2013 - 2014 LEGISLATURE
May 7, 2013 - Offered by Representatives Hebl, Wachs and Goyke.
AB19-ASA3,1,2 1An Act to create 804.017 and 804.018 of the statutes; relating to: discovery in
2certain tort actions.
The people of the state of Wisconsin, represented in senate and assembly, do
enact as follows:
AB19-ASA3,1 3Section 1. 804.017 of the statutes is created to read:
AB19-ASA3,1,7 4804.017 Required disclosures; claims against a bankruptcy trust. (1)
5In any civil action, a plaintiff who has filed a claim against a bankruptcy trust
6pursuant to 11 USC 524 (g) shall provide to all parties, within 90 days after the
7plaintiff files the civil action, all of the following:
AB19-ASA3,1,88 (a) A final executed proof of claim against the bankruptcy trust.
AB19-ASA3,1,119 (b) All trust claims materials filed as part of the claim, including his or her work
10history and medical documents or other documentation including affidavits,
11depositions, or testimony of the claimant.
1(c) A statement as to whether there has been any request for deferral, delay,
2suspension, or tolling in the 11 USC 524 (g) bankruptcy trust claims process.
AB19-ASA3,2,53 (d) An affidavit of the plaintiff or plaintiff's counsel that the information
4provided under this subsection is based upon a good faith investigation of all
5potential claims against a trust pursuant to 11 USC 524 (g).
AB19-ASA3,2,9 6(2) If the plaintiff files an additional claim pursuant to 11 USC 524 (g) or
7supplements a claim, he or she shall produce all the discovery required under sub.
8(1) within 30 days after the plaintiff files the additional claim or supplements the
9claim, but in no event later than 30 days before the commencement of trial.
AB19-ASA3,2,17 10(3) A defendant in a civil action where a claim has been filed with a bankruptcy
11trust pursuant to 11 USC 524 (g) may also seek discovery from the trust, including
12trust governance documents. The plaintiff shall assist in any discovery from the
13trust and provide whatever consent or expression of permission may be required by
14the trust for release of the claim information or materials. Trust governance
15documents include any document that determines the eligibility and payment levels,
16including payment matrices, trust distribution procedures, or plans for
AB19-ASA3,2,19 18(4) A person's social security number may be redacted from trust claims
AB19-ASA3,2,22 20(5) (a) A plaintiff who objects to providing discovery pursuant to sub. (1) or (2)
21by claiming that the materials submitted to a bankruptcy trust governed by 11 USC
(g) are privileged shall present all of the following to the court:
AB19-ASA3,2,2423 1. An enumeration, with specificity, of the document, information, or other
24disclosure that the plaintiff believes is privileged.
12. A statement of the privilege he or she claims for each document, information,
2or other disclosure for which the plaintiff claims privilege and the basis for claiming
3the privilege.
AB19-ASA3,3,54 (b) If a plaintiff fails to satisfy the requirements of par. (a), the privilege shall
5be deemed waived.
AB19-ASA3,2 6Section 2. 804.018 of the statutes is created to read:
AB19-ASA3,3,13 7804.018 Required disclosures; claims involving asbestos exposure. (1)
8A plaintiff who commences an action alleging that he or she has been exposed to
9asbestos fibers shall serve upon the defendants to the action his or her work history.
10The work history shall include the name and address of the plaintiff's employer, the
11name, address, or location of the job site where the plaintiff worked, and the time
12period that the plaintiff contends he or she worked for each employer or at each job
13site, to the best of the plaintiff's recollection.
AB19-ASA3,3,20 14(2) Within 60 days of receiving a plaintiff's work history pursuant to sub. (1),
15each defendant shall provide or make available for copy or reproduction to the
16plaintiff any documents, electronically stored information, photographs, images, or
17other data or data compilations, or any deposition or trial testimony from another
18civil action in his or her possession or control that relate to any employer or job site
19specified by the plaintiff during the time period specified by the plaintiff in his or her
20work history.
