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Regular Session, 2014
SENATE BILL NO. 562
BY SENATOR WALSWORTH
CIVIL PROCEDURE. Provides disclosure procedures for asbestos and silica claims.
(gov sig)
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 that13
effective date, a plaintiff shall provide to all of the parties in the action a sworn14
statement by the plaintiff, under penalty of perjury, identifying all existing15
claims made by or on behalf of the plaintiff against any trust created pursuant16
to Title 11 of the United States Code, for the purpose of processing, liquidating,17 SB NO. 562
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paying, or satisfying asbestos or silica claims and all trust claims material1
pertaining to each identified trust claim. The sworn statement shall disclose the2
date on which each trust claim against the relevant trust was made and whether3
any request for a deferral, delay, suspension, or tolling of the trust claims4
process has been submitted. The submission of the sworn statement shall be in5
addition to any disclosure requirements otherwise imposed by law, court order6
or ruling, applicable agreement or stipulation, local rule, or case management7
order.8
(2) If the plaintiff, subsequent to the submission of the sworn statement9
pursuant to Subparagraph (A)(1) of this Article, files with or submits to any10
trust additional trust claims not previously disclosed, the plaintiff shall provide11
to all of the parties in the action an amendment updating the sworn statement12
and identifying the additional trust claims. The plaintiff shall provide any13
amendment within thirty days of filing an additional trust claim with, or14
submitting an additional trust claim to, any trust. With respect to any trust15
claim that a plaintiff discloses in an amendment to the sworn statement, the16
plaintiff shall provide to all of the parties in the action all trust claims material17
pertaining to each additional trust claim identified in that amendment. The18
plaintiff shall provide the trust claims materials within thirty days of filing or19
submitting each additional trust claim.20
(3) Failure to provide to all of the parties in the action all trust claims21
material as required by this Article in a timely manner shall constitute grounds22
for the court to decline to assign an initial trial date or extend the date set for23
trial in the action.24
(4) Nothing in this Article prevents a court of competent jurisdiction25
from requiring any disclosures in addition to the disclosures required by this26
Article.27
B.(1) Any defendant in the action may file a motion with the court, with28
notice to the plaintiff and to all of the parties in the action, for an order to stay29 SB NO. 562
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the proceedings. A defendant's motion to stay the proceedings shall set forth1
credible evidence that demonstrates all of the following:2
(a) The identities of all trusts not previously disclosed by the plaintiff3
pursuant to Paragraph A of this Article against which the plaintiff has not made4
any trust claims but against which the defendant in good faith believes the5
plaintiff may make a successful trust claim.6
(b) The information that the defendant believes supports the additional7
trust claims.8
(c) A description of the information sufficient to meet the trust claim9
requirements of the trusts.10
(2) Within fourteen days after the filing of the defendant's motion for11
an order to stay the proceedings pursuant to Subparagraph (B)(1) of this12
Article, the plaintiff may do either of the following:13
(a) File the trust claims with or submit them to the trusts identified in14
the defendant's motion for an order to stay the proceedings. The submission to15
the court and to all of the parties in the action of proof demonstrating that the16
trust claims identified in the defendant's motion to stay the proceedings have17
been filed with or submitted to the appropriate trusts is dispositive of the18
defendant's motion for an order to stay the proceedings. Alternatively, the19
defendant may withdraw the motion brought pursuant to Subparagraph (B)(1)20
of this Article.21
(b) File with the court a response to the defendant's motion for an order22
to stay the proceedings requesting a determination by the court that the23
information supporting the trust claims against the trusts identified in the24
defendant's motion for an order to stay the proceedings should be modified25
prior to the filing of a trust claim with, or the submission of a trust claim to, a26
trust or that there is insufficient information to file or submit the trust claim27
identified in the defendant's motion for an order to stay the proceedings.28
(3) If the defendant has met its burden pursuant to Subparagraph (B)(1)29 SB NO. 562
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of this Article and if the plaintiff files a response pursuant to Subparagraph1
(B)(2) of this Article, the court shall determine if a successful asbestos claim2
could be submitted in good faith to each trust identified in the defendant's3
motion for an order to stay the proceedings brought pursuant to Subparagraph4
