2017 Regular Session
To: Judiciary A
By: Representatives White, Baker
AN ACT TO CREATE THE ASBESTOS TRANSPARENCY TRUST ACT; TO CREATE NEW SECTION 11-67-1, MISSISSIPPI CODE OF 1972, TO ENACT A SHORT TITLE; TO CREATE NEW SECTION 11-67-3, MISSISSIPPI CODE OF 1972, TO MAKE LEGISLATIVE FINDINGS; TO CREATE NEW SECTION 11-67-5, MISSISSIPPI CODE OF 1972, TO ENACT DEFINITIONS; TO CREATE NEW SECTION 11-67-7, MISSISSIPPI CODE OF 1972, TO REQUIRE PLAINTIFF DISCLOSURES; TO CREATE NEW SECTION 11-67-9, MISSISSIPPI CODE OF 1972, TO REQUIRE IDENTIFICATION OF ADDITIONAL ASBESTOS TRUST CLAIMS BY A DEFENDANT; TO CREATE NEW SECTION 11-67-11, MISSISSIPPI CODE OF 1972, TO PROVIDE FOR ADMISSIBILITY OF EVIDENCE; TO CREATE NEW SECTION 11-67-13, MISSISSIPPI CODE OF 1972, TO ENACT SANCTIONS FOR FAILURE TO PROVIDE INFORMATION; TO CREATE NEW SECTION 11-67-15, MISSISSIPPI CODE OF 1972, TO MAKE TRANSITION PROVISIONS; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. The following shall be codified as Section 11-67-1, Mississippi Code of 1972:
11-67-1. Title. This chapter may be cited as the "Asbestos Bankruptcy Trust Claims Transparency Act."
SECTION 2. The following shall be codified as Section 11-67-3, Mississippi Code of 1972:
11-67-3. Declaration of Legislative Intent. (1) The Legislature finds and determines that:
(a) Asbestos is a mineral that was widely used prior to the 1980s for insulation, fireproofing, and other purposes;
(b) Exposure to asbestos has been causally associated with mesothelioma and lung cancer, as well as nonmalignant conditions such as asbestosis, pleural plaques, and diffuse pleural thickening;
(c) Approximately one hundred (100) employers have declared bankruptcy at least partially due to asbestos-related liability;
(d) Over ten thousand (10,000) companies have been named as asbestos defendants, including many small- and medium-sized companies, in industries that cover eighty-five percent (85%) of the United States economy;
(e) Scores of trusts have been established in asbestos-related bankruptcy proceedings to form a multi-billion dollar asbestos bankruptcy trust compensation system outside of the tort system, and new asbestos trusts continue to be established;
(f) Asbestos plaintiffs often seek compensation both from solvent defendants in civil actions and from trusts or claims facilities formed in asbestos-related bankruptcy proceedings;
(g) There is limited coordination and transparency between these two (2) paths to recovery, which has resulted in the suppression of evidence in asbestos actions; and
(h) Justice is promoted by transparency with respect to asbestos bankruptcy trust claims in civil asbestos actions.
(2) Now therefore, it is the intent of the Legislature to:
(a) Provide transparency with respect to asbestos bankruptcy trust claims in civil asbestos actions by creating a substantive right for defendants to obtain bankruptcy trust discovery;
(b) Reduce the opportunity for oversight or suppression of evidence in asbestos actions; and
(c) Enhance the ability of courts to oversee and manage asbestos cases.
SECTION 3. The following shall be codified as Section 11-67-5, Mississippi Code of 1972:
11-67-5. Definitions. The following words and phrases as used in this chapter have the meaning ascribed to them in this section, unless the context clearly requires otherwise:
(a) "Asbestos" includes, without limitation, 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 the asbestos action is filed.
(b) "Asbestos action" means a claim for damages or other civil or equitable relief presented in a civil action arising out of, based on, or related to the health effects of exposure to asbestos, including, but not limited to, loss of consortium, wrongful death, mental or emotional injury.
(c) "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 to provide compensation to claimants arising out of, based on, or related to the health effects of exposure to asbestos.
(d) "Asbestos trust claim" includes, but is not limited to, any claim or demand for compensation for asbestos-related injuries from an asbestos trust.
(e) ""Plaintiff" means the exposed person, deceased or living, and the person bringing the asbestos action, including a personal representative if the asbestos action is brought by an estate, or a conservator or next friend if the asbestos action is brought on behalf of a minor or legally incapacitated individual.
(f) "Trust materials" means a final executed proof of claim and all other documents and information related to a claim against an asbestos trust and any other information that the plaintiff submits to the asbestos trust, including claims forms and supplementary materials, affidavits, correspondence, depositions and trial testimony, work history, medical and health records, documents reflecting the status of a claim against an asbestos trust, and, if the trust claim has settled, all documents relating to the settlement of the trust claim.
(g) "Trust governance documents" means all documents that relate to eligibility and payment levels, including, but not limited to, claims payment matrices, trust distribution procedures, or plans for reorganization, for an asbestos trust.
