REPRESENTATIVE Oelslager

To amend sections 1701.76 and 1701.82 and to enact

1

sections 2307.91 to 2307.97 of the Revised Code to

2

establish minimum medical requirements for filing

3

certain asbestos claims and to establish

4

limitations on successor asbestos-related

5

liabilities relating to corporations.

6

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:

Section 1. That sections 1701.76 and 1701.82 be amended and	7
sections 2307.91, 2307.92, 2307.93, 2307.94, 2307.95, 2307.96, and	8
2307.97 of the Revised Code be enacted to read as follows:	9

Sec. 1701.76.  (A)(1) Provided the provisions of Chapter	10
1704. of the Revised Code do not prevent the transaction from	11
being effected, a lease, sale, exchange, transfer, or other	12
disposition of all, or substantially all, of the assets, with or	13
without the good will, of a corporation, if not made in the usual	14
and regular course of its business, may be made upon suchthe	15
terms and conditions and for suchthe consideration, whichthat	16
may consist, in whole or in part, of money or other property of	17
any description, including shares or other securities or	18
promissory obligations of any other corporation, domestic or	19
foreign, asthat may be authorized as follows:	20

(a) By the directors, either before or after authorization by	21
the shareholders as required in this section; and	22

(b) At a meeting of the shareholders held for suchthat	23
purpose, by the affirmative vote of the holders of shares	24
entitling them to exercise two-thirds of the voting power of the	25
corporation on suchthe proposal, or, if the articles so provide	26
or permit, by the affirmative vote of a greater or lesser	27
proportion, but not less than a majority, of suchthe voting	28
power, and by suchthe affirmative vote of the holders of shares	29
of any particular class asthat is required by the articles.	30

(2) At the shareholder meeting described in division	31
(A)(1)(b) of this section or at any subsequent shareholder	32
meeting, shareholders, by the same vote that is required to	33
authorize the lease, sale, exchange, transfer, or other	34
disposition of all, or substantially all, of the assets, with or	35
without the good will, of the corporation, may grant authority to	36
the directors to establish or amend any of the terms and	37
conditions of the transaction, except that the shareholders shall	38
not authorize the directors to do any of the following:	39

(a) Alter or change the amount or kind of shares, securities,	40
money, property, or rights to be received in exchange for the	41
assets;	42

(b) Alter or change to any material extent the amount or kind	43
of liabilities to be assumed in exchange for the assets;	44

(c) Alter or change any other terms and conditions of the	45
transaction if any of the alterations or changes, alone or in the	46
aggregate, would materially adversely affect the shareholders or	47
the corporation.	48

(3) Notice of the meeting of the shareholders described in	49
division (A)(1)(b) of this section shall be given to all	50
shareholders whether or not entitled to vote at the meeting and	51
shall be accompanied by a copy or summary of the terms of the	52
transaction.	53

(B) The corporation by its directors may abandon suchthe	54
transaction under this section, subject to the contract rights of	55
other persons, if the power of abandonment is conferred upon the	56
directors either by the terms of the transaction or by the same	57
vote of shareholders and at the same meeting of shareholders as	58
that referred to in division (A)(1)(b) of this section or at any	59
subsequent meeting.	60

(C) Dissenting holders of shares of any class, whether or not	61
entitled to vote, shall be entitled to relief under section	62
1701.85 of the Revised Code.	63

(D) An action to set aside a conveyance by a corporation, on	64
the ground that any section of the Revised Code applicable to the	65
lease, sale, exchange, transfer, or other disposition of all, or	66
substantially all, of the assets of suchthat corporation has not	67
been complied with, shall be brought within ninety days after such	68
that transaction, or suchthe action shall be forever barred.	69

(E) If a resolution of dissolution is adopted pursuant to	70
section 1701.86 of the Revised Code, the directors may dispose of	71
all, or substantially all, of the corporation's assets without the	72
necessity of a shareholders' authorization under this section.	73

(F) The terms and conditions of any transaction under this	74
section shall be subject to the limitations specified in section	75
2307.96 of the Revised Code.	76

Sec. 1701.82.  (A) When a merger or consolidation becomes	77
effective, all of the following apply:	78

(1) The separate existence of each constituent entity other	79
than the surviving entity in a merger shall cease, except that	80
whenever a conveyance, assignment, transfer, deed, or other	81
instrument or act is necessary to vest property or rights in the	82
surviving or new entity, the officers, general partners, or other	83
authorized representatives of the respective constituent entities	84
shall execute, acknowledge, and deliver suchthose instruments and	85
do suchthose acts. For these purposes, the existence of the	86
constituent entities and the authority of their respective	87
officers, directors, general partners, or other authorized	88
representatives is continued notwithstanding the merger or	89
consolidation.	90

(2) In the case of a consolidation, the new entity exists	91
when the consolidation becomes effective and, if it is a domestic	92
corporation, the articles contained in or provided for in the	93
agreement of consolidation shall be its original articles. In the	94
case of a merger in which the surviving entity is a domestic	95
corporation, the articles of the domestic surviving corporation in	96
effect immediately prior to the time the merger becomes effective	97
shall continue as its articles after the merger except as	98
otherwise provided in the agreement of merger.	99

