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To amend sections 1701.76, 1701.82, and 2505.02 and | 1 |
to enact sections 2307.91 to 2307.94, 2307.941, | 2 |
and 2307.95 to 2307.98 of the Revised Code to | 3 |
establish minimum medical requirements for filing | 4 |
certain asbestos claims, to specify a plaintiff's | 5 |
burden of proof in tort actions involving exposure | 6 |
to asbestos, to establish premises liability in | 7 |
relation to asbestos claims, to establish | 8 |
limitations on successor asbestos-related | 9 |
liabilities relating to corporations, and to | 10 |
prescribe the requirements for shareholder | 11 |
liability for asbestos claims under the doctrine | 12 |
of piercing the corporate veil. | 13 |
Section 1. That sections 1701.76, 1701.82, and 2505.02 be | 14 |
amended and sections 2307.91, 2307.92, 2307.93, 2307.94, 2307.941, | 15 |
2307.95, 2307.96, 2307.97, and 2307.98 of the Revised Code be | 16 |
enacted to read as follows: | 17 |
Sec. 1701.76. (A)(1) Provided the provisions of Chapter | 18 |
1704. of the Revised Code do not prevent the transaction from | 19 |
being effected, a lease, sale, exchange, transfer, or other | 20 |
disposition of all, or substantially all, of the assets, with or | 21 |
without the good will, of a corporation, if not made in the usual | 22 |
and regular course of its business, may be made upon | 23 |
terms
and conditions and for | 24 |
may consist, in whole or in part, of money or other property of | 25 |
any description, including shares or other securities or | 26 |
promissory obligations of any other corporation, domestic or | 27 |
foreign, | 28 |
(a) By the directors, either before or after authorization by | 29 |
the shareholders as required in this section; and | 30 |
(b) At a meeting of the shareholders held for | 31 |
purpose, by the affirmative vote of the holders of shares | 32 |
entitling them to exercise two-thirds of the voting power of the | 33 |
corporation on | 34 |
or permit, by the affirmative vote of a greater or lesser | 35 |
proportion, but not less than a majority, of | 36 |
power,
and by | 37 |
of any
particular class | 38 |
(2) At the shareholder meeting described in division | 39 |
(A)(1)(b) of this section or at any subsequent shareholder | 40 |
meeting, shareholders, by the same vote that is required to | 41 |
authorize the lease, sale, exchange, transfer, or other | 42 |
disposition of all, or substantially all, of the assets, with or | 43 |
without the good will, of the corporation, may grant authority to | 44 |
the directors to establish or amend any of the terms and | 45 |
conditions of the transaction, except that the shareholders shall | 46 |
not authorize the directors to do any of the following: | 47 |
(a) Alter or change the amount or kind of shares, securities, | 48 |
money, property, or rights to be received in exchange for the | 49 |
assets; | 50 |
(b) Alter or change to any material extent the amount or kind | 51 |
of liabilities to be assumed in exchange for the assets; | 52 |
(c) Alter or change any other terms and conditions of the | 53 |
transaction if any of the alterations or changes, alone or in the | 54 |
aggregate, would materially adversely affect the shareholders or | 55 |
the corporation. | 56 |
(3) Notice of the meeting of the shareholders described in | 57 |
division (A)(1)(b) of this section shall be given to all | 58 |
shareholders whether or not entitled to vote at the meeting and | 59 |
shall be accompanied by a copy or summary of the terms of the | 60 |
transaction. | 61 |
(B) The corporation by its directors may abandon | 62 |
transaction under this section, subject to the contract rights of | 63 |
other persons, if the power of abandonment is conferred upon the | 64 |
directors either by the terms of the transaction or by the same | 65 |
vote of shareholders and at the same meeting of shareholders as | 66 |
that referred to in division (A)(1)(b) of this section or at any | 67 |
subsequent meeting. | 68 |
(C) Dissenting holders of shares of any class, whether or not | 69 |
entitled to vote, shall be entitled to relief under section | 70 |
1701.85 of the Revised Code. | 71 |
(D) An action to set aside a conveyance by a corporation, on | 72 |
the ground that any section of the Revised Code applicable to the | 73 |
lease, sale, exchange, transfer, or other disposition of all, or | 74 |
substantially all, of the assets of | 75 |
been complied with, shall be brought within ninety days after
| 76 |
that transaction, or | 77 |
(E) If a resolution of dissolution is adopted pursuant to | 78 |
section 1701.86 of the Revised Code, the directors may dispose of | 79 |
all, or substantially all, of the corporation's assets without the | 80 |
necessity of a shareholders' authorization under this section. | 81 |
(F) The terms and conditions of any transaction under this | 82 |
section shall be subject to the limitations specified in section | 83 |
2307.97 of the Revised Code. | 84 |
Sec. 1701.82. (A) When a merger or consolidation becomes | 85 |
effective, all of the following apply: | 86 |
(1) The separate existence of each constituent entity other | 87 |
than the surviving entity in a merger shall cease, except that | 88 |
whenever a conveyance, assignment, transfer, deed, or other | 89 |
instrument or act is necessary to vest property or rights in the | 90 |
surviving or new entity, the officers, general partners, or other | 91 |
authorized representatives of the respective constituent entities | 92 |
shall execute, acknowledge, and deliver | 93 |
do
| 94 |
constituent entities and the authority of their respective | 95 |
officers, directors, general partners, or other authorized | 96 |
representatives is continued notwithstanding the merger or | 97 |
consolidation. | 98 |
(2) In the case of a consolidation, the new entity exists | 99 |
when the consolidation becomes effective and, if it is a domestic | 100 |
corporation, the articles contained in or provided for in the | 101 |
agreement of consolidation shall be its original articles. In the | 102 |
case of a merger in which the surviving entity is a domestic | 103 |
corporation, the articles of the domestic surviving corporation in | 104 |
effect immediately prior to the time the merger becomes effective | 105 |
shall continue as its articles after the merger except as | 106 |
otherwise provided in the agreement of merger. | 107 |
(3) The surviving or new entity possesses all assets and | 108 |
property of every description, and every interest in the assets | 109 |
and property, wherever located, and the rights, privileges, | 110 |
immunities, powers, franchises, and authority, of a public as well | 111 |
as of a private nature, of each constituent entity, and, subject | 112 |
to the limitations specified in section 2307.97 of the Revised | 113 |
Code, all obligations belonging to or due to each constituent | 114 |
entity, all of which are vested in the surviving or new entity | 115 |
without further act or deed. Title to any real estate or any | 116 |
interest in the real estate vested in any constituent entity shall | 117 |
not revert or in any way be impaired by reason of such merger or | 118 |
consolidation. | 119 |
(4) | 120 |
2307.97 of the Revised Code, the surviving or new entity is liable | 121 |
for all the obligations of each constituent entity, including | 122 |
liability to dissenting shareholders. Any claim existing or any | 123 |
action or proceeding pending by or against any constituent entity | 124 |
may be prosecuted to judgment, with right of appeal, as if the | 125 |
merger or consolidation had not taken place, or the surviving or | 126 |
new entity may be substituted in its place. | 127 |
(5) | 128 |
2307.97 of the Revised Code, all the rights of creditors of each | 129 |
constituent entity are preserved unimpaired, and all liens upon | 130 |
the property of any constituent entity are preserved unimpaired, | 131 |
on only the property
affected by | 132 |
prior to the effective date of the merger or consolidation. If a | 133 |
general partner of a constituent partnership is not a general | 134 |
partner of the entity surviving or the new entity resulting from | 135 |
the merger or consolidation, then the former general partner shall | 136 |
have no liability for any obligation incurred after the merger or | 137 |
consolidation except to the extent that a former creditor of the | 138 |
constituent partnership in which the former general partner was a | 139 |
partner extends credit to the surviving or new entity reasonably | 140 |
believing that the former general partner continued as a general | 141 |
partner of the surviving or new entity. | 142 |
(B) If a general partner of a constituent partnership is not | 143 |
a general partner of the entity surviving or the new entity | 144 |
resulting from the merger or consolidation, the provisions of | 145 |
division (B) of section 1782.434 of the Revised Code shall apply. | 146 |
(C) In the case of a merger of a domestic constituent | 147 |
corporation into a foreign surviving corporation, limited | 148 |
liability company, or limited partnership that is not licensed or | 149 |
registered to transact business in this state or in the case of a | 150 |
consolidation of a domestic constituent corporation into a new | 151 |
foreign corporation, limited liability company, or limited | 152 |
partnership, if the surviving or new entity intends to transact | 153 |
business in this state and the certificate of merger or | 154 |
consolidation is accompanied by the information described in | 155 |
division (B)(4) of section 1701.81 of the Revised Code, then, on | 156 |
the effective date of the merger or consolidation, the surviving | 157 |
or new entity shall be considered to have complied with the | 158 |
requirements for procuring a license or for registering to | 159 |
transact business in this state as a foreign corporation, limited | 160 |
liability company, or limited partnership, as the case may be. In | 161 |
such a case, a copy of the certificate of merger or consolidation | 162 |
certified by the secretary of state constitutes the license | 163 |
certificate prescribed by the laws of this state for a foreign | 164 |
corporation transacting business in this state or the application | 165 |
for registration prescribed for a foreign limited partnership or | 166 |
limited liability company. | 167 |
(D) Any action to set aside any merger or consolidation on | 168 |