(B)(1) of this Article. The plaintiff has the burden of proof, by a preponderance5
of the evidence, to demonstrate that the information set forth by the defendant6
pursuant to Subsubparagraphs (B)(1)(b) and (c) of this Article should be7
modified prior to the filing of a trust claim with, or the submission of a trust8
claim to, each trust identified in the defendant's motion or that the trust claim9
should not be filed with or submitted to the trust because a successful trust10
claim cannot be made in good faith.11
(4) If the court determines that there is a good faith basis for filing a12
trust claim with, or submitting a trust claim to, a trust identified in the13
defendant's motion for an order to stay the proceedings brought pursuant to14
Subparagraph (B)(1) of this Article, the court shall stay the proceedings until15
the plaintiff files the trust claims with or submits them to the trusts identified16
in the defendant's motion for an order to stay the proceedings and has otherwise17
met the obligations set forth in this Paragraph and Paragraph A of this Article.18
C.(1) A noncancer trust claim and a cancer trust claim are based on19
distinct injuries caused by a person's exposure to asbestos or silica. A20
noncancer trust claim that is subject to disclosure pursuant to this Article21
means the noncancer claim that is the subject of the action in which the22
defendant seeks discovery. If a plaintiff previously filed a noncancer trust claim23
with, or submitted a noncancer trust claim to, a trust and subsequently filed an24
action based on a cancer claim, a trust claim that is subject to disclosure25
pursuant to this Article means both the earlier filed noncancer trust claim and26
the cancer claim that is the subject of the subsequent action.27
(2) Trust claims and the information that is the subject of disclosure28
pursuant to this Article are presumed to be authentic, relevant to, and29 SB NO. 562
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discoverable in an action. Notwithstanding any agreement or confidentiality1
provision, trust claims material are presumed to not be privileged. The parties2
in the action may introduce at trial any trust claims material to prove3
alternative causation for the exposed person's claimed injury, death, or loss to4
person, to prove a basis to allocate responsibility for the plaintiff's claimed5
injury, death, or loss to person, and to prove issues relevant to an adjudication6
of the claim, unless the exclusion of the trust claims material is otherwise7
required by the rules of evidence. A trust claim rejected by a trust may be8
excluded as evidence if the exclusion is required by the rules of evidence.9
(3) In addition to the disclosure requirements set forth in this Article,10
the parties to the action may seek additional disclosure and discovery of11
information relevant to the action by any mechanism provided by law. In12
addition to the disclosure described in this Article, any defendant in the action13
also may seek discovery of the plaintiff's trust claims directly from the trusts14
involved.15
(4) In an action, upon the filing by a defendant or judgment debtor of16
an appropriate motion seeking sanctions or other relief, the court may impose17
any sanction provided by a law of this state, including but not limited to18
vacating a judgment rendered in an action for a plaintiff's failure to comply19
with the disclosure requirements of this Article.20
(5) If subsequent to obtaining a judgment in an action in this state a21
plaintiff files any additional trust claim with, or submits any additional trust22
claim to, a trust that was in existence at the time the plaintiff obtained that23
judgment, the trial court, upon the filing by a defendant or judgment debtor of24
an appropriate motion seeking sanctions or other relief, has jurisdiction to25
reopen its judgment in the action and do either of the following:26
(a) Adjust the judgment by the amount of any subsequent trust27
payments obtained by the plaintiff.28
(b) Order any other relief to the parties that the court considers just and29 SB NO. 562
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proper.1
Section 2. The provisions of this Act shall apply to all asbestos and silica claims2
filed on or after the effective date of this Act and to any pending asbestos or silica claims in3
which no trial date has been set as of the effective date of this Act.4
Section 3. This Act shall become effective upon signature by the governor or, if not5
signed by the governor, upon expiration of the time for bills to become law without signature6
by the governor, as provided by Article III, Section 18 of the Constitution of Louisiana. If7
vetoed by the governor and subsequently approved by the legislature, this Act shall become8
effective on the day following such approval.9
The original instrument and the following digest, which constitutes no part
of the legislative instrument, were prepared by Julie J. Baxter.
DIGEST
Walsworth (SB 562)
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. SB NO. 562
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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.
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)