(3) The surviving or new entity possesses all assets and	100
property of every description, and every interest in the assets	101
and property, wherever located, and the rights, privileges,	102
immunities, powers, franchises, and authority, of a public as well	103
as of a private nature, of each constituent entity, and, subject	104
to the limitations specified in section 2307.96 of the Revised	105
Code, all obligations belonging to or due to each constituent	106
entity, all of which are vested in the surviving or new entity	107
without further act or deed. Title to any real estate or any	108
interest in the real estate vested in any constituent entity shall	109
not revert or in any way be impaired by reason of such merger or	110
consolidation.	111

(4) TheSubject to the limitations specified in section	112
2307.96 of the Revised Code, the surviving or new entity is liable	113
for all the obligations of each constituent entity, including	114
liability to dissenting shareholders. Any claim existing or any	115
action or proceeding pending by or against any constituent entity	116
may be prosecuted to judgment, with right of appeal, as if the	117
merger or consolidation had not taken place, or the surviving or	118
new entity may be substituted in its place.	119

(5) AllSubject to the limitations specified in section	120
2307.96 of the Revised Code, all the rights of creditors of each	121
constituent entity are preserved unimpaired, and all liens upon	122
the property of any constituent entity are preserved unimpaired,	123
on only the property affected by suchthose liens immediately	124
prior to the effective date of the merger or consolidation. If a	125
general partner of a constituent partnership is not a general	126
partner of the entity surviving or the new entity resulting from	127
the merger or consolidation, then the former general partner shall	128
have no liability for any obligation incurred after the merger or	129
consolidation except to the extent that a former creditor of the	130
constituent partnership in which the former general partner was a	131
partner extends credit to the surviving or new entity reasonably	132
believing that the former general partner continued as a general	133
partner of the surviving or new entity.	134

(B) If a general partner of a constituent partnership is not	135
a general partner of the entity surviving or the new entity	136
resulting from the merger or consolidation, the provisions of	137
division (B) of section 1782.434 of the Revised Code shall apply.	138

(C) In the case of a merger of a domestic constituent	139
corporation into a foreign surviving corporation, limited	140
liability company, or limited partnership that is not licensed or	141
registered to transact business in this state or in the case of a	142
consolidation of a domestic constituent corporation into a new	143
foreign corporation, limited liability company, or limited	144
partnership, if the surviving or new entity intends to transact	145
business in this state and the certificate of merger or	146
consolidation is accompanied by the information described in	147
division (B)(4) of section 1701.81 of the Revised Code, then, on	148
the effective date of the merger or consolidation, the surviving	149
or new entity shall be considered to have complied with the	150
requirements for procuring a license or for registering to	151
transact business in this state as a foreign corporation, limited	152
liability company, or limited partnership, as the case may be. In	153
such a case, a copy of the certificate of merger or consolidation	154
certified by the secretary of state constitutes the license	155
certificate prescribed by the laws of this state for a foreign	156
corporation transacting business in this state or the application	157
for registration prescribed for a foreign limited partnership or	158
limited liability company.	159

(D) Any action to set aside any merger or consolidation on	160
the ground that any section of the Revised Code applicable to the	161
merger or consolidation has not been complied with shall be	162
brought within ninety days after the effective date of suchthat	163
merger or consolidation or be forever barred.	164

(E) As used in this section, "corporation" or "entity"	165
applies to both domestic and foreign corporations and entities	166
where the context so permits. In the case of a foreign constituent	167
entity or a foreign new entity, this section is subject to the	168
laws of the state under the laws of which the entity exists or in	169
which it has property.	170

Sec. 2307.91.  As used in sections 2307.91 to 2307.95 of the	171
Revised Code:	172

(A) "AMA guides to the evaluation of permanent impairment"	173
means the American medical association's guides to the evaluation	174
of permanent impairment (fifth edition 2000) as may be modified by	175
the American medical association.	176

(B) "Asbestos" means chrysotile, amosite, crocidolite,	177
tremolite asbestos, anthophyllite asbestos, actinolite asbestos,	178
and any of these minerals that have been chemically treated or	179
altered.	180

(C) "Asbestos claim" means any claim for damages, losses,	181
indemnification, contribution, or other relief arising out of,	182
based on, or in any way related to asbestos. "Asbestos claim"	183
includes a claim made by or on behalf of any person who has been	184
exposed to asbestos, or any representative, spouse, parent, child,	185
or other relative of that person, for injury, including mental or	186
emotional injury, death, or loss to person, risk of disease or	187
other injury, costs of medical monitoring or surveillance, or any	188
other effects on the person's health that are caused by the	189
person's exposure to asbestos.	190

(D) "Asbestosis" means bilateral diffuse interstitial	191
fibrosis of the lungs caused by inhalation of asbestos fibers.	192

(E) "Board-certified internist" means a medical doctor who is	193
currently certified by the American board of internal medicine.	194

(F) "Board-certified oncologist" means a medical doctor who	195
is currently certified by the American board of internal medicine	196
in the subspecialty of medical oncology.	197

