COMMITTEE SUBSTITUTE
FOR
Senate Bill No. 486
(By Senators Jenkins, Browning, Wells, McCabe, Williams, Foster,
Stollings, Green, D. Facemire, Fanning, Palumbo, Laird, Caruth,
Sypolt, Hall, Guills, Boley, K. Facemyer, Barnes, Deem, Oliverio,
Yost, Kessler, Plymale and Prezioso)
________
[Originating in the Committee on the Judiciary;
reported February 26, 2010.]
________
A BILL to amend the Code of West Virginia, 1931, as amended, by
adding thereto a new article, designated §55-7E-1, §55-7E-
2,
§55-7E-
3, §55-7E-
4 and §55-7E-
5, all relating to creation of
the Asbestos Claims Disclosure Act; defining certain terms;
requiring disclosure of certain information related to claims
and potential claims against asbestos trusts;
establishing
deadlines for providing information; authorizing sanctions;
creating presumption that trust claims and materials and
related discovery are authentic; providing that trust claims
and materials are relevant and discoverable; authorizing
defendants to seek discovery from asbestos bankruptcy trusts;
requiring plaintiffs to assist in discovery by releasing
information; providing for set-offs and assignments; and
providing the act applies to all cases where a trial date was established or after enactment of the article.
Be it enacted by the Legislature of West Virginia:
That the Code of West Virginia, 1931, as amended, be amended
by adding thereto a new article, designated §55-7E-
1, §55-7E-
2,
§55-7E-
3, §55-7E-
4 and §55-7E-
5, all to read as follows:
CHAPTER 55. ACTIONS, SUITS AND ARBITRATION; JUDICIAL SALE.
ARTICLE 7E. ASBESTOS CLAIMS DISCLOSURE ACT.
§55-7E-1. Short title.
This article may be cited as the "Asbestos Claims Disclosure
Act."
§55-7E-2. Definitions.
As used in this article terms will have the following
meanings:
(1)"Asbestos" means chrysotile, amosite, crocidolite,
tremolite asbestos, anthophyllite asbestos, actinolite asbestos,
asbestiform winchite, asbestiform richterite, asbestiform amphibole
minerals and any of these minerals that have been chemically
treated or altered, including all minerals defined as asbestos in
29 CFR 1910 at the time an asbestos claim is made.
(2) "Asbestos action" means any civil proceeding seeking
compensation directly or derivatively as a result, in whole or in
part, of exposure to asbestos.
(3) "Asbestos claim" means any claim for damages, losses,
indemnification, contribution, restitution or other relief of
whatever nature, including punitive damages, arising out of, based on, or in any way related to the alleged health effects associated
with the inhalation or ingestion of asbestos, to the extent such
claims are recognized under state law including, but not limited
to:
(A) Loss of consortium;
(B) Loss of support;
(C) Personal injury or death;
(D) Mental or emotional injury;
(E) Risk or fear of disease or other injury;
(F) The costs of medical monitoring or surveillance; or
(G) Any claim made by or on behalf of any person exposed to
asbestos, or a representative, spouse, parent, child or other
relative of the exposed person.
The term "asbestos claim" does not include a claim for
compensatory benefits pursuant to a workers' compensation law or a
veterans' benefits program.
(4) "Asbestos trusts" means all trusts or claims facilities,
created as a result of bankruptcies including, but not limited to,
all trusts created pursuant to 11 U.S.C. §524(g), intended to
provide compensation to plaintiffs alleging claims as a result of
asbestos exposure.
(5) "Exposed person" means a person whose claimed exposure to
asbestos is the basis for an asbestos claim.
(6) "Plaintiff" means any party asserting an asbestos claim,
including a claimant, counter-claimant, cross-claimant or
third-party plaintiff; if a claim is brought through or on behalf of an estate, the term includes the plaintiff's decedent; if a
claim is brought through or on behalf of a minor or incompetent,
the term includes the plaintiff's parent or guardian.
(7) "Trust claims and claims material" means all documents and
information, including, but not limited to, claim forms and
supplementary material, relevant or related to pending or potential
claims against asbestos trusts.
