NFIB

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NFIBPENNSYLVANIAThe Voice of Small Busines59Jan. 11, 2016Hon. Ron MarsicoChairmanHouse Judiciary CommitteeRoom 315-J, Main Capitol BuildingHarrisburg, PA I 7120Hon. Joseph PetrarcaDemocrat ChairmanHouse Judiciary CommitteeRoom 220, lrvis Office BuildingHarrisburg, PA 17120Dear Chairmen:On behalf of the small-business members of the National Federation of Independent Business (NFIB), I am writingto thank you for the opportunity to testify in support of HB 1428, the Fairness in Claims and Transparency (FaCT)Act.NFIB is Pennsylvania's leading small-business advocacy organization representing 14,000 small- and independentbusinesses in the Commonwealth and roughly 325,000 nationwide. NFIB members represent virtually every sectorin Pennsylvania's economy. A typical NFIB member employs five or fewer workers and generates gross sales of 400,000 per year.The Fairness in Claims and Transparency (FaCT) Act applies the principles of the recently-enacted Fair Share Actto asbestos claims involving personal injury bankruptcy trusts. This legislation is particularly important to smallbusinesses that have limited responsibility in asbestos-related claims but in some cases are being required to pay adisproportionate amount of the liability because of the current lack of trust claims transparency.Nearly all of the companies most responsible for asbestos injuries have established trusts though the federalbankruptcy code to pay exposure claims. Co11ectively, these asbestos bankruptcy trusts manage in excess of 36billion, and they distribute billions of dollars to hundreds of thousands of claimants every year.These bankruptcy trusts often operate independently of the traditional civil justice system. The problem occurswhen a plaintiff files suit for their injuries against a solvent defendant in state court and then files a claim with theasbestos bankruptcy trusts. In other words, the plaintiffs are collecting double recoveries for the same injury.The lack of transparency denies the solvent defendant an opportunity to fully and fairly defend themselves bycomparing the plaintiffs level of exposure to the defendant's products in the civil lawsuit to the level of exposure toproducts covered under the asbestos bankruptcy trusts.The solution to the problem - and what this bill does - is to ensure that defendants in the state civil suit have accessto the exposure information contained in trust claims and to require plaintiffs in asbestos suits to file trust claimsbefore proceeding to state trial. In so doing, the FaCT Act effectively would end the practice of plaintiffs collectingoverlapping recoveries and ensure defendants in these actions are required to pay damages proportionate to theirresponsibility. The FaCT Act wouldn't take away a plaintiff's rights - but it would ensure fair coordination of hisrights in the state civil system and the federal bankruptcy system, not an unfair manipulation of those systems.Thank you for the opportunity to appear before the committee to share the views of NFIB's small-business members.Sincerely,f Kevin ShiversExecutive DirectorNaUonal Federation of Independent Bu1lnn1 I Pennsylvanla 225 State Street. Suite B Harrisburg, PA 17101 (717) 232-1582 Ph. (717) 232-411911 FAX

(-,AWi ASBESTOS PERSONAL INJURY SETTLEMENT TRUSTPROOF OF CLAIM FORMPart 3: Exposure to Asbestos Operations, Activities or ProductsProof of Significant Occupational Exposure ("SOE") to asbestos-related products as well as proof of AWJExposure (i.e., qualifa.ing exposure to AWi Products/Operatio11s, as defined below and as set out in theinstructions) must be enclosed as required by Asbestos Personal Injury Trust Distribution Proceduressections 5.3 and S. 7(b). (See instructions) Please plrotocopy this stction and list sep1m1tely eachcompany site, industry, and occupation combination upon w/Jich you rtly to 111eet tire e.'(posurerequirements ofthe TDP."AWI Products/Operations" means asbestos or asbestos-containing products manufactured, produced,distributed, sold, fabricated, installed, released, maintained, repaired, replaced, removed, and/or handled byAWI or any entity, including an AWI contracting entity, for which AWI is responsible.Please Include detail concerning all asbestos exposure (not just AWI Exposure) which you think lssufficient to meet the criteria for approval of the claim at the claimed disease level. List each site,industry and occupation combination separately.For AWI Exposure, a list ofapproved A WI sites is available on tlie Trust website(www.grmstrnnlPYor!duhestgstrnst.s:nml. Please reference this list and e11tcr the .Approved AWi Site Code inilem #I below.If the site where yo11 are alleging exposure to A WI ProducJs/Operations is not on the approved A WI site list or youroccupation is not on the Presumptive Company Exposure List ofoccupations, provide independent documentationofmnningful and credible es idence ofexposure to such A WI Products/Operations. This may be established bydocumentation including, but not limited ta, tire following:An affidavit ofthe injured party (a11 example is included on the Trust websile)An affidavit ofa co-workerAn affidavit ofa fami{l' member in the ''ase ofa deceased claimantInvoicesConstruction or similar recordsSwam statement, interrogatory answers, swam work history, or depositionDescription ofexposure to A WT Products/Operations, ifrequiredI.Site/Plant where exposure occurred:Name of Site/Plant of Asbestos Exposure:if this site is on the approved AWI site list, enter the Site Code from Exhibit A (available onwebsite):(if a Site Code is entered, please skip to question 2), orCity:St.ntc/Province: - - - - - - - - - - - - - - Country: - - - - - - - - - - - - - - - If this exposure involved products manufactured, produced, distributed, sold, fabricated,installed, released, maintained, repaired, replaced, removed, and/or handled by A WI orany entity, including an A WI contracting entity, for which AWi is responsible, identifythe products and provide the evidentiary basis for the claim that these products were atthat site.2.Date Exposure Began: /(month)Date Exposure Ended: /(year)(month)Page4(year)

