Struck = removed from the bill ยท
added = the amendment's new text.
SecondSB123_H_JUD.001 RegularNOT SessionAMENDED Seventy-firstHOUSE GeneralCOMMITTEE Assembly STATE OF COLORADOREFERENCE REENGROSSEDREPORT This_______________________________ VersionApril Includes24, All2018 AmendmentsChairman Adoptedof inCommittee theDate HouseCommittee ofon IntroductionJudiciary. LLS NO.
18-0353.01After Jerryconsideration Barryon SENATEthe BILLmerits, 18-123the SENATECommittee SPONSORSHIPrecommends Sonnenberg,the HOUSEfollowing: SPONSORSHIP Liston, Senate Committees House Committees Judiciary d A BILL FOR AN ACT e 1 E m 0 C ONCERNING ASBESTOS TRUST CLAIM TRANSPARENCY .
TSB18-123 nbe ,postponed Nindefinitely. g 2 E d c Bill Summary S e a R M (Note:
This** summary*** applies** to*** this** bill*SB123_H_JUD.001* as introduced and does notreflectanyamendmentsthatmaybesubsequentlyadopted.Ifthisbill g passes third reading in the house of introduction, a bill summary that d e 1 applies to the reengrossed version of this bill will be available at E R 2 http://leg.colorado.gov.) A n 8 N 2 h S e r The bill enacts the "Asbestos Bankruptcy Trust Claims n a Transparency Act".
Federal bankruptcy law provides companies with m M A asbestosliabilitiestheabilityto channel their future liabilities intotrusts.
Plaintiffs harmed from asbestos exposure mayfile claims with the trusts g and file lawsuits against companies that are still solvent.
The bill d addresses the disconnect between these separate compensation systems.
e 1 E R 2 The bill sets forth requirements for the filing of asbestos trust claims and A n 8 provides for their admissibility so that juries are informed about all of a E 2 h S e ca n M Shading denotes HOUSE amendment.
Double underlining denotes SENATE amendment.
m Capital letters or bold & italic numbers indicate new material to be added to existing statutA.
Dashes through the words indicate deletions from existing statute.
plaintiff's exposure to asbestos and can properly determine fault.
Be it enacted by the General Assembly of the State of Colorado:
SECTION1.
InColoradoRevisedStatutes,addpart14toarticle 21 of title 13 as follows:
PART 14 ASBESTOS BANKRUPTCY TRUST CLAIMS TRANSPARENCY ACT 13-21-1401.
Short title.
THORTTITLEOFTHISPART 14ISTHE "A SBESTOSB ANKRUPTCY TRUST C LAIMSTRANSPARENCY A CT".
13-21-1402.
Findingsandpurpose.(1) TEGENERALASSEMBLY FINDS THAT:
(a) OVER ONE HUNDRED EMPLOYERS HAVE DECLARED BANKRUPTCYATLEASTPARTIALLYDUETOASBESTOS -RELATEDLIABILITY;
(b) SCORES OF TRUSTS HAVE BEEN ESTABLISHED IN BANKRUPTCY PROCEEDINGSTOFORMAMULTI -BILLIONDOLLARCOMPENSATIONSYSTEM FOR ASBESTOS CLAIMANTS OUTSIDE OF THE CIVIL COURTS ,AND NEW ASBESTOS TRUSTS CONTINUE TO BE FORMED;