§55-7E-3. Required disclosures; deadlines; bankruptcy trust
claims not privileged; discovery of other
materials.
(a) For any asbestos action with a trial date established
after the enactment of this article during the 2010 regular session
of the Legislature
(1) A claimant, whose case was designated for trial, shall
provide the parties with a disclosure document setting forth, at a
minimum, the name and address of the plaintiff, the name of the
plaintiff's spouse, the plaintiff's date of birth, the nature of
the plaintiff's diagnosis of the asbestos related terminal disease,
the civil action number, the work history, exposure history or
both, including the work sites, employer and trade or occupation,
and any other information the court may require to be disclosed.
(2) No later than ninety days before the date set for trial
for the asbestos action, a claimant shall provide to all parties a
statement of any and all existing claims that may exist against
asbestos trusts. In addition, the statement shall also disclose when a claim was or will be made, and whether there has been any
request for deferral, delay, suspension or tolling of the asbestos
trust claims process. The statement must contain an affidavit of
the plaintiff or plaintiff's counsel that the statement is based
upon a good faith investigation of all potential claims against
asbestos trusts.
(3) The plaintiff shall produce final executed proofs of claim
which have been asserted against asbestos trusts together with any
materials used to support the claims against the asbestos trusts.
The plaintiff must also produce all documents or information
relevant or related to such claims, including, but not limited to,
work histories, depositions and testimony of the plaintiff and
others as well as all medical documentation.
(4) In the event information obtained subsequent to the
submission of the statements supports the filing of additional
claims against asbestos trusts, the plaintiff shall update the
statement by way of an amendment filed and served within thirty
days of the receipt of the information but not later than the
commencement of the trial.
(b) Any defendant may file a motion alleging that the
plaintiff has failed to comply with the requirements set forth in
subsection (a) of this section. The motion may be filed no sooner
than thirty days from the receipt the plaintiff's statement filed
pursuant to subdivision (2) of this section. The burden remains
with the defendant to show lack of compliance with this section.
In addition to any other sanctions the court may impose, if the court determines the plaintiff did not act in good faith to comply
with the requirements of this section, the case may be stricken
from the trial group. The court may also impose sanctions on the
defendant if it determines the motion was not brought in good
faith.
(c) Motions regarding noncompliance with the disclosure
requirements shall be heard no later than thirty days prior to the
trial date.
§55-7E-4. Treatment of trust claims and claims material; other
material.
(a) Trust claims and claims material, as well as related
discovery materials, may be relevant to and shall be discoverable
in an asbestos action. They shall be presumed by the court to be
authentic. Counsel for plaintiff may not raise work product or
other privileges in relations to such documents.
(b) Trust claims and claims materials may be used by the
parties in the asbestos action to prove alternative causation for
the plaintiff's asbestos exposure as well as any other purpose
provided for under the laws of the state.
(c) Before any trust or trust claim materials is presented in
court, the court may issue a limiting instruction setting forth the
fact that the requirements for asbestos exposure sufficient to
sustain a trust claim may differ from the exposure required of the
defendants in the case under consideration.
(d) The court may explain that an application to an asbestos
trust for compensation only requires the claimant to provide information about the specific product subject to the trust that he
or she may have been exposed to, not whether the claimant may have
been exposed to other asbestos products.
(e) In addition the mandatory disclosures requirements of this
article, additional disclosure and discovery of information relevant
to the asbestos action may be sought by any mechanism provided by
the applicable Rules of Civil Procedure. The defendants in an
asbestos action may also seek discovery from the asbestos trusts.
The asbestos trust claimant shall assist in any discovery from the
asbestos trusts and provide whatever consent or expression of
permission may be required by the asbestos trusts for release of
such information and materials.
(f) Nothing in this article may be deemed to affect the
authority of a federal bankruptcy court.
§55-7E-5. Effective date.
This article applies to all asbestos claims for which a trial
date is established on or after the effective date of the enactment
of this article during the 2010 regular session of the Legislature.