state of oklahoma - Oklahoma Legislature

state of oklahoma - Oklahoma Legislature

1 STATE OF OKLAHOMA 2 2nd Session of the 53rd Legislature (2012) 3 SENATE BILL 1792 By: Jolley 4 5 6 7 8 9 10 11 12 13 14 15 AS INTRODUCED An ...

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STATE OF OKLAHOMA

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2nd Session of the 53rd Legislature (2012)

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SENATE BILL 1792

By: Jolley

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AS INTRODUCED An Act relating to asbestos tort actions; creating the Asbestos Claims Transparency Act; providing short title; defining terms; establishing disclosure requirements for certain tort actions; authorizing additional disclosure requirements; allowing defendant to file certain motion; requiring certain evidence; authorizing claimant to take certain actions within specified time period; establishing requirements for stay of certain proceedings; establishing requirements for certain trust claims; allowing discovery of certain information; authorizing additional discovery and disclosure under certain circumstances; authorizing imposition of sanctions under certain circumstances; authorizing reopening of certain judgments under specified circumstances; defining term; stating applicability of act; providing for codification; providing for noncodification; and providing an effective date.

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BE IT ENACTED BY THE PEOPLE OF THE STATE OF OKLAHOMA: SECTION 1.

NEW LAW

A new section of law to be codified

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in the Oklahoma Statutes as Section 81 of Title 76, unless there is

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created a duplication in numbering, reads as follows:

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This act shall be known and may be cited as the "Asbestos Claims Transparency Act".

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SECTION 2.

NEW LAW

A new section of law to be codified

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in the Oklahoma Statutes as Section 82 of Title 76, unless there is

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created a duplication in numbering, reads as follows:

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As used in the Asbestos Claims Transparency Act:

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1.

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"Asbestos" means all minerals defined as "asbestos" in 29 CFR

1910, as amended; 2.

"Asbestos claim" means any claim for damages, losses,

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indemnification, contribution, or other relief arising out of, based

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on, or in any way related to asbestos.

"Asbestos claim" includes a

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claim made by or on behalf of any person who has been exposed to

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asbestos, or any representative, spouse, parent, child, or other

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relative of that person, for injury, including mental or emotional

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injury, death, or loss to person, risk of disease or other injury,

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costs of medical monitoring or surveillance, or any other effects on

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the person's health that are caused by the person's exposure to

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asbestos;

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3.

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"Asbestos tort action" means a tort action based on an

asbestos claim; 4.

"Asbestos trust", except as otherwise provided in subsection

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E of Section 5 of this act, means and encompasses all trust

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entities, claims agents, or claims processing facilities that are

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created pursuant to the jurisdiction of a United States Bankruptcy

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Court and Section 524(g) of Chapter 11 of the United States

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Bankruptcy Code, 11 U.S.C. 524(g), or other applicable provision of

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law, that are formed for the purpose of compensating claimants

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asserting eligible asbestos claims, and that are in existence on the

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date initially set for trial in the asbestos tort action;

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5.

"Asbestos trust claim" means any claim for compensation by an

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exposed person or the exposed person's representative against any

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asbestos trust;

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6.

"Cancer" means a malignant condition;

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7.

"Claimant" means any person asserting an asbestos claim or

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asbestos trust claim.

"Claimant" includes a plaintiff,

counterclaimant, cross-claimant, or third-party plaintiff; 8.

"Exposed person" means any person whose exposure to asbestos

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or to asbestos-containing products is the basis for an asbestos

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claim;

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9.

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10.

"Noncancer" means a nonmalignant condition; "Proof of claim" means any form of documentation that a

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potential claimant against an asbestos trust submits or provides to

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the asbestos trust that attests to or asserts the existence of any

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liquidated or unliquidated asbestos claim that the claimant may have

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against the asbestos trust or its predecessors under any theory of

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law;

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"Trust claims material" means documents constituting an

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asbestos trust claim, including, but not limited to, claim forms,

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proofs of claim, and informational material required by an asbestos

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trust to be submitted by a claimant in order to have the claim

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evaluated by the asbestos trust and relied upon by the asbestos

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trust in making its compensation determination; and

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"Trust governance documents" means and encompasses all

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documents that are set forth in the plan of reorganization and

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related orders, terms, conditions, distribution procedures, payment

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schedules and matrixes, evaluation paradigms and adjustment

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formulas, and all other policies and procedures that are utilized to

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determine a claimant's eligibility for, and the amounts or levels

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of, payment to a claimant by an asbestos trust.

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SECTION 3.

NEW LAW

A new section of law to be codified

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in the Oklahoma Statutes as Section 83 of Title 76, unless there is

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created a duplication in numbering, reads as follows:

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A. 1. a.

