S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                    53
 
                        2019-2020 Regular Sessions
 
                           I N  A S S E M B L Y
 
                                (PREFILED)
 
                              January 9, 2019
                                ___________
 
 Introduced  by  M.  of  A.  BUCHWALD, OTIS, SCHIMMINGER, THIELE, STIRPE,
   WOERNER, FAHY,  ORTIZ,  PICHARDO,  D'URSO,  BRONSON,  ARROYO,  LAVINE,
   CUSICK,  RIVERA,  QUART,  NIOU,  SANTABARBARA,  RICHARDSON, MIKULIN --
   Multi-Sponsored by -- M. of A.  FERNANDEZ,  SIMON  --  read  once  and
   referred 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  ASSEM-
 BLY, 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  SETTLE-
 MENT  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.

  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
              

                       [ ] is old law to be omitted.
                                                            LBD01068-01-9

 A. 53                               2
 
   (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:
   (A) DOCUMENTATION, MATERIALS AND INFORMATION THAT A  CLAIMANT  SUBMITS
 OR PROVIDES TO AN ASBESTOS TRUST FOR THE PURPOSE OF DEMONSTRATING ASBES-
 TOS EXPOSURE, THE HEALTH EFFECTS OF EXPOSURE TO ASBESTOS, OR THE VALIDI-
 TY 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  INVESTI-
 GATION  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 ASBES-
 TOS-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 MATE-
 RIAL 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.

 A. 53                               3
 
   (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
 SERVE THE SUPPLEMENTAL SWORN STATEMENT OR TRUST CLAIM  MATERIAL  REASON-
 ABLY PROMPTLY AFTER THE CLAIMANT DISCOVERS THE NECESSITY FOR THE SUPPLE-
 MENTATION,  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 CLAIM-
 ANT 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 JUDG-
 MENT IS RENDERED IN THE ACTION.
   § 9905. IDENTIFICATION OF ADDITIONAL ASBESTOS TRUST CLAIMS BY  DEFEND-
 ANTS. (1) NOT LESS THAN NINETY DAYS BEFORE TRIAL, IF A DEFENDANT IDENTI-
 FIES  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 DEFEND-
 ANT 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 DEFEND-
 ANT, 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  REASON-
 ABLY  ANTICIPATED  RECOVERY,  THE  COURT  SHALL STAY THE ASBESTOS ACTION

 A. 53                               4
 
 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.
   (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 INJU-
 RY, 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  CLAIM-
 ANT'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.