the ground that any section of the Revised Code applicable to the | 169 |
merger or consolidation has not been complied with shall be | 170 |
brought within ninety days after the effective date of | 171 |
merger or consolidation or be forever barred. | 172 |
(E) As used in this section, "corporation" or "entity" | 173 |
applies to both domestic and foreign corporations and entities | 174 |
where the context so permits. In the case of a foreign constituent | 175 |
entity or a foreign new entity, this section is subject to the | 176 |
laws of the state under the laws of which the entity exists or in | 177 |
which it has property. | 178 |
Sec. 2307.91. As used in sections 2307.91 to 2307.96 of the | 179 |
Revised Code: | 180 |
(A) "AMA guides to the evaluation of permanent impairment" | 181 |
means the American medical association's guides to the evaluation | 182 |
of permanent impairment (fifth edition 2000) as may be modified by | 183 |
the American medical association. | 184 |
(B) "Asbestos" means chrysotile, amosite, crocidolite, | 185 |
tremolite asbestos, anthophyllite asbestos, actinolite asbestos, | 186 |
and any of these minerals that have been chemically treated or | 187 |
altered. | 188 |
(C) "Asbestos claim" means any claim for damages, losses, | 189 |
indemnification, contribution, or other relief arising out of, | 190 |
based on, or in any way related to asbestos. "Asbestos claim" | 191 |
includes a claim made by or on behalf of any person who has been | 192 |
exposed to asbestos, or any representative, spouse, parent, child, | 193 |
or other relative of that person, for injury, including mental or | 194 |
emotional injury, death, or loss to person, risk of disease or | 195 |
other injury, costs of medical monitoring or surveillance, or any | 196 |
other effects on the person's health that are caused by the | 197 |
person's exposure to asbestos. | 198 |
(D) "Asbestosis" means bilateral diffuse interstitial | 199 |
fibrosis of the lungs caused by inhalation of asbestos fibers. | 200 |
(E) "Board-certified internist" means a medical doctor who is | 201 |
currently certified by the American board of internal medicine. | 202 |
(F) "Board-certified occupational medicine specialist" means | 203 |
a medical doctor who is currently certified by the American board | 204 |
of internal medicine or the American board of preventive medicine | 205 |
in the specialty of occupational medicine. | 206 |
(G) "Board-certified oncologist" means a medical doctor who | 207 |
is currently certified by the American board of internal medicine | 208 |
in the subspecialty of medical oncology. | 209 |
(H) "Board-certified pathologist" means a medical doctor who | 210 |
is currently certified by the American board of pathology. | 211 |
(I) "Board-certified pulmonary specialist" means a medical | 212 |
doctor who is currently certified by the American board of | 213 |
internal medicine in the subspecialty of pulmonary medicine. | 214 |
(J) "Certified B-reader" means an individual qualified as a | 215 |
"final" or "B-reader" as defined in 42 C.F.R. section 37.51(b), as | 216 |
amended. | 217 |
(K) "Civil action" means all suits or claims of a civil | 218 |
nature in a state or federal court, whether cognizable as cases at | 219 |
law or in equity or admiralty. "Civil action" does not include any | 220 |
of the following: | 221 |
(1) A civil action relating to any workers' compensation law; | 222 |
(2) A civil action alleging any claim or demand made against | 223 |
a trust established pursuant to 11 U.S.C. section 524(g); | 224 |
(3) A civil action alleging any claim or demand made against | 225 |
a trust established pursuant to a plan of reorganization confirmed | 226 |
under Chapter 11 of the United States Bankruptcy Code, 11 U.S.C. | 227 |
Chapter 11. | 228 |
(L) "Exposed person" means any person whose exposure to | 229 |
asbestos or to asbestos-containing products is the basis for an | 230 |
asbestos claim under section 2307.92 of the Revised Code. | 231 |
(M) "FEV1" means forced expiratory volume in the first | 232 |
second, which is the maximal volume of air expelled in one second | 233 |
during performance of simple spirometric tests. | 234 |
(N) "FVC" means forced vital capacity that is maximal volume | 235 |
of air expired with maximum effort from a position of full | 236 |
inspiration. | 237 |
(O) "ILO scale" means the system for the classification of | 238 |
chest x-rays set forth in the international labour office's | 239 |
guidelines for the use of ILO international classification of | 240 |
radiographs of pneumoconioses (1980), as amended. | 241 |
(P) "Lung cancer" means a malignant tumor in which the | 242 |
primary site of origin of the cancer is inside the lungs, but that | 243 |
term does not include mesothelioma. | 244 |
(Q) "Mesothelioma" means a malignant tumor with a primary | 245 |
site of origin in the pleura or the peritoneum, which has been | 246 |
diagnosed by a board-certified pathologist, using standardized and | 247 |
accepted criteria of microscopic morphology and appropriate | 248 |
staining techniques. | 249 |
(R) "Nonmalignant condition" means a condition that is caused | 250 |
or may be caused by asbestos other than a diagnosed cancer. | 251 |
(S) "Pathological evidence of asbestosis" means a statement | 252 |
by a board-certified pathologist that more than one representative | 253 |
section of lung tissue uninvolved with any other disease process | 254 |
demonstrates a pattern of peribronchiolar or parenchymal scarring | 255 |
in the presence of characteristic asbestos bodies and that there | 256 |
is no other more likely explanation for the presence of the | 257 |
fibrosis. | 258 |
(T) "Physical impairment" means a nonmalignant condition that | 259 |
meets the minimum requirements specified in division (B) of | 260 |
section 2307.92 of the Revised Code or lung cancer of an exposed | 261 |
person who is a smoker that meets the minimum requirements | 262 |
specified in division (C) of section 2307.92 of the Revised Code. | 263 |
(U) "Plethysmography" means a test for determining lung | 264 |
volume, also known as "body plethysmography," in which the subject | 265 |
of the test is enclosed in a chamber that is equipped to measure | 266 |
pressure, flow, or volume changes. | 267 |
(V) "Predicted lower limit of normal" means the fifth | 268 |
percentile of healthy populations based on age, height, and | 269 |
gender, as referenced in the AMA guides to the evaluation of | 270 |
permanent impairment. | 271 |
(W) "Premises owner" means a person who owns, in whole or in | 272 |
part, leases, rents, maintains, or controls privately owned lands, | 273 |
ways, or waters, or any buildings and structures on those lands, | 274 |
ways, or waters, and all privately owned and state-owned lands, | 275 |
ways, or waters leased to a private person, firm, or organization, | 276 |
including any buildings and structures on those lands, ways, or | 277 |
waters. | 278 |
(X) "Competent medical authority" means a medical doctor who | 279 |
is providing a diagnosis for purposes of constituting prima-facie | 280 |
evidence of an exposed person's physical impairment that meets the | 281 |
requirements specified in section 2307.92 of the Revised Code and | 282 |
who meets the following requirements: | 283 |
(1) The medical doctor is a board-certified internist, | 284 |
pulmonary specialist, oncologist, pathologist, or occupational | 285 |
medicine specialist. | 286 |
(2) The medical doctor is actually treating or has treated | 287 |
the exposed person and has or had a doctor-patient relationship | 288 |
with the person. | 289 |
(3) As the basis for the diagnosis, the medical doctor has | 290 |
not relied, in whole or in part, on any of the following: | 291 |
(a) The reports or opinions of any doctor, clinic, | 292 |
laboratory, or testing company that performed an examination, | 293 |
test, or screening of the claimant's medical condition in | 294 |
violation of any law, regulation, licensing requirement, or | 295 |
medical code of practice of the state in which that examination, | 296 |
test, or screening was conducted; | 297 |
(b) The reports or opinions of any doctor, clinic, | 298 |
laboratory, or testing company that performed an examination, | 299 |
test, or screening of the claimant's medical condition that was | 300 |
conducted without clearly establishing a doctor-patient | 301 |
relationship with the claimant or medical personnel involved in | 302 |
the examination, test, or screening process; | 303 |
(c) The reports or opinions of any doctor, clinic, | 304 |
laboratory, or testing company that performed an examination, | 305 |
test, or screening of the claimant's medical condition that | 306 |
required the claimant to agree to retain the legal services of the | 307 |
law firm sponsoring the examination, test, or screening. | 308 |
(4) The medical doctor spends not more than twenty-five per | 309 |
cent of the medical doctor's professional practice time in | 310 |
providing consulting or expert services in connection with actual | 311 |
or potential tort actions, and the medical doctor's medical group, | 312 |
professional corporation, clinic, or other affiliated group earns | 313 |
not more than twenty per cent of its revenues from providing those | 314 |
services. | 315 |
(Y) "Radiological evidence of asbestosis" means a chest x-ray | 316 |
showing small, irregular opacities (s, t) graded by a certified | 317 |
B-reader as at least 1/1 on the ILO scale. | 318 |
(Z) "Radiological evidence of diffuse pleural thickening" | 319 |
means a chest x-ray showing bilateral pleural thickening graded by | 320 |
a certified B-reader as at least B2 on the ILO scale and blunting | 321 |
of at least one costophrenic angle. | 322 |
(AA) "Regular basis" means on a frequent or recurring basis. | 323 |
(BB) "Smoker" means a person who has smoked the equivalent of | 324 |
one-pack year, as specified in the written report of a competent | 325 |
medical authority pursuant to sections 2307.92 and 2307.93 of the | 326 |
Revised Code, during the last fifteen years. | 327 |
(CC) "Spirometry" means the measurement of volume of air | 328 |
inhaled or exhaled by the lung. | 329 |
(DD) "Substantial contributing factor" means both of the | 330 |
following: | 331 |
(1) Exposure to asbestos is the predominate cause of the | 332 |