(G) "Board-certified pathologist" means a medical doctor who	198
is currently certified by the American board of pathology.	199

(H) "Board-certified pulmonary specialist" means a medical	200
doctor who is currently certified by the American board of	201
internal medicine in the subspecialty of pulmonary medicine.	202

(I) "Certified B-reader" means an individual qualified as a	203
"final" or "B-reader" as defined in 42 C.F.R. section 37.51(b), as	204
amended.	205

(J) "Civil action" means all suits or claims of a civil	206
nature in state or federal court, whether cognizable as cases at	207
law or in equity or admiralty. The term "civil action" does not	208
include an action relating to any workers' compensation law.	209

(K) "Exposed person" means any person whose exposure to	210
asbestos or to asbestos-containing products is the basis for an	211
asbestos claim.	212

(L) "Exposure years" means the following:

213

(1) Each single year of exposure prior to 1972 will be	214
counted as one year.	215

(2) Each single year of exposure from 1972 through 1979 will	216
be counted as one-half year.	217

(3) Exposure after 1979 will not be counted, except that each	218
year from 1972 forward for which the plaintiff can establish	219
exposure exceeding the occupational safety and health	220
administration (OSHA) limit for eight-hour time-weighted average	221
airborne concentration for a substantial portion of the year will	222
count as one year.	223

(M) "FEV1" means forced expiratory volume in the first	224
second, which is the maximal volume of air expelled in one second	225
during performance of simple spirometric tests.	226

(N) "FVC" means forced vital capacity that is maximal volume	227
of air expired with maximum effort from a position of full	228
inspiration.	229

(O) "ILO scale" means the system for the classification of	230
chest x-rays set forth in the international labour office's	231
guidelines for the use of ILO international classification of	232
radiographs of pneumoconioses (1980), as amended.	233

(P) "Lung cancer" means a malignant tumor in which the	234
primary site of origin of the cancer is inside the lungs, but that	235
term does not include an asbestos claim based upon mesothelioma.	236

(Q) "Mesothelioma" means a malignant tumor with a primary	237
site of origin in the pleura or the peritoneum, which has been	238
diagnosed by a board-certified pathologist, using standardized and	239
accepted criteria of microscopic morphology and appropriate	240
staining techniques.	241

(R) "Nonmalignant condition" means a condition that is caused	242
or may be caused by asbestos other than a diagnosed cancer.	243

(S) "Nonsmoker" means the exposed person has not smoked	244
cigarettes or used any other tobacco products within the last	245
fifteen years.	246

(T) "Pathological evidence of asbestosis" means a statement	247
by a board-certified pathologist that more than one representative	248
section of lung tissue uninvolved with any other disease process	249
demonstrates a pattern of peribronchiolar or parenchymal scarring	250
in the presence of characteristic asbestos bodies and that there	251
is no other more likely explanation for the presence of the	252
fibrosis.	253

(U) "Physical impairment" means a nonmalignant condition that	254
meets the minimum requirements of division (B) of section 2307.92	255
of the Revised Code, lung cancer that meets the minimum	256
requirements of division (C) of section 2307.92 of the Revised	257
Code, or cancer of the colon, rectum, larynx, pharynx, esophagus,	258
or stomach that meets the minimum requirements of division (D) of	259
section 2307.92 of the Revised Code.	260

(V) "Predicted lower limit of normal" means the fifth	261
percentile of healthy populations based on age, height, and	262
gender, as referenced in the AMA guides to the evaluation of	263
permanent impairment.	264

(W) "Qualified physician" means a medical doctor who is	265
providing a diagnosis for purposes of constituting prima-facie	266
evidence of an exposed person's physical impairment that meets the	267
requirements of section 2307.92 of the Revised Code and who meets	268
the following requirements:	269

(1) The medical doctor is a board-certified internist,	270
pulmonary specialist, oncologist, or pathologist.	271

(2) The medical doctor is actually treating or has treated	272
the exposed person and has or had a doctor-patient relationship	273
with the person.	274

(3) The medical doctor spends not more than ten per cent of	275
the medical doctor's professional practice time in providing	276
consulting or expert services in connection with actual or	277
potential civil actions, and the medical doctor's medical group,	278
professional corporation, clinic, or other affiliated group earns	279
not more than twenty per cent of its revenues from providing those	280
services.	281

(4) The medical doctor is currently licensed to practice and	282
actively practices in the state where the plaintiff's civil action	283
was filed.	284

(5) The medical doctor receives or received payment for the	285
treatment of the exposed person from that person's HMO or other	286
medical provider.	287

(X) "Radiological evidence of asbestosis" means a chest x-ray	288
showing small, irregular opacities (s, t) graded by a certified	289
B-reader as at least 1/1 on the ILO scale.	290

(Y) "Radiological evidence of diffuse pleural thickening"	291
means a chest x-ray showing bilateral pleural thickening graded by	292
a certified B-reader as at least B2 on the ILO scale and blunting	293
of at least one costophrenic angle.	294

