MADISON, Wis. (Legal Newsline) – As some Wisconsin asbestos attorneys look forward to what they can expect from changes the new asbestos transparency bill creates, Ohio plaintiffs’ attorney Tony Gallucci said his state’s similar bill passed in 2012 takes control of their own cases away from claimants.
“I don’t like the idea of creating all these rules and exceptions to benefit one party,” Gallucci said.
Wisconsin Gov. Scott Walker passed Assembly Bill 19 on March 31, which requires plaintiffs to disclose claims they have filed or anticipate filing against asbestos trusts to prevent double-dipping and ensure solvency of the asbestos trusts.
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.
Since its introduction, Wisconsin Democrats, veterans groups and plaintiffs’ attorneys have opposed the bill, saying it could result in veterans collecting less money as trust funds are depleted, as well as delay proceedings.
Viewing the effect AB 19 will have on Wisconsin’s asbestos dockets through Ohio’s lens will not produce identical outcomes, but Ohio’s bill could provide some insight as to what can be expected in Wisconsin.
Gallucci, partner with the Kelley & Ferraro law firm, joined several other groups opposing Ohio’s bill, saying the transparency laws are unnecessary.
He added that the presiding asbestos judges had already issued an order requiring plaintiffs to provide copies of the bankruptcy trust materials they submit, which has been in effect since 2005 without major problems.
“The ordinary rules are sufficient to govern these issues,” Gallucci said, “so there really doesn’t need to be these exceptions to favor one party.”
He continued to explain that judges had the ability to control discovery in the cases and trust claim forms were covered by rules of evidence.
“Why should these be treated differently than any other document in the case?” Gallucci asked.
Like the Wisconsin bill, the Ohio bill allows defendants to identify any personal injury trusts not named by the plaintiff, but against whom they believe the plaintiff has a legitimate claim.
Gallucci said this is the most disturbing characteristic of the transparency bills because it takes away judgment and control from plaintiffs in their own cases.
“It’s defendants attempting to create evidence,” Gallucci explained, “forcing plaintiffs to file claims, which then creates evidence of exposure.”
“In reality, that should be the plaintiff’s election to submit a claim or not submit a claim.”
Ohio defense attorney Richard Schuster of Vorys, Sater, Seymour & Pease LLP said the new rules have 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, he explained.
“Our tort systems were bearing the brunt of all these judicial disputes,” Schuster added.
Schuster explained that since the bill was passed, materials defense attorneys fought over getting were being provided.
“Not only do we not have to fight over them,” Schuster said, “they are voluntarily being provided.”
However, like opponents of the Wisconsin bill, Gallucci disagreed, saying the transparency rules have only created more hurdles and delays for plaintiffs in asbestos cases.
He explained that defendants still request a continuance after receiving copies of the asbestos claims forms so they can request forms from bankruptcy trusts, sometimes delaying the trial three to six months “so they can get documents they already have.”
From Legal Newsline: Reach Heather Isringhausen Gvillo at firstname.lastname@example.org