HLS 13RS-1094 ORIGINAL
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Regular Session, 2013
HOUSE BILL NO. 481
BY REPRESENTATIVE GAROFALO
Prefiled pursuant to Article III, Section 2(A)(4)(b)(i) of the Constitution of Louisiana.
CIVIL/PROCEDURE: Provides disclosure procedures for asbestos and silica claims
AN ACT1
To enact Code of Civil Procedure Article 1476, relative to discovery in civil proceedings;2
to provide for claims involving asbestos and silica; to require the disclosure of3
certain information; to provide for time periods for making required disclosures; to4
provide for motions to stay proceedings; to provide for supplemental information;5
to provide for presumptions; to provide for sanctions; and to provide for related6
matters.7
Be it enacted by the Legislature of Louisiana:8
Section 1. Code of Civil Procedure Article 1476 is hereby enacted to read as follows:9
Art. 1476. Required disclosures; asbestos and silica10
A.(1) Within thirty days of commencing an action involving a claim for11
injury, disease, or death related to asbestos or silica or within thirty days of the12
effective date of this Article with respect to actions that are pending on that effective13
date, a plaintiff shall provide to all of the parties in the action a sworn statement by14
the plaintiff, under penalty of perjury, identifying all existing claims made by or on15
behalf of the plaintiff against any trust created pursuant to Title 11 of the United16
States Code, for the purpose of processing, liquidating, paying, or satisfying asbestos17
or silica claims and all trust claims material pertaining to each identified trust claim.18
The sworn statement shall disclose the date on which each trust claim against the19
relevant trust was made and whether any request for a deferral, delay, suspension,20 HLS 13RS-1094 ORIGINAL
HB NO. 481
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or tolling of the trust claims process has been submitted. The submission of the1
sworn statement shall be in addition to any disclosure requirements otherwise2
imposed by law, court order or ruling, applicable agreement or stipulation, local rule,3
or case management order.4
(2) If the plaintiff, subsequent to the submission of the sworn statement5
pursuant to Subparagraph (A)(1) of this Article, files with or submits to any trust6
additional trust claims not previously disclosed, the plaintiff shall provide to all of7
the parties in the action an amendment updating the sworn statement and identifying8
the additional trust claims. The plaintiff shall provide any amendment within thirty9
days of filing an additional trust claim with, or submitting an additional trust claim10
to, any trust. With respect to any trust claim that a plaintiff discloses in an11
amendment to the sworn statement, the plaintiff shall provide to all of the parties in12
the action all trust claims material pertaining to each additional trust claim identified13
in that amendment. The plaintiff shall provide the trust claims materials within thirty14
days of filing or submitting each additional trust claim.15
(3) Failure to provide to all of the parties in the action all trust claims16
material as required by this Article in a timely manner shall constitute grounds for17
the court to decline to assign an initial trial date or extend the date set for trial in the18
action.19
(4) Nothing in this Article prevents a court of competent jurisdiction from20
requiring any disclosures in addition to the disclosures required by this Article.21
B.(1) Any defendant in the action may file a motion with the court, with22
notice to the plaintiff and to all of the parties in the action, for an order to stay the23
proceedings. A defendant's motion to stay the proceedings shall set forth credible24
evidence that demonstrates all of the following:25
(a) The identities of all trusts not previously disclosed by the plaintiff26
pursuant to Paragraph A of this Article against which the plaintiff has not made any27
trust claims but against which the defendant in good faith believes the plaintiff may28
make a successful trust claim.29 HLS 13RS-1094 ORIGINAL
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(b) The information that the defendant believes supports the additional trust1
claims.2
(c) A description of the information sufficient to meet the trust claim3
requirements of the trusts.4
(2) Within fourteen days after the filing of the defendant's motion for an5
order to stay the proceedings pursuant to Subparagraph (B)(1) of this Article, the6
plaintiff may do either of the following:7
(a) File the trust claims with or submit them to the trusts identified in the8
defendant's motion for an order to stay the proceedings. The submission to the court9
and to all of the parties in the action of proof demonstrating that the trust claims10
identified in the defendant's motion to stay the proceedings have been filed with or11
submitted to the appropriate trusts is dispositive of the defendant's motion for an12
order to stay the proceedings. Alternatively, the defendant may withdraw the motion13
brought pursuant to Subparagraph (B)(1) of this Article.14
(b) File with the court a response to the defendant's motion for an order to15
stay the proceedings requesting a determination by the court that the information16
supporting the trust claims against the trusts identified in the defendant's motion for17
an order to stay the proceedings should be modified prior to the filing of a trust claim18
with, or the submission of a trust claim to, a trust or that there is insufficient19
information to file or submit the trust claim identified in the defendant's motion for20
an order to stay the proceedings.21