(Z) "Smoker" means a person who has smoked cigarettes or	295
other tobacco products within the last fifteen years.	296

(AA) "Spirometry" means the measurement of volume of air	297
inhaled or exhaled by the lung.	298

(BB) "Substantial contributing factor" means all of the	299
following:	300

(1) Exposure to asbestos is the predominate cause of the	301
physical impairment alleged in the asbestos claim.	302

(2) The exposure to asbestos took place on a regular basis	303
over an extended period of time and in close proximity to the	304
exposed person.	305

(3) A qualified physician has determined with a reasonable	306
degree of medical certainty that the physical impairment of the	307
exposed person would not have occurred but for the asbestos	308
exposures.	309

(CC) "Veterans' benefit program" means any program for	310
benefits in connection with military service administered by the	311
veterans' administration under title 38 of the United States Code.	312

(DD) "Workers' compensation law" means Chapters 4121., 4123.,	313
4127., and 4131. of the Revised Code.	314

Sec. 2307.92.  (A) Physical impairment of the exposed person,	315
to which the person's exposure to asbestos is a substantial	316
contributing factor, shall be an essential element of an asbestos	317
claim.	318

(B) No person shall bring or maintain a civil action alleging	319
an asbestos claim based on a nonmalignant condition in the absence	320
of a prima-facie showing that the exposed person has a physical	321
impairment, that the physical impairment is a result of a medical	322
condition, and that the person's exposure to asbestos is a	323
substantial contributing factor to the medical condition. That	324
prima-facie showing shall include all of the following minimum	325
requirements:	326

(1) Evidence verifying that a qualified physician has taken a	327
detailed occupational and exposure history of the exposed person	328
from the exposed person or, if that person is deceased, from the	329
person who is most knowledgeable about the exposures that form the	330
basis of the asbestos claim for a nonmalignant condition,	331
including all of the following:	332

(a) All of the exposed person's principal places of	333
employment and exposures to airborne contaminants;	334

(b) Whether each place of employment involved exposures to	335
airborne contaminants, including, but not limited to, asbestos	336
fibers or other disease causing dusts, that can cause pulmonary	337
impairment and, if that type of exposure is involved, the nature,	338
duration, and level of the exposure.	339

(2) Evidence verifying that a qualified physician has taken a	340
detailed medical and smoking history of the exposed person,	341
including a thorough review of the exposed person's past and	342
present medical problems and the most probable causes of those	343
medical problems;	344

(3) A diagnosis by a qualified physician, based on a medical	345
examination and pulmonary function testing of the exposed person,	346
that all of the following apply to the exposed person:	347

(a) The exposed person has a permanent respiratory impairment	348
rating of at least class 2 as defined by and evaluated pursuant to	349
the AMA guides to the evaluation of permanent impairment.	350

(b) The exposed person has asbestosis or diffuse pleural	351
thickening, based at a minimum on radiological or pathological	352
evidence of asbestosis or radiological evidence of diffuse pleural	353
thickening.	354

(c) The asbestosis or diffuse pleural thickening described in	355
division (B)(3)(b) of this section, rather than solely chronic	356
obstructive pulmonary disease, is a substantial contributing	357
factor to the exposed person's physical impairment, based at a	358
minimum on a determination that the exposed person has either of	359
the following:	360

(i) A forced vital capacity below the predicted lower limit	361
of normal and a ratio of FEV1 to FVC that is equal to or greater	362
than the predicted lower limit of normal;	363

(ii) A chest x-ray showing small, irregular opacities (s, t)	364
graded by a certified B-reader at least 2/1 on the ILO scale.	365

(C) No person shall bring or maintain a civil action alleging	366
an asbestos claim based upon lung cancer in the absence of a	367
prima-facie showing of all of the following minimum requirements:	368

(1) A diagnosis by a board-certified pathologist,	369
board-certified pulmonary specialist, or board-certified	370
oncologist that the exposed person has primary lung cancer and	371
that exposure to asbestos is a substantial contributing factor to	372
that cancer;	373

(2) Evidence that is sufficient to demonstrate that at least	374
ten years have elapsed between the date of the exposed person's	375
first exposure to asbestos and the date of diagnosis of the	376
exposed person's primary lung cancer;	377

(3) Either of the following:

378

(a) In the case of an exposed person who is a nonsmoker,	379
either of the following requirements:	380

(i) Radiological or pathological evidence of asbestosis or	381
radiological evidence of diffuse pleural thickening;	382

(ii) Evidence of the exposed person's occupational exposure	383
to asbestos for any of the applicable minimum exposure periods in	384
the occupations as specified in divisions (D)(3)(b)(i), (ii), and	385
(iii) of this section.	386

(b) In the case of an exposed person who is a smoker, both of	387
the requirements specified in divisions (C)(3)(a)(i) and (ii) of	388
this section.	389

(D) No person shall bring or maintain a civil action alleging	390
an asbestos claim based upon cancer of the colon, rectum, larynx,	391
pharynx, esophagus, or stomach, in the absence of a prima-facie	392
showing of all of the following minimum requirements:	393

