ASSEMBLY SUBSTITUTE AMENDMENT 1,
TO ASSEMBLY BILL 19
April 4, 2013 - Offered by Representative J. Ott.
AB19-ASA1,1,2 1An Act to create 802.025 of the statutes; relating to: torts and personal injury
2trusts.
The people of the state of Wisconsin, represented in senate and assembly, do
enact as follows:
AB19-ASA1,1 3Section 1. 802.025 of the statutes is created to read:
AB19-ASA1,2,3 4802.025 Pleading certain personal injury actions; stay of proceedings.
5(1) Definitions. In this section: (a) "Personal injury claim" means any claim for
6damages, loss, indemnification, contribution, restitution or other relief, including
7punitive damages, that is related to bodily injury or another harm, including loss of
8consortium, society, or companionship, loss of support, personal injury or death,
9mental or emotional injury, risk or fear of disease or other injury, or costs of medical
10monitoring or surveillance. "Personal injury claim" includes a claim made by or on
11behalf of the person who claims the injury or harm or by or on behalf of the person's

1representative, spouse, parent, minor child, or other relative. "Personal injury
2claim" does not include a claim for compensatory benefits pursuant to worker's
3compensation or veterans benefits.
AB19-ASA1,2,104 (b) "Personal injury trust" means a trust, qualified settlement fund,
5compensation fund or claims facility created as a result of an administrative or legal
6action, bankruptcy, agreement, or other settlement or pursuant to 11 USC 524 (g) or
749 USC 40101, that is intended to provide compensation to claimants alleging
8personal injury claims as a result of harm, also potentially compensable in the
9immediate action, for which the entity creating the trust, compensation fund, or
10claims facility is alleged to be responsible.
AB19-ASA1,2,1511 (c) "Trust claims materials" means all documents and information relevant or
12related to a pending or potential claim against a personal injury trust. "Trust claims
13materials" include, without limitation, claims forms and supplementary materials,
14proofs of claims, affidavits, depositions and trial testimony, work history, and
15medical and health records.
AB19-ASA1,2,1816 (d) "Trust governance document" means any document that determines
17eligibility and payment levels, including claims payment matrices, trust distribution
18procedures, or plans for reorganization, for a personal injury trust.
AB19-ASA1,3,3 19(2) Required disclosures by plaintiff. (a) Within 30 days after the effective
20date of this paragraph .... [LRB inserts date] or within 30 days after an action for a
21personal injury or other tort is filed in circuit court, the plaintiff shall provide to the
22court and to all parties a statement identifying all personal injury claims the plaintiff
23has or anticipates filing against a personal injury trust, and for each claim, whether
24there has been a request to defer, delay, suspend, or toll the claim against the
25personal injury trust. The statement shall include an attestation that the plaintiff

1swears or affirms, under penalties of perjury, that the statement is complete and is
2based on the plaintiff's and plaintiff's counsel's good faith investigation of all
3potential claims against personal injury trusts.
AB19-ASA1,3,64 (b) The plaintiff shall produce to all parties, for each personal injury claim he
5or she filed against a personal injury trust identified in par. (a), a final executed proof
6of claim and all other trust claims materials relevant to each claim.
AB19-ASA1,3,107 (c) The plaintiff shall produce to all parties, for each personal injury claim he
8or she anticipates filing against a personal injury trust identified in par. (a), all trust
9claims materials relevant to each claim. The plaintiff shall produce to all parties a
10final executed proof of claim for each claim when the plaintiff files the claim.
AB19-ASA1,3,1411 (d) The plaintiff shall supplement the information and materials he or she
12provided pursuant to par. (a), (b), or (c) within 30 days after the plaintiff files any
13additional claim, supplements an existing claim, or produces or receives any
14additional trust claim materials.
AB19-ASA1,3,19 15(3) Discovery; use of materials. (a) Trust claims materials and trust
16governance documents are relevant and authentic and admissible in evidence to
17prove, without limitation, alternative causation for a plaintiff's injuries or to allocate
18liability for the plaintiff's injury. No claims of privilege apply to trust claims
19materials or trust governance documents.
AB19-ASA1,3,2520 (b) A defendant in a personal injury claim may seek discovery against a
21personal injury trust identified under sub. (2). The plaintiff may not claim privilege
22or confidentiality to bar discovery of any information relevant to the plaintiff's
23personal injury claim under the control of a personal injury trust and the plaintiff
24shall provide consents or other expression of permission that may be required by the
25personal injury trust to release information and materials sought by the defendant.
AB19-ASA1,4,5
1(4) Scheduling trial; stay of action. (a) The court may not commence the trial
2of a personal injury action until at least 180 days after the plaintiff makes the
3disclosures required under sub. (2). The court may, under exigent circumstances and
4for good cause shown, shorten this period but under no circumstances may a trial be
5commenced less than 60 days after the last of the required disclosures is made.