physical impairment alleged in the asbestos claim. | 333 |
(2) A competent medical authority has determined with a | 334 |
reasonable degree of medical certainty that without the asbestos | 335 |
exposures the physical impairment of the exposed person would not | 336 |
have occurred. | 337 |
(EE) "Substantial occupational exposure to asbestos" means | 338 |
employment for a cumulative period of at least five years in an | 339 |
industry and an occupation in which, for a substantial portion of | 340 |
a normal work year for that occupation, the exposed person did any | 341 |
of the following: | 342 |
(1) Handled raw asbestos fibers; | 343 |
(2) Fabricated asbestos-containing products so that the | 344 |
person was exposed to raw asbestos fibers in the fabrication | 345 |
process; | 346 |
(3) Altered, repaired, or otherwise worked with an | 347 |
asbestos-containing product in a manner that exposed the person on | 348 |
a regular basis to asbestos fibers; | 349 |
(4) Worked in close proximity to other workers engaged in any | 350 |
of the activities described in division (EE)(1), (2), or (3) of | 351 |
this section in a manner that exposed the person on a regular | 352 |
basis to asbestos fibers. | 353 |
(FF) "Timed gas dilution" means a method for measuring total | 354 |
lung capacity in which the subject breathes into a spirometer | 355 |
containing a known concentration of an inert and insoluble gas for | 356 |
a specific time, and the concentration of the inert and insoluble | 357 |
gas in the lung is then compared to the concentration of that type | 358 |
of gas in the spirometer. | 359 |
(GG) "Tort action" means a civil action for damages for | 360 |
injury, death, or loss to person. "Tort action" includes a product | 361 |
liability claim that is subject to sections 2307.71 to 2307.80 of | 362 |
the Revised Code or an asbestos claim that is subject to sections | 363 |
2307.91 to 2307.95 of the Revised Code. "Tort action" does not | 364 |
include a civil action for damages for a breach of contract or | 365 |
another agreement between persons. | 366 |
(HH) "Total lung capacity" means the volume of air contained | 367 |
in the lungs at the end of a maximal inspiration. | 368 |
(II) "Veterans' benefit program" means any program for | 369 |
benefits in connection with military service administered by the | 370 |
veterans' administration under title 38 of the United States Code. | 371 |
(JJ) "Workers' compensation law" means Chapters 4121., 4123., | 372 |
4127., and 4131. of the Revised Code. | 373 |
Sec. 2307.92. (A) For purposes of section 2305.10 and | 374 |
sections 2307.92 to 2307.95 of the Revised Code, "bodily injury | 375 |
caused by exposure to asbestos" means physical impairment of the | 376 |
exposed person, to which the person's exposure to asbestos is a | 377 |
substantial contributing factor. | 378 |
(B) No person shall bring or maintain a tort action alleging | 379 |
an asbestos claim based on a nonmalignant condition in the absence | 380 |
of a prima-facie showing, in the manner described in division (A) | 381 |
of section 2307.93 of the Revised Code, that the exposed person | 382 |
has a physical impairment, that the physical impairment is a | 383 |
result of a medical condition, and that the person's exposure to | 384 |
asbestos is a substantial contributing factor to the medical | 385 |
condition. That prima-facie showing shall include all of the | 386 |
following minimum requirements: | 387 |
(1) Evidence verifying that a competent medical authority has | 388 |
taken a detailed occupational and exposure history of the exposed | 389 |
person from the exposed person or, if that person is deceased, | 390 |
from the person who is most knowledgeable about the exposures that | 391 |
form the basis of the asbestos claim for a nonmalignant condition, | 392 |
including all of the following: | 393 |
(a) All of the exposed person's principal places of | 394 |
employment and exposures to airborne contaminants; | 395 |
(b) Whether each principal place of employment involved | 396 |
exposures to airborne contaminants, including, but not limited to, | 397 |
asbestos fibers or other disease causing dusts, that can cause | 398 |
pulmonary impairment and, if that type of exposure is involved, | 399 |
the general nature, duration, and general level of the exposure. | 400 |
(2) Evidence verifying that a competent medical authority has | 401 |
taken a detailed medical and smoking history of the exposed | 402 |
person, including a thorough review of the exposed person's past | 403 |
and present medical problems and the most probable causes of those | 404 |
medical problems; | 405 |
(3) A diagnosis by a competent medical authority, based on a | 406 |
medical examination and pulmonary function testing of the exposed | 407 |
person, that all of the following apply to the exposed person: | 408 |
(a) The exposed person has a permanent respiratory impairment | 409 |
rating of at least class 2 as defined by and evaluated pursuant to | 410 |
the AMA guides to the evaluation of permanent impairment. | 411 |
(b) Either of the following: | 412 |
(i) The exposed person has asbestosis or diffuse pleural | 413 |
thickening, based at a minimum on radiological or pathological | 414 |
evidence of asbestosis or radiological evidence of diffuse pleural | 415 |
thickening. The asbestosis or diffuse pleural thickening described | 416 |
in this division, rather than solely chronic obstructive pulmonary | 417 |
disease, is a substantial contributing factor to the exposed | 418 |
person's physical impairment, based at a minimum on a | 419 |
determination that the exposed person has any of the following: | 420 |
(I) A forced vital capacity below the predicted lower limit | 421 |
of normal and a ratio of FEV1 to FVC that is equal to or greater | 422 |
than the predicted lower limit of normal; | 423 |
(II) A total lung capacity, by plethysmography or timed gas | 424 |
dilution, below the predicted lower limit of normal; | 425 |
(III) A chest x-ray showing small, irregular opacities (s, t) | 426 |
graded by a certified B-reader at least 2/1 on the ILO scale. | 427 |
(ii) If the exposed person has a chest x-ray showing small, | 428 |
irregular opacities (s, t) graded by a certified B-reader as only | 429 |
a 1/0 on the ILO scale, then in order to establish that the | 430 |
exposed person has asbestosis, rather than solely chronic | 431 |
obstructive pulmonary disease, that is a substantial contributing | 432 |
factor to the exposed person's physical impairment the plaintiff | 433 |
must establish that the exposed person has both of the following: | 434 |
(I) A forced vital capacity below the predicted lower limit | 435 |
of normal and a ratio of FEV1 to FVC that is equal to or greater | 436 |
than the predicted lower limit of normal; | 437 |
(II) A total lung capacity, by plethysmography or timed gas | 438 |
dilution, below the predicted lower limit of normal. | 439 |
(C)(1) No person shall bring or maintain a tort action | 440 |
alleging an asbestos claim based upon lung cancer of an exposed | 441 |
person who is a smoker, in the absence of a prima-facie showing, | 442 |
in the manner described in division (A) of section 2307.93 of the | 443 |
Revised Code, that the exposed person has a physical impairment, | 444 |
that the physical impairment is a result of a medical condition, | 445 |
and that the person's exposure to asbestos is a substantial | 446 |
contributing factor to the medical condition. That prima-facie | 447 |
showing shall include all of the following minimum requirements: | 448 |
(a) A diagnosis by a board-certified internist, | 449 |
board-certified pathologist, board-certified pulmonary specialist, | 450 |
board-certified oncologist, or board-certified occupational | 451 |
medicine specialist that the exposed person has primary lung | 452 |
cancer and that exposure to asbestos is a substantial contributing | 453 |
factor to that cancer; | 454 |
(b) Evidence that is sufficient to demonstrate that at least | 455 |
ten years have elapsed from the date of the exposed person's first | 456 |
exposure to asbestos until the date of diagnosis of the exposed | 457 |
person's primary lung cancer. The ten-year latency period | 458 |
described in this division is a rebuttable presumption, and the | 459 |
plaintiff has the burden of proof to rebut the presumption. | 460 |
(c) Either of the following: | 461 |
(i) Evidence of the exposed person's substantial occupational | 462 |
exposure to asbestos; | 463 |
(ii) Evidence of the exposed person's exposure to asbestos at | 464 |
least equal to 25 fiber per cc years as determined to a reasonable | 465 |
degree of scientific probability by a scientifically valid | 466 |
retrospective exposure reconstruction conducted by a certified | 467 |
industrial hygienist or certified safety professional based upon | 468 |
all reasonably available quantitative air monitoring data and all | 469 |
other reasonably available information about the exposed person's | 470 |
occupational history and history of exposure to asbestos. | 471 |
(2) If a plaintiff files a tort action that alleges an | 472 |
asbestos claim based upon lung cancer of an exposed person who is | 473 |
a smoker and further alleges in the action that the plaintiff's | 474 |
exposure to asbestos was the result of living with another person | 475 |
who, if the tort action had been filed by the other person, would | 476 |
have met the requirements specified in division (C)(1)(c) of this | 477 |
section and that the plaintiff lived with the other person for the | 478 |
period of time specified in division (EE) of section 2307.91 of | 479 |
the Revised Code, the plaintiff is considered as having satisfied | 480 |
the requirements specified in division (C)(1)(c) of this section. | 481 |
(D) No prima-facie showing is required in a tort action | 482 |
alleging an asbestos claim based upon mesothelioma. | 483 |
(E) Evidence relating to physical impairment under this | 484 |
section, including pulmonary function testing and diffusing | 485 |
studies, shall comply with the technical recommendations for | 486 |
examinations, testing procedures, quality assurance, quality | 487 |
control, and equipment incorporated in the AMA guides to the | 488 |
evaluation of permanent impairment and reported as set forth in 20 | 489 |
C.F.R. Pt. 404, Subpt. P, App. 1, Part A, Sec. 3.00 E. and F., and | 490 |
