82R5304 TJS-F
By: Patrick S.B. No. 1202
A BILL TO BE ENTITLED
AN ACT
relating to asbestos and silica litigation.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Sections 90.001 through 90.012, Civil Practice
and Remedies Code, are designated as Subchapter A, Chapter 90,
Civil Practice and Remedies Code, and a heading is added to
Subchapter A to read as follows:
SUBCHAPTER A. GENERAL PROVISIONS
SECTION 2. Section 90.007(a), Civil Practice and Remedies
Code, is amended to read as follows:
(a) If [In an action filed on or after the date this chapter
becomes law, if] a claimant fails to timely serve a report on a
defendant, or serves on the defendant a report that does not comply
with the requirements of Section 90.003 or 90.004, the defendant
may file a motion to dismiss the claimant's asbestos-related claims
or silica-related claims. If the basis for the motion is that the
claimant has served on the defendant a report that does not comply
with Section 90.003 or 90.004, the [The] motion must:
(1) be filed on or before the 30th day after the date
the report is served on the defendant; and
(2) [. If a claimant fails to serve a report on the
defendant, the motion must be filed on or before the 30th day after
the date the report was required to be served on the defendant under
Section 90.006. If the basis of the motion is that the claimant has
served on the defendant a report that does not comply with Section
90.003 or 90.004, the motion must] include the reasons why the
report does not comply with that section.
SECTION 3. Section 90.008, Civil Practice and Remedies
Code, is amended to read as follows:
Sec. 90.008. [VOLUNTARY] DISMISSAL BY CLAIMANT OR PRETRIAL
COURT. (a) Before serving a report required by Section 90.003 or
90.004, a claimant seeking damages arising from an asbestos-related
injury or silica-related injury may voluntarily dismiss the
claimant's action. If a claimant files a voluntary dismissal under
this subsection [section], the claimant's voluntary dismissal is
without prejudice to the claimant's right to file a subsequent
action seeking damages arising from an asbestos-related injury or a
silica-related injury.
(b) An MDL pretrial court, on its own motion, may dismiss
any action that has been pending for more than 180 days in which the
claimant has not served a report that complies with Section 90.003
or 90.004. A dismissal under this subsection is without prejudice
to the claimant's right to file a subsequent action seeking damages
arising from an asbestos-related injury or a silica-related injury.
SECTION 4. Section 90.010(d), Civil Practice and Remedies
Code, is amended to read as follows:
(d) In an action pending on the date this chapter becomes
law that is transferred to or pending in an MDL pretrial court and
in which the claimant does not serve a report that complies with
Section 90.003 or 90.004, the MDL pretrial court shall not dismiss
the action, except as provided by Section 90.007 or 90.008,
[pursuant to this chapter] but shall retain jurisdiction over the
action under the MDL rules. The MDL pretrial court shall not remand
an [such] action over which it retains jurisdiction for trial
unless:
(1) the claimant serves a report complying with
Section 90.003 or 90.004; or
(2)(A) the claimant does not serve a report that
complies with Section 90.003 or 90.004;
(B) the claimant serves a report complying with
Subsection (f)(1); and
(C) the court, on motion and hearing, makes the
findings required by Subsection (f)(2).
SECTION 5. Chapter 90, Civil Practice and Remedies Code, is
amended by adding Subchapter B to read as follows:
SUBCHAPTER B. ASBESTOS TRUSTS
Sec. 90.051. DEFINITION. In this subchapter, "asbestos
trust" means a trust fund or claim facility created as a result of a
bankruptcy filing or other insolvency proceeding that is intended
to provide compensation to claimants alleging asbestos-related
injuries. The term includes a trust created under 11 U.S.C. Section
524(g).
Sec. 90.052. STATEMENT OF CLAIMS AGAINST ASBESTOS TRUST.
(a) In an action in which a claimant alleges an asbestos-related
injury, not later than the 90th day before trial, or another date
specified by court order, the claimant shall file with the court and
serve on all parties a statement listing all:
(1) existing or anticipated claims the claimant
intends to bring against an asbestos trust; and
(2) payments or other compensation the claimant
reasonably believes the claimant is entitled to receive or has
already received from an asbestos trust.