AB19-ASA1,4,186 (b) If a plaintiff states under sub. (2) that he or she anticipates making one or
7more claims against any personal injury trusts, then all proceedings in the action
8shall be stayed until the plaintiff files all such claims and provides the parties with
9the disclosures required by sub. (2) for all such claims. Nothing in this section shall
10prohibit a court, under exigent circumstances and for good cause shown, to permit
11any party at any time to take a deposition of a plaintiff or any other witness whose
12health or other circumstances make it sufficiently likely that the person will be
13unavailable or otherwise unable, or have reduced capacity, including due to declining
14health or mental abilities, to give testimony when the stay is lifted. The court may
15also require any party to provide such additional discovery in connection with any
16such deposition as the court believes is appropriate in order that all parties may
17fairly and fully prepare for and examine or cross-examine the witness at any such
18deposition.
AB19-ASA1,4,24 19(5) Defendant's identification of additional or alternative personal injury
20trusts.
(a) Any party may move the court for an order requiring the plaintiff to file
21a claim against one or more personal injury trusts from which that party in good faith
22believes the plaintiff can recover. The party moving for such an order shall produce
23or describe the evidence it believe is sufficient to meet the requirements of each such
24personal injury trust for filing a valid claim.
AB19-ASA1,5,5
1(a) Any party may move the court for an order requiring the plaintiff to file a
2claim against one or more personal injury trusts from which that party in good faith
3believes the plaintiff can recover. The party moving for such an order shall produce
4or describe the evidence it believes is sufficient to meet the requirements of each such
5personal injury trust for filing a valid claim.
AB19-ASA1,5,86 (b) Within 10 days, or such other time prescribed by the court, of receiving a
7motion under par. (a), the plaintiff shall, for each personal injury trust identified by
8the moving party, do one of the following:
AB19-ASA1,5,99 1. File a claim with each personal injury trust identified.
AB19-ASA1,5,1210 2. File a written response with the court that sets forth reasons why there is
11insufficient evidence to permit the plaintiff to file a claim in good faith under the
12personal injury trust distribution procedure identified by the defendant.
AB19-ASA1,5,1713 (c) The court shall determine, for each personal injury trust identified under
14par. (a), whether there is a good faith basis for the plaintiff to file a claim with the
15personal injury trust. The plaintiff shall have the burden of proving that he or she
16does not meet criteria set forth in the personal injury trust's trust governance
17documents.
AB19-ASA1,5,2418 (d) If the court determines that there is a good faith basis for the plaintiff to file
19a claim against a personal injury trust identified by any other party, the court shall
20stay the action until the plaintiff swears or affirms that he or she has filed the claim
21against the personal injury trust and the plaintiff provides to all parties a final
22executed proof of claim and all other trust claims materials relevant to each such
23claim. If a stay goes into effect under this subsection, the provisions of sub. (4) (b)
24with respect to depositions apply during the stay.
AB19-ASA1,6,2
1(e) Trial of a plaintiff's action may not begin less than 60 days after the plaintiff
2provides the documentation required under par. (d).
AB19-ASA1,6,53 (f) Any party may, at any time before the close of evidence at trial, enter into
4the record trust claims documents that identify each personal injury trust against
5which the plaintiff has made a personal injury claim.
AB19-ASA1,6,11 6(6) Use of trust claim materials at trial. Trust claim materials that are
7sufficient to entitle a claim to consideration for payment under the applicable trust
8governance documents are sufficient, by themselves, to support a jury finding that
9the plaintiff was exposed to products for which the trust was established to provide
10compensation and that such exposure was a substantial factor in causing the
11plaintiff's injury that is at issue in the action.
AB19-ASA1,6,20 12(7) Damages; liability. If any defendant is found to be 51 percent or more
13causally negligent or any product defendant is found to be 51 percent or more
14causally responsible for the plaintiff's injury such that the defendant or product
15defendant would be jointly and severally liable for the plaintiff's entire damages
16under s. 895.045 (1) or (3) (d), then notwithstanding those sections, the defendant or
17product defendant is entitled to a credit against the amount of damages for which it
18would otherwise be liable equal to the percentage of causal negligence or causal
19responsibility that the fact finder attributes to any personal injury trust or to a
20product for which a personal injury trust provides compensation.
AB19-ASA1,6,23 21(8) Failure to provide information; sanctions. A plaintiff who fails to timely
22provide all of the information required under subs. (2), (4) (b), or (5) (d) is subject to
23ss. 802.05, 804.12, 805.03, and 895.044.
AB19-ASA1,2 24Section 2. Initial applicability.
AB19-ASA1,7,3
1(1) This act first applies to actions filed on the effective date of this subsection
2and to actions pending on the effective date of this subsection if trial has not
3commenced in the action.
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