(1) A diagnosis by a board-certified pathologist,	394
board-certified pulmonary specialist, or board-certified	395
oncologist, whichever is appropriate for the type of cancer	396
claimed, that the exposed person has primary cancer of the colon,	397
rectum, larynx, pharynx, esophagus, or stomach and that exposure	398
to asbestos was a substantial contributing factor to that	399
particular cancer;	400

(2) Evidence that is sufficient to demonstrate that at least	401
ten years have elapsed between the date of the exposed person's	402
first exposure to asbestos and the date of diagnosis of the	403
exposed person's particular cancer;	404

(3) Either of the following requirements:

405

(a) Radiological or pathological evidence of asbestosis or	406
radiological evidence of diffuse pleural thickening;	407

(b) Evidence of the exposed person's occupational exposure to	408
asbestos for any of the following applicable minimum exposure	409
periods in the specified occupations:	410

(i) Five exposure years for insulators, shipyard workers,	411
workers in manufacturing plants handling raw asbestos,	412
boilermakers, shipfitters, steamfitters, or other trades	413
performing similar functions;	414

(ii) Ten exposure years for utility and power house workers,	415
secondary manufacturing workers, or other trades performing	416
similar functions;	417

(iii) Fifteen exposure years for general construction,	418
maintenance workers, chemical and refinery workers, marine engine	419
room personnel and other personnel on vessels, stationary	420
engineers and firefighters, railroad engine repair workers, or	421
other trades performing similar functions.	422

(E) No prima-facie showing is required in a civil action	423
alleging an asbestos claim based upon mesothelioma.	424

(F) Evidence relating to physical impairment under this	425
section, including pulmonary function testing and diffusing	426
studies, shall comply with the technical recommendations for	427
examinations, testing procedures, quality assurance, quality	428
control, and equipment incorporated in the AMA guides to the	429
evaluation of permanent impairment and reported as set forth in 20	430
C.F.R. Pt. 404, Subpt. P, App. 1, Part A, Sec. 3.00 E. and F., and	431
the interpretive standards set forth in the official statement of	432
the American thoracic society entitled "lung function testing:	433
selection of reference values and interpretive strategies" as	434
published in American review of respiratory disease,	435
1991:144:1202-1218.	436

(G) All of the following apply to the presentation of	437
prima-facie evidence that meets the requirements of division (B),	438
(C), or (D) of this section:	439

(1) It does not result in any presumption at trial that the	440
exposed person has a physical impairment that is caused by an	441
asbestos-related condition.	442

(2) It is not conclusive as to the liability of any defendant	443
in the case.	444

(3) It is not admissible at trial.

445

Sec. 2307.93.  The plaintiff in any civil action who alleges	446
an asbestos claim shall file together with the complaint or other	447
initial pleading a written report and supporting test results	448
constituting prima-facie evidence of the exposed person's physical	449
impairment that meets the minimum requirements of division (B),	450
(C), or (D) of section 2307.92 of the Revised Code, whichever is	451
applicable. With respect to any asbestos claim that is pending on	452
the effective date of this section, the plaintiff shall file the	453
written report and supporting test results described in this	454
section sixty days following the effective date of this section or	455
thirty days prior to trial, whichever is earlier. The defendant in	456
the case shall be afforded a reasonable opportunity to challenge	457
the adequacy of the proffered prima-facie evidence of the physical	458
impairment. The court shall dismiss the plaintiff's claim without	459
prejudice upon a finding of failure to make the prima-facie	460
showing required by division (B), (C), or (D) of section 2307.92	461
of the Revised Code.	462

Sec. 2307.94.  (A) Notwithstanding any other provision of the	463
Revised Code, with respect to any asbestos claim based upon a	464
nonmalignant condition that is not barred as of the effective date	465
of this section, the period of limitations shall not begin to run	466
until the exposed person discovers, or through the exercise of	467
reasonable diligence should have discovered, that the person has a	468
physical impairment due to a nonmalignant condition.	469

(B) An asbestos claim that arises out of a nonmalignant	470
condition shall be a distinct cause of action from an asbestos	471
claim relating to the same exposed person that arises out of	472
asbestos-related cancer. No damages shall be awarded for fear or	473
risk of cancer in any civil action asserting only an asbestos	474
claim for a nonmalignant condition.	475

(C) No settlement of an asbestos claim for a nonmalignant	476
condition that is concluded after the effective date of this	477
section shall require, as a condition of settlement, the release	478
of any future claim for asbestos-related cancer.	479

Sec. 2307.95.  Sections 2307.91 to 2307.95 of the Revised	480
Code shall not affect the scope or operation of any workers'	481
compensation law or veterans' benefit program or the exclusive	482
remedy of subrogation under the provisions of that law or program	483
and shall not authorize any lawsuit that is barred by any	484
provision of any workers' compensation law.	485

Sec. 2307.96. (A) As used in this section and section 2307.97	486
of the Revised Code:	487

(1) "Asbestos" has the same meaning as in section 2307.91 of	488
the Revised Code.	489

