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To amend section 2505.02 and to enact sections | 1 |
2307.91 to 2307.94, 2307.941, 2307.95, 2307.96, | 2 |
and 2307.98 of the Revised Code to establish | 3 |
minimum medical requirements for filing certain | 4 |
asbestos claims, to specify a plaintiff's burden | 5 |
of proof in tort actions involving exposure to | 6 |
asbestos, to establish premises liability in | 7 |
relation to asbestos claims, and to prescribe the | 8 |
requirements for shareholder liability for | 9 |
asbestos claims under the doctrine of piercing the | 10 |
corporate veil. | 11 |
Section 1. That section 2505.02 be amended and sections | 12 |
2307.91, 2307.92, 2307.93, 2307.94, 2307.941, 2307.95, 2307.96, | 13 |
and 2307.98 of the Revised Code be enacted to read as follows: | 14 |
Sec. 2307.91. As used in sections 2307.91 to 2307.96 of the | 15 |
Revised Code: | 16 |
(A) "AMA guides to the evaluation of permanent impairment" | 17 |
means the American medical association's guides to the evaluation | 18 |
of permanent impairment (fifth edition 2000) as may be modified by | 19 |
the American medical association. | 20 |
(B) "Asbestos" means chrysotile, amosite, crocidolite, | 21 |
tremolite asbestos, anthophyllite asbestos, actinolite asbestos, | 22 |
and any of these minerals that have been chemically treated or | 23 |
altered. | 24 |
(C) "Asbestos claim" means any claim for damages, losses, | 25 |
indemnification, contribution, or other relief arising out of, | 26 |
based on, or in any way related to asbestos. "Asbestos claim" | 27 |
includes a claim made by or on behalf of any person who has been | 28 |
exposed to asbestos, or any representative, spouse, parent, child, | 29 |
or other relative of that person, for injury, including mental or | 30 |
emotional injury, death, or loss to person, risk of disease or | 31 |
other injury, costs of medical monitoring or surveillance, or any | 32 |
other effects on the person's health that are caused by the | 33 |
person's exposure to asbestos. | 34 |
(D) "Asbestosis" means bilateral diffuse interstitial | 35 |
fibrosis of the lungs caused by inhalation of asbestos fibers. | 36 |
(E) "Board-certified internist" means a medical doctor who is | 37 |
currently certified by the American board of internal medicine. | 38 |
(F) "Board-certified occupational medicine specialist" means | 39 |
a medical doctor who is currently certified by the American board | 40 |
of preventive medicine in the specialty of occupational medicine. | 41 |
(G) "Board-certified oncologist" means a medical doctor who | 42 |
is currently certified by the American board of internal medicine | 43 |
in the subspecialty of medical oncology. | 44 |
(H) "Board-certified pathologist" means a medical doctor who | 45 |
is currently certified by the American board of pathology. | 46 |
(I) "Board-certified pulmonary specialist" means a medical | 47 |
doctor who is currently certified by the American board of | 48 |
internal medicine in the subspecialty of pulmonary medicine. | 49 |
(J) "Certified B-reader" means an individual qualified as a | 50 |
"final" or "B-reader" as defined in 42 C.F.R. section 37.51(b), as | 51 |
amended. | 52 |
(K) "Certified industrial hygienist" means an industrial | 53 |
hygienist who has attained the status of diplomate of the American | 54 |
academy of industrial hygiene subject to compliance with | 55 |
requirements established by the American board of industrial | 56 |
hygiene. | 57 |
(L) "Certified safety professional" means a safety | 58 |
professional who has met and continues to meet all requirements | 59 |
established by the board of certified safety professionals and is | 60 |
authorized by that board to use the certified safety professional | 61 |
title or the CSP designation. | 62 |
(M) "Civil action" means all suits or claims of a civil | 63 |
nature in a state or federal court, whether cognizable as cases at | 64 |
law or in equity or admiralty. "Civil action" does not include any | 65 |
of the following: | 66 |
(1) A civil action relating to any workers' compensation law; | 67 |
(2) A civil action alleging any claim or demand made against | 68 |
a trust established pursuant to 11 U.S.C. section 524(g); | 69 |
(3) A civil action alleging any claim or demand made against | 70 |
a trust established pursuant to a plan of reorganization confirmed | 71 |
under Chapter 11 of the United States Bankruptcy Code, 11 U.S.C. | 72 |
Chapter 11. | 73 |
(N) "Exposed person" means any person whose exposure to | 74 |
asbestos or to asbestos-containing products is the basis for an | 75 |
asbestos claim under section 2307.92 of the Revised Code. | 76 |
(O) "FEV1" means forced expiratory volume in the first | 77 |
second, which is the maximal volume of air expelled in one second | 78 |
during performance of simple spirometric tests. | 79 |
(P) "FVC" means forced vital capacity that is maximal volume | 80 |
of air expired with maximum effort from a position of full | 81 |
inspiration. | 82 |
(Q) "ILO scale" means the system for the classification of | 83 |
chest x-rays set forth in the international labour office's | 84 |
guidelines for the use of ILO international classification of | 85 |
radiographs of pneumoconioses (2000), as amended. | 86 |
(R) "Lung cancer" means a malignant tumor in which the | 87 |
primary site of origin of the cancer is inside the lungs, but that | 88 |
term does not include mesothelioma. | 89 |
(S) "Mesothelioma" means a malignant tumor with a primary | 90 |
site of origin in the pleura or the peritoneum, which has been | 91 |
diagnosed by a board-certified pathologist, using standardized and | 92 |
accepted criteria of microscopic morphology and appropriate | 93 |
staining techniques. | 94 |
(T) "Nonmalignant condition" means a condition that is caused | 95 |
or may be caused by asbestos other than a diagnosed cancer. | 96 |
(U) "Pathological evidence of asbestosis" means a statement | 97 |
by a board-certified pathologist that more than one representative | 98 |
section of lung tissue uninvolved with any other disease process | 99 |
demonstrates a pattern of peribronchiolar or parenchymal scarring | 100 |
in the presence of characteristic asbestos bodies and that there | 101 |
is no other more likely explanation for the presence of the | 102 |
fibrosis. | 103 |
(V) "Physical impairment" means a nonmalignant condition that | 104 |
meets the minimum requirements specified in division (B) of | 105 |
section 2307.92 of the Revised Code, lung cancer of an exposed | 106 |