(b) A statement provided under Subsection (a) must:
(1) be supported by a sworn affidavit by the claimant
that the statement is based on a good faith investigation of all
potential claims against asbestos trusts;
(2) be supported by a certification by the claimant's
attorney that the attorney has conducted a good faith investigation
of all potential claims against asbestos trusts;
(3) disclose the date on which a 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 claimant or the claimant's counsel has requested
deferral, delay, suspension, or tolling of any aspect of the
asbestos trust's claims process; and
(4) disclose the amount of money, if any, the claimant
has received or will receive from each asbestos trust and an
explanation of any contingency that may cause the amount to be paid
to the claimant to increase in the future.
Sec. 90.053. COMMUNICATIONS WITH TRUST. (a) At the time a
claimant files and serves an asbestos claim statement as required
by Section 90.052, the claimant shall serve on all parties to the
action copies of the claimant's submissions to and communications
with asbestos trusts, including:
(1) copies of electronic data and e-mails;
(2) proof-of-claim forms; and
(3) all material or information provided in support of
the claim or in response to any inquiry from an asbestos trust.
(b) A claimant shall continue to supplement a statement
filed under Section 90.052 or forms and material provided under
Subsection (a) as follows:
(1) if the claimant learns that the statement filed
under Section 90.052 was incomplete or incorrect when filed or is no
longer complete and correct, the claimant shall promptly file and
serve on all parties to the action a supplemental statement; and
(2) if a claimant files a claim form with an asbestos
trust or provides other material to an asbestos trust after the
claimant initially provides forms and material under Subsection
(a), the claimant shall promptly serve copies of the additional
claim forms or material on all parties.
Sec. 90.054. PROHIBITED REMAND. Notwithstanding Section
90.010(c), an MDL pretrial court may not remand a case for trial
until the requirements of Sections 90.052 and 90.053 have been
satisfied.
Sec. 90.055. MOTION TO COMPEL TRUST CLAIM. A defendant in
an asbestos-related action may, at any time, move to compel a
claimant to file a claim with an asbestos trust. If the trial court
determines that there is a good faith basis for the claimant to file
the claim with the asbestos trust, the court shall order the
claimant to file the claim with the asbestos trust and to comply
with Sections 90.052 and 90.053.
Sec. 90.056. DISCOVERY. (a) A defendant in an action in
which the claimant alleges an asbestos-related injury may seek
discovery from an asbestos trust about matters related to the
claimant's injury. If a defendant seeks discovery from an asbestos
trust, the claimant shall provide any consent or permission
required by the asbestos trust for the release of information and
records.
(b) Trust claim forms and other claims-related material are
discoverable and presumed relevant to an action in which the
claimant alleges an asbestos-related injury. The forms, material,
and other information provided or discovered under this section may
be used in evidence by the parties to:
(1) show alternative causation for the claimant's
alleged asbestos-related injury;
(2) serve as a basis for allocating a percentage of
responsibility for the claimant's alleged injury, as provided by
Section 33.003;
(3) serve as a basis for designating the creator of the
trust as a responsible third party, as provided by Section 33.004;
and
(4) serve as a basis for reducing the amount of
recoverable damages under Section 90.058.
Sec. 90.057. RESPONSIBLE THIRD PARTY. If a claimant has
sought compensation from an asbestos trust:
(1) the creator of the trust is a responsible third
party under Section 33.004; and
(2) the trier of fact shall allocate a percentage of
responsibility to the asbestos trust under Section 33.003.
Sec. 90.058. PRESUMPTION OF PAYMENT; AMOUNT OF RECOVERY.
(a) If an action proceeds to trial before the claimant has received
a final decision from an asbestos trust as to payment of the
claimant's claim, there is a rebuttable presumption that the
claimant will receive the compensation in accordance with the
relevant trust governance documents. The trial court shall take
judicial notice of the trust governance documents and the payment
amounts provided by the documents.
(b) If a verdict in favor of the claimant is reached, the
court shall:
(1) establish for each pending asbestos trust claim a
value; and
(2) reduce the amount of damages to be recovered by the
claimant by that amount.
(c) If the recoverable damages are reduced by the amount of
the value attributed to a claim under Subsection (b) and the claim
is wholly or partly rejected by the asbestos trust, the trial court
may at any time modify the judgment and enter an appropriate
judgment considering the effect of the rejected claim.
SECTION 6. The change in law made by this Act applies only
to an action filed on or after the effective date of this Act. An
action filed before the effective date of this Act is governed by
the law that applied to the action immediately before that date, and
that law is continued in effect for that purpose.
SECTION 7. This Act takes effect September 1, 2011.