the interpretive standards set forth in the official statement of | 491 |
the American thoracic society entitled "lung function testing: | 492 |
selection of reference values and interpretive strategies" as | 493 |
published in American review of respiratory disease, | 494 |
1991:144:1202-1218. | 495 |
(F) All of the following apply to the court's decision on the | 496 |
prima-facie showing that meets the requirements of division (B) or | 497 |
(C) of this section: | 498 |
(1) The court's decision does not result in any presumption | 499 |
at trial that the exposed person has a physical impairment that is | 500 |
caused by an asbestos-related condition. | 501 |
(2) The court's decision is not conclusive as to the | 502 |
liability of any defendant in the case. | 503 |
(3) The court's decision is not binding at trial. | 504 |
Sec. 2307.93. (A)(1) The plaintiff in any tort action who | 505 |
alleges an asbestos claim shall file, within thirty days after | 506 |
filing the complaint or other initial pleading, a written report | 507 |
and supporting test results constituting prima-facie evidence of | 508 |
the exposed person's physical impairment that meets the minimum | 509 |
requirements specified in division (B) or (C) of section 2307.92 | 510 |
of the Revised Code, whichever is applicable. The defendant in the | 511 |
case shall be afforded a reasonable opportunity, upon the | 512 |
defendant's motion, to challenge the adequacy of the proffered | 513 |
prima-facie evidence of the physical impairment for failure to | 514 |
comply with the minimum requirements specified in division (B) or | 515 |
(C) of section 2307.92 of the Revised Code. The defendant has one | 516 |
hundred twenty days from the date the prima-facie evidence of the | 517 |
exposed person's physical impairment is proffered to challenge the | 518 |
adequacy of that prima-facie evidence. If the defendant makes that | 519 |
challenge and uses a physician to do so, the physician must meet | 520 |
the requirements specified in divisions (X)(1), (3), and (4) of | 521 |
section 2307.91 of the Revised Code. | 522 |
(2) With respect to any asbestos claim that is pending on the | 523 |
effective date of this section, the plaintiff shall file the | 524 |
written report and supporting test results described in division | 525 |
(A)(1) of this section within one hundred twenty days following | 526 |
the effective date of this section. Upon motion and for good cause | 527 |
shown, the court may extend the one hundred twenty-day period | 528 |
described in this division. | 529 |
(3)(a) For any cause of action that arises before the | 530 |
effective date of this section, the provisions set forth in | 531 |
divisions (B) and (C) of section 2307.92 of the Revised Code are | 532 |
to be applied unless the court that has jurisdiction over the case | 533 |
finds both of the following: | 534 |
(i) A substantive right of a party to the case has been | 535 |
altered. | 536 |
(ii) That alteration is otherwise in violation of Section 28 | 537 |
of Article II, Ohio Constitution. | 538 |
(b) If a finding under division (A)(2)(a) of this section is | 539 |
made by the court that has jurisdiction over the case, then the | 540 |
court shall determine whether the plaintiff has failed to provide | 541 |
sufficient evidence to support the plaintiff's cause ofaction or | 542 |
the right to relief under the law that is in effect prior to the | 543 |
effective date of this section. | 544 |
(c) If the court that has jurisdiction of the case finds that | 545 |
the plaintiff has failed to provide sufficient evidence to support | 546 |
the plaintiff's cause of action or right to relief under division | 547 |
(A)(2)(b) of this section, the court shall administratively | 548 |
dismiss the plaintiff's claim without prejudice. The court shall | 549 |
maintain its jurisdiction over any case that is administratively | 550 |
dismissed under this division. Any plaintiff whose case has been | 551 |
administratively dismissed under this division may move to | 552 |
reinstate the plaintiff's case if the plaintiff provides | 553 |
sufficient evidence to support the plaintiff's cause of action or | 554 |
the right to relief under the law that was in effect when the | 555 |
plaintiff's cause of action arose. | 556 |
(B) If the defendant challenges the adequacy of the | 557 |
prima-facie evidence of the exposed person's physical impairment | 558 |
as provided in division (A)(1) of this section, the court shall | 559 |
determine from all of the evidence submitted whether the proffered | 560 |
prima-facie evidence meets the minimum requirements specified in | 561 |
division (B) or (C) of section 2307.92 of the Revised Code. The | 562 |
court shall resolve the issue of whether the plaintiff has made | 563 |
the prima-facie showing required by division (B) or (C) of section | 564 |
2307.92 of the Revised Code by applying the standard for resolving | 565 |
a motion for summary judgment. | 566 |
(C) The court shall administratively dismiss the plaintiff's | 567 |
claim without prejudice upon a finding of failure to make the | 568 |
prima-facie showing required by division (B) or (C) of section | 569 |
2307.92 of the Revised Code. The court shall maintain its | 570 |
jurisdiction over any case that is administratively dismissed | 571 |
under this division. Any plaintiff whose case has been | 572 |
administratively dismissed under this division may move to | 573 |
reinstate the plaintiff's case if the plaintiff makes a | 574 |
prima-facie showing that meets the minimum requirements specified | 575 |
in division (B) or (C) of section 2307.92 of the Revised Code. | 576 |
Sec. 2307.94. (A) Notwithstanding any other provision of the | 577 |
Revised Code, with respect to any asbestos claim based upon a | 578 |
nonmalignant condition that is not barred as of the effective date | 579 |
of this section, the period of limitations shall not begin to run | 580 |
until the exposed person has a cause of action for bodily injury | 581 |
pursuant to section 2305.10 of the Revised Code. An asbestos claim | 582 |
based upon a nonmalignant condition that is filed before the cause | 583 |
of action for bodily injury pursuant to that section arises is | 584 |
preserved for purposes of the period of limitations. | 585 |
(B) An asbestos claim that arises out of a nonmalignant | 586 |
condition shall be a distinct cause of action from an asbestos | 587 |
claim relating to the same exposed person that arises out of | 588 |
asbestos-related cancer. No damages shall be awarded for fear or | 589 |
risk of cancer in any tort action asserting only an asbestos claim | 590 |
for a nonmalignant condition. | 591 |
(C) No settlement of an asbestos claim for a nonmalignant | 592 |
condition that is concluded after the effective date of this | 593 |
section shall require, as a condition of settlement, the release | 594 |
of any future claim for asbestos-related cancer. | 595 |
Sec. 2307.941. (A) The following apply to all tort actions | 596 |
for asbestos claims brought against a premises owner to recover | 597 |
damages or other relief for exposure to asbestos on the premises | 598 |
owner's property: | 599 |
(1) A premises owner is not liable for any injury to any | 600 |
individual resulting from asbestos exposure unless that | 601 |
individual's alleged exposure occurred while the individual was at | 602 |
the premises owner's property. | 603 |
(2) If exposure to asbestos is alleged to have occurred | 604 |
before January 1, 1972, it is presumed that a premises owner knew | 605 |
that this state had adopted safe levels of exposure for asbestos | 606 |
and that products containing asbestos were used on its property | 607 |
only at levels below those safe levels of exposure. To rebut this | 608 |
presumption, the plaintiff must prove by a preponderance of the | 609 |
evidence that the premises owner knew or should have known that | 610 |
the levels of asbestos in the immediate breathing zone of the | 611 |
plaintiff regularly exceeded the threshold limit values adopted by | 612 |
this state and that the premises owner allowed that condition to | 613 |
persist. | 614 |
(3)(a) A premises owner is presumed to be not liable for any | 615 |
injury to any invitee who is engaged to work with, install, or | 616 |
remove asbestos products on the premises owner's property if the | 617 |
invitee's employer holds itself out as qualified to perform the | 618 |
work. To rebut this presumption, the plaintiff must prove by a | 619 |
preponderance of the evidence that the premises owner has actual | 620 |
knowledge of the potential dangers of the asbestos products that | 621 |
is superior to the knowledge of both the invitee and the invitee's | 622 |
employer. | 623 |
(b) A premises owner that hired a contractor before January | 624 |
1, 1972, to perform the type of work at the premises owner's | 625 |
property that the contractor was qualified to perform cannot be | 626 |
liable for any injury to any individual resulting from asbestos | 627 |
exposure caused by any of the contractor's employees or agents on | 628 |
the premises owner's property unless the premises owner directed | 629 |
the activity that resulted in the injury or gave or denied | 630 |
permission for the critical acts that led to the individual's | 631 |
injury. | 632 |
(c) If exposure to asbestos is alleged to have occurred after | 633 |
January 1, 1972, a premises owner is not liable for any injury to | 634 |
any individual resulting from that exposure caused by a | 635 |
contractor's employee or agent on the premises owner's property | 636 |
unless the plaintiff establishes the premises owner's intentional | 637 |
violation of an established safety standard that is in effect at | 638 |
the time of the exposure and that the alleged violation was in the | 639 |
plaintiff's breathing zone and was the proximate cause of the | 640 |
plaintiff's medical condition. | 641 |
(B) As used in this section: | 642 |
(1) "Threshold limit values" means that, for the years 1946 | 643 |
through 1971, the concentration of asbestos in a worker's | 644 |
breathing zone did not exceed the following maximum allowable | 645 |
exposure limits for the eight-hour time-weighted average airborne | 646 |
concentration: | 647 |
(a) Asbestos: five million particles per cubic foot; | 648 |
(b) Cadmium: 0.10 milligrams per cubic meter; | 649 |
(c) Chromic acid and chromates (calculated as chromic oxide): | 650 |
