On October 15, 2008, the Ohio Supreme Court addressed the issue of the constitutionality of the retroactive application of Ohio’s Asbestos Reform Bill, House Bill 292. The Ohio Supreme Court found the statute to be constitutional, consistent with the Court of Appeals opinions in Cuyahoga and Butler County, and overruled the Court of Appeals for Lawrence County.
The issue for review for the Court was the constitutionality of three specific provisions, R.C. 2307.91, 2307.92 and 2307.93. A statute under Ohio law can be retroactive if the statute is procedural, but not substantive, in nature. The Supreme Court had previously determined that R.C. 2307.92 and 2307.93 were procedural in nature. Norfolk S. Ry. Company v. Bogel, 115 Ohio St. 3d. 455, 207-Ohio-5284. In Bogel, the Court recognized that the two statutes established a procedural prioritization of asbestos related cases. Despite the prior finding, Achinson argued that these provisions were unconstitutional as applied to her case. The Supreme Court reviewed Achinson’s arguments under the standard of clear and convincing evidence.
Initially, Achinson argued that asbestos-related conditions were compensable under Ohio when there is merely an alteration of the lungs, such as pleural thickening, irrespective of whether any impairment or disease had developed. The Supreme Court rejected that argument, finding that two Court of Appeals cases that had previously addressed the issue had misapplied the Restatement of Torts. The Court adopted the holding of the Court of Special Appeals of Maryland, which noted that Section 15 of the Restatement applied only to a cause of action based upon the intentional tort of battery. The Court found that the Ohio cases were attempting to impose an intentional tort standard on a standard negligence basis. As further support, the latest draft of the Restatements specifically notes that the previous definition lead, in part, to the massive number of asbestos claims by plaintiffs who had suffered no clinical symptoms, but had abnormal lung x-rays. The Supreme Court noted that it has never held that asymptomatic pleural thickening is, by itself, sufficient to establish the compensable injury for asbestos exposure. Finally, the Court determined that as applied to the Achinson case, which involved pleural thickening, but no asbestos-related illness or impairment, Achinson’s claim was not extinguished through the adoption of the statute. Accordingly, the Court found that 2307.92 and 2307.93 were constitutional and retroactive.
The third statute at issue related to the definition of “competent medical authority”. Achinson argued that the definition contained within the statute altered the evidentiary requirements for asbestos claims. The Supreme Court rejected the argument, noting that prior to the enactment of the statute, “competent medical authority” was not defined by either statute or case law. The Court found that the definition was more akin to a rule of evidence, thus rendering it procedural in nature as opposed to substantive. As a result, enactment of the definition did not alter a vested substantive right possessed by Achinson and therefore the statute was not unconstitutional.
The Court addressed one other issue, the inclusion of the term “predominate cause” in the statute. Predominate cause is not a phrase that is common to Ohio law. The Court reviewed the totality of the statute and determined that the General Assembly did not intend a substantive change by using the term predominate. As a result, the Court found that the statue was consistent with the substantive law as set forth by the Court previously in Horton v. Harwick Chem. Corp. (1995) 73 Ohio St. 679. Moreover, in an as applied challenge, the Court determined that Achinson did not have standing to challenge this definition, as the requirement of showing substantial occupational exposure applied only to claimants alleging lung cancer when the plaintiff is a smoker and to wrongful death claims, neither of which applied in this case.
As a result of this ruling, the vast majority of the over 44,000 cases filed in Cuyahoga County will be left in limbo as either an administratively dismissed case, or an inactive case. The statute does allow plaintiffs to pursue claims in the event that the plaintiff can meet the requirements of the statute, but the vast majority of the claims are unlikely to ever reach that level. There are numerous cases pending before the Cuyahoga County courts involving decedents that will be unable to obtain the necessary medical evidence from a competent medical authority.
The ruling will not have any effect upon any cases filed after September 2, 2004. The cases that we continue to see filed will be malignancy cases, predominately mesotheliomas. However, the number of filings has slowed significantly, and we expect that trend to continue. If you have any questions, please contact our offices for further information.