person who is a smoker that meets the minimum requirements | 107 |
specified in division (C) of section 2307.92 of the Revised Code, | 108 |
or a condition of a deceased exposed person that meets the minimum | 109 |
requirements specified in division (D) of section 2307.92 of the | 110 |
Revised Code. | 111 |
(W) "Plethysmography" means a test for determining lung | 112 |
volume, also known as "body plethysmography," in which the subject | 113 |
of the test is enclosed in a chamber that is equipped to measure | 114 |
pressure, flow, or volume changes. | 115 |
(X) "Predicted lower limit of normal" means the fifth | 116 |
percentile of healthy populations based on age, height, and | 117 |
gender, as referenced in the AMA guides to the evaluation of | 118 |
permanent impairment. | 119 |
(Y) "Premises owner" means a person who owns, in whole or in | 120 |
part, leases, rents, maintains, or controls privately owned lands, | 121 |
ways, or waters, or any buildings and structures on those lands, | 122 |
ways, or waters, and all privately owned and state-owned lands, | 123 |
ways, or waters leased to a private person, firm, or organization, | 124 |
including any buildings and structures on those lands, ways, or | 125 |
waters. | 126 |
(Z) "Competent medical authority" means a medical doctor who | 127 |
is providing a diagnosis for purposes of constituting prima-facie | 128 |
evidence of an exposed person's physical impairment that meets the | 129 |
requirements specified in section 2307.92 of the Revised Code and | 130 |
who meets the following requirements: | 131 |
(1) The medical doctor is a board-certified internist, | 132 |
pulmonary specialist, oncologist, pathologist, or occupational | 133 |
medicine specialist. | 134 |
(2) The medical doctor is actually treating or has treated | 135 |
the exposed person and has or had a doctor-patient relationship | 136 |
with the person. | 137 |
(3) As the basis for the diagnosis, the medical doctor has | 138 |
not relied, in whole or in part, on any of the following: | 139 |
(a) The reports or opinions of any doctor, clinic, | 140 |
laboratory, or testing company that performed an examination, | 141 |
test, or screening of the claimant's medical condition in | 142 |
violation of any law, regulation, licensing requirement, or | 143 |
medical code of practice of the state in which that examination, | 144 |
test, or screening was conducted; | 145 |
(b) The reports or opinions of any doctor, clinic, | 146 |
laboratory, or testing company that performed an examination, | 147 |
test, or screening of the claimant's medical condition that was | 148 |
conducted without clearly establishing a doctor-patient | 149 |
relationship with the claimant or medical personnel involved in | 150 |
the examination, test, or screening process; | 151 |
(c) The reports or opinions of any doctor, clinic, | 152 |
laboratory, or testing company that performed an examination, | 153 |
test, or screening of the claimant's medical condition that | 154 |
required the claimant to agree to retain the legal services of the | 155 |
law firm sponsoring the examination, test, or screening. | 156 |
(4) The medical doctor spends not more than twenty-five per | 157 |
cent of the medical doctor's professional practice time in | 158 |
providing consulting or expert services in connection with actual | 159 |
or potential tort actions, and the medical doctor's medical group, | 160 |
professional corporation, clinic, or other affiliated group earns | 161 |
not more than twenty per cent of its revenues from providing those | 162 |
services. | 163 |
(AA) "Radiological evidence of asbestosis" means a chest | 164 |
x-ray showing small, irregular opacities (s, t) graded by a | 165 |
certified B-reader as at least 1/1 on the ILO scale. | 166 |
(BB) "Radiological evidence of diffuse pleural thickening" | 167 |
means a chest x-ray showing bilateral pleural thickening graded by | 168 |
a certified B-reader as at least B2 on the ILO scale and blunting | 169 |
of at least one costophrenic angle. | 170 |
(CC) "Regular basis" means on a frequent or recurring basis. | 171 |
(DD) "Smoker" means a person who has smoked the equivalent of | 172 |
one-pack year, as specified in the written report of a competent | 173 |
medical authority pursuant to sections 2307.92 and 2307.93 of the | 174 |
Revised Code, during the last fifteen years. | 175 |
(EE) "Spirometry" means the measurement of volume of air | 176 |
inhaled or exhaled by the lung. | 177 |
(FF) "Substantial contributing factor" means both of the | 178 |
following: | 179 |
(1) Exposure to asbestos is the predominate cause of the | 180 |
physical impairment alleged in the asbestos claim. | 181 |
(2) A competent medical authority has determined with a | 182 |
reasonable degree of medical certainty that without the asbestos | 183 |
exposures the physical impairment of the exposed person would not | 184 |
have occurred. | 185 |
(GG) "Substantial occupational exposure to asbestos" means | 186 |
employment for a cumulative period of at least five years in an | 187 |
industry and an occupation in which, for a substantial portion of | 188 |
a normal work year for that occupation, the exposed person did any | 189 |
of the following: | 190 |
(1) Handled raw asbestos fibers; | 191 |
(2) Fabricated asbestos-containing products so that the | 192 |
person was exposed to raw asbestos fibers in the fabrication | 193 |
process; | 194 |
(3) Altered, repaired, or otherwise worked with an | 195 |
asbestos-containing product in a manner that exposed the person on | 196 |
a regular basis to asbestos fibers; | 197 |
(4) Worked in close proximity to other workers engaged in any | 198 |
of the activities described in division (GG)(1), (2), or (3) of | 199 |
this section in a manner that exposed the person on a regular | 200 |
basis to asbestos fibers. | 201 |
(HH) "Timed gas dilution" means a method for measuring total | 202 |
lung capacity in which the subject breathes into a spirometer | 203 |
containing a known concentration of an inert and insoluble gas for | 204 |
a specific time, and the concentration of the inert and insoluble | 205 |
gas in the lung is then compared to the concentration of that type | 206 |
of gas in the spirometer. | 207 |
(II) "Tort action" means a civil action for damages for | 208 |
injury, death, or loss to person. "Tort action" includes a product | 209 |
liability claim that is subject to sections 2307.71 to 2307.80 of | 210 |