0.10 milligrams per cubic meter; | 651 |
(d) Lead: 0.15 milligrams per cubic meter; | 652 |
(e) Manganese: 6.0 milligrams per cubic meter; | 653 |
(f) Mercury: 0.10 milligrams per cubic meter; | 654 |
(g) Zinc oxide: 15.0 milligrams per cubic meter; | 655 |
(h) Chlorinated diphenyls: 1.0 milligram per cubic meter; | 656 |
(i) Chlorinated naphthalenes (trichlornaphthalene): 5.0 | 657 |
milligrams per cubic meter; | 658 |
(j) Chlorinated naphthalenes (pentachlornaphthalene): 0.50 | 659 |
milligrams per cubic meter. | 660 |
(2) "Established safety standard" means that, for the years | 661 |
after 1971, the concentration of asbestos in the breathing zone of | 662 |
a worker does not exceed the maximum allowable exposure limits for | 663 |
the eight-hour time-weighted average airborne concentration as | 664 |
promulgated by the occupational safety and health administration | 665 |
(OSHA) in effect at the time of the alleged exposure. | 666 |
(3) "Employee" means an individual who performs labor or | 667 |
provides construction services pursuant to a construction contract | 668 |
as defined in section 4123.79 of the Revised Code, or a remodeling | 669 |
or repair contract, whether written or oral, if at least ten of | 670 |
the following criteria apply: | 671 |
(a) The individual is required to comply with instructions | 672 |
from the other contracting party regarding the manner or method of | 673 |
performing services. | 674 |
(b) The individual is required by the other contracting party | 675 |
to have particular training. | 676 |
(c) The individual's services are integrated into the regular | 677 |
functioning of the other contracting party. | 678 |
(d) The individual is required to perform the work | 679 |
personally. | 680 |
(e) The individual is hired, supervised, or paid by the other | 681 |
contracting party. | 682 |
(f) A continuing relationship exists between the individual | 683 |
and the other contracting party that contemplates continuing or | 684 |
recurring work even if the work is not full time. | 685 |
(g) The individual's hours of work are established by the | 686 |
other contracting party. | 687 |
(h) The individual is required to devote full time to the | 688 |
business of the other contracting party. | 689 |
(i) The person is required to perform the work on the | 690 |
premises of the other contracting party. | 691 |
(j) The individual is required to follow the order of work | 692 |
set by the other contracting party. | 693 |
(k) The individual is required to make oral or written | 694 |
reports of progress to the other contracting party. | 695 |
(l) The individual is paid for services on a regular basis, | 696 |
including hourly, weekly, or monthly. | 697 |
(m) The individual's expenses are paid for by the other | 698 |
contracting party. | 699 |
(n) The individual's tools and materials are furnished by the | 700 |
other contracting party. | 701 |
(o) The individual is provided with the facilities used to | 702 |
perform services. | 703 |
(p) The individual does not realize a profit or suffer a loss | 704 |
as a result of the services provided. | 705 |
(q) The individual is not performing services for a number of | 706 |
employers at the same time. | 707 |
(r) The individual does not make the same services available | 708 |
to the general public. | 709 |
(s) The other contracting party has a right to discharge the | 710 |
individual. | 711 |
(t) The individual has the right to end the relationship with | 712 |
the other contracting party without incurring liability pursuant | 713 |
to an employment contract or agreement. | 714 |
Sec. 2307.95. (A) Nothing in sections 2307.92 to 2307.95 of | 715 |
the Revised Code is intended to do, and nothing in any of those | 716 |
sections shall be interpreted to do, either of the following: | 717 |
(1) Affect the rights of any party in bankruptcy proceedings; | 718 |
(2) Affect the ability of any person who is able to make a | 719 |
showing that the person satisfies the claim criteria for | 720 |
compensable claims or demands under a trust established pursuant | 721 |
to a plan of reorganization under Chapter 11 of the United States | 722 |
Bankruptcy Code, 11 U.S.C. Chapter 11, to make a claim or demand | 723 |
against that trust. | 724 |
(B) Sections 2307.91 to 2307.95 of the Revised Code shall not | 725 |
affect the scope or operation of any workers' compensation law or | 726 |
veterans' benefit program or the exclusive remedy of subrogation | 727 |
under the provisions of that law or program and shall not | 728 |
authorize any lawsuit that is barred by any provision of any | 729 |
workers' compensation law. | 730 |
(C) Nothing in sections 2307.92, 2307.93, 2307.94, and | 731 |
2307.95 of the Revised Code is intended, and nothing in any of | 732 |
those sections shall be interpreted, to affect any wrongful death | 733 |
claims. | 734 |
Sec. 2307.96. (A) If a plaintiff in a tort action alleges | 735 |
any injury or loss to person resulting from exposure to asbestos | 736 |
as a result of the tortious act of one or more defendants, in | 737 |
order to maintain a cause of action against any of those | 738 |
defendants based on that injury or loss, the plaintiff must prove | 739 |
that the conduct of that particular defendant was a substantial | 740 |
factor in causing the injury or loss on which the cause of action | 741 |
is based. | 742 |
(B) A plaintiff in a tort action who alleges any injury or | 743 |
loss to person resulting from exposure to asbestos has the burden | 744 |
of proving that the plaintiff was exposed to asbestos that was | 745 |
manufactured, supplied, installed, or used by the defendant in the | 746 |
action and that the exposure to asbestos was a substantial factor | 747 |
in causing the plaintiff's injury or loss. In determining whether | 748 |
exposure to asbestos was a substantial factor in causing the | 749 |
plaintiff's injury or loss, the trier of fact in the action shall | 750 |
consider, without limitation, all of the following: | 751 |
(1) The manner in which the plaintiff was exposed to | 752 |
asbestos; | 753 |
(2) The proximity of asbestos to the plaintiff when the | 754 |
exposure to asbestos occurred; | 755 |
(3) The frequency and length of the plaintiff's exposure to | 756 |
asbestos; | 757 |
(4) Any factors that mitigated or enhanced the plaintiff's | 758 |
exposure to asbestos. | 759 |
(C) This section applies only to tort actions that allege any | 760 |
injury or loss to person resulting from exposure to asbestos and | 761 |
that are brought on or after the effective date of this section. | 762 |
Sec. 2307.97. (A) As used in this section and section | 763 |
2307.98 of the Revised Code: | 764 |
(1) "Asbestos" has the same meaning as in section 2307.91 of | 765 |
the Revised Code. | 766 |
(2) "Asbestos claim" means any claim, wherever or whenever | 767 |
made, for damages, losses, indemnification, contribution, or other | 768 |
relief arising out of, based on, or in any way related to | 769 |
asbestos. "Asbestos claim" includes any of the following: | 770 |
(a) A claim made by or on behalf of any person who has been | 771 |
exposed to asbestos, or any representative, spouse, parent, child, | 772 |
or other relative of that person, for injury, including mental or | 773 |
emotional injury, death, or loss to person, risk of disease or | 774 |
other injury, costs of medical monitoring or surveillance, or any | 775 |
other effects on the person's health that are caused by the | 776 |
person's exposure to asbestos; | 777 |
(b) A claim for damage or loss to property that is caused by | 778 |
the installation, presence, or removal of asbestos. | 779 |
(3) "Corporation" means a corporation for profit, including | 780 |
the following: | 781 |
(a) A domestic corporation that is organized under the laws | 782 |
of this state; | 783 |
(b) A foreign corporation that is organized under laws other | 784 |
than the laws of this state and that has had a certificate of | 785 |
authority to transact business in this state or has done business | 786 |
in this state. | 787 |
(4) "Successor" means a corporation or a subsidiary of a | 788 |
corporation that assumes or incurs, or had assumed or incurred, | 789 |
successor asbestos-related liabilities or had successor | 790 |
asbestos-related liabilities imposed on it by court order. | 791 |
(5)(a) "Successor asbestos-related liabilities" means any | 792 |
liabilities, whether known or unknown, asserted or unasserted, | 793 |
absolute or contingent, accrued or unaccrued, liquidated or | 794 |
unliquidated, or due or to become due, if the liabilities are | 795 |
related in any way to asbestos claims and either of the following | 796 |
applies: | 797 |
(i) The liabilities are assumed or incurred by a successor as | 798 |
a result of or in connection with an asset purchase, stock | 799 |
purchase, merger, consolidation, or agreement providing for an | 800 |
asset purchase, stock purchase, merger, or consolidation, | 801 |
including a plan of merger. | 802 |
(ii) The liabilities were imposed by court order on a | 803 |
successor. | 804 |
(b) "Successor asbestos-related liabilities" includes any | 805 |
liabilities described in division (A)(5)(a)(i) of this section | 806 |
that, after the effective date of the asset purchase, stock | 807 |
purchase, merger, or consolidation, are paid, otherwise | 808 |
discharged, committed to be paid, or committed to be otherwise | 809 |
discharged by or on behalf of the successor, or by or on behalf of | 810 |
a transferor, in connection with any judgment, settlement, or | 811 |
other discharge of those liabilities in this state or another | 812 |
jurisdiction. | 813 |
(6) "Transferor" means a corporation or its shareholders from | 814 |
which successor asbestos-related liabilities are or were assumed | 815 |
or incurred by a successor or were imposed by court order on a | 816 |
successor. | 817 |
(B) The limitations set forth in division (C) of this section | 818 |
apply to a corporation that is either of the following: | 819 |
(1) A successor that became a successor prior to July 30, | 820 |
1977, if either of the following applies: | 821 |
(a) In the case of a successor in a stock purchase or an | 822 |
asset purchase, the successor paid less then fifteen million | 823 |
dollars for the stock or assets of the transferor. | 824 |
(b) In the case of a successor in a merger or consolidation, | 825 |