(3) If the defendant has met its burden pursuant to Subparagraph (B)(1) of22
this Article and if the plaintiff files a response pursuant to Subparagraph (B)(2) of23
this Article, the court shall determine if a successful asbestos claim could be24
submitted in good faith to each trust identified in the defendant's motion for an order25
to stay the proceedings brought pursuant to Subparagraph (B)(1) of this Article. The26
plaintiff has the burden of proof, by a preponderance of the evidence, to demonstrate27
that the information set forth by the defendant pursuant to Subsubparagraphs28
(B)(1)(b) and (c) of this Article should be modified prior to the filing of a trust claim29 HLS 13RS-1094 ORIGINAL
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with, or the submission of a trust claim to, each trust identified in the defendant's1
motion or that the trust claim should not be filed with or submitted to the trust2
because a successful trust claim cannot be made in good faith.3
(4) If the court determines that there is a good faith basis for filing a trust4
claim with, or submitting a trust claim to, a trust identified in the defendant's motion5
for an order to stay the proceedings brought pursuant to Subparagraph (B)(1) of this6
Article, the court shall stay the proceedings until the plaintiff files the trust claims7
with or submits them to the trusts identified in the defendant's motion for an order8
to stay the proceedings and has otherwise met the obligations set forth in this9
Paragraph and Paragraph A of this Article.10
C.(1) A noncancer trust claim and a cancer trust claim are based on distinct11
injuries caused by a person's exposure to asbestos or silica. A noncancer trust claim12
that is subject to disclosure pursuant to this Article means the noncancer claim that13
is the subject of the action in which the defendant seeks discovery. If a plaintiff14
previously filed a noncancer trust claim with, or submitted a noncancer trust claim15
to, a trust and subsequently filed an action based on a cancer claim, a trust claim that16
is subject to disclosure pursuant to this Article means both the earlier filed noncancer17
trust claim and the cancer claim that is the subject of the subsequent action.18
(2) Trust claims and the information that is the subject of disclosure pursuant19
to this Article are presumed to be authentic, relevant to, and discoverable in an20
action. Notwithstanding any agreement or confidentiality provision, trust claims21
material are presumed to not be privileged. The parties in the action may introduce22
at trial any trust claims material to prove alternative causation for the exposed23
person's claimed injury, death, or loss to person, to prove a basis to allocate24
responsibility for the plaintiff's claimed injury, death, or loss to person, and to prove25
issues relevant to an adjudication of the claim, unless the exclusion of the trust26
claims material is otherwise required by the rules of evidence. A trust claim rejected27
by a trust may be excluded as evidence if the exclusion is required by the rules of28
evidence.29 HLS 13RS-1094 ORIGINAL
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(3) In addition to the disclosure requirements set forth in this Article, the1
parties to the action may seek additional disclosure and discovery of information2
relevant to the action by any mechanism provided by law. In addition to the3
disclosure described in this Article, any defendant in the action also may seek4
discovery of the plaintiff's trust claims directly from the trusts involved.5
(4) In an action, upon the filing by a defendant or judgment debtor of an6
appropriate motion seeking sanctions or other relief, the court may impose any7
sanction provided by a law of this state, including but not limited to vacating a8
judgment rendered in an action for a plaintiff's failure to comply with the disclosure9
requirements of this Article.10
(5) If subsequent to obtaining a judgment in an action in this state a plaintiff11
files any additional trust claim with, or submits any additional trust claim to, a trust12
that was in existence at the time the plaintiff obtained that judgment, the trial court,13
upon the filing by a defendant or judgment debtor of an appropriate motion seeking14
sanctions or other relief, has jurisdiction to reopen its judgment in the action and do15
either of the following:16
(a) Adjust the judgment by the amount of any subsequent trust payments17
obtained by the plaintiff.18
(b) Order any other relief to the parties that the court considers just and19
proper.20
Section 2. The provisions of this Act shall apply to all asbestos and silica claims21
filed on or after the effective date of this Act and to any pending asbestos or silica claims in22
which no trial date has been set as of the effective date of this Act.23
Section 3. This Act shall become effective upon signature by the governor or, if not24
signed by the governor, upon expiration of the time for bills to become law without signature25
by the governor, as provided by Article III, Section 18 of the Constitution of Louisiana. If26
vetoed by the governor and subsequently approved by the legislature, this Act shall become27
effective on the day following such approval.28 HLS 13RS-1094 ORIGINAL
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DIGEST
The digest printed below was prepared by House Legislative Services. It constitutes no part
of the legislative instrument. The keyword, one-liner, abstract, and digest do not constitute
part of the law or proof or indicia of legislative intent. [R.S. 1:13(B) and 24:177(E)]
Garofalo HB No. 481
Abstract: Provides disclosure procedures for asbestos and silica claims.
