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PRINTER'S NO. 2007
THE GENERAL ASSEMBLY OF PENNSYLVANIA
HOUSE BILL
No.
1428
Session of
2015
INTRODUCED BY KAMPF, TURZAI, CUTLER, MUSTIO, DIAMOND, MILLARD,
TOPPER, KAUFFMAN, ZIMMERMAN, PHILLIPS-HILL, SCHEMEL, CORBIN,
WHEELAND, BARRAR, DELOZIER, SAYLOR, GODSHALL, A. HARRIS,
TOEPEL, ROSS AND TRUITT, JUNE 30, 2015
REFERRED TO COMMITTEE ON JUDICIARY, JUNE 30, 2015
AN ACT
Providing for transparency of claims made against asbestos-
related bankruptcy trusts, for compensation and allocation of
responsibility, for the preservation of resources and for the
imposition of liabilities.
The General Assembly of the Commonwealth of Pennsylvania
hereby enacts as follows:
Section 1. Short title.
This act shall be known and may be cited as the Fairness in
Claims and Transparency (FaCT) Act.
Section 2. Purpose.
The purposes of this act are:
(1) To provide transparency of claims made against
bankruptcy trusts and in the tort system.
(2) To facilitate fair and appropriate compensation to
plaintiffs with a rational allocation of responsibility to
all persons, whether current defendants or not, consistent
with existing State law.
(3) To preserve the resources of defendants involved in
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tort claims and bankruptcy trusts to help promote adequate
recoveries for deserving plaintiffs.
(4) To ensure that liabilities properly borne by
bankruptcy trusts are not imposed upon defendants in the tort
system.
Section 3. Definitions.
The following words and phrases when used in this act shall
have the meanings given to them in this section unless the
context clearly indicates otherwise:
"Apportionment nonparty." An entity, regardless of solvency,
which establishes or has established an asbestos trust against
which the plaintiff has filed a claim or has a reasonable basis
for filing a claim.
"Asbestos action." Any civil lawsuit in which the plaintiff
seeks damages for an asbestos-related injury.
"Asbestos trust." Any trust or claims facility created or in
the process of being created as a result of bankruptcies or
other settlements that are intended to provide compensation to
plaintiffs alleging asbestos-related injuries, including trusts
created under 11 U.S.C. § 524(g) (relating to effect of
discharge).
"Defendant." Any party to an asbestos action other than a
plaintiff, an apportionment nonparty or an asbestos trust.
"Plaintiff." Any of the following:
(1) An individual filing an asbestos action on the
individual's behalf.
(2) A person permitted by law to represent an individual
filing an asbestos action during the individual's lifetime or
as the legal representative of the estate of an individual
claiming injury from asbestos during the individual's
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lifetime.
"Settlement credit." The amount paid by an apportionment
nonparty through an asbestos trust in excess of the asbestos
trust's apportioned liability at trial.
Section 4. Apportionment of responsibility.
(a) General rule.--An apportionment nonparty shall be
apportioned responsibility, for liability purposes, in an
asbestos action pursuant to 42 Pa.C.S. § 7102(a.2) (relating to
comparative negligence) and this section.
(b) Designation of apportionment nonparty.--A defendant in
an asbestos action may, at any time, move to designate an
asbestos trust as an apportionment nonparty. If the court
determines by a preponderance of the evidence that the plaintiff
has filed or has a reasonable basis for filing a claim with the
asbestos trust, the court shall make the designation and
liability shall be apportioned pursuant to 42 Pa.C.S. §
7102(a.2) and this section.
(c) Settlement credits.--
(1) If liability is apportioned in an asbestos action
among defendants and apportionment nonparties, the court
shall calculate the amount of any settlement credits and mold
the verdict to reflect all appropriate credits.
(2) Each apportionment nonparty that has compensated a
plaintiff for more than its apportioned share of the verdict
shall be awarded a settlement credit, and the damages awarded
to the plaintiff shall be reduced by the amount of each
settlement credit.
(3) Each apportionment nonparty that has compensated a
plaintiff for less than its apportioned share of the verdict
shall not be awarded a settlement credit.