SECTION 4. The following shall be codified as Section 11-67-7, Mississippi Code of 1972:
11-67-7. Required disclosures by the plaintiff. (1) Within thirty (30) days after an asbestos action is filed, or by August 1, 2017, whichever is later, the plaintiff shall do all of the following:
(a) Provide the court and parties with a sworn statement signed by the plaintiff and the plaintiff's counsel, under penalties of perjury, that all asbestos trust claims that can be made by the plaintiff have been filed and that includes the following:
(i) A statement that an investigation of all asbestos trust claims has been conducted;
(ii) A list identifying each asbestos trust claim that has been filed by the plaintiff;
(iii) A list identifying each asbestos trust claim that can be made by the plaintiff, which has not been filed for the sole permissible reason that the cost of submitting an asbestos trust claim exceeds the plaintiff's reasonably anticipated recovery; and
(iv) Whether there has been a request to defer, delay, suspend, toll, withdraw, or otherwise alter the standing of any asbestos trust claim, and provide the status and disposition of each asbestos trust claim.
(b) Provide all parties with all trust materials, including trust materials that relate to conditions other than those that are the basis for the asbestos action and including all trust materials from all law firms connected to the plaintiff in relation to exposure to asbestos, including anyone at a law firm involved in the asbestos action, any referring law firm, and any other firm that has filed an asbestos trust claim for the plaintiff. Documents should be accompanied by a custodial affidavit from the asbestos trust, certifying that the trust materials submitted to defendants are true and complete.
(c) If the plaintiff's asbestos trust claim is based on secondary exposure to asbestos through another individual or individuals, the plaintiff shall produce all trust materials submitted by the other individual or individuals to any asbestos trusts if the materials are available to the plaintiff or the plaintiff's counsel.
(2) The plaintiff has a continuing duty to supplement the information and materials required under subsection (1) and the supplementation shall be made no later than thirty (30) days after the plaintiff supplements an existing asbestos trust claim, receives additional information or materials related to an asbestos trust claim, or files an additional asbestos trust claim.
(3) The court may dismiss the asbestos action if the plaintiff fails to comply with this section.
(4) An asbestos action may not be set for trial until at least one hundred eighty (180) days after the requirements of subsection (1) are met.
(5) Not less than thirty (30) days before trial in an asbestos action, the court shall enter into the record a document that identifies every asbestos trust claim made by the plaintiff.
SECTION 5. The following shall be codified as Section 11-67-9, Mississippi Code of 1972:
11-67-9. Identification of additional asbestos trust claims by defendant; trust record. (1) A defendant may file a motion requesting a stay of the proceeding on or before the later of the sixtieth day before the date of trial in the action is set to commence or any other such time for which the defendant has a good faith reasonable basis to request a stay. The motion shall identify the asbestos trust claims not previously identified that the defendant believes the plaintiff can file and include information supporting the asbestos trust claims.
(2) Within ten (10) days of receiving the defendant's motion, the plaintiff shall:
(a) File the asbestos trust claims; or
(b) File a written response with the court requesting a determination that the cost to file the asbestos trust claims exceeds the plaintiff's reasonably anticipated recovery.
(3) (a) Subject to paragraph (b) of this subsection (3), if the court determines that there is a basis for the plaintiff to file an asbestos trust claim identified in the motion to stay, the court shall stay the asbestos action until the plaintiff files the asbestos trust claim and produces all related trust claims materials.
(b) If the court determines that the cost of submitting an asbestos trust claim exceeds the plaintiff's reasonably anticipated recovery, the court shall stay the asbestos action until the plaintiff files with the court and provides all parties with a verified statement of the plaintiff's history of exposure, usage, or other connection to asbestos covered by that asbestos trust.
(4) An asbestos action may not be set for trial until at least sixty (60) days after the plaintiff complies with the requirements of this section.
SECTION 6. The following shall be codified as Section 11-67-11, Mississippi Code of 1972:
11-67-11. Discovery; use of materials. (1) Trust materials and trust governance documents are presumed to be relevant and authentic, and are admissible in evidence in an asbestos action. A claim of privilege does not apply to any trust materials or trust governance documents.
(2) A defendant in an asbestos action may seek discovery from an asbestos trust. The plaintiff may not claim privilege or confidentiality to bar discovery and shall provide consent at the time of asbestos trust identification, including, but not limited to, authorization for release of trust materials or other expression of permission that may be required by the asbestos trust to release information and materials sought by a defendant.
(3) Trust materials that are sufficient to entitle a claim to consideration for payment under the applicable trust governance documents are sufficient to support a jury finding that the plaintiff was exposed to products for which the trust was established to provide compensation and that, under applicable law, such exposure is a substantial contributing factor in causing the plaintiff's injury that is at issue in the asbestos action.
SECTION 7. The following shall be codified as Section 11-67-13, Mississippi Code of 1972:
11-67-13. Failure to provide information; sanctions. (1) If the plaintiff files an asbestos trust claim after the plaintiff obtains a judgment in an asbestos action, and that asbestos trust was in existence at the time the plaintiff obtained the judgment, the trial court, on motion by a defendant or judgment debtor seeking sanctions or other relief, has jurisdiction to reopen the judgment in the asbestos action and adjust the judgment and order any relief to the parties that the court considers just and proper.
(2) A defendant or judgment debtor shall file any motion under this section within a reasonable time and not more than one (1) year after the judgment was entered.
SECTION 8. The following shall be codified as Section 11-67-15, Mississippi Code of 1972:
11-67-15. Application. (1) This chapter shall apply to all asbestos actions filed on or after July 1, 2017, and to all pending asbestos tort actions in which trial has not commenced as of July 1, 2017.
(2) This chapter may only be applied retroactively if the application of a provision in this chapter would unconstitutionally affect a vested right.
SECTION 9. This act shall take effect and be in force from and after July 1, 2017.