101ST GENERAL ASSEMBLY
State of Illinois
2019 and 2020
HB4586

 

Introduced 2/5/2020, by Rep. Margo McDermed

 

SYNOPSIS AS INTRODUCED:
 
735 ILCS 5/Art. II Pt. 24 heading new
735 ILCS 5/2-2401 new
735 ILCS 5/2-2402 new
735 ILCS 5/2-2403 new
735 ILCS 5/2-2404 new
735 ILCS 5/2-2405 new
735 ILCS 5/2-2406 new

    Amends the Civil Practice Law of the Code of Civil Procedure to add a Part concerning asbestos trust claims. Includes a statement of legislative findings and purpose. Defines terms. Provides that within 30 days after an asbestos action is filed, the plaintiff shall: (1) provide all parties with a sworn statement indicating that an investigation has been conducted and that all asbestos trust claims that can be made by the plaintiff have been filed; and (2) provide all parties with all trust claim materials from all law firms connected to the plaintiff in relation to exposure to asbestos. Provides that a plaintiff has a continuing duty to supplement the information and materials within 30 days after the plaintiff supplements an asbestos trust claim, receives additional information or materials related to an asbestos trust claim, or files an additional trust claim. Provides that, not less than 60 days before trial, if a defendant believes the plaintiff has not filed all asbestos trust claims, the defendant may move and the court may enter an order to require the plaintiff to file additional trust claims. Provides that trust claim materials and trust governance documents are presumed to be relevant and authentic, and are admissible in evidence in an asbestos action. Provides that a claim of privilege does not apply to trust claim materials or trust governance documents and that a defendant may seek discovery from an asbestos trust. Provides that a defendant is entitled to a setoff in the amount the plaintiff has received or will receive from an asbestos trust.


LRB101 17896 LNS 67332 b

 

 

A BILL FOR

 

HB4586LRB101 17896 LNS 67332 b

1    AN ACT concerning civil law.
 
2    Be it enacted by the People of the State of Illinois,
3represented in the General Assembly:
 
4    Section 5. The Code of Civil Procedure is amended by adding
5Part 24 to Article II as follows:
 
6    (735 ILCS 5/Art. II Pt. 24 heading new)
7
Part 24. Asbestos Trust Claims

 
8    (735 ILCS 5/2-2401 new)
9    Sec. 2-2401. Findings and purpose.
10    (a) The General Assembly finds that:
11        (1) over 120 employers have declared bankruptcy at
12    least partially due to asbestos-related liability;
13        (2) scores of trusts have been established in
14    bankruptcy proceedings to form a multi-billion dollar
15    compensation system for asbestos claimants outside of the
16    civil courts, and new asbestos trusts continue to be
17    formed;
18        (3) asbestos claimants typically seek compensation
19    from solvent defendants in civil actions and from trusts or
20    claims facilities formed in asbestos bankruptcy
21    proceedings;
22        (4) there is limited transparency between these 2 paths

 

 

HB4586- 2 -LRB101 17896 LNS 67332 b

1    to recovery;
2        (5) an absence of transparency with respect to asbestos
3    bankruptcy trust claims has resulted in the suppression of
4    evidence in asbestos actions;
5        (6) a federal bankruptcy court found that trust claim
6    filings are being manipulated and information withheld in
7    order to inflate recoveries in asbestos actions;
8        (7) the lack of transparency regarding trust claims
9    information harms Illinois employers, their employees,
10    their shareholders, and the communities in which they
11    operate; companies that pay inflated settlements and
12    awards in asbestos cases have fewer resources to pay future
13    claimants and invest in the State's economy; and
14        (8) transparency with respect to asbestos trust claims
15    and claims made in civil asbestos actions promotes the
16    integrity of civil asbestos court proceedings and furthers
17    recovery longevity to help future plaintiffs.
18    (b) It is the purpose of this Part to:
19        (1) provide transparency with respect to asbestos
20    trust claims and claims made in civil asbestos actions; and
21        (2) reduce the opportunity for withholding or
22    suppression of trust-related exposure evidence in asbestos
23    actions.
 
