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A BILL TO BE ENTITLED
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AN ACT
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relating to asbestos and silica litigation. |
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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SECTION 1. Sections 90.001 through 90.012, Civil Practice |
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and Remedies Code, are designated as Subchapter A, Chapter 90, |
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Civil Practice and Remedies Code, and a heading is added to |
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Subchapter A to read as follows: |
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SUBCHAPTER A. GENERAL PROVISIONS |
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SECTION 2. Section 90.007(a), Civil Practice and Remedies |
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Code, is amended to read as follows: |
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(a) If [In an action filed on or after the date this chapter
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becomes law, if] a claimant fails to timely serve a report on a |
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defendant, or serves on the defendant a report that does not comply |
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with the requirements of Section 90.003 or 90.004, the defendant |
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may file a motion to dismiss the claimant's asbestos-related claims |
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or silica-related claims. If the basis for the motion is that the |
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claimant has served on the defendant a report that does not comply |
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with Section 90.003 or 90.004, the [The] motion must: |
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(1) be filed on or before the 30th day after the date |
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the report is served on the defendant; and |
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(2) [. If a claimant fails to serve a report on the
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defendant, the motion must be filed on or before the 30th day after
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the date the report was required to be served on the defendant under
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Section 90.006.
If the basis of the motion is that the claimant has
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served on the defendant a report that does not comply with Section
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90.003 or 90.004, the motion must] include the reasons why the |
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report does not comply with that section. |
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SECTION 3. Section 90.008, Civil Practice and Remedies |
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Code, is amended to read as follows: |
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Sec. 90.008. [VOLUNTARY] DISMISSAL BY CLAIMANT OR PRETRIAL |
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COURT. (a) Before serving a report required by Section 90.003 or |
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90.004, a claimant seeking damages arising from an asbestos-related |
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injury or silica-related injury may voluntarily dismiss the |
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claimant's action. If a claimant files a voluntary dismissal under |
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this subsection [section], the claimant's voluntary dismissal is |
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without prejudice to the claimant's right to file a subsequent |
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action seeking damages arising from an asbestos-related injury or a |
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silica-related injury. |
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(b) An MDL pretrial court, on its own motion, may dismiss |
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any action that has been pending for more than 180 days in which the |
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claimant has not served a report that complies with Section 90.003 |
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or 90.004. A dismissal under this subsection is without prejudice |
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to the claimant's right to file a subsequent action seeking damages |
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arising from an asbestos-related injury or a silica-related injury. |
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SECTION 4. Section 90.010(d), Civil Practice and Remedies |
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Code, is amended to read as follows: |
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(d) In an action pending on the date this chapter becomes |
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law that is transferred to or pending in an MDL pretrial court and |
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in which the claimant does not serve a report that complies with |
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Section 90.003 or 90.004, the MDL pretrial court shall not dismiss |
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the action, except as provided by Section 90.007 or 90.008, |
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[pursuant to this chapter] but shall retain jurisdiction over the |
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action under the MDL rules. The MDL pretrial court shall not remand |
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an [such] action over which it retains jurisdiction for trial |
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unless: |
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(1) the claimant serves a report complying with |
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Section 90.003 or 90.004; or |
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(2)(A) the claimant does not serve a report that |
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complies with Section 90.003 or 90.004; |
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(B) the claimant serves a report complying with |
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Subsection (f)(1); and |
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(C) the court, on motion and hearing, makes the |
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findings required by Subsection (f)(2). |
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SECTION 5. Chapter 90, Civil Practice and Remedies Code, is |
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amended by adding Subchapter B to read as follows: |
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SUBCHAPTER B. ASBESTOS TRUSTS |
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Sec. 90.051. DEFINITION. In this subchapter, "asbestos |
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trust" means a trust fund or claim facility created as a result of a |
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bankruptcy filing or other insolvency proceeding that is intended |
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to provide compensation to claimants alleging asbestos-related |
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injuries. The term includes a trust created under 11 U.S.C. Section |
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524(g). |
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Sec. 90.052. STATEMENT OF CLAIMS AGAINST ASBESTOS TRUST. |
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(a) In an action in which a claimant alleges an asbestos-related |
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injury, not later than the 90th day before trial, or another date |
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specified by court order, the claimant shall file with the court and |
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serve on all parties a statement listing all: |
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(1) existing or anticipated claims the claimant |
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intends to bring against an asbestos trust; and |
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(2) payments or other compensation the claimant |
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reasonably believes the claimant is entitled to receive or has |
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already received from an asbestos trust. |
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(b) A statement provided under Subsection (a) must: |
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(1) be supported by a sworn affidavit by the claimant |
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that the statement is based on a good faith investigation of all |
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potential claims against asbestos trusts; |
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(2) be supported by a certification by the claimant's |
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attorney that the attorney has conducted a good faith investigation |
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of all potential claims against asbestos trusts; |
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(3) disclose the date on which a claim was or will be |
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submitted to each asbestos trust and the status of each claim, |
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including whether there has been a response from the asbestos trust |
