Many Ohio companies and several insurers have incurred significant costs and expended hours of energy defending asbestos cases brought by numerous plaintiffs, many of whom have gone through a screening process. As the number of cases increased on the docket, the court turned to an electronic filing system to try to ease the costs associated with the litigation. The movement to the electronic docket system instead made Ohio a magnet for asbestos cases, swelling its ranks to approximately 44,000 in late 2004. On September 4, 2004, House Bill 292, the Asbestos Reform Bill, took affect. The purpose of the Bill was to address the burgeoning docket, provide clarification on the standards for legitimate cases and to ease the burden on the courts and companies defending the cases. The intent of HB 292 was to affect all cases currently pending in many respects.
Court of Appeals has recently issued its opinion and has reversed Judge Hanna’s ruling, instead finding that the statute is permissibly retroactive.
The Butler Court relied heavily upon the preamble to HB 292. The preamble to the statute laid out the burgeoning crisis in asbestos litigation, and the terrible toll it has taken on many companies and its direct effect upon Ohio companies. The legislature reviewed the various statutes and common law, and determined that a clarification of certain key terms would winnow out the sick plaintiffs from the non-sick plaintiffs, and provide more appropriate compensation for those who where truly injured. Specifically, the statute required a prima facie showing of a physical impairment that is a result of a medical condition that was substantially caused by exposure to asbestos. The evidence required a diagnosis by a competent medical authority of a specific diagnosis as a result of occupational exposure to asbestos via a written report and supporting test results. “Competent medical authority” had never been defined by statute or by the Ohio Supreme Court. Neither had substantial contributing factors.
Plaintiffs argued that the application of the statute, if applied to existing
cases, denied plaintiffs of a vested right. The Butler County Court of Appeals disagreed, finding that it was permissible for the legislature to provide definition of terms that had not previously been defined. As a result, the Court found that the statute was constitutional as written and as applied to existing cases before the effective date.
This is the first Court of Appeals opinion addressing the retroactivity and the constitutionality of the Asbestos Reform Bill. The Cuyahoga County Court of Appeals dismissed an appeal, finding it untimely, even though HB 292 specifically states that any ruling under this particular statute was immediately appealable. The Cuyahoga County Court of Appeal’s dismissal is currently up for review in the Ohio Supreme Court.
We expect the Butler County Case to be the first of many counties to weigh in on the issue. We would expect that the Ohio Supreme Court, if it does not address the retroactivity provision in the appeal from the Cuyahoga County Court, will ultimately rule upon the constitutionality. For now, the Butler County opinion applies only to Butler County, but is persuasive authority in other counties. If you have any questions, feel free to contact any of our toxic tort members.