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PRINTER'S NO. 204
THE GENERAL ASSEMBLY OF PENNSYLVANIA
HOUSE BILL
No.
238
Session of
2017
INTRODUCED BY KAMPF, PICKETT, IRVIN, TOPPER, JAMES, MILLARD,
KAUFFMAN, ORTITAY, RADER, EVERETT AND SCHEMEL,
JANUARY 31, 2017
REFERRED TO COMMITTEE ON JUDICIARY, JANUARY 31, 2017
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:
"Asbestos action." Any civil lawsuit in which the plaintiff
seeks damages for an asbestos-related injury.
"Asbestos trust." Any trust or claims facility 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 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
lifetime.
Section 4. Apportionment of responsibility.
(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
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serve on all parties:
(1) a statement listing all 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:
(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.--
(1) 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
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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:
(i) Work histories, exposure allegations,
affidavits, depositions and trial testimony of the
plaintiff and others knowledgeable about the plaintiff's
exposure history.
(ii) All medical documentation relating to the
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.
(iii) The trust governance documents, including the
payment amounts specified in the documents.
(2) 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.
(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)(1), 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
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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)(1), 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 claims
identified in the statement provided under subsection (a), as
supplemented, have been filed. An asbestos action may not
begin trial until at least 30 days after a statement is
supplemented under paragraph (l) or mandatory disclosures are
supplemented under paragraph (2).
(e) Liability.--For purposes of apportioning liability, the
question of liability of any entity that established an asbestos
trust or an asbestos trust disclosed in the statement required
under subsection (a) shall be transmitted to the trier of fact
upon appropriate requests and proofs by any party, consistent
with 42 Pa.C.S. § 7102 (relating to comparative negligence).
Section 5. Applicability.
This act shall apply to asbestos actions arising on or after
the effective date of this section.
Section 6. Effective date.
This act shall take effect in 90 days.
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