(c) ASBESTOSCLAIMANTSTYPICALLYSEEKCOMPENSATIONFROM SOLVENT DEFENDANTS IN CIVIL ACTIONS AND FROM TRUSTS OR CLAIMS FACILITIES FORMED IN ASBESTOS BANKRUPTCY PROCEEDING;
(d) TEREISLIMITEDTRANSPARENCYBETWEENTHESETWOPATHS TO RECOVERY ;
(e) AN ABSENCE OF TRANSPARENCY WITH RESPECT TO ASBESTOS BANKRUPTCY TRUST CLAIMS HAS RESULTED IN THE SUPPRESSION OF EVIDENCE IN ASBESTOS ACTION;
(f) A FEDERAL BANKRUPTCY COURT FOUND THAT TRUST CLAIM -2- 123 FILINGSAREBEINGMANIPULATEDANDINFORMATIONWITHHELDINORDER TO INFLATE RECOVERIES IN ASBESTOS ACTIO;S (g) T HE LACK OF TRANSPARENCY REGARDING TRUST CLAIMS INFORMATION HARMS COLORADO EMPLOYERS ,THEIR EMPLOYEES , SHAREHOLDERS ,ANDCOMMUNITIESINWHICHTHEYOPERATE .COMPANIES THATPAYMORETHANTHEIRFAIRSHAREINASBESTOSCASESHAVEFEWER RESOURCES TO PAY FUTURE CLAIMANTS AND INVEST IN C OLORADO S ECONOMY ;AND (h) TRANSPARENCY WITH RESPECT TO ASBESTOS TRUST CLAIMS ANDCLAIMSMADEINCIVILASBESTOSACTIONSPROMOTESTHEINTEGRITY OF THE CIVIL ASBESTOS COURT PROCEEDING AND FURTHERS RECOVERY LONGEVITY TO HELP FUTURE PLAINTIFF.
(2) I IS THE PURPOSE OF THIS P14TTO:
(a) PROVIDE TRANSPARENCY WITH RESPECT TO ASBESTOS TRUST CLAIMS AND CLAIMS MADE IN CIVIL ASBESTOS ACTIO;AND (b) RDUCETHEOPPORTUNITYFORWITHHOLDINGORSUPPRESSION OF TRUST-RELATED EXPOSURE EVIDENCE IN ASBESTOS ACTION.
13-21-1403.
Definitions.
AUSED IN THIS PA14,UNLESS THE CONTEXT OTHERWISE REQUIRES :
(1) "A SBESTOS"MEANS CHRYSOTILE , AMOSITE, CROCIDOLITE, TREMOLITEASBESTOS ,ANTHOPHYLLITEASBESTOS ACTINOLITEASBESTOS , ASBESTISFORM WINCHITE , ASBESTIFORM RICHTERITE , ASBESTIFORM AMPHIBOLE MINERALS ,AND ANY OF THESE MINERALS THAT HAVE BEEN CHEMICALLY TREATED OR ALTERED .
(2) "ASBESTOSACTION" MEANSACLAIMFORDAMAGESOROTHER RELIEF PRESENTED IN A CIVIL ACTION ARISING OUT ,BASED ON ,OR RELATED TO THE HEALTH EFFECTS OF EXPOSURE TO ASBESTOS AND ANY -3- 123 DERIVATIVE CLAIM MADE BY OR ON BEHALF OF A PERSON EXPOSED TO ASBESTOS OR A REPRESENTATIVE ,SPOUSE,PARENT ,CHILD, OR OTHER RELATIVE OF THAT PERSON.
(3) "ASBESTOS TRUST "MEANS A GOVERNMENT APPROVED OR COURT -APPROVEDTRUST ,QUALIFIEDSETTLEMENTFUND ,COMPENSATION FUND ORCLAIMSFACILITYCREATEDASARESULTOFANADMINISTRATIVE ORLEGALACTION ACOURT APPROVEDBANKRUPTCY ,ORPURSUANTTO 11 U.S.C.SEC.
524 (gOR 11 U.S.C.SEC.
1121 (aOR OTHER APPLICABLE PROVISION OF LAW,THAT IS INTENDED TO PROVIDE COMPENSATION TO CLAIMANTS ARISING OUT OF,BASED ON ,OR RELATED TO THE HEALTH EFFECTS OF EXPOSURE TO ASBESTO.
(4) "LAINTIF" MEANSAPERSONBRINGINGANASBESTOSACTION , INCLUDING A PERSONAL REPRESENTATIVE IF THE ASBESTOS ACTION IS BROUGHT BY AN ESTATE ,OR A CONSERVATOR OR NEXT FRIEND IF THE ACTIONISBROUGHT ONBEHALFOFAMINORORLEGALLYINCAPACITATED PERSON .