the fair market value of the total gross assets of the transferor, | 826 |
at the time of the merger or consolidation, excluding any | 827 |
insurance of the transferor, was less than fifty million dollars. | 828 |
(2) Any successor to a prior successor if the prior successor | 829 |
met the requirements of division (B)(1)(a) or (b) of this section, | 830 |
whichever is applicable. | 831 |
(C)(1) Except as otherwise provided in division (C)(2) of | 832 |
this section, the cumulative successor asbestos-related | 833 |
liabilities of a corporation shall be limited to either of the | 834 |
following: | 835 |
(a) In the case of a corporation that is a successor in a | 836 |
stock purchase or an asset purchase, the fair market value of the | 837 |
acquired stock or assets of the transferor, as determined on the | 838 |
effective date of the stock or asset purchase; | 839 |
(b) In the case of a corporation that is a successor in a | 840 |
merger or consolidation, the fair market value of the total gross | 841 |
assets of the transferor, as determined on the effective date of | 842 |
the merger or consolidation. | 843 |
(2)(a) If a transferor had assumed or incurred successor | 844 |
asbestos-related liabilities in connection with a prior purchase | 845 |
of assets or stock involving a prior transferor, the fair market | 846 |
value of the assets or stock purchased from the prior transferor, | 847 |
determined as of the effective date of the prior purchase of the | 848 |
assets or stock, shall be substituted for the limitation set forth | 849 |
in division (C)(1)(a) of this section for the purpose of | 850 |
determining the limitation of the liability of a corporation. | 851 |
(b) If a transferor had assumed or incurred successor | 852 |
asbestos-related liabilities in connection with a merger or | 853 |
consolidation involving a prior transferor, the fair market value | 854 |
of the total gross assets of the prior transferor, determined as | 855 |
of the effective date of the prior merger or consolidation, shall | 856 |
be substituted for the limitation set forth in division (C)(1)(b) | 857 |
of this section for the purpose of determining the limitation of | 858 |
the liability of a corporation. | 859 |
(3) A corporation described in division (C)(1) or (2) of this | 860 |
section shall have no responsibility for any successor | 861 |
asbestos-related liabilities in excess of the limitation of those | 862 |
liabilities as described in the applicable division. | 863 |
(D)(1) A corporation may establish the fair market value of | 864 |
assets, stock, or total gross assets under division (C) of this | 865 |
section by means of any method that is reasonable under the | 866 |
circumstances, including by reference to their going-concern | 867 |
value, to the purchase price attributable to or paid for them in | 868 |
an arm's length transaction, or, in the absence of other readily | 869 |
available information from which fair market value can be | 870 |
determined, to their value recorded on a balance sheet. Assets and | 871 |
total gross assets shall include intangible assets. A showing by | 872 |
the successor of a reasonable determination of the fair market | 873 |
value of assets, stock, or total gross assets is prima-facie | 874 |
evidence of their fair market value. | 875 |
(2) For purposes of establishing the fair market value of | 876 |
total gross assets under division (D)(1) of this section, the | 877 |
total gross assets include the aggregate coverage under any | 878 |
applicable liability insurance that was issued to the transferor | 879 |
the assets of which are being valued for purposes of the | 880 |
limitations set forth in division (C) of this section, if the | 881 |
insurance has been collected or is collectable to cover the | 882 |
successor asbestos-related liabilities involved. Those successor | 883 |
asbestos-related liabilities do not include any compensation for | 884 |
any liabilities arising from the exposure of workers to asbestos | 885 |
solely during the course of their employment by the transferor. | 886 |
Any settlement of a dispute concerning the insurance coverage | 887 |
described in this division that is entered into by a transferor or | 888 |
successor with the insurer of the transferor before the effective | 889 |
date of this section is determinative of the aggregate coverage of | 890 |
the liability insurance that is included in the determination of | 891 |
the transferor's total gross assets. | 892 |
(3) After a successor has established a reasonable | 893 |
determination of the fair market value of assets, stock, or total | 894 |
gross assets under divisions (D)(1) and (2) of this section, a | 895 |
claimant that disputes that determination of the fair market value | 896 |
has the burden of establishing a different fair market value. | 897 |
(4)(a) Subject to divisions (D)(4)(b), (c), and (d) of this | 898 |
section, the fair market value of assets, stock, or total gross | 899 |
assets at the time of the asset purchase, stock purchase, merger, | 900 |
or consolidation increases annually, at a rate equal to the sum of | 901 |
the following: | 902 |
(i) The prime rate as listed in the first edition of the wall | 903 |
street journal published for each calendar year since the | 904 |
effective date of the asset purchase, stock purchase, merger, or | 905 |
consolidation, or, if the prime rate is not published in that | 906 |
edition of the wall street journal, the prime rate as reasonably | 907 |
determined on the first business day of the year; | 908 |
(ii) One per cent. | 909 |
(b) The rate that is determined pursuant to division | 910 |
(D)(4)(a) of this section shall not be compounded. | 911 |
(c) The adjustment of the fair market value of assets, stock, | 912 |
or total gross assets shall continue in the manner described in | 913 |
division (D)(4)(a) of this section until the adjusted fair market | 914 |
value is first exceeded by the cumulative amounts of successor | 915 |
asbestos-related liabilities that are paid or committed to be paid | 916 |
by or on behalf of a successor or prior transferor, or by or on | 917 |
behalf of a transferor, after the time of the asset purchase, | 918 |
stock purchase, merger, or consolidation for which the fair market | 919 |
value of assets, stock, or total gross assets is determined. | 920 |
(d) No adjustment of the fair market value of total gross | 921 |
assets as provided in division (D)(4)(a) of this section shall be | 922 |
applied to any liability insurance that is otherwise included in | 923 |
total gross assets as provided in division (D)(2) of this section. | 924 |
(E)(1) The limitations set forth in division (C) of this | 925 |
section shall apply to the following: | 926 |
(a) All asbestos claims, including asbestos claims that are | 927 |
pending on the effective date of this section, and all litigation | 928 |
involving asbestos claims, including litigation that is pending on | 929 |
the effective date of this section; | 930 |
(b) Successors of a corporation to which this section | 931 |
applies. | 932 |
(2) The limitations set forth in division (C) of this section | 933 |
do not apply to any of the following: | 934 |
(a) Workers' compensation benefits that are paid by or on | 935 |
behalf of an employer to an employee pursuant to any provision of | 936 |
Chapter 4121., 4123., 4127., or 4131. of the Revised Code or | 937 |
comparable workers' compensation law of another jurisdiction; | 938 |
(b) Any claim against a successor that does not constitute a | 939 |
claim for a successor asbestos-related liability; | 940 |
(c) Any obligations arising under the "National Labor | 941 |
Relations Act," 49 Stat. 449, 29 U.S.C. 151 et seq., as amended, | 942 |
or under any collective bargaining agreement; | 943 |
(d) Any contractual rights to indemnification. | 944 |
(F) The courts in this state shall apply, to the fullest | 945 |
extent permissible under the Constitution of the United States, | 946 |
this state's substantive law, including the provisions of this | 947 |
section, to the issue of successor asbestos-related liabilities. | 948 |
Sec. 2307.98. (A) A holder has no obligation to, and has no | 949 |
liability to, the covered entity or to any person with respect to | 950 |
any obligation or liability of the covered entity in an asbestos | 951 |
claim under the doctrine of piercing the corporate veil unless the | 952 |
person seeking to pierce the corporate veil demonstrates all of | 953 |
the following: | 954 |
(1) The holder exerted such control over the covered entity | 955 |
that the covered entity had no separate mind, will, or existence | 956 |
of its own. | 957 |
(2) The holder caused the covered entity to be used for the | 958 |
purpose of perpetrating, and the covered entity perpetrated, an | 959 |
actual fraud on the person seeking to pierce the corporate veil | 960 |
primarily for the direct pecuniary benefit of the holder. | 961 |
(3) The person seeking to pierce the corporate veil sustained | 962 |
an injury or unjust loss as a direct result of the control | 963 |
described in division (A)(1) of this section and the fraud | 964 |
described in division (A)(2) of this section. | 965 |
(B) A court shall not find that the holder exerted such | 966 |
control over the covered entity that the covered entity did not | 967 |
have a separate mind, will, or existence of its own or to have | 968 |
caused the covered entity to be used for the purpose of | 969 |
perpetrating a fraud solely as a result of any of the following | 970 |
actions, events, or relationships: | 971 |
(1) The holder is an affiliate of the covered entity and | 972 |
provides legal, accounting, treasury, cash management, human | 973 |
resources, administrative, or other similar services to the | 974 |
covered entity, leases assets to the covered entity, or makes its | 975 |
employees available to the covered entity. | 976 |
(2) The holder loans funds to the covered entity or | 977 |
guarantees the obligations of the covered entity. | 978 |
(3) The officers and directors of the holder are also | 979 |
officers and directors of the covered entity. | 980 |
(4) The covered entity makes payments of dividends or other | 981 |
distributions to the holder or repays loans owed to the holder. | 982 |
(5) In the case of a covered entity that is a limited | 983 |