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and whether the claimant or the claimant's counsel has requested |
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deferral, delay, suspension, or tolling of any aspect of the |
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asbestos trust's claims process; and |
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(4) disclose the amount of money, if any, the claimant |
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has received or will receive from each asbestos trust and an |
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explanation of any contingency that may cause the amount to be paid |
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to the claimant to increase in the future. |
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Sec. 90.053. COMMUNICATIONS WITH TRUST. (a) At the time a |
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claimant files and serves an asbestos claim statement as required |
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by Section 90.052, the claimant shall serve on all parties to the |
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action copies of the claimant's submissions to and communications |
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with asbestos trusts, including: |
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(1) copies of electronic data and e-mails; |
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(2) proof-of-claim forms; and |
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(3) all material or information provided in support of |
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the claim or in response to any inquiry from an asbestos trust. |
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(b) A claimant shall continue to supplement a statement |
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filed under Section 90.052 or forms and material provided under |
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Subsection (a) as follows: |
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(1) if the claimant learns that the statement filed |
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under Section 90.052 was incomplete or incorrect when filed or is no |
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longer complete and correct, the claimant shall promptly file and |
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serve on all parties to the action a supplemental statement; and |
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(2) if a claimant files a claim form with an asbestos |
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trust or provides other material to an asbestos trust after the |
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claimant initially provides forms and material under Subsection |
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(a), the claimant shall promptly serve copies of the additional |
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claim forms or material on all parties. |
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Sec. 90.054. PROHIBITED REMAND. Notwithstanding Section |
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90.010(c), an MDL pretrial court may not remand a case for trial |
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until the requirements of Sections 90.052 and 90.053 have been |
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satisfied. |
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Sec. 90.055. MOTION TO COMPEL TRUST CLAIM. A defendant in |
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an asbestos-related action may, at any time, move to compel a |
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claimant to file a claim with an asbestos trust. If the trial court |
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determines that there is a good faith basis for the claimant to file |
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the claim with the asbestos trust, the court shall order the |
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claimant to file the claim with the asbestos trust and to comply |
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with Sections 90.052 and 90.053. |
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Sec. 90.056. DISCOVERY. (a) A defendant in an action in |
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which the claimant alleges an asbestos-related injury may seek |
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discovery from an asbestos trust about matters related to the |
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claimant's injury. If a defendant seeks discovery from an asbestos |
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trust, the claimant shall provide any consent or permission |
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required by the asbestos trust for the release of information and |
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records. |
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(b) Trust claim forms and other claims-related material are |
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discoverable and presumed relevant to an action in which the |
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claimant alleges an asbestos-related injury. The forms, material, |
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and other information provided or discovered under this section may |
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be used in evidence by the parties to: |
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(1) show alternative causation for the claimant's |
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alleged asbestos-related injury; |
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(2) serve as a basis for allocating a percentage of |
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responsibility for the claimant's alleged injury, as provided by |
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Section 33.003; |
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(3) serve as a basis for designating the creator of the |
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trust as a responsible third party, as provided by Section 33.004; |
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and |
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(4) serve as a basis for reducing the amount of |
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recoverable damages under Section 90.058. |
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Sec. 90.057. RESPONSIBLE THIRD PARTY. If a claimant has |
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sought compensation from an asbestos trust: |
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(1) the creator of the trust is a responsible third |
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party under Section 33.004; and |
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(2) the trier of fact shall allocate a percentage of |
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responsibility to the asbestos trust under Section 33.003. |
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Sec. 90.058. PRESUMPTION OF PAYMENT; AMOUNT OF RECOVERY. |
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(a) If an action proceeds to trial before the claimant has received |
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a final decision from an asbestos trust as to payment of the |
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claimant's claim, there is a rebuttable presumption that the |
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claimant will receive the compensation in accordance with the |
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relevant trust governance documents. The trial court shall take |
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judicial notice of the trust governance documents and the payment |
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amounts provided by the documents. |
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(b) If a verdict in favor of the claimant is reached, the |
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court shall: |
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(1) establish for each pending asbestos trust claim a |
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value; and |
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(2) reduce the amount of damages to be recovered by the |
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claimant by that amount. |
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(c) If the recoverable damages are reduced by the amount of |
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the value attributed to a claim under Subsection (b) and the claim |
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is wholly or partly rejected by the asbestos trust, the trial court |
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may at any time modify the judgment and enter an appropriate |
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judgment considering the effect of the rejected claim. |
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SECTION 6. The change in law made by this Act applies only |
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to an action filed on or after the effective date of this Act. An |
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action filed before the effective date of this Act is governed by |
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the law that applied to the action immediately before that date, and |
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that law is continued in effect for that purpose. |
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SECTION 7. This Act takes effect September 1, 2011. |