(2) "Asbestos claim" means any claim for damages, losses,	490
indemnification, contribution, or other relief arising out of,	491
based on, or in any way related to asbestos. "Asbestos claim"	492
includes any of the following:	493

(a) A claim made by or on behalf of any person who has been	494
exposed to asbestos, or any representative, spouse, parent, child,	495
or other relative of that person, for injury, including mental or	496
emotional injury, death, or loss to person, risk of disease or	497
other injury, costs of medical monitoring or surveillance, or any	498
other effects on the person's health that are caused by the	499
person's exposure to asbestos;	500

(b) A claim for damage or loss to property that is caused by	501
the installation, presence, or removal of asbestos.	502

(3) "Successor" means a domestic corporation or a subsidiary	503
of a domestic corporation that acquired any assets of or the stock	504
of a foreign business corporation, if all of the following apply:	505

(a) The transaction occurred on or before July 29, 1977.

506

(b) The purchasing domestic corporation paid less than five	507
million dollars for the acquisition.	508

(c) The principal place of business of the foreign	509
corporation was located outside the state of Ohio.	510

(4)(a) "Successor asbestos-related liabilities," in relation	511
to an asset purchase or a stock purchase by a successor means any	512
liabilities, whether known or unknown, asserted or unasserted,	513
absolute or contingent, accrued or unaccrued, liquidated or	514
unliquidated, or due or to become due, if the liabilities are	515
related in any way to asbestos claims and are assumed or incurred	516
by a successor as a result of or in connection with the asset	517
purchase or stock purchase, merger, or consolidation, or the	518
agreement of the asset purchase or stock purchase.	519

(b) "Successor asbestos-related liabilities" includes any	520
liabilities described in division (A)(4)(a) of this section that,	521
after the effective date of the asset purchase or stock purchase,	522
are paid, otherwise discharged, committed to be paid, or committed	523
to be otherwise discharged by or on behalf of the successor, or by	524
or on behalf of a transferor, in connection with any judgment,	525
settlement, or other discharge of those liabilities in this state	526
or another jurisdiction.	527

(5) "Transferor" means a foreign corporation or its	528
shareholders from which successor asbestos-related liabilities are	529
assumed or incurred by the successor.	530

(B)(1) Except as otherwise provided in division (B)(2) of	531
this section, the cumulative successor asbestos-related	532
liabilities of a successor shall be limited to the fair market	533
value of the acquired assets or stock as determined on the	534
effective date of the asset purchase or stock purchase, merger, or	535
consolidation.	536

(2) If a transferor had assumed or incurred successor	537
asbestos-related liabilities in connection with a prior asset	538
purchase, stock purchase, merger, or consolidation involving a	539
prior transferor, the successor asbestos-related liabilities of	540
the successor described in division (B)(1) of this section shall	541
be limited to the fair market value of the previously acquired	542
assets or stock as determined on the effective date of the prior	543
asset purchase, stock purchase, merger, or consolidation.	544

(3) The successor described in division (B)(1) or (2) of this	545
section shall have no responsibility for any successor	546
asbestos-related liabilities in excess of the limitation of those	547
liabilities as described in the applicable division.	548

(C)(1) Except as otherwise provided in division (C)(2) of	549
this section, the assets of a successor shall be exempt from	550
restraint, attachment, or execution on any judgment entered in	551
this state or another jurisdiction related to any claim for	552
successor asbestos-related liabilities if the cumulative amounts	553
of those liabilities that, after the effective date of the asset	554
purchase or stock purchase that is covered by division (B) of this	555
section, are paid or committed to be paid by or on behalf of the	556
successor, or by or on behalf of the transferor, in connection	557
with any judgment, settlement, or other discharge of claims of	558
asbestos-related liabilities exceed the fair market value of the	559
assets or stock as determined on the effective date of the asset	560
purchase or stock purchase, merger, or consolidation.	561

(2) If a transferor had assumed or incurred successor	562
asbestos-related liabilities in connection with a prior asset	563
purchase, stock purchase, merger, or consolidation involving a	564
prior transferor, the assets of the successor described in	565
division (C)(1) of this section shall be exempt from restraint,	566
attachment, or execution on any judgment entered in this state or	567
another jurisdiction related to any claim for successor	568
asbestos-related liabilities if the cumulative amounts of those	569
liabilities that, after the effective date of the prior asset	570
purchase, stock purchase, merger, or consolidation, are paid or	571
committed to be paid by or on behalf of the successor, or by or on	572
behalf of the prior transferor, in connection with any judgment,	573
settlement, or other discharge of claims of asbestos-related	574
liabilities, exceed the fair market value of the previously	575
acquired assets or stock as determined on the effective date of	576
the prior asset purchase, stock purchase, merger, or	577
consolidation.	578

(D)(1) A successor may establish the fair market value of	579
total assets under division (B) or (C) of this section by means of	580
any method that is reasonable under the circumstances, including	581
by reference to the going-concern value of those assets, to the	582
purchase price attributable to or paid for the assets in an arm's	583
length transaction, or, in the absence of other readily available	584
information from which fair market value can be determined, to the	585
value of those assets recorded on a balance sheet. Total assets	586
shall include intangible assets. A showing by the successor of a	587
reasonable determination of the fair market value of total assets	588
is prima-facie evidence of the fair market value of those assets.	589

