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Thursday, October 17, 2019

Wisconsinites can look to Ohio for effects of new asbestos transparency law

By Heather Isringhausen Gvillo | Apr 10, 2014

MADISON, Wis. (Legal Newsline) - As Wisconsin asbestos courtrooms and attorneys prepare for the changes the new asbestos transparency bill provides, referencing the experience with Ohio's similar bill passed in 2012 could indicate less hectic courtrooms in the future.

On March 31, Wisconsin Gov. Scott Walker signed Assembly Bill 19, which requires plaintiffs to disclose claims they have filed or anticipate filing against asbestos bankruptcy trusts to prevent double-dipping in the civil justice system.

The bill also prohibits plaintiffs from claiming privilege to trust claims materials and trust governance documents

"The plaintiff may not claim privilege or confidentiality to bar discovery under this paragraph and shall provide consent or other expression of permission that may be required by the personal injury trust to release information and materials sought by the defendant," the bill states.

AB 19 was introduced in February 2013. A little more than a year later, Wisconsin joins Ohio and Oklahoma as the only three states with legislation on trust transparency.

Defense attorney Mark Behrens of Shook, Hardy & Bacon explained that while he can't say exactly how the bill will affect settlements, he believes it will affect cases going to trial more heavily; although asbestos lawsuits typically settle before ever making it to trial.

Requiring plaintiffs to provide information filed with bankruptcy trusts may have the most influence in trial when parties bring evidence of asbestos exposure before a jury, he added. Because asbestos trials are so infrequent, the discovery information may not play as large of a role in settled cases.

However, the Wisconsin bill has not gone without opposition.

A group of Democrats in the Wisconsin Senate formed a campaign called Veterans For Veto in an effort to prevent the bill from being signed into law.

Lobbyist Jason Johns of Wisconsin Legislative Strategies has represented the American Legion, Veterans of Foreign Wars and the Military Order of the Purple Heart in opposition against the bill. Together, these three veterans groups represent roughly 100,000 Wisconsin veterans.

"Although many of our members recognize the great things the State Legislature and Governor have done for veterans this legislative session, unfortunately, all of the good will now be overshadowed by the deaf ear to our pleas to stop this devastating legislation to our veterans and their families who have been exposed to asbestos," Johns said.

Veterans groups are concerned that the bill could result in veterans collecting less money as trust funds are depleted.

Opponents also fear that transparency requirements could postpone trials, risking the possibility that some mesothelioma victims could die in that time frame and would therefore hurt the chances of the claimants to collect full damages.

"AB 19 was written to impede and delay the legal process in which a victim of asbestos poisoning and mesothelioma can seek justice," Johns said.

"It also assures that all settlement offers and verdict amounts will now be drastically reduced. Given this horrible fact, many victims will not see the filing of a lawsuit against a known defendant to be economically feasible as the time and expense involved versus the potential of receiving just compensation will not be worth the burden on the dying victim and their families."

While comparing how the state's asbestos dockets will react to the new rules to Ohio's experience with transparency laws will not produce identical outcomes, Ohio's bill could provide some insight as to what can be expected in Wisconsin.

Initially, plaintiffs attorneys in Ohio opposed its transparency bill as well, challenging it on constitutional grounds but lost, defense attorney Richard Schuster of Vorys, Sater, Seymour & Pease LLP explained.

However, after it was passed, Schuster said the hype and wide-scale opposition faded and plaintiffs lawyers were able to comply with the requirements.

Schuster praised the result of Ohio's version of the transparency bill, which was passed in 2012, saying it has been very successful from the defense perspective.

"Ohio's bill took a long time to get passed," he added, "and since its passage, it has really worked well.

"I think that the concerns that plaintiffs' counsel expressed during the legislative process about making them impossible to practice, it turned out not to be true."

The Ohio transparency bill has successfully minimized discovery disputes, allowing things to move more smoothly through the court system.

Before the transparency laws were passed, the courts were spending time handling discovery disputes and provisions

"Our tort systems were bearing the brunt of all these judicial disputes," he added.

Now, Schuster explained that materials defense attorneys fought to obtain were being provided.

"Not only do we not have to fight over them," Schuster said, "they are voluntarily being provided."

Requests for interview from several plaintiffs' attorneys in Ohio went unanswered.

Schuster did say opposition in Ohio hasn't disappeared completely. Plaintiffs still periodically challenge discovery requests, which then require hearings.

Behrens said Ohio's experience with a similar transparency bill makes it harder for opponents in other states from making the same claims that the bill will punish asbestos victims and delay proceedings.

At the same time, Behrens added that the Wisconsin bill exemplifies how states are moving forward to adopt transparency reforms.

"It is another step forward in recognizing the need for greater transparency between the trust system and the tort system," Behrens said.

While the opposition surrounding the bill may slowly fade away as asbestos litigants accept and adjust to the new rules, it doesn't necessarily mean every state is on its way to pass similar laws, Schuster pointed out.

Schuster explained that some jurisdictions will be unlikely to consider such a bill. A main factor, he says, is the political makeup of a state's legislature.

Transparency bills will likely be passed in states that have large asbestos dockets and a tort reform friendly legislature, he said.

"I think there are select jurisdictions where similar bills will be passed," Schuster said.

The unlikelihood that transparency bills could be passed in every state could have some hoping for national asbestos reform putting their hope in the Furthering Asbestos Claims Transparency Act, which now sits in the U.S. Senate.

However, turning to the FACT Act as the nationwide answer to the issue would be misguided, he added.

Comparing the two, Schuster explained how they are "very different" with unique goals. The FACT Act is more focused on requiring bankruptcy trusts to report information to the federal government. On the other hand, the state bills do not put any obligations on the bankruptcy trusts at all.

"I don't think the FACT Act would provide the type of relief that the Wisconsin bill does," Schuster said.

The asbestos docket has been through rough waters before, including the wave of asbestos lawsuits that drove roughly 100 companies into bankruptcy, Behrens said. Over time, acting players in the asbestos dockets nationwide helped correct the problem.

"Ultimately, the system does make corrections," Behrens said, "and abuses eventually get addressed. It takes a long time and it's very difficult, but change is possible and corrections are made."

"It doesn't happen overnight and it requires a sustained effort and a lot of education."

From Legal Newsline: Reach Heather Isringhausen Gvillo at

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