AWI ASBESTOS PERSONAL INJURY SETTLEMENT TRUSTPROOF OF CLAIM FORMPart 4: Exposure from an Occupationally Exposed PersonNote: If a claimant alleges an asbestos-related disease resulting solely or in part from exposure to anoccupationally exposed person, such as a family member, the claimant must seek Individual Reviewof his or her claim pursuant to Sections 5.J(b) and 5.5 of the Trust Distribution Procedures. SeeChoice of Claim Process box on lirst page of this claim form.I. ls the claimant alleging an asbestos-related disease resulting in whole or in pa.rt from another person'soccupational exposure, such as a family member (spouse, father, sister, etc.)?Yes NoIf yes, Part 3 must also be completed for each occupationally exposed person./2. Date exposure to other person began:(month)(year)I3. Date exposure to other person ended:(month)(year)4. Relationship to occupationally exposed individual:(brother, son, spouse, etc.)5. Social Security Number of occupationally exposed individual:6. Describe bow injured party was exposed through the occupationally exposed individual to the A WIproducts or conduct:Reminder: Part 3 D1lW be completed for the occupadonally exposed person. If the Injured party alsohad direct, occupational exposure to asbestos, Part 3 must also be completed for that exposure,Page 6

A WI ASBESTOS PERSONAL INJURY SETTLEMENT TRUSTPROOF OF CLAIM FORMPart 6: Fin11nci11l DependentsList any other persons who may have rights associated with this claim. Be sure to include the injuredparty's spouse and/or llDY other financial dependents who derive (or who derived at the time of diagnosis ofthe asbestos-related disease claimed) al least one-half of their finnncial support from the injured party. T/tismust be completed/or JR claims only.If additional space is required, please photocopy this page and insert after current page.I. Name: 2. Date of Birth: / /{last)3. onlh)(day)(yenr)D04. Financially Dependent:YesNoI. N a m e : - - - - - - - - - - - - - - - - - - 2. Date of Birth: / /(last)3. Relationship:0DDD(Ml)(firs )(month){day)D4. Financially -1. Name: - - - - - - - - - - - - - - - - - - 2. Date of Birth: / /(Last)(Firsl)(Ml).3. Rclntionship: D Spouse0DD(month)(day)D Yes4. Financially Dependent:D NoChildHeirOther(year)---------I. Name: 2. Date of Birth: / /(Last)3. ge 8(month)4. Financially Dependent:(day)(yenr)D0YesNo

AWI ASBESTOS PERSONAL INJURY SETTLEMENT TRUSTPROOF OF CLAIM FORMPart 8: Employment Information for Economic UlssThis is to be completed for JR claims 011/y.1. Current Employment Status of the injured party:D Full-time, outside the homeD Full-time, within the borneD Part-time, outside the homeD Pan-time, within the homeD RetiredD DisabledD Deceased2. Amount oflast annual wages: 3. Date of last wage received: /(month)(yc r)(Enter current dale if currently earning work-related compensation.)If economic losses are being claimed, you must enclose an economic report, IRS Form W-2, the firstpage or IRS Form 1040, or other relevant supporting documentation.Page 10