the Revised Code. "Tort action" does not include a civil action | 211 |
for damages for a breach of contract or another agreement between | 212 |
persons. | 213 |
(JJ) "Total lung capacity" means the volume of air contained | 214 |
in the lungs at the end of a maximal inspiration. | 215 |
(KK) "Veterans' benefit program" means any program for | 216 |
benefits in connection with military service administered by the | 217 |
veterans' administration under title 38 of the United States Code. | 218 |
(LL) "Workers' compensation law" means Chapters 4121., 4123., | 219 |
4127., and 4131. of the Revised Code. | 220 |
Sec. 2307.92. (A) For purposes of section 2305.10 and | 221 |
sections 2307.92 to 2307.95 of the Revised Code, "bodily injury | 222 |
caused by exposure to asbestos" means physical impairment of the | 223 |
exposed person, to which the person's exposure to asbestos is a | 224 |
substantial contributing factor. | 225 |
(B) No person shall bring or maintain a tort action alleging | 226 |
an asbestos claim based on a nonmalignant condition in the absence | 227 |
of a prima-facie showing, in the manner described in division (A) | 228 |
of section 2307.93 of the Revised Code, that the exposed person | 229 |
has a physical impairment, that the physical impairment is a | 230 |
result of a medical condition, and that the person's exposure to | 231 |
asbestos is a substantial contributing factor to the medical | 232 |
condition. That prima-facie showing shall include all of the | 233 |
following minimum requirements: | 234 |
(1) Evidence verifying that a competent medical authority has | 235 |
taken a detailed occupational and exposure history of the exposed | 236 |
person from the exposed person or, if that person is deceased, | 237 |
from the person who is most knowledgeable about the exposures that | 238 |
form the basis of the asbestos claim for a nonmalignant condition, | 239 |
including all of the following: | 240 |
(a) All of the exposed person's principal places of | 241 |
employment and exposures to airborne contaminants; | 242 |
(b) Whether each principal place of employment involved | 243 |
exposures to airborne contaminants, including, but not limited to, | 244 |
asbestos fibers or other disease causing dusts, that can cause | 245 |
pulmonary impairment and, if that type of exposure is involved, | 246 |
the general nature, duration, and general level of the exposure. | 247 |
(2) Evidence verifying that a competent medical authority has | 248 |
taken a detailed medical and smoking history of the exposed | 249 |
person, including a thorough review of the exposed person's past | 250 |
and present medical problems and the most probable causes of those | 251 |
medical problems; | 252 |
(3) A diagnosis by a competent medical authority, based on a | 253 |
medical examination and pulmonary function testing of the exposed | 254 |
person, that all of the following apply to the exposed person: | 255 |
(a) The exposed person has a permanent respiratory impairment | 256 |
rating of at least class 2 as defined by and evaluated pursuant to | 257 |
the AMA guides to the evaluation of permanent impairment. | 258 |
(b) Either of the following: | 259 |
(i) The exposed person has asbestosis or diffuse pleural | 260 |
thickening, based at a minimum on radiological or pathological | 261 |
evidence of asbestosis or radiological evidence of diffuse pleural | 262 |
thickening. The asbestosis or diffuse pleural thickening described | 263 |
in this division, rather than solely chronic obstructive pulmonary | 264 |
disease, is a substantial contributing factor to the exposed | 265 |
person's physical impairment, based at a minimum on a | 266 |
determination that the exposed person has any of the following: | 267 |
(I) A forced vital capacity below the predicted lower limit | 268 |
of normal and a ratio of FEV1 to FVC that is equal to or greater | 269 |
than the predicted lower limit of normal; | 270 |
(II) A total lung capacity, by plethysmography or timed gas | 271 |
dilution, below the predicted lower limit of normal; | 272 |
(III) A chest x-ray showing small, irregular opacities (s, t) | 273 |
graded by a certified B-reader at least 2/1 on the ILO scale. | 274 |
(ii) If the exposed person has a chest x-ray showing small, | 275 |
irregular opacities (s, t) graded by a certified B-reader as only | 276 |
a 1/0 on the ILO scale, then in order to establish that the | 277 |
exposed person has asbestosis, rather than solely chronic | 278 |
obstructive pulmonary disease, that is a substantial contributing | 279 |
factor to the exposed person's physical impairment the plaintiff | 280 |
must establish that the exposed person has both of the following: | 281 |
(I) A forced vital capacity below the predicted lower limit | 282 |
of normal and a ratio of FEV1 to FVC that is equal to or greater | 283 |
than the predicted lower limit of normal; | 284 |
(II) A total lung capacity, by plethysmography or timed gas | 285 |
dilution, below the predicted lower limit of normal. | 286 |
(C)(1) No person shall bring or maintain a tort action | 287 |
alleging an asbestos claim based upon lung cancer of an exposed | 288 |
person who is a smoker, in the absence of a prima-facie showing, | 289 |
in the manner described in division (A) of section 2307.93 of the | 290 |
Revised Code, that the exposed person has a physical impairment, | 291 |
that the physical impairment is a result of a medical condition, | 292 |
and that the person's exposure to asbestos is a substantial | 293 |
contributing factor to the medical condition. That prima-facie | 294 |
showing shall include all of the following minimum requirements: | 295 |
(a) A diagnosis by a competent medical authority that the | 296 |
exposed person has primary lung cancer and that exposure to | 297 |
asbestos is a substantial contributing factor to that cancer; | 298 |
(b) Evidence that is sufficient to demonstrate that at least | 299 |
ten years have elapsed from the date of the exposed person's first | 300 |
exposure to asbestos until the date of diagnosis of the exposed | 301 |
person's primary lung cancer. The ten-year latency period | 302 |
described in this division is a rebuttable presumption, and the | 303 |
plaintiff has the burden of proof to rebut the presumption. | 304 |
(c) Either of the following: | 305 |
(i) Evidence of the exposed person's substantial occupational | 306 |
exposure to asbestos; | 307 |
(ii) Evidence of the exposed person's exposure to asbestos at | 308 |