(5) "TUSTCLAIMSMATERIALS "MEANSAFINALEXECUTEDPROOF OFCLAIM AND ALL OTHER DOCUMENTS AND INFORMATION RELATED TO A CLAIM AGAINST AN ASBESTOS TRUST ,INCLUDING CLAIMS FORMS AND SUPPLEMENTARY MATERIALS , AFFIDAVITS,DEPOSITIONS AND TRIAL TESTIMONY , WORK HISTORY, MEDICAL AND HEALTH RECORDS , DOCUMENTS REFLECTING THE STATUSOFA CLAIM AGAINST AN ASBESTOS TRUST, AND , IF THE ASBESTOS TRUST CLAIM HAS SETTLED , ALL DOCUMENTS RELATING TO THE SETTLEMENT OF THE ASBESTOS TRUST CLAIM.
(6) "TRUST GOVERNANCE DOCUMENTS "MEANS ALL DOCUMENTS THAT RELATE TO ELIGIBILITY AND PAYMENT LEVELS FOR AN ASBESTOS -4- 123 TRUST ,INCLUDING CLAIMS PAYMENT MATRICES ,TRUST DISTRIBUTION PROCEDURES ,ORPLANSFOR REORGANIZATION ,FORANASBESTOSTRUST .
13-21-1404.
Required disclosures by plaintiff.
(1EACH PLAINTIFF IN AN ASBESTOS ACTION SHALL PROVIDE ALL PARTIES WITH A SWORNSTATEMENTIDENTIFYINGALLASBESTOSTRUSTCLAIMSTHATHAVE BEENFILEDBYTHEPLAINTIFFORBYANYONEONTHEPLAINTIFF 'SBEHALF, INCLUDING CLAIMS WITH RESPECT TO CONDITIONS OTHER THAN THOSE THAT ARE THE BASIS FOR THE ASBESTOS ACTION OR THAT POTENTIALLY COULD BE FILED BY THE PLAINTIFF AGAINST AN ASBESTOS TRUS.
THE SWORN STATEMENT SHALL BE PROVIDED NO LATER THAN ONE HUNDRED TWENTY DAYS PRIOR TO THE DATE SET FOR TRIAL FOR THE ASBESTOS ACTION .
OR EACH ASBESTOS TRUST CLAIM OR POTENTIAL ASBESTOS TRUST CLAIM IDENTIFIED IN THE SWORN STATEMENT, THE STATEMENT SHALL INCLUDE THE NAME ,ADDRESS ,AND CONTACT INFORMATION FOR THE ASBESTOS TRUST;THE AMOUNT CLAIMED OR TO BE CLAIMED BY THE PLAINTIFFTHEDATETHEPLAINTIFFFILEDTHECLAIM ;THEDISPOSITIONOF THECLAIM ;ANDWHETHERTHEREHASBEENAREQUESTTODEFER ,DELAY, SUSPEND ,OR TOLL THE CLAIM.
HE SWORN STATEMENT SHALL INCLUDE ANATTESTATIONFROMTHEPLAINTIFF ,UNDERPENALTYOFPERJURY THAT THE SWORN STATEMENT IS COMPLETE AND IS BASED ON A GOOD FAITH INVESTIGATION OF ALL POTENTIAL CLAIMS AGAINST ASBESTOS TRUS.S (2) NOTLATERTHANONEHUNDREDTWENTYDAYSBEFORETRIAL , THE PLAINTIFF SHALL PROVIDE ALL PARTIES WITH ALL TRUST CLAIMS MATERIALSFOREACHASBESTOSTRUSTCLAIMFILEDBYTHEPLAINTIFFOR BY ANYONE ON THE PLAINTIFF S BEHALF FOR ANY ASBESTOS-RELATED DISEASE.