Regular Session 2015-2016 House Bill 1428 P.N. 2007Page 1of8lPRINTER ' S NO .2QQ7THE GENERAL ASSEMBLY OF PENNSYLVANIAHOUSE BILLNo. 1428 Se fg ofINTRODUCED BY KAMPF,TOPPER, KAUFFMAN,WHEELAND , BARRAR,ROSS AND TRU ITT,TURZAI, CUTLER, MUSTI O, DIAMOND, MILLARD ,ZIMMERMAN, PHILLIPS- HILL, SCHEMEL, CORBIN ,DELOZIER, SAYLOR, GODSHALL, A. HARRIS , TOEPEL,JUNE 30, 2015REFERRED TO COMMITTEE ON JUDICIARY, JUNE 30, 20 15AN ACT12345Prov iding for transparency o f claims made against asbestosrelated bankruptcy trusts , f o r compensation and allocation ofresponsibility, f o r the preservation of resources and for theimposition of liabilities .The General Assembly of the Commonwealth o f Pennsylvania6hereby enacts as f o llows:7Section 1. Short title.8910111213This act shall be known and may be cited as the Fairness inClaims and Transparency (FaCT} Act .Section 2 . Purpose.The purposes of this act are:(1) To provide transparency of claims made againstbankruptcy trusts and in the tort system.14(2) To fac ilitate fair and appropriate compensation to15plaintiffs with a ratio nal allocation of responsibility to16all persons , whe the r curre nt defendants or not, consistent17with existing State law .18(3) To prese rve the resources of defendants involved us/CFDOCS/Legis/PN/Public/btCheck.cfm?txtType HTM&sess .1/8/2016

\Regular Session 2015-2016 House Bill 1428 P.N. 20071tort claims and bankruptcy trusts to help promote adequate2recoveries for deserving plaintiffs .3(4) To ensure that liabilities properly borne by4bankruptcy trusts are not i mposed upon defendants in the tort5system.67Section 3. Definitions.The following words and phrases when used in this act shall8have the meanings given to them in this section unless the9context clearly indicates otherwise:10"Appo rtionment nonparty . " An entity, regardless o f solvency,11which establ ishes or has established an asbestos trust against12which the plaintiff has filed a claim or has a reasonable basis13for filing a claim.141516ffAsbestos action." Any civil lawsuit in which the plaintiffseeks damages for an asbestos-related injury."Asbestos trust." Any trust or claims facility created or in17the process o f being created as a result of bankruptcies or18other settlements that are intended t o provide compensation to19plaintiffs alleging asbestos-related injuries, including trusts20created under 11 U.S.C .21discharge) .222324252627Page 2of8§524 (g) (relating to effect of"Defendant." Any party t o an asbestos act i on other than aplaintiff, an apportionment nonparty or an asbestos trust."Plaintiff .fl Any of the following :(1) An individual filing an asbestos action on theindividual 1 s behalf.(2) A person permitted by law to represent an individual28filing an asbestos ac tion during the individual's lifetime or29as the legal repre sentative o f the e state of an individual30claiming injury from asbestos during the individual ' s/CFDOCS/Legis/PN/Public/btCheck.cfm?txtType HTM&sess .1/8/2016

Regular Session 2015-2016 House Bill 1428 P.N. 2007Page 3 of81lifetime.2PSettlement credit." The amount paid by an apportionment3nonparty through an asbestos trust in excess of the asbestos4trust ' s apportioned liability at trial .5Section 4. Apportionment of responsibility.6(a) General rule . --An apportionment nonparty shall be7apportioned responsibility, for liability purposes, in an8asbestos action pursuant to 42 Pa.C . S .9comparative negligence) and this section.10§7102(a.2) (relating to(b) Designation of apportionment nonparty.--A defendant in11an asbestos action may, at any time , move to designate an12asbestos trust as an apportionment nonparty. If the court13determines by a preponderance of the evidence that the plaintiff14has filed or has a reasonable basis for filing a claim with the15asbestos trust , the court shall make the designation and16liability shall be apportioned pursuant to 42 Pa.c.s.177102(a.2J and this section.1819§(c) Settlement credits.-(1) If liability is apportioned in an asbestos action20among defendants and apportionment nonparties, the court21shall calculate the amount of any settlement credits and mold22the verdict to reflect all appropriate credits.23(2) Each apportionment nonparty that has compensated a24plaintiff for more than its apportioned share of the verdict25shall be awarded a settlement credit, and the damages awarded26to the plaintiff shall be reduced by the amount of each27settlement credit .2829(3) Each apportionment nonparty that has compensated aplaintiff for less than its apportioned share of the verdict30shall not be awarded a settlement e.pa.us/CFDOCS/Legis/PN/Public/btCheck.cfm?txtType HTM&sess .1/8/2016