least equal to 25 fiber per cc years as determined to a reasonable | 309 |
degree of scientific probability by a scientifically valid | 310 |
retrospective exposure reconstruction conducted by a certified | 311 |
industrial hygienist or certified safety professional based upon | 312 |
all reasonably available quantitative air monitoring data and all | 313 |
other reasonably available information about the exposed person's | 314 |
occupational history and history of exposure to asbestos. | 315 |
(2) If a plaintiff files a tort action that alleges an | 316 |
asbestos claim based upon lung cancer of an exposed person who is | 317 |
a smoker, alleges that the plaintiff's exposure to asbestos was | 318 |
the result of living with another person who, if the tort action | 319 |
had been filed by the other person, would have met the | 320 |
requirements specified in division (C)(1)(c) of this section, and | 321 |
alleges that the plaintiff lived with the other person for the | 322 |
period of time specified in division (GG) of section 2307.91 of | 323 |
the Revised Code, the plaintiff is considered as having satisfied | 324 |
the requirements specified in division (C)(1)(c) of this section. | 325 |
(D)(1) No person shall bring or maintain a tort action | 326 |
alleging an asbestos claim that is based upon a wrongful death, as | 327 |
described in section 2125.01 of the Revised Code of an exposed | 328 |
person in the absence of a prima-facie showing, in the manner | 329 |
described in division (A) of section 2307.93 of the Revised Code, | 330 |
that the death of the exposed person was the result of a physical | 331 |
impairment, that the death and physical impairment were a result | 332 |
of a medical condition, and that the deceased person's exposure to | 333 |
asbestos was a substantial contributing factor to the medical | 334 |
condition. That prima-facie showing shall include all of the | 335 |
following minimum requirements: | 336 |
(a) A diagnosis by a competent medical authority that | 337 |
exposure to asbestos was a substantial contributing factor to the | 338 |
death of the exposed person; | 339 |
(b) Evidence that is sufficient to demonstrate that at least | 340 |
ten years have elapsed from the date of the deceased exposed | 341 |
person's first exposure to asbestos until the date of diagnosis or | 342 |
death of the deceased exposed person. The ten-year latency period | 343 |
described in this division is a rebuttable presumption, and the | 344 |
plaintiff has the burden of proof to rebut the presumption. | 345 |
(c) Either of the following: | 346 |
(i) Evidence of the deceased exposed person's substantial | 347 |
occupational exposure to asbestos; | 348 |
(ii) Evidence of the deceased exposed person's exposure to | 349 |
asbestos at least equal to 25 fiber per cc years as determined to | 350 |
a reasonable degree of scientific probability by a scientifically | 351 |
valid retrospective exposure reconstruction conducted by a | 352 |
certified industrial hygienist or certified safety professional | 353 |
based upon all reasonably available quantitative air monitoring | 354 |
data and all other reasonably available information about the | 355 |
deceased exposed person's occupational history and history of | 356 |
exposure to asbestos. | 357 |
(2) If a person files a tort action that alleges an asbestos | 358 |
claim based on a wrongful death, as described in section 2125.01 | 359 |
of the Revised Code, of an exposed person, alleges that the death | 360 |
of the exposed person was the result of living with another person | 361 |
who, if the tort action had been filed by the other person, would | 362 |
have met the requirements specified in division (D)(1)(c) of this | 363 |
section, and alleges that the exposed person lived with the other | 364 |
person for the period of time specified in division (GG) of | 365 |
section 2307.91 of the Revised Code in order to qualify as a | 366 |
substantial occupational exposure to asbestos, the exposed person | 367 |
is considered as having satisfied the requirements specified in | 368 |
division (D)(1)(c) of this section. | 369 |
(3) No court shall require or permit the exhumation of a | 370 |
decedent for the purpose of obtaining evidence to make, or to | 371 |
oppose, a prima-facie showing required under division (D)(1) or | 372 |
(2) of this section regarding a tort action of the type described | 373 |
in that division. | 374 |
(E) No prima-facie showing is required in a tort action | 375 |
alleging an asbestos claim based upon mesothelioma. | 376 |
(F) Evidence relating to physical impairment under this | 377 |
section, including pulmonary function testing and diffusing | 378 |
studies, shall comply with the technical recommendations for | 379 |
examinations, testing procedures, quality assurance, quality | 380 |
control, and equipment incorporated in the AMA guides to the | 381 |
evaluation of permanent impairment and reported as set forth in 20 | 382 |
C.F.R. Pt. 404, Subpt. P, App. 1, Part A, Sec. 3.00 E. and F., and | 383 |
the interpretive standards set forth in the official statement of | 384 |
the American thoracic society entitled "lung function testing: | 385 |
selection of reference values and interpretive strategies" as | 386 |
published in American review of respiratory disease, | 387 |
1991:144:1202-1218. | 388 |
(G) All of the following apply to the court's decision on the | 389 |
prima-facie showing that meets the requirements of division (B), | 390 |
(C), or (D) of this section: | 391 |
(1) The court's decision does not result in any presumption | 392 |
at trial that the exposed person has a physical impairment that is | 393 |
caused by an asbestos-related condition. | 394 |
(2) The court's decision is not conclusive as to the | 395 |
liability of any defendant in the case. | 396 |
(3) The court's decision is not binding at trial. | 397 |
Sec. 2307.93. (A)(1) The plaintiff in any tort action who | 398 |
alleges an asbestos claim shall file, within thirty days after | 399 |
filing the complaint or other initial pleading, a written report | 400 |
and supporting test results constituting prima-facie evidence of | 401 |
the exposed person's physical impairment that meets the minimum | 402 |
requirements specified in division (B), (C), or (D) of section | 403 |
2307.92 of the Revised Code, whichever is applicable. The | 404 |
defendant in the case shall be afforded a reasonable opportunity, | 405 |
upon the defendant's motion, to challenge the adequacy of the | 406 |
