84R5865 SCL-F
 
  By: Schwertner S.B. No. 491
 
 
 
A BILL TO BE ENTITLED
 
AN ACT
  relating to consideration of asbestos or silica trust claims in
  certain actions asserting asbestos- or silica-related injuries.
         BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
         SECTION 1.  Chapter 90, Civil Practice and Remedies Code, is
  amended by designating Sections 90.001 through 90.012 as Subchapter
  A and adding a subchapter heading to read as follows:
  SUBCHAPTER A. GENERAL PROVISIONS
         SECTION 2.  Chapter 90, Civil Practice and Remedies Code, is
  amended by adding Subchapter B to read as follows:
  SUBCHAPTER B. ASBESTOS OR SILICA TRUST CLAIMS
         Sec. 90.051.  DEFINITIONS. In this subchapter:
               (1)  "Asbestos or silica trust" means an entity that:
                     (A)  is created under 11 U.S.C. Section 524(g) or
  another applicable law for the benefit of creditors of a bankrupt
  person;
                     (B)  is formed for the purpose of compensating
  claimants for asbestos- or silica-related injuries; and
                     (C)  is in existence on the date originally set
  for trial in an action asserting an asbestos- or silica-related
  injury.
               (2)  "Trust claim" means a filing with or claim against
  an asbestos or silica trust seeking recovery of damages for or
  arising from the asbestos- or silica-related injury of an exposed
  person.
               (3)  "Trust claim material" means documentation
  supporting a trust claim, including:
                     (A)  documentation that a claimant submits or
  provides to an asbestos or silica trust that demonstrates the
  existence of an asbestos- or silica-related injury or a trust claim
  that the claimant may have against the asbestos or silica trust; and
                     (B)  claim forms and other materials that an
  asbestos or silica trust requires a claimant to submit in order to
  receive compensation.
         Sec. 90.052.  NOTICE OF TRUST CLAIMS. (a) A claimant
  asserting an asbestos- or silica-related injury shall serve on each
  party notice of and trust claim material relating to each trust
  claim made by or on behalf of the exposed person.  The notice must
  include a sworn statement by the claimant that identifies each
  trust claim and states the date the claim was made and whether a
  request for a deferral, delay, suspension, or tolling of the claim
  has been submitted.
         (b)  In an action pending on September 1, 2015, in which
  discovery was commenced before that date, the claimant shall serve
  the notice and trust claim material required by Subsection (a) not
  later than October 1, 2015.
         (c)  In an action filed on or after September 1, 2015, or an
  action pending on September 1, 2015, in which discovery was not
  commenced before that date, the claimant shall serve the notice and
  trust claim material required by Subsection (a) not later than the
  120th day before the date the action is originally set for trial.
         (d)  The notice and disclosures required by this section are
  in addition to any notice or disclosure required by other law, rule,
  order, or applicable agreement.
         Sec. 90.053.  ADDITIONAL TRUST CLAIMS NOTICE. (a) A
  claimant shall serve notice of and trust claim material relating to
  a trust claim made after the claimant serves notice of and trust
  claim material under Section 90.052. The claimant shall serve the
  additional notice and trust claim material on all parties not later
  than the 30th day after the date the additional trust claim is made.
         (b)  The notice required by Subsection (a) must include a
  sworn statement providing information on the additional trust
  claims as prescribed by Section 90.052.
         Sec. 90.054.  NOTICE OF CANCER- AND NON-CANCER-RELATED TRUST
  CLAIMS REQUIRED. A claimant shall serve notice of and trust claim
  material relating to a trust claim regardless of whether the claim
  is for an injury resulting in cancer or an injury not resulting in
  cancer.
         Sec. 90.055.  FAILURE TO PROVIDE NOTICE. (a) An MDL
  pretrial court may decline to remand an action to a trial court if
  the claimant fails to provide notice and trust claim material in
  accordance with this subchapter.
         (b)  If a claimant received compensation from an asbestos or
  silica trust for an injury that also gave rise to a judgment against
  a defendant and the claimant failed to provide notice of and trust
  claim material relating to the relevant trust claim in accordance
  with this subchapter, the trial court, on a defendant's or judgment
  debtor's motion and after reasonable notice to the parties, may
  impose an appropriate sanction, including vacating the judgment and
  ordering a new trial.
         Sec. 90.056.  MOTION TO STAY. (a) A defendant may file a
  motion to stay the proceedings under Section 90.058 not later than
  the 45th day before the date originally set for trial. The motion
  must include:
               (1)  a list of asbestos or silica trusts not disclosed
  by the claimant against which the defendant in good faith believes
  the claimant may make a successful trust claim; and