Proposed law requires a plaintiff to provide to all of the parties in the action a sworn
statement identifying all existing claims and certain details of the claims made by or on
behalf of the plaintiff against any trust created pursuant to Title 11 of the United States Code
within 30 days of commencing an action involving a claim for injury, disease, or death
related to asbestos or silica or within 30 days of the effective date of proposed law.
Proposed law provides that the submission of the sworn statement shall be in addition to any
disclosure requirements otherwise imposed by law, court order or ruling, applicable
agreement or stipulation, local rule, or case management order, and that the statement shall
be amended to detail any claims filed subsequent to the original sworn statement.
Proposed law provides that failure to provide to all of the parties in the action all trust claims
material in a timely manner shall constitute grounds for the court to decline to assign an
initial trial date or extend the date set for trial in the action.
Proposed law authorizes any defendant in the action to file a motion with the court for an
order to stay the proceedings, and requires the defendant to set forth certain credible
evidence.
Proposed law provides that within 14 days after the filing of the defendant's motion for an
order to stay the proceedings, the plaintiff may either file the trust claims with the trusts
identified in the motion or file with the court a response to the defendant's motion for an
order to stay the proceedings.
Proposed law provides that if the defendant has met its burden and if the plaintiff files a
response with the court, the court shall determine if a successful asbestos claim could be
submitted in good faith to each trust identified in the defendant's motion.
Proposed law provides that the plaintiff has the burden of proof, by a preponderance of the
evidence, to demonstrate that the information set forth by the defendant should be modified
prior to the filing of a trust claim with each trust identified in the defendant's motion or that
the trust claim should not be filed with the trust because a successful trust claim cannot be
made in good faith.
Proposed law provides that if the court determines that there is a good faith basis for filing
a trust claim with a trust, the court shall stay the proceedings until the plaintiff files the trust
claims with the trusts and has otherwise met the obligations set forth in proposed law.
Proposed law provides that a noncancer trust claim and a cancer trust claim are based on
distinct injuries caused by a person's exposure to asbestos or silica, and that a noncancer trust
claim that is subject to disclosure means the noncancer claim that is the subject of the action
in which the defendant seeks discovery.
Proposed law provides that if a plaintiff previously filed a noncancer trust claim with a trust
and subsequently filed an action based on a cancer claim, a trust claim that is subject to
disclosure under proposed law means both the earlier filed noncancer trust claim and the
cancer claim that is the subject of the subsequent action. HLS 13RS-1094 ORIGINAL
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Proposed law provides that trust claims and the information that is the subject of disclosure
are presumed to be authentic, relevant to, and discoverable in an action, and that trust claims
material are presumed to not be privileged.
Proposed law authorizes the parties to introduce at trial any trust claims material to prove
alternative causation for the exposed person's claimed injury, death, or loss to prove a basis
to allocate responsibility for the plaintiff's claim, and to prove issues relevant to an
adjudication of the claim, unless the exclusion of the trust claims material is otherwise
required by the rules of evidence.
Proposed law authorizes the parties to seek additional disclosure and discovery of
information relevant to the action by any mechanism provided by law, including seeking
discovery of the plaintiff's trust claims directly from the trusts involved.
Proposed law provides that in an action, upon the filing by a defendant or judgment debtor
of a motion seeking sanctions or other relief, the court may impose any sanction provided
by a law.
Proposed law provides that if subsequent to obtaining a judgment in an action in this state
a plaintiff files any additional trust claim with a trust that was in existence at the time the
plaintiff obtained that judgment, the trial court, upon the defendant's or judgment debtor's
motion seeking sanctions, has jurisdiction to reopen its judgment in the action in order to
adjust the judgment by the amount of any subsequent trust payments, or order any other
relief to the parties that the court considers just and proper.
Proposed law applies to all asbestos and silica claims filed on or after the effective date of
proposed law and to all pending claims in which no trial date has been set as of the effective
date of proposed law.
Effective upon signature of governor or lapse of time for gubernatorial action.
(Adds C.C.P. Art. 1476)