proffered prima-facie evidence of the physical impairment for | 407 |
failure to comply with the minimum requirements specified in | 408 |
division (B), (C), or (D) of section 2307.92 of the Revised Code. | 409 |
The defendant has one hundred twenty days from the date the | 410 |
specified type of prima-facie evidence is proffered to challenge | 411 |
the adequacy of that prima-facie evidence. If the defendant makes | 412 |
that challenge and uses a physician to do so, the physician must | 413 |
meet the requirements specified in divisions (Z)(1), (3), and (4) | 414 |
of section 2307.91 of the Revised Code. | 415 |
(2) With respect to any asbestos claim that is pending on the | 416 |
effective date of this section, the plaintiff shall file the | 417 |
written report and supporting test results described in division | 418 |
(A)(1) of this section within one hundred twenty days following | 419 |
the effective date of this section. Upon motion and for good cause | 420 |
shown, the court may extend the one hundred twenty-day period | 421 |
described in this division. | 422 |
(3)(a) For any cause of action that arises before the | 423 |
effective date of this section, the provisions set forth in | 424 |
divisions (B), (C), and (D) of section 2307.92 of the Revised Code | 425 |
are to be applied unless the court that has jurisdiction over the | 426 |
case finds both of the following: | 427 |
(i) A substantive right of a party to the case has been | 428 |
impaired. | 429 |
(ii) That impairment is otherwise in violation of Section 28 | 430 |
of Article II, Ohio Constitution. | 431 |
(b) If a finding under division (A)(3)(a) of this section is | 432 |
made by the court that has jurisdiction over the case, then the | 433 |
court shall determine whether the plaintiff has failed to provide | 434 |
sufficient evidence to support the plaintiff's cause ofaction or | 435 |
the right to relief under the law that is in effect prior to the | 436 |
effective date of this section. | 437 |
(c) If the court that has jurisdiction of the case finds that | 438 |
the plaintiff has failed to provide sufficient evidence to support | 439 |
the plaintiff's cause of action or right to relief under division | 440 |
(A)(3)(b) of this section, the court shall administratively | 441 |
dismiss the plaintiff's claim without prejudice. The court shall | 442 |
maintain its jurisdiction over any case that is administratively | 443 |
dismissed under this division. Any plaintiff whose case has been | 444 |
administratively dismissed under this division may move to | 445 |
reinstate the plaintiff's case if the plaintiff provides | 446 |
sufficient evidence to support the plaintiff's cause of action or | 447 |
the right to relief under the law that was in effect when the | 448 |
plaintiff's cause of action arose. | 449 |
(B) If the defendant in an action challenges the adequacy of | 450 |
the prima-facie evidence of the exposed person's physical | 451 |
impairment as provided in division (A)(1) of this section, the | 452 |
court shall determine from all of the evidence submitted whether | 453 |
the proffered prima-facie evidence meets the minimum requirements | 454 |
specified in division (B), (C), or (D) of section 2307.92 of the | 455 |
Revised Code. The court shall resolve the issue of whether the | 456 |
plaintiff has made the prima-facie showing required by division | 457 |
(B), (C), or (D) of section 2307.92 of the Revised Code by | 458 |
applying the standard for resolving a motion for summary judgment. | 459 |
(C) The court shall administratively dismiss the plaintiff's | 460 |
claim without prejudice upon a finding of failure to make the | 461 |
prima-facie showing required by division (B), (C), or (D) of | 462 |
section 2307.92 of the Revised Code. The court shall maintain its | 463 |
jurisdiction over any case that is administratively dismissed | 464 |
under this division. Any plaintiff whose case has been | 465 |
administratively dismissed under this division may move to | 466 |
reinstate the plaintiff's case if the plaintiff makes a | 467 |
prima-facie showing that meets the minimum requirements specified | 468 |
in division (B), (C), or (D) of section 2307.92 of the Revised | 469 |
Code. | 470 |
Sec. 2307.94. (A) Notwithstanding any other provision of the | 471 |
Revised Code, with respect to any asbestos claim based upon a | 472 |
nonmalignant condition that is not barred as of the effective date | 473 |
of this section, the period of limitations shall not begin to run | 474 |
until the exposed person has a cause of action for bodily injury | 475 |
pursuant to section 2305.10 of the Revised Code. An asbestos claim | 476 |
based upon a nonmalignant condition that is filed before the cause | 477 |
of action for bodily injury pursuant to that section arises is | 478 |
preserved for purposes of the period of limitations. | 479 |
(B) An asbestos claim that arises out of a nonmalignant | 480 |
condition shall be a distinct cause of action from an asbestos | 481 |
claim relating to the same exposed person that arises out of | 482 |
asbestos-related cancer. No damages shall be awarded for fear or | 483 |
risk of cancer in any tort action asserting only an asbestos claim | 484 |
for a nonmalignant condition. | 485 |
(C) No settlement of an asbestos claim for a nonmalignant | 486 |
condition that is concluded after the effective date of this | 487 |
section shall require, as a condition of settlement, the release | 488 |
of any future claim for asbestos-related cancer. | 489 |
Sec. 2307.941. (A) The following apply to all tort actions | 490 |
for asbestos claims brought against a premises owner to recover | 491 |
damages or other relief for exposure to asbestos on the premises | 492 |
owner's property: | 493 |
(1) A premises owner is not liable for any injury to any | 494 |
individual resulting from asbestos exposure unless that | 495 |
individual's alleged exposure occurred while the individual was at | 496 |
the premises owner's property. | 497 |
(2) If exposure to asbestos is alleged to have occurred | 498 |
before January 1, 1972, it is presumed that a premises owner knew | 499 |
that this state had adopted safe levels of exposure for asbestos | 500 |
and that products containing asbestos were used on its property | 501 |
only at levels below those safe levels of exposure. To rebut this | 502 |
presumption, the plaintiff must prove by a preponderance of the | 503 |
evidence that the premises owner knew or should have known that | 504 |