               (2)  information supporting the additional trust claim
  described by Subdivision (1), including information that may be
  used to meet the trust claim requirements of an asbestos or silica
  trust described by Subdivision (1).
         (b)  Notwithstanding any other provision of this subchapter,
  a defendant may file a motion to stay the proceedings as described
  by this section not later than the seventh day after the date the
  defendant receives notice of asbestos or silica exposure
  information that may support an additional asbestos or silica trust
  claim.
         Sec. 90.057.  RESPONSE TO MOTION TO STAY. (a) Not later
  than the 14th day after the date the defendant files a motion under
  Section 90.056, the claimant may file a response:
               (1)  stating and providing proof that the claimant has
  made a trust claim identified in the defendant's motion and served
  notice of and trust material relating to the claim as prescribed by
  Section 90.052(a); or
               (2)  requesting a determination by the court that:
                     (A)  the information provided in the motion is
  insufficient to support a trust claim identified in the motion; or
                     (B)  the fees and expenses, including attorney's
  fees, for filing a trust claim identified in the motion exceed the
  claimant's reasonably anticipated recovery from the trust.
         (b)  If the claimant files a response making a request under
  Subsection (a)(2)(B), the court shall determine whether the
  claimant's fees and expenses, including attorney's fees, for making
  the relevant trust claim exceed the claimant's reasonably
  anticipated recovery from the trust. If the court determines that
  the claimant's fees and expenses exceed the reasonably anticipated
  recovery, the claimant shall provide the court with a verified
  statement of the exposed person's exposure history to asbestos or
  silica that is covered by the trust.
         Sec. 90.058.  STAY OF PROCEEDINGS. (a) The court shall grant
  a motion under Section 90.056 if the court determines there is a
  good faith basis to make a trust claim identified by the motion.
  The stay shall continue until the claimant provides proof that the
  claimant has made the claim and served notice of and trust claim
  material relating to the claim as prescribed by Section 90.052(a).
         (b)  The court may not stay the proceedings if, with respect
  to each trust claim identified in the motion:
               (1)  the claimant provides the proof described by
  Section 90.057(a)(1); or
               (2)  the court makes a determination described by
  Section 90.057(b).
         Sec. 90.059.  EVIDENCE OF TRUST CLAIMS. (a) Trust claim
  material is presumed to be authentic, relevant, and discoverable in
  an action to which this subchapter applies.
         (b)  Notwithstanding an agreement, including a
  confidentiality agreement, trust claim material is presumed to not
  be privileged.
         (c)  A party may use the trust claim material to prove:
               (1)  an alternate source for the cause of the exposed
  person's injury, death, or loss;
               (2)  a basis to allocate responsibility for the exposed
  person's injury, death, or loss; or
               (3)  any other issue relevant to adjudication of a
  claim asserted in the action.
         Sec. 90.060.  MODIFICATION OF JUDGMENT BASED ON SUBSEQUENT
  TRUST CLAIM. (a) Subject to Subsection (c), a trial court, on a
  defendant's or judgment debtor's motion and after reasonable notice
  to the parties, may:
               (1)  modify the judgment by the amount of a subsequent
  payment by an asbestos or silica trust to the claimant based on:
                     (A)  a trust claim relating to which notice and
  trust claim material was not provided to the defendant or judgment
  debtor in accordance with Section 90.052; or
                     (B)  a trust claim made after the judgment to an
  asbestos or silica trust that existed at the time of the judgment;
  or
               (2)  order other relief that the court considers just
  and proper in connection with the payment.
         (b)  A defendant or judgment debtor must file a motion under
  this section in a reasonable time after the claimant receives a
  payment from a related asbestos or silica trust, but not later than
  the first anniversary of the date the judgment is signed.
         (c)  If a motion under this section is filed after the period
  that the trial court may otherwise modify a judgment, the trial
  court may modify the judgment in a manner consistent with this
  section on or before the 30th day after the date the motion is
  filed.
         (d)  Notwithstanding Section 22.004, Government Code, the
  supreme court may not amend or adopt rules in conflict with this
  section.
         SECTION 3.  Subchapter B, Chapter 90, Civil Practice and
  Remedies Code, as added by this Act, applies to an action:
               (1)  commenced on or after the effective date of this
  Act; or
               (2)  pending on the effective date of this Act.
         SECTION 4.  This Act takes effect September 1, 2015.