Since the middle 1990’s, Cuyahoga County, Ohio has become a haven for the filing of asbestos cases. In 1997, a special docket was set up in the county to handle the burgeoning flow. In 2004, the Ohio legislature, in response to the glut of over 39,000 cases filed throughout Ohio, mostly in Cuyahoga County, began discussions that resulted in the passing of HB 292, The Ohio Asbestos Reform Bill. The Bill, consisting of multiple additions and revisions to existing statutes, included a retroactive provision that would make the Bill and its requirements applicable to all pending cases.
The Bill established a requirement that Plaintiffs provide, within 30 days of the filing of the suit, sufficient prima facie evidence to show a physical injury caused by asbestos exposure. R.C. 2307.92 (C),(D). Plaintiffs are required to provide a medical report outlining a detailed work history, including exposure to asbestos and other toxic substances by a competent medical authority, defined under the Bill as a board certified internist, pulmonary specialist, oncologist, pathologist or occupational medical specialist. In addition, the doctor must also have treated the person or had a doctor-patient relationship with the person.
The Common Pleas judges in Cuyahoga County had found the statute to be unconstitutional, holding that it was substantive in nature and imposed upon a vested right and therefore violated the Retroactivity Clause of the Ohio Constitution. Multiple defendant corporations challenged the ruling, appealing to the Eight District Court of Appeals. The sole issue for review was whether the trial court properly held that the Bill was unconstitutional.
The Court of Appeals reviewed the statute de novo. The initial issue on review was whether the Bill was procedural or substantive. The Court relied upon a recent Ohio Supreme Court decision in which the Court found that the Bill was constitutional and was procedural in nature in a Federal Employers Liability Act (FELA) case. The Supreme Court reviewed the history of HB 292, and found that the specific provisions of the Bill “establish a procedural prioritization of the asbestos-related cases on the Court’s docket. Nothing more. Simply put, these statutes create a procedure to prioritize the administration and resolution of a cause of action that already exists. No new substantive burdens are placed on the claimants, because Civ. R. 11 requires a party to certify, by signing the complaint, that there are ‘good ground[s] to support it.’” Based upon the Supreme Court holding, the Court of Appeals found that HB 292 is procedural in nature.
The Court next reviewed whether the Bill impaired a vested right. The Court held that the claimants “appear to have nothing more than a mere expectation of future benefit founded upon an anticipated continuation of the law.” The Court also referred to the section in the Bill that provided the claimants with the opportunity to have the courts apply the prior law if the claimants could show that a substantive right had been impaired. As a result, the Court of Appeals determined that no substantive right is affected by the statute.
In further analyzing the issue, the Court of Appeals reviewed claimants’ argument that the Bill changed the common-law definition of “substantial contributing factor” that was referenced in Horton v. Harwick Chemical Corp., the 1995 Ohio Supreme Court case that set the standard for Ohio asbestos cases. The Court of Appeals found that the language of the statute comports with the definition of “substantial factor” found in Horton.
The claimants also challenged the Bill’s definition of “competent medical authority”, arguing that the definition created a substantive change in the law. The Court of Appeals accepted the corporations’ arguments that the neither the legislature nor the Supreme Court had previously defined the terms, and therefore it was appropriate for the legislature to clarify the terms that it had instituted in an earlier statute. As a result, the Court concluded that the Bill is remedial or procedural in nature and therefore constitutional.
The final issue addressed by the Court was the retroactive nature of the Bill. The Court of Appeals found that HB 292 does not “impose any new or additional burdens, duties, obligations or liabilities on parties seeking to bring an asbestos claim because the changes made by HB 292 ... are procedural or remedial and not substantive in nature.” The Court therefore overruled the trial court and found, by a two to one vote, the Bill to be constitutional and retroactive.
There is a similar issue before the Ohio Supreme Court based upon a conflict among other jurisdictions. The Court heard arguments in November, 2007, but has yet to issue an opinion. The Supreme Court will have the final say on the issue of constitutionality and retroactivity, but as of now, all the cases currently pending before the Cuyahoga County Court of Common Pleas are subject to the requirements of HB 292. The net effect is that the vast majority of the cases that are currently on the inactive and administrative docket will remain there indefinitely and likely never see the inside of a courtroom.
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