the levels of asbestos in the immediate breathing zone of the | 505 |
plaintiff regularly exceeded the threshold limit values adopted by | 506 |
this state and that the premises owner allowed that condition to | 507 |
persist. | 508 |
(3)(a) A premises owner is presumed to be not liable for any | 509 |
injury to any invitee who was engaged to work with, install, or | 510 |
remove asbestos products on the premises owner's property if the | 511 |
invitee's employer held itself out as qualified to perform the | 512 |
work. To rebut this presumption, the plaintiff must prove by a | 513 |
preponderance of the evidence that at the time of the exposure to | 514 |
asbestos that is alleged the premises owner had actual knowledge | 515 |
of the potential dangers of the asbestos products at the time of | 516 |
the alleged exposure that was superior to the knowledge of both | 517 |
the invitee and the invitee's employer. | 518 |
(b) A premises owner that hired a contractor before January | 519 |
1, 1972, to perform the type of work at the premises owner's | 520 |
property that the contractor was qualified to perform cannot be | 521 |
liable for any injury to any individual resulting from asbestos | 522 |
exposure caused by any of the contractor's employees or agents on | 523 |
the premises owner's property unless the premises owner directed | 524 |
the activity that resulted in the injury or gave or denied | 525 |
permission for the critical acts that led to the individual's | 526 |
injury. | 527 |
(c) If exposure to asbestos is alleged to have occurred on or | 528 |
after January 1, 1972, a premises owner is not liable for any | 529 |
injury to any individual resulting from that exposure caused by a | 530 |
contractor's employee or agent on the premises owner's property | 531 |
unless the plaintiff establishes the premises owner's intentional | 532 |
violation of an established safety standard that was in effect at | 533 |
the time of the exposure and that the alleged violation was in the | 534 |
plaintiff's breathing zone and was the proximate cause of the | 535 |
plaintiff's medical condition. | 536 |
(B) As used in this section: | 537 |
(1) "Threshold limit values" means that, for the years 1946 | 538 |
through 1971, the concentration of asbestos in a worker's | 539 |
breathing zone did not exceed the following maximum allowable | 540 |
exposure limits for the eight-hour time-weighted average airborne | 541 |
concentration: | 542 |
(a) Asbestos: five million particles per cubic foot; | 543 |
(b) Cadmium: 0.10 milligrams per cubic meter; | 544 |
(c) Chromic acid and chromates (calculated as chromic oxide): | 545 |
0.10 milligrams per cubic meter; | 546 |
(d) Lead: 0.15 milligrams per cubic meter; | 547 |
(e) Manganese: 6.0 milligrams per cubic meter; | 548 |
(f) Mercury: 0.10 milligrams per cubic meter; | 549 |
(g) Zinc oxide: 15.0 milligrams per cubic meter; | 550 |
(h) Chlorinated diphenyls: 1.0 milligram per cubic meter; | 551 |
(i) Chlorinated naphthalenes (trichlornaphthalene): 5.0 | 552 |
milligrams per cubic meter; | 553 |
(j) Chlorinated naphthalenes (pentachlornaphthalene): 0.50 | 554 |
milligrams per cubic meter. | 555 |
(2) "Established safety standard" means that, for the years | 556 |
after 1971, the concentration of asbestos in the breathing zone of | 557 |
a worker does not exceed the maximum allowable exposure limits for | 558 |
the eight-hour time-weighted average airborne concentration as | 559 |
promulgated by the occupational safety and health administration | 560 |
(OSHA) in effect at the time of the alleged exposure. | 561 |
(3) "Employee" means an individual who performs labor or | 562 |
provides construction services pursuant to a construction contract | 563 |
as defined in section 4123.79 of the Revised Code, or a remodeling | 564 |
or repair contract, whether written or oral, if at least ten of | 565 |
the following criteria apply: | 566 |
(a) The individual is required to comply with instructions | 567 |
from the other contracting party regarding the manner or method of | 568 |
performing services. | 569 |
(b) The individual is required by the other contracting party | 570 |
to have particular training. | 571 |
(c) The individual's services are integrated into the regular | 572 |
functioning of the other contracting party. | 573 |
(d) The individual is required to perform the work | 574 |
personally. | 575 |
(e) The individual is hired, supervised, or paid by the other | 576 |
contracting party. | 577 |
(f) A continuing relationship exists between the individual | 578 |
and the other contracting party that contemplates continuing or | 579 |
recurring work even if the work is not full time. | 580 |
(g) The individual's hours of work are established by the | 581 |
other contracting party. | 582 |
(h) The individual is required to devote full time to the | 583 |
business of the other contracting party. | 584 |
(i) The person is required to perform the work on the | 585 |
premises of the other contracting party. | 586 |
(j) The individual is required to follow the order of work | 587 |
set by the other contracting party. | 588 |
(k) The individual is required to make oral or written | 589 |
reports of progress to the other contracting party. | 590 |
(l) The individual is paid for services on a regular basis, | 591 |
including hourly, weekly, or monthly. | 592 |
(m) The individual's expenses are paid for by the other | 593 |
contracting party. | 594 |
(n) The individual's tools and materials are furnished by the | 595 |
other contracting party. | 596 |
(o) The individual is provided with the facilities used to | 597 |
perform services. | 598 |
(p) The individual does not realize a profit or suffer a loss | 599 |
as a result of the services provided. | 600 |
(q) The individual is not performing services for a number of | 601 |
employers at the same time. | 602 |
(r) The individual does not make the same services available | 603 |
to the general public. | 604 |
(s) The other contracting party has a right to discharge the | 605 |
individual. | 606 |
(t) The individual has the right to end the relationship with | 607 |
the other contracting party without incurring liability pursuant | 608 |
to an employment contract or agreement. | 609 |
Sec. 2307.95. (A) Nothing in sections 2307.92 to 2307.95 of | 610 |
the Revised Code is intended to do, and nothing in any of those | 611 |
sections shall be interpreted to do, either of the following: | 612 |
(1) Affect the rights of any party in bankruptcy proceedings; | 613 |
