The Ohio General Assembly passed an Asbestos Reform Bill with an effective date of September 2, 2004. Since its passage, there has been significant litigation on certain provisions of the Bill. Overall, the courts have found the Bill to be constitutional, but not all provisions have been tested in the courts. As the cases move forward, and more and more provisions have been tested, the courts are providing guidance for future cases.
In the case of Fisher v. Alliance Machine Company, the Eighth District Court of Appeals addressed the standard to be applied to a Motion for Summary Judgment. The Court held that the General Assembly had overruled part of the seminal asbestos case, Horton v. Harwood Chemical Corporation, and adopted the “frequent-proximity” test adopted by the Federal Court in 1986 in Lohrman v. Pittsburgh Corning Corp.
Significantly, the Eighth District Court of Appeals found that it was the direct intent of the General Assembly to provide an objective and easily applied standard for determining whether plaintiff has submitted sufficient evidence to sustain a Plaintiff’s burden of proof as to proximate causation. The court then applied the standards set forth by the General Assembly, which were adopted from Lohrman, and held that summary judgment was appropriate for one defendant in this case, while denying summary judgment for the other defendant.
The General Assembly acknowledged the Supreme Court’s prior holding in Horton, requiring a plaintiff to establish that a plaintiff must prove exposure to a particular defendant’s product, and further, that the product was a substantial factor in causing plaintiff’s injury. The issue of substantial factor had been litigated under the common law, but the Fisher case appears to be the first case interpreting the standard as it applies to summary judgment.
Under the Bill, the General Assembly stated in R.C. 2307.96(B) that “in determining whether exposure to a particular defendant’s asbestos was a substantial factor in causing the plaintiff’s injury or loss, the trier of fact in the action should consider, without limitation, all of the following:
- (1) The manner in which the plaintiff was exposed to the defendant’s asbestos;
- (2) The proximity of the defendant’s asbestos to the plaintiff when the exposure to the defendant’s asbestos occurred;
- (3) The frequency and length of the plaintiff’s exposure to the defendant’s asbestos;
- (4) Any factors that mitigated or enhanced plaintiff’s exposure to asbestos.
This decision should change the way the trial courts evaluate summary judgments. The trial courts in the Cuyahoga County Court of Common Pleas, where the vast majority of cases reside, had previously ruled that the Lohrman test would not be applied to summary judgments. The trial court had ruled that the statute applied to the “trier of fact”, and interpreted that provision to mean that the Lohrman test was to be used by a jury, but was not the standard on summary judgment. This case, coming out of the Court of Appeals for Cuyahoga County, should now change the way that the trial courts review summary judgments. It is believed that under this standard, plaintiffs will have a more difficult time defeating a summary judgment where the testimony is lacking as to one of the elements under the Lohrman test. Most often, there is little evidence as to the frequency or length of the plaintiff’s exposure to a particular defendant’s products.
This case also contains a potential troubling analysis of the use of deposition transcripts in cases where an exigent Plaintiff is deposed before all Defendants are served. This Court allowed Plaintiff’s transcript to be used to oppose a Defendant’s Motion for Summary Judgment even though Defendant was not served and did not participate. The holding leaves open the questions of whether all transcripts can be used in the future, or whether this Court’s finding that Defendant suffered no prejudice was based upon Plaintiff’s failure to specifically name that Defendant, or is establishing new guidelines for the use of deposition testimony.
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