Wisconsin Passes Asbestos Trust Reform

We posted before about the legislative effort in Wisconsin to level the asbestos playing field with regard to claims against asbestos trusts and remaining solvent defendants.  Earlier this month the state Senate passed a version of the bill that would require plaintiffs in asbestos personal injury actions to disclose whether they have filed a claim against any personal injury trust.

This week, the Wisconsin Assembly passed the bill (A.B.19), a version that will also create a setoff for defendants of the amount recovered from the trust.  The bill now goes to Gov. Scott Walker (R) for approval.  Published reports suggest the governor will sign the measure.

A.B. 19 imposes a series of new requirements in asbestos-related claims, including:

(a) the plaintiff shall provide to all parties a sworn statement identifying each personal injury claim he or she has filed or reasonably anticipates filing against an asbestos trust, including the amount claimed by the plaintiff, the date that the plaintiff filed the claim, the disposition of the claim and whether there has been a request to defer, delay, suspend, or toll the claim against the asbestos trust.
(b) For each personal injury claim he or she has filed against an asbestos trust, plaintiff shall provide a copy of the final executed proof of claim, all trust documents, including trust claims materials, trust governance documents, any documents reflecting the current status of the claim and, if the claim is settled, all documents relating to the settlement of the claim.
(c)  Trust claims materials and trust governance documents are admissible in evidence. No claims of privilege apply to trust claims materials or trust governance documents.
(d) 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 finding that the plaintiff may have been exposed to products for which the trust was established to provide compensation and that such exposure may be a substantial factor in causing the plaintiff's injury that is at issue in the action.
(e) If a verdict is entered in favor of the plaintiff in an action subject to this section and the defendant is found to be 51 percent or more causally negligent or responsible for the plaintiff's entire damages, the plaintiff may not collect any amount of damages until after the plaintiff assigns to the defendant all pending, current, and future rights or claims he or she has or may have for a personal injury claim against an asbestos trust.

 

UPDATE- The governor signed the bill. (reminder check our disclaimer page, we don't always update posts!)

 

Wisconsin Senate Passes Asbestos Trust Disclosure Bill

 The Wisconsin Senate recently passed a bill that would require plaintiffs in asbestos lawsuits to notify defendants of their various asbestos trust claims.  This comes in response to about the lack of transparency that allows plaintiffs to double dip from trusts and solvent defendants.

The bill passed on a mostly party line vote, and returns the issue to the state Assembly, which approved a similar measure last year.  Several states have  passed or considered similar legislation. Under the bill, plaintiffs would divulge all of their claims against asbestos trusts and any related documents, including those related to the settlement of the claim. The proposed legislation would also allow the trust documents to be admitted as evidence in asbestos personal injury claims. If a trust determined a plaintiff's claim against the trust was valid, a later jury could find that the plaintiff was exposed to the other asbestos product and that the other exposure may have been a substantial factor in causing the plaintiff's alleged asbestos-related injury in the suit.

Full text here.

 

House Committee Approves Asbestos Bill

Quick note for our readers who follow asbestos mass tort issues:  the House Judiciary Committee decided in a 17–14 party-line vote this week to reject  various proposed amendments to the Furthering Asbestos Claim Transparency Act of 2013 (H.R. 982).  The FACT Act would require the various asbestos settlement trusts to make public disclosures detailing the claims to the trust and to provide certain information about claims on request (but not confidential medical records).  The amendments were proposed by Democrats opposing the bill.

The Full Committee Markup of H.R. 982 is here.  Hearing information regarding the 3/13 hearing on the bill is here

Passage of the Fact Act would allow defendants to properly assess a plaintiff’s complete exposure history. As it stands, plaintiffs often hide behind trust confidentiality to make solvent defendants believe that their products were far more responsible for the plaintiff’s disease than the true picture.  As asbestos liabilities force more and more companies to file for bankruptcy, legislators need to preserve assets for appropriate claimants; the secrecy and abuse associated with the trusts undermines this as well.

 

New Theory Emerges in Climate Change Litigation

Just as many eyes are focused on the climate change/global warming cases pending in the appellate courts, a group of activist environmentalists have enrolled new plaintiffs to bring an old legal theory into the climate change litigation mix. A case filed last week alleges that the atmosphere is a "public trust resource" and, as such, the government has a duty to act to protect it. See Loorz v. Jackson, No. CV11-2203 (N.D. Cal., 5/4/11).

Plaintiffs are youths, alleged to be "beneficiaries" of the "public trust," including the teenage head of the group, Kids v. Global Warming, which is also a named plaintiff. Defendants are the EPA and numerous federal agencies who allegedly could act to curb greenhouse gas emissions allegedly linked to global warming.

Plaintiffs' complaint contains the well-known litany of alleged effects of global warming, including rising seas, melting glaciers, warming oceans, changing precipitation, all as an alleged result of increasing CO2 levels.  It takes short term readings and phenomena and raises them to the level of global climactic changes, hypotheses into alleged scientific proof.

The plaintiffs seek declaratory and injunctive relief, on the theory that the atmosphere is a public trust; that under the public trust doctrine, the federal government has a fiduciary duty as trustee to protect the trust for the benefit of the benficiaries (plaintiffs); and that therefore the agencies should be ordered to act to reduce CO2 emissions by 6% a year beginning in 2013.

Thus, the claim moves beyond environmental statutes, such as the Clean Air Act, and tort doctrines such as public nuisance, both of which have been recognized as not applicable by most courts, to an even less applicable theory, the so-called public trust doctrine. This notion has a far more limited reach, with lakes and navigable streams being maintained for drinking, commerce, and recreation purposes under a public-trust doctrine -- or tidal and submerged lands not being given over to private ownership.

Media reports that similar lawsuits are being filed in several other courts, and that petitions for rulemakings by state administrative agencies will be filed in other states.

The cynical use of youthful plaintiffs (aren't we all "beneficiaries"?) may illustrate how clearly the environmental activists sees the challenges of persuading courts on the science and the law, that human emissions of carbon dioxide which comprises less than 0.04 percent of the atmosphere is somehow responsible for hurricanes and every other weather event we experience. 

Whatever the theory alleged, it seems likley that these cases will run headlong into the same issues that derail so much of the global warming agenda, the fact that these cases raise political questions that should be reserved for the political branches of government, not an inidvidual judge. Indeed, the legislative branch, acting within the confines of the common law public trust doctrine, is recognized in the calse law as the ultimate administrator of the trust and often is described as the ultimate arbiter of permissible uses of trust lands.