(2) Affect the ability of any person who is able to make a | 614 |
showing that the person satisfies the claim criteria for | 615 |
compensable claims or demands under a trust established pursuant | 616 |
to a plan of reorganization under Chapter 11 of the United States | 617 |
Bankruptcy Code, 11 U.S.C. Chapter 11, to make a claim or demand | 618 |
against that trust. | 619 |
(B) Sections 2307.91 to 2307.95 of the Revised Code shall not | 620 |
affect the scope or operation of any workers' compensation law or | 621 |
veterans' benefit program or the exclusive remedy of subrogation | 622 |
under the provisions of that law or program and shall not | 623 |
authorize any lawsuit that is barred by any provision of any | 624 |
workers' compensation law. | 625 |
(C) Except as provided in division (D) of section 2307.92 of | 626 |
the Revised Code and in other provisions that relate to the | 627 |
application of that division and the procedures and criteria it | 628 |
contains, nothing in sections 2307.92, 2307.93, 2307.94, and | 629 |
2307.95 of the Revised Code is intended, and nothing in any of | 630 |
those sections shall be interpreted, to affect any wrongful death | 631 |
claim, as described in section 2125.01 of the Revised Code. | 632 |
Sec. 2307.96. (A) If a plaintiff in a tort action alleges | 633 |
any injury or loss to person resulting from exposure to asbestos | 634 |
as a result of the tortious act of one or more defendants, in | 635 |
order to maintain a cause of action against any of those | 636 |
defendants based on that injury or loss, the plaintiff must prove | 637 |
that the conduct of that particular defendant was a substantial | 638 |
factor in causing the injury or loss on which the cause of action | 639 |
is based. | 640 |
(B) A plaintiff in a tort action who alleges any injury or | 641 |
loss to person resulting from exposure to asbestos has the burden | 642 |
of proving that the plaintiff was exposed to asbestos that was | 643 |
manufactured, supplied, installed, or used by the defendant in the | 644 |
action and that the plaintiff's exposure to the defendant's | 645 |
asbestos was a substantial factor in causing the plaintiff's | 646 |
injury or loss. In determining whether exposure to a particular | 647 |
defendant's asbestos was a substantial factor in causing the | 648 |
plaintiff's injury or loss, the trier of fact in the action shall | 649 |
consider, without limitation, all of the following: | 650 |
(1) The manner in which the plaintiff was exposed to the | 651 |
defendant's asbestos; | 652 |
(2) The proximity of the defendant's asbestos to the | 653 |
plaintiff when the exposure to the defendant's asbestos occurred; | 654 |
(3) The frequency and length of the plaintiff's exposure to | 655 |
the defendant's asbestos; | 656 |
(4) Any factors that mitigated or enhanced the plaintiff's | 657 |
exposure to asbestos. | 658 |
(C) This section applies only to tort actions that allege any | 659 |
injury or loss to person resulting from exposure to asbestos and | 660 |
that are brought on or after the effective date of this section. | 661 |
Sec. 2307.98. (A) A holder has no obligation to, and has no | 662 |
liability to, the covered entity or to any person with respect to | 663 |
any obligation or liability of the covered entity in an asbestos | 664 |
claim under the doctrine of piercing the corporate veil unless the | 665 |
person seeking to pierce the corporate veil demonstrates all of | 666 |
the following: | 667 |
(1) The holder exerted such control over the covered entity | 668 |
that the covered entity had no separate mind, will, or existence | 669 |
of its own. | 670 |
(2) The holder caused the covered entity to be used for the | 671 |
purpose of perpetrating, and the covered entity perpetrated, an | 672 |
actual fraud on the person seeking to pierce the corporate veil | 673 |
primarily for the direct pecuniary benefit of the holder. | 674 |
(3) The person seeking to pierce the corporate veil sustained | 675 |
an injury or unjust loss as a direct result of the control | 676 |
described in division (A)(1) of this section and the fraud | 677 |
described in division (A)(2) of this section. | 678 |
(B) A court shall not find that the holder exerted such | 679 |
control over the covered entity that the covered entity did not | 680 |
have a separate mind, will, or existence of its own or to have | 681 |
caused the covered entity to be used for the purpose of | 682 |
perpetrating a fraud solely as a result of any of the following | 683 |
actions, events, or relationships: | 684 |
(1) The holder is an affiliate of the covered entity and | 685 |
provides legal, accounting, treasury, cash management, human | 686 |
resources, administrative, or other similar services to the | 687 |
covered entity, leases assets to the covered entity, or makes its | 688 |
employees available to the covered entity. | 689 |
(2) The holder loans funds to the covered entity or | 690 |
guarantees the obligations of the covered entity. | 691 |
(3) The officers and directors of the holder are also | 692 |
officers and directors of the covered entity. | 693 |
(4) The covered entity makes payments of dividends or other | 694 |
distributions to the holder or repays loans owed to the holder. | 695 |
(5) In the case of a covered entity that is a limited | 696 |
liability company, the holder or its employees or agents serve as | 697 |
the manager of the covered entity. | 698 |
(C) The person seeking to pierce the corporate veil has the | 699 |
burden of proof on each and every element of the person's claim | 700 |
and must prove each element by a preponderance of the evidence. | 701 |
(D) Any liability of the holder described in division (A) of | 702 |
this section for an obligation or liability that is limited by | 703 |
that division is exclusive and preempts any other obligation or | 704 |
liability imposed upon that holder for that obligation or | 705 |
liability under common law or otherwise. | 706 |
(E) This section is intended to codify the elements of the | 707 |
common law cause of action for piercing the corporate veil and to | 708 |
abrogate the common law cause of action and remedies relating to | 709 |
piercing the corporate veil in asbestos claims. Nothing in this | 710 |
section shall be construed as creating a right or cause of action | 711 |
that did not exist under the common law as it existed on the | 712 |
effective date of this section. | 713 |
(F) This section applies to all asbestos claims commenced on | 714 |