Within thirty (30) days after filing the complaint or

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other initial pleading in an asbestos tort action that

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is not otherwise barred or deferred under applicable

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law or within thirty (30) days of the effective date

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of this section with respect to asbestos tort actions

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that are pending on that effective date, a claimant

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shall provide to all of the parties in the action a

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sworn statement by the claimant, under penalty of

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perjury, identifying all existing asbestos trust

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claims made by or on behalf of the claimant and all

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trust claims material pertaining to each identified

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asbestos trust claim.

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The sworn statement shall

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disclose the date on which each asbestos trust claim

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against the relevant asbestos trust was made and

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whether any request for a deferral, delay, suspension,

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or tolling of the asbestos trust claims process has

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been submitted.

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b.

The submission of the sworn statement under

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subparagraph a of this paragraph shall be in addition

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to any disclosure requirements otherwise imposed by

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law, civil rule, court order or ruling, applicable

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agreement or stipulation, local rule, or case

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management order.

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2.

If the claimant, subsequent to the submission of the sworn

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statement under subparagraph a of paragraph 1 of this subsection,

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files with or submits to any asbestos trust additional asbestos

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trust claims not previously disclosed, the claimant shall provide to

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all of the parties in the asbestos tort action an amendment updating

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the sworn statement and identifying the additional asbestos trust

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claims.

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paragraph within thirty (30) days of filing an additional asbestos

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trust claim with, or submitting an additional asbestos trust claim

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to, any asbestos trust.

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3.

The claimant shall provide any amendment under this

With respect to any asbestos trust claim that a claimant

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discloses under paragraph 2 of this subsection in an amendment to

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the sworn statement, the claimant shall provide to all of the

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parties in the asbestos tort action all trust claims material

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pertaining to each additional asbestos trust claim identified in

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that amendment.

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material under this paragraph within thirty (30) days of filing or

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submitting each additional asbestos trust claim.

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B.

The claimant shall provide the trust claims

Failure to provide to all of the parties in the asbestos tort

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action all trust claims material as required by this section in a

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timely manner shall constitute grounds for the court to decline to

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assign an initial trial date or extend the date set for trial in the

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action. C.

Nothing in this section prevents a court of competent

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jurisdiction from requiring any disclosures in addition to the

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disclosures required under this section.

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SECTION 4.

NEW LAW

A new section of law to be codified

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in the Oklahoma Statutes as Section 84 of Title 76, unless there is

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created a duplication in numbering, reads as follows:

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A.

Any defendant in an asbestos tort action may file a motion

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with the court, with notice to the claimant and to all of the

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parties in the action, for an order to stay the proceedings.

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defendant's motion to stay the proceedings shall set forth credible

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evidence that demonstrates all of the following:

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1.

A

The identities of all asbestos trusts not previously

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disclosed by the claimant pursuant to Section 3 of this act against

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which the claimant has not made any asbestos trust claims but

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against which the defendant in good faith believes the claimant may

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make a successful asbestos trust claim;

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2.

The information that the defendant believes supports the

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additional asbestos trust claims described in paragraph 1 of this

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subsection; and

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3.

A description of the information sufficient to meet the

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asbestos trust claim requirements of the asbestos trusts described

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in paragraph 1 of this subsection.

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B.

Within fifteen (15) days after the filing of the defendant's

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motion for an order to stay the proceedings under subsection A of

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this section, the claimant may do either of the following:

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1.

File the asbestos trust claims with or submit them to the

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asbestos trusts identified in the defendant's motion for an order to

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stay the proceedings.

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parties in the asbestos tort action of proof demonstrating that the

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asbestos trust claims identified in the defendant's motion to stay

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the proceedings have been filed with or submitted to the appropriate

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asbestos trusts is dispositive of the defendant's motion for an

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order to stay the proceedings.

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withdraw the motion brought under subsection A of this section; or

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2.

The submission to the court and to all of the

Alternatively, the defendant may

File with the court a response to the defendant's motion for

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an order to stay the proceedings requesting a determination by the

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court that the information supporting the asbestos trust claims

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against the asbestos trusts identified in the defendant's motion for

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an order to stay the proceedings should be modified prior to the

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filing of an asbestos trust claim with, or the submission of an

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asbestos trust claim to, an asbestos trust or that there is

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insufficient information to file or submit the asbestos trust claim

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identified in the defendant's motion for an order to stay the

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proceedings.

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C.

If the defendant has not met its burden under subsection A of

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this section and if the claimant files a response pursuant to

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paragraph 2 of subsection B of this section, the court shall

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determine if a successful asbestos trust claim could be submitted in

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good faith to each asbestos trust identified in the defendant's

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motion for an order to stay the proceedings brought under subsection

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A of this section.

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preponderance of the evidence, to demonstrate that the information

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set forth by the defendant pursuant to paragraphs 2 and 3 of

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subsection A of this section should be modified prior to the filing

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of an asbestos trust claim with, or the submission of an asbestos

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trust claim to, each asbestos trust identified in the defendant's

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motion or that the asbestos trust claim should not be filed with or

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submitted to the asbestos trust because a successful asbestos trust

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claim cannot be made in good faith.