(2) After a successor has established a reasonable	590
determination of the fair market value of total assets under	591
division (D)(1) of this section, a claimant that disputes that	592
determination of the fair market value has the burden of	593
establishing a different fair market value of those assets.	594

(3) For the purpose of adjusting the limitations set forth in	595
division (B) or (C) of this section to account for the passage of	596
time, the fair market value of total assets on the effective date	597
of the applicable asset purchase or stock purchase under the	598
applicable division shall be increased annually, at the rate equal	599
to the prime rate as listed in the first edition of the Wall	600
Street Journal published for each calendar year since the asset	601
purchase or stock purchase plus one per cent, not compounded,	602
until the earlier of either of the following:	603

(a) The date of the judgment, settlement, or other discharge	604
of claims of successor asbestos-related liabilities to which the	605
limitations in division (B) or (C) of this section are being	606
applied;	607

(b) The date on which the adjusted fair market value of total	608
assets under division (D)(3) of this section is first exceeded by	609
the cumulative amounts of successor asbestos-related liabilities	610
that are paid or committed to be paid by or on behalf of the	611
successor, or by or on behalf of a transferor, after the effective	612
date of the asset purchase or stock purchase in connection with	613
any judgment, settlement, or other discharge of the successor	614
asbestos-related liabilities.	615

(E)(1) The limitations set forth in divisions (B) and (C) of	616
this section shall apply to the following:	617

(a) All asbestos claims, including asbestos claims that are	618
pending on the effective date of this section, and all litigation	619
involving asbestos claims, including litigation that is pending on	620
the effective date of this section;	621

(b) Successors of a successor to which this section applies.

622

(2) The limitations set forth in divisions (B) and (C) of	623
this section do not apply to any of the following:	624

(a) Workers' compensation benefits that are paid by or on	625
behalf of an employer to an employee pursuant to any provision of	626
Chapter 4121., 4123., 4127., or 4131. of the Revised Code or	627
comparable workers' compensation law of another jurisdiction;	628

(b) Any claim against a successor that does not constitute a	629
claim for a successor asbestos-related liability;	630

(c) An insurance corporation;

631

(d) Any obligations arising under the "National Labor	632
Relations Act," 49 Stat. 449, 29 U.S.C. 151 et seq., as amended,	633
or under any collective bargaining agreement.	634

Sec. 2307.97.  (A) A holder of shares, an owner of any	635
beneficial interest in shares, or a subscriber for shares whose	636
subscription has been accepted, or any affiliate or holding	637
company of that holder, owner, or subscriber or of the	638
corporation, shall be under no obligation to, and shall have no	639
liability to, the corporation or to any person with respect to any	640
obligation or liability of the corporation relating in any way to	641
asbestos claims on the basis that the holder, owner, subscriber,	642
affiliate, or holding company described in division (A) of this	643
section controlled the corporation or is or was the alter ego of	644
the corporation, or on the basis of actual fraud or constructive	645
fraud, a sham to perpetrate a fraud, a fraudulent conveyance,	646
piercing the corporate veil, or any other similar theory, unless	647
the person demonstrates that the holder, owner, subscriber,	648
affiliate, or holding company caused the corporation to be used	649
for the purpose of perpetrating and did perpetrate an actual fraud	650
on the person primarily for the direct pecuniary benefit of the	651
holder, owner, subscriber, affiliate, or holding company, and then	652
only to the extent of that direct pecuniary benefit.	653

(B) Any liability of the holder, owner, or subscriber of	654
shares of a corporation described in division (A) of this section	655
or any affiliate or holding company of that holder, owner, or	656
subscriber or of the corporation for an obligation or liability	657
that is limited by that division is exclusive and preempts any	658
other obligation or liability imposed upon a holder, owner, or	659
subscriber of shares of a corporation described in that division	660
or any affiliate or holding company of that holder, owner, or	661
subscriber or of the corporation for that obligation or liability	662
under common law or otherwise.	663

Section 2. That existing sections 1701.76 and 1701.82 of the	664
Revised Code are hereby repealed.	665

Section 3. (A) The General Assembly makes the following	666
statement of findings and intent:	667

(1) Asbestos claims have created an increased amount of	668
litigation in state and federal courts that the United States	669
Supreme Court has characterized as "an elephant mass" of cases	670
that "defies customary judicial administration and calls for	671
national legislation." Ortiz v. Fibreboard Corporation (1999), 119	672
S.Ct. 2295, 2303.	673

(2) The current asbestos personal injury litigation system is	674
unfair and inefficient, imposing a severe burden on litigants and	675
taxpayers alike.	676

(3) The extraordinary volume of nonmalignant asbestos cases	677
continue to strain federal and state courts, with over two hundred	678
thousand cases pending and over fifty thousand new cases filed	679
each year.	680

(4) Asbestos personal injury litigation has already	681
contributed to the bankruptcy of more than sixty companies,	682
including nearly all manufacturers of asbestos textile and	683
insulation products, and the ratio of asbestos-driven bankruptcies	684
is accelerating.	685

