© 2013 DINSMORE & SHOHL | LEGAL COUNSEL | An Update on Bankruptcy Trust Documents: Disclosure and Usage in Local Courts Anne D. Harman, Dinsmore & Shohl, LLP, Wheeling & Pittsburgh

© 2013 DINSMORE & SHOHL | LEGAL COUNSEL | Update  Increased State/Local Court awareness  Judges familiar with issues  Judges addressing in CMO’s  Judge Peggy L. Ableman, formerly of Delaware Sup’r Court asbestos docket “The Garlock Decision Should Be Required Reading” Amer Jrnl of Trl Advoc.  Growing trend requiring full disclosure of claims  Enforcement mechanism lacking  At trial, what to do with the information

© 2013 DINSMORE & SHOHL | LEGAL COUNSEL | WEST VIRGINIA  “As to any claims already asserted against asbestos trusts, the claimant shall produce final executed proofs of claim together with any supporting materials used to support such claim against the asbestos trusts, all trust claims and claims material, and all documents or information relevant or related to such claims asserted against the asbestos trusts….work histories, depositions, and the testimony of the claimant and others as well as medical documentation.”  Very broad—but no requirement to file a claim

© 2013 DINSMORE & SHOHL | LEGAL COUNSEL | PENNSYLVANIA  Philadelphia County:  “180 Days prior to jury selection—Plaintiffs shall serve answers to Defendants’ Master Interrogatories and Requests for Production Directed to Plaintiffs, including information relating to Bankruptcy Trust Filings”.  Allegheny County: new judge, Michael Marmo, looking at CMO but nothing yet required  Fair Share Act basis urged by defendants

© 2013 DINSMORE & SHOHL | LEGAL COUNSEL | LOS ANGELES Dispute and awaiting Judge Elias’ decision on disclosures: Defense argues other states--and even CA courts--progressive steps in requiring filing and disclosure both via courts and legislation Plaintiffs argue privilege, work product and their “bankruptcy claim strategy” is not discoverable

© 2013 DINSMORE & SHOHL | LEGAL COUNSEL | SAN FRANCISCO Judge Terry Jackson 4/14 Order:

© 2013 DINSMORE & SHOHL | LEGAL COUNSEL | Alameda County, CA  “Plaintiffs shall provide to defendants and Designated Defense Counsel copies of claims previously made to bankruptcy trusts by date, and shall provide copies of claims made up to and through trial when filed.”

© 2013 DINSMORE & SHOHL | LEGAL COUNSEL | NYCAL  1996 revision to CMO required plaintiffs disclose & provide documents where plaintiffs have sought compensation  2003 required plaintiff file POC upon designation of case in trial cluster  2011 maintains both above  2012 Justice Heitler essentially confirms

© 2013 DINSMORE & SHOHL | LEGAL COUNSEL | MASSACHUSETTS  2012 CMO provides:  “Plaintiff will produce the product exposure section of bankruptcy claim forms…”  “Plaintiff will serve a certification …that all known bankruptcy claims have been filed.”

© 2013 DINSMORE & SHOHL | LEGAL COUNSEL | TEXAS  Texas MDL/Harris Co. (2007) 3d Amended CMO requires:  As to any claim or settlement made or anticipated to be made with any entity or trust (including but not limited to claims made in conjunction with a bankruptcy proceeding…) plaintiff shall identify identity of entity, amount paid in comp, date claim made and status, copies of claim supporting materials for exposures.

© 2013 DINSMORE & SHOHL | LEGAL COUNSEL | Legislation  Oklahoma—2013 enacted Personal Injury Trust Fund Transparency Act  Wisconsin-3/14 enacted disclosure AND setoff legislation  Ohio—H.B. 380; file trust claims timely, disclose them, setoffs are possible  Cuyahoga and Summit County CMO’s had already required

© 2013 DINSMORE & SHOHL | LEGAL COUNSEL |

Questions? Anne D. Harman, Esq. Partner 2100 Market St. Bennett Square Wheeling, WV