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D.

The claimant has the burden of proof, by a

If the court determines that there is a good faith basis for

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filing an asbestos trust claim with, or submitting an asbestos trust

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claim to, an asbestos trust identified in the defendant's motion for

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an order to stay the proceedings brought under subsection A of this

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section, the court shall stay the proceedings until the claimant

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files the asbestos trust claims with or submits them to the asbestos

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trusts identified in the defendant's motion for an order to stay the

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proceedings and has otherwise met the obligations set forth in this

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section and Section 3 of this act.

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SECTION 5.

NEW LAW

A new section of law to be codified

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in the Oklahoma Statutes as Section 85 of Title 76, unless there is

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created a duplication in numbering, reads as follows:

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A.

A noncancer asbestos trust claim and a cancer asbestos trust

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claim are based on distinct injuries caused by a person's exposure

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to asbestos.

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disclosure under Section 3 or 4 of this act or is identified in this

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section means the noncancer asbestos claim that is the subject of

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the asbestos tort action in which the defendant seeks discovery

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pursuant to this section and to Section 3 or 4 of this act.

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claimant previously filed a noncancer asbestos trust claim with, or

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submitted a noncancer asbestos trust claim to, an asbestos trust and

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subsequently filed an asbestos tort action based on a cancer

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asbestos claim, a cancer asbestos trust claim that is subject to

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disclosure under Section 3 or 4 of this act or is identified in this

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section means both the earlier filed noncancer asbestos trust claim

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and the cancer asbestos claim that is the subject of the subsequent

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asbestos tort action.

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A noncancer asbestos trust claim that is subject to

If a

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B.

Asbestos trust claims and the information that is the subject

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of disclosure under Section 3 or 4 of this act are presumed to be

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authentic, relevant to, and discoverable in an asbestos tort action.

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Notwithstanding any agreement or confidentiality provision, trust

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claims material are presumed to not be privileged.

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the asbestos tort action may introduce at trial any trust claims

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material to prove alternative causation for the exposed person's

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claimed injury, death, or loss to person, to prove a basis to

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allocate responsibility for the claimant's claimed injury, death, or

The parties in

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loss to person, and to prove issues relevant to an adjudication of

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the asbestos claim, unless the exclusion of the trust claims

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material is otherwise required by the rules of evidence.

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asbestos trust claim rejected by an asbestos trust may be excluded

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as evidence if the exclusion is required by the rules of evidence.

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C.

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In addition to the disclosure requirements set forth in

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Sections 3 and 4 of this act, the parties to the asbestos tort

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action may seek additional disclosure and discovery of information

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relevant to the action by any mechanism provided by any applicable

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section of the Oklahoma Statutes, the Rules of Civil Procedure, any

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local rule, or any case management order.

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disclosure described in this division, any defendant in the asbestos

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tort action also may seek discovery of the claimant's asbestos trust

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claims directly from the asbestos trusts involved.

In addition to the

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D.

In an asbestos tort action, upon the filing by a defendant or

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judgment debtor of an appropriate motion seeking sanctions or other

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relief, the court may impose any sanction provided by a law of this

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state, including, but not limited to, vacating a judgment rendered

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in an asbestos tort action for a claimant's failure to comply with

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the disclosure requirements of this section and Section 3 or 4 of

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this act.

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E.

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1.

If subsequent to obtaining a judgment in an asbestos tort

action in this state a claimant files any additional asbestos trust

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claim with, or submits any additional asbestos trust claim to, an

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asbestos trust that was in existence at the time the claimant

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obtained that judgment, the trial court, upon the filing by a

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defendant or judgment debtor of an appropriate motion seeking

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sanctions or other relief, has jurisdiction to reopen its judgment

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in the asbestos tort action and do either of the following: a.

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asbestos trust payments obtained by the claimant; or

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order any other relief to the parties that the court considers just and proper.

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adjust the judgment by the amount of any subsequent

2.

As used in this subsection, "asbestos trust" means and

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encompasses all trust entities, claims agents, or claims processing

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facilities that are created pursuant to the jurisdiction of a United

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States Bankruptcy Court and Section 524(g) of Chapter 11 of the

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United States Bankruptcy Code, 11 U.S.C. 524(g), or other applicable

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provision of law and that are formed for the purpose of compensating

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claimants asserting eligible asbestos claims.

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SECTION 6.

NEW LAW

A new section of law to be codified

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in the Oklahoma Statutes as Section 86 of Title 76, unless there is

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created a duplication in numbering, reads as follows:

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This act shall apply to asbestos tort actions filed on or after

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the effective date of this act and to pending asbestos tort actions

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in which trial has not commenced as of the effective date of this

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act.

This act shall apply to claims made against any asbestos

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trusts, without regard to whether those trusts were in existence on

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or created after the effective date of this act.

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SECTION 7.

This act shall become effective November 1, 2012.

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