liability company, the holder or its employees or agents serve as | 984 |
the manager of the covered entity. | 985 |
(C) The person seeking to pierce the corporate veil has the | 986 |
burden of proof on each and every element of the person's claim | 987 |
and must prove each element by a preponderance of the evidence. | 988 |
(D) Any liability of the holder described in division (A) of | 989 |
this section for an obligation or liability that is limited by | 990 |
that division is exclusive and preempts any other obligation or | 991 |
liability imposed upon that holder for that obligation or | 992 |
liability under common law or otherwise. | 993 |
(E) This section is intended to codify the elements of the | 994 |
common law cause of action for piercing the corporate veil and to | 995 |
abrogate the common law cause of action and remedies relating to | 996 |
piercing the corporate veil in asbestos claims. Nothing in this | 997 |
section shall be construed as creating a right or cause of action | 998 |
that did not exist under the common law as it existed on the | 999 |
effective date of this section. | 1000 |
(F) This section applies to all asbestos claims commenced on | 1001 |
or after the effective date of this section or commenced prior to | 1002 |
and pending on the effective date of this section. | 1003 |
(G) This section applies to all actions asserting the | 1004 |
doctrine of piercing the corporate veil brought against a holder | 1005 |
if any of the following apply: | 1006 |
(1) The holder is an individual and resides in this state. | 1007 |
(2) The holder is a corporation organized under the laws of | 1008 |
this state. | 1009 |
(3) The holder is a corporation with its principal place of | 1010 |
business in this state. | 1011 |
(4) The holder is a foreign corporation that is authorized to | 1012 |
conduct or has conducted business in this state. | 1013 |
(5) The holder is a foreign corporation whose parent | 1014 |
corporation is authorized to conduct business in this state. | 1015 |
(6) The person seeking to pierce the corporate veil is a | 1016 |
resident of this state. | 1017 |
(H) As used in this section, unless the context otherwise | 1018 |
requires: | 1019 |
(1) "Affiliate" and "beneficial owner" have the same meanings | 1020 |
as in section 1704.01 of the Revised Code. | 1021 |
(2) "Covered entity" means a corporation, limited liability | 1022 |
company, limited partnership, or any other entity organized under | 1023 |
the laws of any jurisdiction, domestic or foreign, in which the | 1024 |
shareholders, owners, or members are generally not responsible for | 1025 |
the debts and obligations of the entity. Nothing in this section | 1026 |
limits or otherwise affects the liabilities imposed on a general | 1027 |
partner of a limited partnership. | 1028 |
(3) "Holder" means a person who is the holder or beneficial | 1029 |
owner of, or subscriber to, shares or any other ownership interest | 1030 |
of a covered entity, a member of a covered entity, or an affiliate | 1031 |
of any person who is the holder or beneficial owner of, or | 1032 |
subscriber to, shares or any other ownership interest of a covered | 1033 |
entity. | 1034 |
(4) "Piercing the corporate veil" means any and all common | 1035 |
law doctrines by which a holder may be liable for an obligation or | 1036 |
liability of a covered entity on the basis that the holder | 1037 |
controlled the covered entity, the holder is or was the alter ego | 1038 |
of the covered entity, or the covered entity has been used for the | 1039 |
purpose of actual or constructive fraud or as a sham to perpetrate | 1040 |
a fraud or any other common law doctrine by which the covered | 1041 |
entity is disregarded for purposes of imposing liability on a | 1042 |
holder for the debts or obligations of that covered entity. | 1043 |
(5) "Person" has the same meaning as in section 1701.01 of | 1044 |
the Revised Code. | 1045 |
Sec. 2505.02. (A) As used in this section: | 1046 |
(1) "Substantial right" means a right that the United States | 1047 |
Constitution, the Ohio Constitution, a statute, the common law, or | 1048 |
a rule of procedure entitles a person to enforce or protect. | 1049 |
(2) "Special proceeding" means an action or proceeding that | 1050 |
is specially created by statute and that prior to 1853 was not | 1051 |
denoted as an action at law or a suit in equity. | 1052 |
(3) "Provisional remedy" means a proceeding ancillary to an | 1053 |
action, including, but not limited to, a proceeding for a | 1054 |
preliminary injunction, attachment, discovery of privileged | 1055 |
matter, | 1056 |
pursuant to section 2307.92 of the Revised Code. | 1057 |
(B) An order is a final order that may be reviewed, affirmed, | 1058 |
modified, or reversed, with or without retrial, when it is one of | 1059 |
the following: | 1060 |
(1) An order that affects a substantial right in an action | 1061 |
that in effect determines the action and prevents a judgment; | 1062 |
(2) An order that affects a substantial right made in a | 1063 |
special proceeding or upon a summary application in an action | 1064 |
after judgment; | 1065 |
(3) An order that vacates or sets aside a judgment or grants | 1066 |
a new trial; | 1067 |
(4) An order that grants or denies a provisional remedy and | 1068 |
to which both of the following apply: | 1069 |
(a) The order in effect determines the action with respect to | 1070 |
the provisional remedy and prevents a judgment in the action in | 1071 |
favor of the appealing party with respect to the provisional | 1072 |
remedy. | 1073 |
(b) The appealing party would not be afforded a meaningful or | 1074 |
effective remedy by an appeal following final judgment as to all | 1075 |
proceedings, issues, claims, and parties in the action. | 1076 |
(5) An order that determines that an action may or may not be | 1077 |
maintained as a class action. | 1078 |
(C) When a court issues an order that vacates or sets aside a | 1079 |
judgment or grants a new trial, the court, upon the request of | 1080 |
either party, shall state in the order the grounds upon which the | 1081 |
new trial is granted or the judgment vacated or set aside. | 1082 |
(D) This section applies to and governs any action, including | 1083 |
an
appeal, that is pending in any court on | 1084 |
1085 | |
commenced on or after | 1086 |
22, 1998, notwithstanding any provision of any prior statute or | 1087 |
rule of law of this state. | 1088 |
Section 2. That existing sections 1701.76, 1701.82, and | 1089 |
2505.02 of the Revised Code are hereby repealed. | 1090 |
Section 3. (A) The General Assembly makes the following | 1091 |
statement of findings and intent: | 1092 |
(1) Asbestos claims have created an increased amount of | 1093 |
litigation in state and federal courts that the United States | 1094 |
Supreme Court has characterized as "an elephant mass" of cases. | 1095 |
(2) The current asbestos personal injury litigation system is | 1096 |
unfair and inefficient, imposing a severe burden on litigants and | 1097 |
taxpayers alike. A recent RAND study estimates that a total of | 1098 |
fifty-four billion dollars have already been spent on asbestos | 1099 |
litigation and the costs continue to mount. Compensation for | 1100 |
asbestos claims has risen sharply since 1993. The typical claimant | 1101 |
in an asbestos lawsuit now names sixty to seventy defendants, | 1102 |
compared with an average of twenty named defendants two decades | 1103 |
ago. The RAND Report also suggests that at best, only one-half of | 1104 |
all claimants have come forward and at worst, only one-fifth have | 1105 |
filed claims to date. Estimates of the total cost of all claims | 1106 |
range from two hundred to two hundred sixty-five billion dollars. | 1107 |
Tragically, plaintiffs are receiving less than forty-three cents | 1108 |
on every dollar awarded, and sixty-five per cent of the | 1109 |
compensation paid, thus far, has gone to claimants who are not | 1110 |
sick. | 1111 |
(3) The extraordinary volume of nonmalignant asbestos cases | 1112 |
continue to strain federal and state courts. | 1113 |
(a) Today, it is estimated that there are more than two | 1114 |
hundred thousand active asbestos cases in courts nationwide. | 1115 |
According to a recent RAND study, over six hundred thousand people | 1116 |
have filed asbestos claims for asbestos-related personal injuries | 1117 |
through the end of 2000. | 1118 |
(b) Before 1998, five states, Mississippi, New York, West | 1119 |
Virginia, Texas, and Ohio, accounted for nine per cent of the | 1120 |
cases filed. However, between 1998 and 2000, these same five | 1121 |
states handled sixty-six per cent of all filings. Today, Ohio has | 1122 |
become a haven for asbestos claims and, as a result, is one of the | 1123 |
top five state court venues for asbestos filings. | 1124 |
(c) According to testimony by Laura Hong, a partner at the | 1125 |
law firm of Squire, Sanders & Dempsey who has been defending | 1126 |
companies in asbestos personal injury litigation since 1985, there | 1127 |
are at least thirty-five thousand asbestos personal injury cases | 1128 |
pending in Ohio state courts today. | 1129 |
(d) If the two hundred thirty-three Ohio state court general | 1130 |
jurisdictional judges started trying these asbestos cases today, | 1131 |
Ms. Hong noted, each would have to try over one hundred fifty | 1132 |
cases before retiring the current docket. That figure | 1133 |
conservatively computes to at least one hundred fifty trial weeks | 1134 |
or more than three years per judge to retire the current docket. | 1135 |
(e) The current docket, however, continues to increase at an | 1136 |
exponential rate. According to Judge Leo Spellacy, one of two | 1137 |
Cuyahoga County Common Pleas Court judges appointed by the Ohio | 1138 |
Supreme Court to manage the Cuyahoga County case management order | 1139 |
for asbestos cases, in 1999 there were approximately twelve | 1140 |
thousand eight hundred pending asbestos cases in Cuyahoga County. | 1141 |
However, by the end of October 2003, there were over thirty-nine | 1142 |
thousand pending asbestos cases. Approximately two hundred new | 1143 |
asbestos cases are filed in Cuyahoga County every month. | 1144 |
(4) Nationally, asbestos personal injury litigation has | 1145 |
already contributed to the bankruptcy of more than seventy | 1146 |
companies, including nearly all manufacturers of asbestos textile | 1147 |
