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SB486 SUB1 Senate Bill 486 History

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Key: Green = existing Code. Red = new code to be enacted
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.
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