(3) THE PLAINTIFF SHALL SUPPLEMENT THE INFORMATION AND -5- 123 MATERIALS PROVIDED PURSUANT TO THIS SECTION WITHIN NINETY DAYS AFTER THE PLAINTIFF FILES AN ADDITIONAL ASBESTOS TRUST CLAIM, SUPPLEMENTS AN EXISTING ASBESTOS TRUST CLAIM , OR RECEIVES ADDITIONAL INFORMATION OR MATERIALS RELATED TO ANY CLAIM OR POTENTIAL CLAIM AGAINST AN ASBESTOS TRUS.
(4) FAILURE BY THE PLAINTIFF TO MAKE AVAILABLE TO ALL PARTIES ALL TRUST CLAIMS MATERIALS AS REQUIRED BY THIS PAR14 SHALLCONSTITUTEGROUNDSFORTHECOURTTOEXTENDTHETRIALDATE IN AN ASBESTOS ACTIO.
13-21-1405.
Discovery - use of materials.
(1) T CLAIMS MATERIALS AND TRUST GOVERNANCE DOCUMENTS ARE PRESUMED TO BE RELEVANTANDAUTHENTICANDAREADMISSIBLEINEVIDENCE .N OCLAIMS OF PRIVILEGE APPLY TO ANY TRUST CLAIMS MATERIALS OR TRUST GOVERNANCE DOCUMENTS .
(2) ADEFENDANT IN AN ASBESTOS ACTION MAY SEEK DISCOVERY FROMAN ASBESTOS TRUST .THE PLAINTIFFMAYNOT CLAIMPRIVILEGE OR CONFIDENTIALITY TO BAR DISCOVERY AND SHALL PROVIDE CONSENT OR OTHER EXPRESSION OF PERMISSION THAT MAY BE REQUIRED BY THE ASBESTOS TRUST TO RELEASE INFORMATION AND MATERIALS SOUGHT BY A DEFENDANT .
(3) TRUST CLAIM MATERIALS THAT ARE SUFFICIENT TO ENTITLE A CLAIM TO CONSIDERATION FOR PAYMENT UNDER THE APPLICABLE TRUST GOVERNANCE DOCUMENTS MAY BE SUFFICIENT TO SUPPORT A JURY FINDINGTHATTHEPLAINTIFFMAYHAVEBEENEXPOSEDTOPRODUCTSFOR WHICH THE ASBESTOS TRUST WAS ESTABLISHED TO PROVIDE COMPENSATION AND THAT SUCH EXPOSURE MAY BE A SUBSTANTIAL FACTOR IN CAUSING THE PLAINTIF'S INJURY THAT IS AT ISSUE IN THE -6- 123 ASBESTOS ACTION.
13-21-1406.
Scheduling trial - stay of action.
(1) ART SHALL STAY AN ASBESTOS ACTION IF THE COURT FINDS THAT THE PLAINTIFF HAS FAILED TO MAKE THE DISCLOSURES REQUIRED UNDER SECTION 13-21-1404WITHIN ONE HUNDRED TWENTY DAYS PRIOR TO THE TRIAL DATE.
(2) I,IN THE DISCLOSURES REQUIRED BY SECTI13-21-1404,A PLAINTIFF IDENTIFIES A POTENTIAL ASBESTOS TRUST CL,THE JUDGE SHALL HAVE THE DISCRETION TO STAY THE ASBESTOS ACTION UNTIL THE PLAINTIFF FILES THE ASBESTOS TRUST CLAIM AND PROVIDES ALL PARTIES WITHALLTRUSTCLAIMSMATERIALSFORTHECLAIM .THEPLAINTIFFSHALL ALSO STATE WHETHER THERE HAS BEEN A REQUEST TO DEFER ,DELAY , SUSPEND ,OR TOLL THE CLAIM AGAINST THE ASBESTOS TRU.T 13-21-1407.
Identificationofadditionaloralternativeasbestos trusts by defendant.
