82R5304 TJS-F

By: Miller of Comal H.B. No. 2034

A BILL TO BE ENTITLED

AN ACT

relating to asbestos and silica litigation.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

SECTION 1. Sections 90.001 through 90.012, Civil Practice and Remedies Code, are designated as Subchapter A, Chapter 90, Civil Practice and Remedies Code, and a heading is added to Subchapter A to read as follows:

SUBCHAPTER A. GENERAL PROVISIONS

SECTION 2. Section 90.007(a), Civil Practice and Remedies Code, is amended to read as follows:

(a) If [In an action filed on or after the date this chapter becomes law, if] a claimant fails to timely serve a report on a defendant, or serves on the defendant a report that does not comply with the requirements of Section 90.003 or 90.004, the defendant may file a motion to dismiss the claimant's asbestos-related claims or silica-related claims. If the basis for the motion is that the claimant has served on the defendant a report that does not comply with Section 90.003 or 90.004, the [The] motion must:

(1) be filed on or before the 30th day after the date the report is served on the defendant; and

(2) [. If a claimant fails to serve a report on the defendant, the motion must be filed on or before the 30th day after the date the report was required to be served on the defendant under Section 90.006. If the basis of the motion is that the claimant has served on the defendant a report that does not comply with Section 90.003 or 90.004, the motion must] include the reasons why the report does not comply with that section.

SECTION 3. Section 90.008, Civil Practice and Remedies Code, is amended to read as follows:

Sec. 90.008. [VOLUNTARY] DISMISSAL BY CLAIMANT OR PRETRIAL COURT. (a) Before serving a report required by Section 90.003 or 90.004, a claimant seeking damages arising from an asbestos-related injury or silica-related injury may voluntarily dismiss the claimant's action. If a claimant files a voluntary dismissal under this subsection [section], the claimant's voluntary dismissal is without prejudice to the claimant's right to file a subsequent action seeking damages arising from an asbestos-related injury or a silica-related injury.

(b) An MDL pretrial court, on its own motion, may dismiss any action that has been pending for more than 180 days in which the claimant has not served a report that complies with Section 90.003 or 90.004. A dismissal under this subsection is without prejudice to the claimant's right to file a subsequent action seeking damages arising from an asbestos-related injury or a silica-related injury.

SECTION 4. Section 90.010(d), Civil Practice and Remedies Code, is amended to read as follows:

(d) In an action pending on the date this chapter becomes law that is transferred to or pending in an MDL pretrial court and in which the claimant does not serve a report that complies with Section 90.003 or 90.004, the MDL pretrial court shall not dismiss the action, except as provided by Section 90.007 or 90.008, [pursuant to this chapter] but shall retain jurisdiction over the action under the MDL rules. The MDL pretrial court shall not remand an [such] action over which it retains jurisdiction for trial unless:

(1) the claimant serves a report complying with Section 90.003 or 90.004; or

(2)(A) the claimant does not serve a report that complies with Section 90.003 or 90.004;

(B) the claimant serves a report complying with Subsection (f)(1); and

(C) the court, on motion and hearing, makes the findings required by Subsection (f)(2).

SECTION 5. Chapter 90, Civil Practice and Remedies Code, is amended by adding Subchapter B to read as follows:

SUBCHAPTER B. ASBESTOS TRUSTS

Sec. 90.051. DEFINITION. In this subchapter, "asbestos trust" means a trust fund or claim facility created as a result of a bankruptcy filing or other insolvency proceeding that is intended to provide compensation to claimants alleging asbestos-related injuries. The term includes a trust created under 11 U.S.C. Section 524(g).

Sec. 90.052. STATEMENT OF CLAIMS AGAINST ASBESTOS TRUST. (a) In an action in which a claimant alleges an asbestos-related injury, not later than the 90th day before trial, or another date specified by court order, the claimant shall file with the court and serve on all parties a statement listing all:

(1) existing or anticipated claims the claimant intends to bring against an asbestos trust; and

(2) payments or other compensation the claimant reasonably believes the claimant is entitled to receive or has already received from an asbestos trust.

