BILL NUMBER: S7810

SPONSOR: HARCKHAM
 
TITLE OF BILL:

An act to amend the civil practice law and rules, in relation to filing
initial disclosures in asbestos actions

 
PURPOSE:

The purpose of this legislation is to create a mechanism to address the
repeated over-naming of defendants that have no reason to be included in
asbestos personal injury or death lawsuits by requiring filing lawyers
to identify the evidentiary basis for each claim against each defendant.

 
SUMMARY OF SPECIFIC PROVISIONS:

Section 1 amends the civil practice law by adding a new article that
requires the plaintiff attorney in an asbestos personal injury or death
action to submit a sworn information form specifying the evidence and
any supporting materials that provide the basis for each claim against
each defendant.
              

Section 2 provides an effective date.

 
JUSTIFICATION:

There has been a dramatic rise in the number of defendants named in
asbestos personal injury or death lawsuits. The first asbestos lawsuit
filed over a generation ago named less than a dozen defendant manufac-
turers of asbestos-containing thermal insulation products.  Over time
and following the bankruptcies of virtually all members of the so-called
asbestos industry, the number of companies named in asbestos lawsuits
grew exponentially; it now totals over 10,000 unique defendants. More
than 700 unique defendants have been named in New York asbestos cases.

On average, about 50 defendants are named in each asbestos action filed
in New York. Plaintiffs have named as many as 122 defendants in individ-
ual complaints.

According to KCIC consulting, "it is believed that many defendants are
named frequently with no proof of exposure." Other commentators have
observed that "the tendency of plaintiffs to overname viable defendants
in their complaints is a grasping of straws to have a viable defendant
or few still standing should the case culminate in trial and verdict."

Defendant companies can collectively spend many thousands of dollars in
defense costs and loss of productivity to be released from individual
cases in which there was never proof of exposure as to those companies.
In situations where defense costs are paid throughout insurance, the
result is future increases in premiums for all and potential erosion of
policies that may be needed to compensate future plaintiffs with legiti-
mate claims.

The cost associated with improper naming of defendants in asbestos
actions has contributed to employer bankruptcies.

For example, in the January 2020 bankruptcy filing of DBMP LLC, the
holding company for the legacy asbestos liabilities of CertainTeed,
which has facilities in Buffalo, DBMP notes that more than half of
"claims filed against (CertainTeed) after 2001 were dismissed - usually
because the plaintiff could provide no evidence of exposure to a
(CertainTeed) asbestos containing product."

Additionally, according to ON Marine, another company that filed bank-
ruptcy related to asbestos liabilities in 2020, 95's of the over 182,000
asbestos personal injury claims filed against it since 1983 were
dismissed without payment to a plaintiff.

The negative economic impacts of COVID-19 augment the need to help busi-
nesses avoid wasted expenditures.

Further, due to the fiscal restraints caused by the ongoing COVID19
pandemic, New York State courts are expected to cut about $300 million
from their budget as a result of the state deficit. The court system is
freezing hiring, denying most judge recertification requests, and defer-
ring major owed payments. As such, New York's court system cannot afford
to waste resources and would benefit from measures to reduce unsupported
asbestos claims.

The legislation would create a mechanism to ensure that there is an
evidentiary basis for each claim against each defendant named in an
asbestos personal injury or death action. It will cut down on unneces-
sary litigation and wasted defense costs, and will help ensure that
already scarce judicial resources are not squandered on asbestos
personal injury or death claims lacking evidentiary support.

 
PRIOR LEGISLATIVE HISTORY:

New Bill

 
FISCAL IMPLICATIONS:

None

 
EFFECTIVE DATE:
This act applies to asbestos actions that are filed on or after the
effective date of this act.