(5) The General Assembly recognizes that the vast majority of	686
asbestos claims are filed by individuals who allege they have been	687
exposed to asbestos and who have some physical sign of exposure to	688
asbestos, but who do not suffer from an asbestos-related	689
impairment.	690

(6) The cost of compensating exposed individuals who are not	691
ill jeopardizes the ability of defendants to compensate people	692
with cancer and other serious asbestos-related diseases, now and	693
in the future; threatens savings, retirement benefits, and jobs of	694
the state's current and retired employees; adversely affects the	695
communities in which these defendants operate; and impairs Ohio's	696
economy.	697

(7) As stated in testimony by Robert Bunda, a trial lawyer	698
who has been involved with the defense of asbestos claims on	699
behalf of Owens-Illinois, Inc. for twenty-four years, there is	700
something terribly wrong with the current civil justice system,	701
evidenced by the fact that Owens-Illinois has been sued over three	702
hundred thousand times for its brief involvement in manufacturing	703
asbestos. According to Mr. Bunda, at least five Ohio-based	704
companies have gone bankrupt because of the cost of paying people	705
who are not sick. These bankruptcies have imperiled the	706
availability of even modest compensation for the most seriously	707
injured asbestos workers. They have also imperiled jobs, the	708
health benefits, and the retirement funds of tens of thousands of	709
blue-collar workers. New jobs are not being created in Ohio, and	710
existing Ohio jobs are being destroyed.	711

(8) According to a study conducted by NERA Economic	712
Consulting, in 2000, Owens-Corning laid off two hundred and	713
seventy-five employees from its Granville, Ohio plant. The ripple	714
effect of those job losses predicts total employment in the county	715
of almost five hundred jobs and a fifteen million to twenty	716
million dollar annual reduction in regional income.	717

(9) The public interest requires the deferring of claims of	718
exposed individuals who are not ill in order to preserve, now and	719
for the future, defendants' ability to compensate people who	720
develop cancer and other serious asbestos-related injuries and to	721
safeguard the jobs, benefits, and savings of the state's employees	722
and the well being of the Ohio economy.	723

(B) In enacting sections 2307.91 to 2307.97 of the Revised	724
Code, it is the intent of the General Assembly to: (1) give	725
priority to those asbestos claimants who can demonstrate actual	726
physical harm or illness caused by exposure to asbestos; (2) fully	727
preserve the rights of claimants who were exposed to asbestos to	728
pursue compensation should those claimants become impaired in the	729
future as a result of such exposure; (3) enhance the ability of	730
the state's judicial systems and federal judicial systems to	731
supervise and control litigation and asbestos-related bankruptcy	732
proceedings; and (4) conserve the scarce resources of the	733
defendants to allow compensation of cancer victims and others who	734
are physically impaired by exposure to asbestos while securing the	735
right to similar compensation for those who may suffer physical	736
impairment in the future.	737

Section 4. (A) As used in this section, "asbestos," "asbestos	738
claim," "exposed person," and "substantial contributing factor"	739
have the same meanings as in section 2307.91 of the Revised Code.	740

(B) The General Assembly acknowledges the Court's authority	741
in prescribing rules governing practice and procedure in the	742
courts of this state, as provided by Section 5 of Article IV of	743
the Ohio Constitution.	744

(C) The General Assembly hereby requests the Supreme Court to	745
adopt rules to specify procedures for venue and consolidation of	746
asbestos claims brought pursuant to sections 2307.91 to 2307.95 of	747
the Revised Code.	748

(D) With respect procedures for venue in regard to asbestos	749
claims, the General Assembly hereby requests the Supreme Court to	750
adopt a rule that requires that an asbestos claim meet specific	751
nexus requirements, including the requirement that the plaintiff	752
be domiciled in Ohio or that Ohio is the state in which the	753
plaintiff's exposure to asbestos is a substantial contributing	754
factor.	755

(E) With respect to procedures for consolidation of asbestos	756
claims, the General Assembly hereby requests the Supreme Court to	757
adopt a rule that permits consolidation of asbestos claims only	758
with the consent of all parties, and in absence of that consent,	759
permits a court to consolidate for trial only those asbestos	760
claims that relate to the same exposed person and members of the	761
exposed person's household.	762

Section 5.  If any item of law that constitutes the whole or	763
part of a section of law contained in this act, or if any	764
application of any item of law that constitutes the whole or part	765
of a section of law contained in this act, is held invalid, the	766
invalidity does not affect other items of law or applications of	767
items of law that can be given effect without the invalid item of	768
law or application. To this end, the items of law of which the	769
sections contained in this act are composed, and their	770
applications, are independent and severable.	771

Section 6. If any item of law that constitutes the whole or	772
part of a section of law contained in this act, or if any	773
application of any item of law contained in this act, is held to	774
be preempted by federal law, the preemption of the item of law or	775
its application does not affect other items of law or applications	776
that can be given affect. The items of law of which the sections	777
of this act are composed, and their applications, are independent	778
and severable.	779