(b) A statement provided under Subsection (a) must:

(1) be supported by a sworn affidavit by the claimant that the statement is based on a good faith investigation of all potential claims against asbestos trusts;

(2) be supported by a certification by the claimant's attorney that the attorney has conducted a good faith investigation of all potential claims against asbestos trusts;

(3) disclose the date on which a claim was or will be submitted to each asbestos trust and the status of each claim, including whether there has been a response from the asbestos trust and whether the claimant or the claimant's counsel has requested deferral, delay, suspension, or tolling of any aspect of the asbestos trust's claims process; and

(4) disclose the amount of money, if any, the claimant has received or will receive from each asbestos trust and an explanation of any contingency that may cause the amount to be paid to the claimant to increase in the future.

Sec. 90.053. COMMUNICATIONS WITH TRUST. (a) At the time a claimant files and serves an asbestos claim statement as required by Section 90.052, the claimant shall serve on all parties to the action copies of the claimant's submissions to and communications with asbestos trusts, including:

(1) copies of electronic data and e-mails;

(2) proof-of-claim forms; and

(3) all material or information provided in support of the claim or in response to any inquiry from an asbestos trust.

(b) A claimant shall continue to supplement a statement filed under Section 90.052 or forms and material provided under Subsection (a) as follows:

(1) if the claimant learns that the statement filed under Section 90.052 was incomplete or incorrect when filed or is no longer complete and correct, the claimant shall promptly file and serve on all parties to the action a supplemental statement; and

(2) if a claimant files a claim form with an asbestos trust or provides other material to an asbestos trust after the claimant initially provides forms and material under Subsection (a), the claimant shall promptly serve copies of the additional claim forms or material on all parties.

Sec. 90.054. PROHIBITED REMAND. Notwithstanding Section 90.010(c), an MDL pretrial court may not remand a case for trial until the requirements of Sections 90.052 and 90.053 have been satisfied.

Sec. 90.055. MOTION TO COMPEL TRUST CLAIM. A defendant in an asbestos-related action may, at any time, move to compel a claimant to file a claim with an asbestos trust. If the trial court determines that there is a good faith basis for the claimant to file the claim with the asbestos trust, the court shall order the claimant to file the claim with the asbestos trust and to comply with Sections 90.052 and 90.053.

Sec. 90.056. DISCOVERY. (a) A defendant in an action in which the claimant alleges an asbestos-related injury may seek discovery from an asbestos trust about matters related to the claimant's injury. If a defendant seeks discovery from an asbestos trust, the claimant shall provide any consent or permission required by the asbestos trust for the release of information and records.

(b) Trust claim forms and other claims-related material are discoverable and presumed relevant to an action in which the claimant alleges an asbestos-related injury. The forms, material, and other information provided or discovered under this section may be used in evidence by the parties to:

(1) show alternative causation for the claimant's alleged asbestos-related injury;

(2) serve as a basis for allocating a percentage of responsibility for the claimant's alleged injury, as provided by Section 33.003;

(3) serve as a basis for designating the creator of the trust as a responsible third party, as provided by Section 33.004; and

(4) serve as a basis for reducing the amount of recoverable damages under Section 90.058.

Sec. 90.057. RESPONSIBLE THIRD PARTY. If a claimant has sought compensation from an asbestos trust:

(1) the creator of the trust is a responsible third party under Section 33.004; and

(2) the trier of fact shall allocate a percentage of responsibility to the asbestos trust under Section 33.003.

Sec. 90.058. PRESUMPTION OF PAYMENT; AMOUNT OF RECOVERY. (a) If an action proceeds to trial before the claimant has received a final decision from an asbestos trust as to payment of the claimant's claim, there is a rebuttable presumption that the claimant will receive the compensation in accordance with the relevant trust governance documents. The trial court shall take judicial notice of the trust governance documents and the payment amounts provided by the documents.

(b) If a verdict in favor of the claimant is reached, the court shall:

(1) establish for each pending asbestos trust claim a value; and

(2) reduce the amount of damages to be recovered by the claimant by that amount.

(c) If the recoverable damages are reduced by the amount of the value attributed to a claim under Subsection (b) and the claim is wholly or partly rejected by the asbestos trust, the trial court may at any time modify the judgment and enter an appropriate judgment considering the effect of the rejected claim.

SECTION 6. The change in law made by this Act applies only to an action filed on or after the effective date of this Act. An action filed before the effective date of this Act is governed by the law that applied to the action immediately before that date, and that law is continued in effect for that purpose.

SECTION 7. This Act takes effect September 1, 2011.