24    (735 ILCS 5/2-2402 new)
25    Sec. 2-2402. Definitions. As used in this Part:

 

 

HB4586- 3 -LRB101 17896 LNS 67332 b

1    "Asbestos action" means a claim for damages or other relief
2presented in a civil action arising out of, based on, or
3related to the health effects of exposure to asbestos and any
4derivative claim made by or on behalf of a person exposed to
5asbestos or a representative, spouse, parent, child, or other
6relative of that person.
7    "Asbestos trust" means a government-approved or
8court-approved trust, qualified settlement fund, compensation
9fund, or claims facility created as a result of an
10administrative or legal action, a court-approved bankruptcy,
11or pursuant to 11 U.S.C. 524(g) or 11 U.S.C. 1121(a) or other
12applicable provision of law, that is intended, in whole or in
13part, to provide compensation to claimants arising out of,
14based on, or related to the health effects of exposure to
15asbestos.
16    "Trust claim materials" means a final executed proof of
17claim and all documents and information submitted to or
18received from an asbestos trust by the plaintiff, including
19claim forms and supplementary materials, affidavits,
20depositions and trial testimony of the plaintiff and others
21knowledgeable about the plaintiff's exposure history, work
22history, exposure allegations, and medical and health records,
23all documents that reflect the status of a claim against an
24asbestos trust, and all documents relating to the settlement of
25trust claims.
26    "Trust governance documents" means all documents that

 

 

HB4586- 4 -LRB101 17896 LNS 67332 b

1relate to eligibility and payment levels, including claims
2payment matrices, trust distribution procedures, or plans for
3reorganization, for an asbestos trust.
 
4    (735 ILCS 5/2-2403 new)
5    Sec. 2-2403. Required disclosures by plaintiff.
6    (a) Within 30 days after an asbestos action is filed, the
7plaintiff shall:
8        (1) provide all parties with a sworn statement
9    indicating that an investigation has been conducted and
10    that all asbestos trust claims that can be made by the
11    plaintiff have been filed; and
12        (2) provide all parties with all trust claim materials
13    from all law firms connected to the plaintiff in relation
14    to exposure to asbestos.
15    (b) A plaintiff has a continuing duty to supplement the
16information and materials required under subsection (a) within
1730 days after the plaintiff supplements an asbestos trust
18claim, receives additional information or materials related to
19an asbestos trust claim, or files an additional trust claim.
 
20    (735 ILCS 5/2-2404 new)
21    Sec. 2-2404. Defendant identification of additional
22asbestos trust claims.
23    (a) Not less than 60 days before trial, if a defendant
24believes the plaintiff has not filed all asbestos trust claims

 

 

HB4586- 5 -LRB101 17896 LNS 67332 b

1as required under Section 2-2403, the defendant may move the
2court for an order to require the plaintiff to file additional
3trust claims.
4    (b) If the court determines that there is a sufficient
5basis for the plaintiff to file an asbestos trust claim
6identified by the defendant, the court shall stay the action
7until the plaintiff files the asbestos trust claim and produces
8all related trust claim materials.
9    (c) An asbestos action may not be set for trial until at
10least 60 days after the plaintiff complies with this Section.
 
11    (735 ILCS 5/2-2405 new)
12    Sec. 2-2405. Discovery; use of materials.
13    (a) Trust claim materials and trust governance documents
14are presumed to be relevant and authentic, and are admissible
15in evidence in an asbestos action. A claim of privilege does
16not apply to trust claim materials or trust governance
17documents.
18    (b) A defendant in an asbestos action may seek discovery
19from an asbestos trust. The plaintiff may not claim privilege
20or confidentiality to bar discovery and shall provide consent
21or other expression of permission that may be required by the
22asbestos trust to release information and materials sought by a
23defendant.
 
24    (735 ILCS 5/2-2406 new)

 

 

HB4586- 6 -LRB101 17896 LNS 67332 b

1    Sec. 2-2406. Setoff. In an asbestos action in which damages
2are awarded, a defendant is entitled to a setoff in the amount
3the plaintiff has received from an asbestos trust and, for
4trust claims not yet paid as of the date of entry of judgment,
5the amount the plaintiff will receive as specified in the
6asbestos trust governance documents. If multiple defendants
7are found liable for damages, the court shall distribute the
8amount of the setoff proportionally between the defendants,
9according to the liability of each defendant.