Regular Session 2015-2016 House Bill 1428 P.N. 20071(4) If an asbestos action proceeds to verdict before the2plaintiff has received a final decision as to payment of the3plaintiff's claim from an apportionment nonparty, there shall4be a rebuttable presumption that the plaintiff will receive5the maximum possible value of the claim available for the6plaintiff's asbestos-related injury, as published in the7applicable trust governance documents. If a verdict in favor8of the plaintiff is entered, the court shall establish for9each pending apportionment nonparty claim the maximum10possible value as set forth in the trust governance11documents, which value, when applicable, shall be used for12purposes of calculating settlement credit.13(5) An apportionment of settlement credits provided for14under this section shall be governed by this section and 4215Pa.C.S. § 7102 and shall not be subject to the limitations of1642 Pa.c.s. § 8326 (relating to effect of release as to other17tort-feasors).18Section 5. Disclosure of information from asbestos trusts.19(a) File.--Not later than 90 days prior to trial of an20asbestos action, or at another time as ordered by the court,21whichever is earlier, a plaintiff shall file with the court and22serve on all parties:23Page 4of8(1) a statement listing all existing or potential claims24the plaintiff has filed or has a reasonable basis to file25against any asbestos trust; and26(2) a statement listing all payments or funds the27plaintiff has received or reasonably believes the plaintiff28may be entitled to receive from each asbestos trust.29(b) Statement.--The statement provided under subsection {a)shall .us/CFDOCS/Legis/PN/PubliclbtCheck.cfm?txtType HTM&sess .1/8/2016

Regular Session 2015-2016 House Bill 1428 P.N. 20071(1) be supported by a certification made subject to the2penalties of 18 Pa . c . s . § 4904 (relating to unsworn3falsification to authorities) from the plaintiff that the4plaintiff has conducted a reasonable investigation and has5disclosed all claims the plaintiff has filed or has a6reasonable basis to file against an asbestos trust ;7(2) disclose when each claim was or will be submitted to8each asbestos trust and the status of each claim, including9whether there has been a response from the asbestos trust and10whether the plaintiff has requested deferral, delay or11tolling of any aspect of the asbestos trust claims process;12and13(3) disclose the amount of compensation, if any, the14plaintiff has received or reasonably believes the plaintiff15may receive from the asbestos trust along with a statement16explaining any contingencies that may cause the amount of17compensation to change in the future.18(c) Service.--When the plaintiff files and serves the19statement required under subsection (a), the plaintiff shall20serve on all parties to the asbestos action copies of the21plaintiff's submissions to and communications with each asbestos22trust identified, including copies of electronic data and e-23mails , proof-of-claim forms and all other materials or24information provided to the asbestos trust or received from the25asbestos trust in relation to a claim, including all of the26following:27(1) Work histories, exposure allegations , affidavits,28depositions and trial testimony of the plaintiff and others29knowledgeable about the plaintiff's exposure history .30Page 5of8(2) All medical documentation relating to &sess .1/8/2016

Regular Session 2015-2016 House Bill 1428 P.N. 20071plaintiff ' s claim, including , but not limited to, x-rays,2test results, diagnostic reports, CT reports, cytology3reports, all other medical reports and pathology results .4(3) The trust governance documents, including the5payment amounts specified in the documents.6(d) Duty . --The plaintiff shall have a continuing duty, until7final resolution of the action, to supplement the statement8provided under subsection (a) and the production of materials9under subsection (c), as follows:10(1) If the plaintiff learns that the statement filed11under subsection (a) was incomplete or incorrect when filed,12or although complete and correct when filed, is no longer13complete and correct, the plaintiff shall file and serve a14supplemental statement on all parties to an asbestos action.15The supplemental statement must be filed and served within 3016days after the plaintiff discovers the necessity for17supplementation, or within the time as ordered by the court.18(2) If the plaintiff files or provides a claim form or19other materials to an asbestos trust after the plaintiff's20initial service of materials under subsection (c), the21plaintiff must serve copies of the additional materials on22all parties to the action. The supplemental materials must be23served within 30 days after the plaintiff provides the24materials to the asbestos trust.25Page 6of8(3) A plaintiff's asbestos action shall be stayed in its26entirety until the plaintiff certifies that all existing or27potential claims identified in the statement provided under28subsection (a), as supplemented, have been filed and29identified . Unless all defendants in an asbestos action30consent , an asbestos action may not begin trial until us/CFDOCS/Legis/PN/Public/btCheck.cfm?txtType HTM&sess .1/8/2016

Regular Session 2015-2016 House Bill 1428 P.N. 20071least 30 days after a statement is supplemented under2paragraph (1) or mandatory disclosures are supplemented under3paragraph (2 ).4(e) Discovery.--A defendant in an asbestos action may seek5discove ry from an

AWi ASBESTOS PERSONAL INJURY SETTLEMENT TRUST PROOF OF CLAIM FORM Part 3: Exposure to Asbestos Operations, Activities or Products Proof of Significant Occupational Exposure ("SOE") to asbestos-related products as well as proof of A WJ Exposure (i.e., qualifa.ing exposure to AWi Products/Operatio11s, as defined below and as set out in the