and insulation products, and the ratio of asbestos-driven | 1148 |
bankruptcies is accelerating. | 1149 |
(a) As stated by Linda Woggon, Vice President of Governmental | 1150 |
Affairs of the Ohio Chamber of Commerce, a recent RAND study found | 1151 |
that during the first ten months of 2002, fifteen companies facing | 1152 |
significant asbestos-related liabilities filed for bankruptcy and | 1153 |
more than sixty thousand jobs have been lost because of these | 1154 |
bankruptcies. The RAND study estimates that the eventual cost of | 1155 |
asbestos litigation could reach as high as four hundred | 1156 |
twenty-three thousand jobs. | 1157 |
(b) Joseph Stiglitz, Nobel award-winning economist, in "The | 1158 |
Impact of Asbestos Liabilities on Workers in Bankrupt Firms," | 1159 |
calculated that bankruptcies caused by asbestos have already | 1160 |
resulted in the loss of up to sixty thousand jobs and that each | 1161 |
displaced worker in the bankrupt companies will lose, on average, | 1162 |
an estimated twenty-five thousand to fifty thousand dollars in | 1163 |
wages over the worker's career, and at least a quarter of the | 1164 |
accumulated pension benefits. | 1165 |
(c) At least five Ohio-based companies have been forced into | 1166 |
bankruptcy because of an unending flood of asbestos cases brought | 1167 |
by claimants who are not sick. | 1168 |
(d) Owens Corning, a Toledo company, has been sued four | 1169 |
hundred thousand times by plaintiffs alleging asbestos-related | 1170 |
injury and as a result was forced to file bankruptcy. The type of | 1171 |
job and pension loss many Toledoans have faced because of the | 1172 |
Owens Corning bankruptcy also can be seen in nearby Licking County | 1173 |
where, in 2000, Owens Corning laid off two hundred seventy-five | 1174 |
workers from its Granville plant. According to a study conducted | 1175 |
by NERA Economic Consulting in 2000, the ripple effect of those | 1176 |
losses is predicted to result in a total loss of five hundred jobs | 1177 |
and a fifteen-million to twenty-million dollar annual reduction in | 1178 |
regional income. | 1179 |
(e) According to testimony presented by Robert Bunda, a | 1180 |
partner at the firm of Bunda, Stutz & DeWitt in Toledo, Ohio who | 1181 |
has been involved with the defense of asbestos cases on behalf of | 1182 |
Owens-Illinois for twenty-four years, at least five Ohio-based | 1183 |
companies have gone bankrupt because of the cost of paying people | 1184 |
who are not sick. Wage losses, pension losses, and job losses have | 1185 |
significantly affected workers for the bankrupt companies like | 1186 |
Owens Corning, Babcox & Wilcox, North American Refractories, and | 1187 |
A-Best Corp. | 1188 |
(5) The General Assembly recognizes that the vast majority of | 1189 |
Ohio asbestos claims are filed by individuals who allege they have | 1190 |
been exposed to asbestos and who have some physical sign of | 1191 |
exposure to asbestos, but who do not suffer from an | 1192 |
asbestos-related impairment. Eighty-nine per cent of asbestos | 1193 |
claims come from people who do not have cancer. Sixty-six to | 1194 |
ninety per cent of these non-cancer claimants are not sick. | 1195 |
According to a Tillinghast-Towers Perrin study, ninety-four per | 1196 |
cent of the fifty-two thousand nine hundred asbestos claims filed | 1197 |
in 2000, concerned claimants who are not sick. As a result, the | 1198 |
General Assembly recognizes that reasonable medical criteria are a | 1199 |
necessary response to the asbestos litigation crisis in this | 1200 |
state. Medical criteria will expedite the resolution of claims | 1201 |
brought by those sick claimants and will ensure that resources are | 1202 |
available for those who are currently suffering from | 1203 |
asbestos-related illnesses and for those who may become sick in | 1204 |
the future. As stated by Dr. James Allen, a pulmonologist, | 1205 |
Professor and Vice-Chairman of the Department of Internal Medicine | 1206 |
at The Ohio State University, the medical criteria included in | 1207 |
Sub. H.B. 292 of the 125th General Assembly are reasonable | 1208 |
criteria and are the first step toward ensuring that impaired | 1209 |
plaintiffs are compensated. In fact, Dr. Allen noted that these | 1210 |
criteria are minimum medical criteria. In his clinical practice, | 1211 |
Dr. Allen stated that he always performs additional tests before | 1212 |
assigning a diagnosis of asbestosis and would never rely solely on | 1213 |
these medical criteria. | 1214 |
(6) The cost of compensating exposed individuals who are not | 1215 |
sick jeopardizes the ability of defendants to compensate people | 1216 |
with cancer and other serious asbestos-related diseases, now and | 1217 |
in the future; threatens savings, retirement benefits, and jobs of | 1218 |
the state's current and retired employees; adversely affects the | 1219 |
communities in which these defendants operate; and impairs Ohio's | 1220 |
economy. | 1221 |
(7) The public interest requires the deferring of claims of | 1222 |
exposed individuals who are not sick in order to preserve, now and | 1223 |
for the future, defendants' ability to compensate people who | 1224 |
develop cancer and other serious asbestos-related injuries and to | 1225 |
safeguard the jobs, benefits, and savings of the state's employees | 1226 |
and the well being of the Ohio economy. | 1227 |
(B) In enacting sections 2307.91 to 2307.98 of the Revised | 1228 |
Code, it is the intent of the General Assembly to: (1) give | 1229 |
priority to those asbestos claimants who can demonstrate actual | 1230 |
physical harm or illness caused by exposure to asbestos; (2) fully | 1231 |
preserve the rights of claimants who were exposed to asbestos to | 1232 |
pursue compensation should those claimants become impaired in the | 1233 |
future as a result of such exposure; (3) enhance the ability of | 1234 |
the state's judicial systems and federal judicial systems to | 1235 |
supervise and control litigation and asbestos-related bankruptcy | 1236 |
proceedings; and (4) conserve the scarce resources of the | 1237 |
defendants to allow compensation of cancer victims and others who | 1238 |
are physically impaired by exposure to asbestos while securing the | 1239 |
right to similar compensation for those who may suffer physical | 1240 |
impairment in the future. | 1241 |
Section 4. (A) As used in this section, "asbestos," "asbestos | 1242 |
claim," "exposed person," and "substantial contributing factor" | 1243 |
have the same meanings as in section 2307.91 of the Revised Code. | 1244 |
(B) The General Assembly acknowledges the Court's authority | 1245 |
in prescribing rules governing practice and procedure in the | 1246 |
courts of this state, as provided by Section 5 of Article IV of | 1247 |
the Ohio Constitution. | 1248 |
(C) The General Assembly hereby requests the Supreme Court to | 1249 |
adopt rules to specify procedures for venue and consolidation of | 1250 |
asbestos claims brought pursuant to sections 2307.91 to 2307.95 of | 1251 |
the Revised Code. | 1252 |
(D) With respect to procedures for venue in regard to | 1253 |
asbestos claims, the General Assembly hereby requests the Supreme | 1254 |
Court to adopt a rule that requires that an asbestos claim meet | 1255 |
specific nexus requirements, including the requirement that the | 1256 |
plaintiff be domiciled in Ohio or that Ohio is the state in which | 1257 |
the plaintiff's exposure to asbestos is a substantial contributing | 1258 |
factor. | 1259 |
(E) With respect to procedures for consolidation of asbestos | 1260 |
claims, the General Assembly hereby requests the Supreme Court to | 1261 |
adopt a rule that permits consolidation of asbestos claims only | 1262 |
with the consent of all parties, and in absence of that consent, | 1263 |
permits a court to consolidate for trial only those asbestos | 1264 |
claims that relate to the same exposed person and members of the | 1265 |
exposed person's household. | 1266 |
Section 5. It is the intent of the General Assembly in | 1267 |
enacting section 2307.96 of the Revised Code in this act to | 1268 |
establish the judicial standard for the granting of summary | 1269 |
judgment in tort actions involving exposure to asbestos that is | 1270 |
consistent with the decision in Lohrmann v. Pittsburgh Corning | 1271 |
Cor. (4th Cir. 1986), 782 F.2d 1156, and is contrary to paragraph | 1272 |
2 of the syllabus of the Ohio Supreme Court in Horton v. Harwick | 1273 |
Chemical Corp. (1995), 73 Ohio St.3d 679. The General Assembly | 1274 |
recognizes that the courts of Ohio, prior to the Horton decision, | 1275 |
generally followed the rationale of the Lohrmann decision in | 1276 |
determining when summary judgment was appropriate in tort actions | 1277 |
involving exposure to asbestos. A majority of the states have | 1278 |
adopted a summary judgment standard in those types of actions that | 1279 |
is similar to the standard in the Lohrmann decision. The Lohrmann | 1280 |
standard provides litigants and the courts of Ohio an objective | 1281 |
and easily applied standard for determining when summary judgment | 1282 |
is appropriate in tort actions involving asbestos. | 1283 |
Section 6. If any item of law that constitutes the whole or | 1284 |
part of a section of law contained in this act, or if any | 1285 |
application of any item of law that constitutes the whole or part | 1286 |
of a section of law contained in this act, is held invalid, the | 1287 |
invalidity does not affect other items of law or applications of | 1288 |
items of law that can be given effect without the invalid item of | 1289 |
law or application. To this end, the items of law of which the | 1290 |
sections contained in this act are composed, and their | 1291 |
applications, are independent and severable. | 1292 |
Section 7. If any item of law that constitutes the whole or | 1293 |
part of a section of law contained in this act, or if any | 1294 |
application of any item of law contained in this act, is held to | 1295 |
be preempted by federal law, the preemption of the item of law or | 1296 |
its application does not affect other items of law or applications | 1297 |
that can be given affect. The items of law of which the sections | 1298 |
of this act are composed, and their applications, are independent | 1299 |
and severable. | 1300 |