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(4) If an asbestos action proceeds to verdict before the
plaintiff has received a final decision as to payment of the
plaintiff's claim from an apportionment nonparty, there shall
be a rebuttable presumption that the plaintiff will receive
the maximum possible value of the claim available for the
plaintiff's asbestos-related injury, as published in the
applicable trust governance documents. If a verdict in favor
of the plaintiff is entered, the court shall establish for
each pending apportionment nonparty claim the maximum
possible value as set forth in the trust governance
documents, which value, when applicable, shall be used for
purposes of calculating settlement credit.
(5) An apportionment of settlement credits provided for
under this section shall be governed by this section and 42
Pa.C.S. § 7102 and shall not be subject to the limitations of
42 Pa.C.S. § 8326 (relating to effect of release as to other
tort-feasors).
Section 5. Disclosure of information from asbestos trusts.
(a) File.--Not later than 90 days prior to trial of an
asbestos action, or at another time as ordered by the court,
whichever is earlier, a plaintiff shall file with the court and
serve on all parties:
(1) a statement listing all existing or potential claims
the plaintiff has filed or has a reasonable basis to file
against any asbestos trust; and
(2) a statement listing all payments or funds the
plaintiff has received or reasonably believes the plaintiff
may be entitled to receive from each asbestos trust.
(b) Statement.--The statement provided under subsection (a)
shall:
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(1) be supported by a certification made subject to the
penalties of 18 Pa.C.S. § 4904 (relating to unsworn
falsification to authorities) from the plaintiff that the
plaintiff has conducted a reasonable investigation and has
disclosed all claims the plaintiff has filed or has a
reasonable basis to file against an asbestos trust;
(2) disclose when each 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 plaintiff has requested deferral, delay or
tolling of any aspect of the asbestos trust claims process;
and
(3) disclose the amount of compensation, if any, the
plaintiff has received or reasonably believes the plaintiff
may receive from the asbestos trust along with a statement
explaining any contingencies that may cause the amount of
compensation to change in the future.
(c) Service.--When the plaintiff files and serves the
statement required under subsection (a), the plaintiff shall
serve on all parties to the asbestos action copies of the
plaintiff's submissions to and communications with each asbestos
trust identified, including copies of electronic data and e-
mails, proof-of-claim forms and all other materials or
information provided to the asbestos trust or received from the
asbestos trust in relation to a claim, including all of the
following:
(1) Work histories, exposure allegations, affidavits,
depositions and trial testimony of the plaintiff and others
knowledgeable about the plaintiff's exposure history.
(2) All medical documentation relating to the
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plaintiff's claim, including, but not limited to, x-rays,
test results, diagnostic reports, CT reports, cytology
reports, all other medical reports and pathology results.
(3) The trust governance documents, including the
payment amounts specified in the documents.
(d) Duty.--The plaintiff shall have a continuing duty, until
final resolution of the action, to supplement the statement
provided under subsection (a) and the production of materials
under subsection (c), as follows:
(1) If the plaintiff learns that the statement filed
under subsection (a) was incomplete or incorrect when filed,
or although complete and correct when filed, is no longer
complete and correct, the plaintiff shall file and serve a
supplemental statement on all parties to an asbestos action.
The supplemental statement must be filed and served within 30
days after the plaintiff discovers the necessity for
supplementation, or within the time as ordered by the court.
(2) If the plaintiff files or provides a claim form or
other materials to an asbestos trust after the plaintiff's
initial service of materials under subsection (c), the
plaintiff must serve copies of the additional materials on
all parties to the action. The supplemental materials must be
served within 30 days after the plaintiff provides the
materials to the asbestos trust.
(3) A plaintiff's asbestos action shall be stayed in its
entirety until the plaintiff certifies that all existing or
potential claims identified in the statement provided under
subsection (a), as supplemented, have been filed and
identified. Unless all defendants in an asbestos action
consent, an asbestos action may not begin trial until at
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least 30 days after a statement is supplemented under
paragraph (l) or mandatory disclosures are supplemented under
paragraph (2).
(e) Discovery.--A defendant in an asbestos action may seek
discovery from an asbestos trust identified by the plaintiff in
the plaintiff's statement under subsection (a), as supplemented.
If a defendant seeks discovery from an asbestos trust, the
plaintiff shall provide consent, a signed authorization and
permission for the release of relevant information and
materials, if required by the asbestos trust.
(f) Sanctions.--Failure by a plaintiff to comply with the
disclosure and discovery requirements under this section shall
be a basis for the imposition of sanctions.
Section 6. Effective date.
This act shall take effect in 90 days.
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