(1) NLESSTHANNINETYDAYSBEFORE TRIAL ,IF A DEFENDANT IDENTIFIES AN ASBESTOS TRUST CLAIM NOT PREVIOUSLY IDENTIFIED BY THE PLAINTIFF THAT THE DEFENDANT REASONABLY BELIEVESTHEPLAINTIFFCANFILE,THEDEFENDANTMAYMOVETHECOURT FOR AN ORDER TO REQUIRE THE PLAINTIFF TO FILE THE ASBESTOS TRUST CLAIM .
THE DEFENDANT SHALL PRODUCE OR DESCRIBE THE DOCUMENTATION IT POSSESSES OR IS AWARE OF IN SUPPORT OF THE MOTION .
(2) WITHINTENDAYSAFTERRECEIVINGTHEDEFENDANT SMOTION PURSUANTTOSUBSECTION (1)OFTHISSECTION,THEPLAINTIFFSHALL,FOR EACHASBESTOSTRUSTCLAIMIDENTIFIEDBYTHEDEFENDANT MAKEONE OF THE FOLLOWING RESPONSES:
(a) FILE THE ASBESTOS TRUST CLA;M -7- 123 (b) FILE A WRITTEN RESPONSE WITH THE COURT SETTING FORTH THE REASONS WHY THERE IS INSUFFICIENT EVIDENCE FOR THE PLAINTIFF TO FILE THE ASBESTOS TRUST CLAI;OR (c) FILE A WRITTEN RESPONSE WITH THE COURT REQUESTING A DETERMINATIONTHATTHEPLAINTIFF SEXPENSESORATTORNEYFEESAND EXPENSES TO PREPARE AND FILE THE ASBESTOS TRUST CLAIM IDENTIFIED IN THE DEFENDANT S MOTION EXCEED THE PLAINTIFF 'S REASONABLY ANTICIPATED RECOVERY FROM THE TRUST .
(3) (a) I THE COURT DETERMINES THAT THERE IS A SUFFICIENT BASIS FORTHE PLAINTIFFTO FILE THE ASBESTOSTRUST CLAIMIDENTIFIED BY A DEFENDANT ,THE COURT SHALL ORDER THE PLAINTIFF TO FILE THE ASBESTOS TRUST CLAIM AND SHALL STAY THE ASBESTOS ACTION UNTIL THE PLAINTIFF FILES THE ASBESTOS TRUST CLAIM AND PROVIDES ALL PARTIES WITH ALL TRUST CLAIMS MATERIALS NO LATER THAN THIRTY DAYS BEFORE TRIAL .
(b) ITHECOURTDETERMINESTHATTHEPLAINTIFF 'SEXPENSESOR ATTORNEY FEES AND EXPENSES TO PREPARE AND FILE THE ASBESTOS TRUST CLAIM IDENTIFIED IN THE DEFENDANT S MOTION EXCEED THE PLAINTIFFS REASONABLY ANTICIPATED RECOVERY FROM THE ASBESTOS TRUST , THE COURT SHALL STAY THE ASBESTOS ACTION UNTIL THE PLAINTIFF FILES WITH THE COURT AND PROVIDES ALL PARTIES WITH A VERIFIED STATEMENT OF THE PLAINTIFS HISTORY OFEXPOSURE ,USAGE , OROTHERCONNECTION TO ASBESTOS COVEREDBYTHE ASBESTOSTRUST .
13-21-1408.
Application.TEPROVISIONSOFTHISPART 14 APPLY TO ALL ASBESTOS ACTIONS FILED ON OR AFTER THE EFFECTIVE DATE OF THIS PART14.
-8- 123 SECTION 2.
Act subject to petition - effective date.
This act takes effect at 12:01 a.m.
on the day following the expiration of the ninety-dayperiodafterfinaladjournmentofthegeneralassembly(August 8, 2018, if adjournment sine die is on May 9, 2018);
except that, if a referendum petition is filed pursuant to section 1 (3) of article V of the state constitution against this act or an item, section, or part of this act within such period, then the act, item, section, or part will not take effect unless approved by the people at the general election to be held in November 2018 and, in such case, will take effect on the date of the official declaration of the vote thereon by the governor.
-9- 123