbestos action without prejudice as to any defendant whose products or premises are not identified in the required disclosures. Additionally, upon a motion by a defendant, the court shall dismiss an asbestos action without prejudice as to all defendants if the claimant fails to comply with the requirements of this act.
This act is substantially similar to HB 1717 (2022) and is similar to provisions in HCS/HB 2206 (2022), the perfected HCS/HB 922 (2021), in HCS/HB 363 (2021), HCS/SCS/SB 119 (2021), SB 200 (2021), SCS/SB 331 (2021), SS#2/SB 575 (2020), HB 2139 (2020), SB 69 (2019), HB 216 (2019), SCS/SB 1102 (2018), HCS/HB 1645 (2018), HB 333 (2017), and SB 347 (2017).
KATIE O'BRIEN