AB19-ASA3,3 21Section 3. 804.12 (1) (a) of the statutes is amended to read:
AB19-ASA3,4,1022 804.12 (1) (a) Motion. If a deponent fails to answer a question propounded or
23submitted under s. 804.05 or 804.06, or a corporation or other entity fails to make a
24designation under s. 804.05 (2) (e) or 804.06 (1), or a party fails to answer an
25interrogatory submitted under s. 804.08, or if a party, in response to a request for

1inspection submitted under s. 804.09, fails to respond that inspection will be
2permitted as requested or fails to permit inspection as requested, or a party fails to
3comply with the discovery requests under s. 804.017 or 804.018,
the discovering
4party may move for an order compelling an answer, or a designation, or an order
5compelling inspection in accordance with the request or a party may move for an
6order compelling the disclosure
. When taking a deposition on oral examination, the
7proponent of the question may complete or adjourn the examination before he or she
8applies for an order. If the court denies the motion in whole or in part, it may make
9such protective order as it would have been empowered to make on a motion made
10pursuant to s. 804.01 (3).
AB19-ASA3,4 11Section 4. 904.035 of the statutes is created to read:
AB19-ASA3,4,14 12904.035 Relevancy of bankruptcy trust documents. (1) In this section,
13"trust claims and trust materials" means all documents and information submitted
14under s. 804.017 (1).
AB19-ASA3,4,22 15(2) Information contained in the proof of claim and trust claims and trust
16materials submitted to a bankruptcy trust governed by 11 USC 524 (g) may be
17relevant to a pending civil action and shall be presumed authentic. Information
18contained in trust claims and trust materials submitted to a bankruptcy trust
19governed by 11 USC 524 (g) may be used by the parties in the civil action to prove
20alternative causation for the plaintiff's asbestos exposure; however, the actual proof
21of claim forms and the amounts plaintiff's may have recovered from a trust shall be
22governed by s. 904.08.
AB19-ASA3,5,4 23(3) Notwithstanding sub. (2), before any information contained in trust claims
24and trust materials is admitted into evidence, the court may issue a limiting
25instruction setting forth the fact that the bankruptcy trust requirements for proof

1of exposure may differ from the proof of exposure required by the court for the
2remaining defendants. The court may also give any other limiting instruction
3regarding any trust claims and trust materials that may be applicable under state
AB19-ASA3,5,6 5(4) Nothing in this section may affect the authority of the federal bankruptcy
6court adjudicating the bankruptcy trust under 11 USC 524 (g).
AB19-ASA3,5 7Section 5. 904.036 of the statutes is created to read:
AB19-ASA3,5,14 8904.036 Setoff and assignment of claim in certain judgments. (1) In any
9action where a fact finder has apportioned liability under s. 895.045 against a
10company that has established a bankruptcy trust under 11 USC 524 (g), any
11defendant found more than 51 percent at fault may request a hearing to determine
12the total amount received or reasonably expected to be received from the bankruptcy
13trust under 11 USC 524 (g). Defendants are entitled to a setoff or credit of the paid
14liquidated value of the trust claims.
AB19-ASA3,5,17 15(2) If a judgment is rendered in an action before the plaintiff has received a
16payment, the plaintiff shall assign to all defendants against whom the judgment is
17rendered his or her rights to all unpaid bankruptcy claims under 11 USC 524 (g).
AB19-ASA3,5,24 18(3) The plaintiff shall cooperate with and assist the defendants in obtaining the
19damages due to the claimant from each bankruptcy trust under 11 USC 524 (g) as
20provided by each trust's distribution process. Each defendant's claim filed with a
21bankruptcy trust under 11 USC 524 (g) shall be treated as if the plaintiff had
22submitted the claim for any purposes under the terms, conditions, and provisions of
23the trust claim procedures. With the assignment, the plaintiff is not responsible for
24any costs associated with making and proving the claim.
1(4) Nothing in this section shall prohibit any defendant from pursuing broader
2relief under any other applicable law.
AB19-ASA3,6 3Section 6. Initial applicability.
AB19-ASA3,6,4 4(1) This act first applies to actions filed on the effective date of this subsection.