or after the effective date of this section or commenced prior to | 715 |
and pending on the effective date of this section. | 716 |
(G) This section applies to all actions asserting the | 717 |
doctrine of piercing the corporate veil brought against a holder | 718 |
if any of the following apply: | 719 |
(1) The holder is an individual and resides in this state. | 720 |
(2) The holder is a corporation organized under the laws of | 721 |
this state. | 722 |
(3) The holder is a corporation with its principal place of | 723 |
business in this state. | 724 |
(4) The holder is a foreign corporation that is authorized to | 725 |
conduct or has conducted business in this state. | 726 |
(5) The holder is a foreign corporation whose parent | 727 |
corporation is authorized to conduct business in this state. | 728 |
(6) The person seeking to pierce the corporate veil is a | 729 |
resident of this state. | 730 |
(H) As used in this section, unless the context otherwise | 731 |
requires: | 732 |
(1) "Affiliate" and "beneficial owner" have the same meanings | 733 |
as in section 1704.01 of the Revised Code. | 734 |
(2) "Asbestos" has the same meaning as in section 2307.91 of | 735 |
the Revised Code. | 736 |
(3) "Asbestos claim" means any claim, wherever or whenever | 737 |
made, for damages, losses, indemnification, contribution, or other | 738 |
relief arising out of, based on, or in any way related to | 739 |
asbestos. "Asbestos claim" includes any of the following: | 740 |
(a) A claim made by or on behalf of any person who has been | 741 |
exposed to asbestos, or any representative, spouse, parent, child, | 742 |
or other relative of that person, for injury, including mental or | 743 |
emotional injury, death, or loss to person, risk of disease or | 744 |
other injury, costs of medical monitoring or surveillance, or any | 745 |
other effects on the person's health that are caused by the | 746 |
person's exposure to asbestos; | 747 |
(b) A claim for damage or loss to property that is caused by | 748 |
the installation, presence, or removal of asbestos. | 749 |
(4) "Corporation" means a corporation for profit, including | 750 |
the following: | 751 |
(a) A domestic corporation that is organized under the laws | 752 |
of this state; | 753 |
(b) A foreign corporation that is organized under laws other | 754 |
than the laws of this state and that has had a certificate of | 755 |
authority to transact business in this state or has done business | 756 |
in this state. | 757 |
(5) "Covered entity" means a corporation, limited liability | 758 |
company, limited partnership, or any other entity organized under | 759 |
the laws of any jurisdiction, domestic or foreign, in which the | 760 |
shareholders, owners, or members are generally not responsible for | 761 |
the debts and obligations of the entity. Nothing in this section | 762 |
limits or otherwise affects the liabilities imposed on a general | 763 |
partner of a limited partnership. | 764 |
(6) "Holder" means a person who is the holder or beneficial | 765 |
owner of, or subscriber to, shares or any other ownership interest | 766 |
of a covered entity, a member of a covered entity, or an affiliate | 767 |
of any person who is the holder or beneficial owner of, or | 768 |
subscriber to, shares or any other ownership interest of a covered | 769 |
entity. | 770 |
(7) "Piercing the corporate veil" means any and all common | 771 |
law doctrines by which a holder may be liable for an obligation or | 772 |
liability of a covered entity on the basis that the holder | 773 |
controlled the covered entity, the holder is or was the alter ego | 774 |
of the covered entity, or the covered entity has been used for the | 775 |
purpose of actual or constructive fraud or as a sham to perpetrate | 776 |
a fraud or any other common law doctrine by which the covered | 777 |
entity is disregarded for purposes of imposing liability on a | 778 |
holder for the debts or obligations of that covered entity. | 779 |
(8) "Person" has the same meaning as in section 1701.01 of | 780 |
the Revised Code. | 781 |
Sec. 2505.02. (A) As used in this section: | 782 |
(1) "Substantial right" means a right that the United States | 783 |
Constitution, the Ohio Constitution, a statute, the common law, or | 784 |
a rule of procedure entitles a person to enforce or protect. | 785 |
(2) "Special proceeding" means an action or proceeding that | 786 |
is specially created by statute and that prior to 1853 was not | 787 |
denoted as an action at law or a suit in equity. | 788 |
(3) "Provisional remedy" means a proceeding ancillary to an | 789 |
action, including, but not limited to, a proceeding for a | 790 |
preliminary injunction, attachment, discovery of privileged | 791 |
matter, | 792 |
to section 2307.92 of the Revised Code, or a finding made pursuant | 793 |
to division (A)(3) of section 2307.93 of the Revised Code. | 794 |
(B) An order is a final order that may be reviewed, affirmed, | 795 |
modified, or reversed, with or without retrial, when it is one of | 796 |
the following: | 797 |
(1) An order that affects a substantial right in an action | 798 |
that in effect determines the action and prevents a judgment; | 799 |
(2) An order that affects a substantial right made in a | 800 |
special proceeding or upon a summary application in an action | 801 |
after judgment; | 802 |
(3) An order that vacates or sets aside a judgment or grants | 803 |
a new trial; | 804 |
(4) An order that grants or denies a provisional remedy and | 805 |
to which both of the following apply: | 806 |
(a) The order in effect determines the action with respect to | 807 |
the provisional remedy and prevents a judgment in the action in | 808 |
favor of the appealing party with respect to the provisional | 809 |
remedy. | 810 |
(b) The appealing party would not be afforded a meaningful or | 811 |
effective remedy by an appeal following final judgment as to all | 812 |
proceedings, issues, claims, and parties in the action. | 813 |
(5) An order that determines that an action may or may not be | 814 |
maintained as a class action. | 815 |
(C) When a court issues an order that vacates or sets aside a | 816 |
judgment or grants a new trial, the court, upon the request of | 817 |
either party, shall state in the order the grounds upon which the | 818 |
new trial is granted or the judgment vacated or set aside. | 819 |
(D) This section applies to and governs any action, including | 820 |
an
appeal, that is pending in any court on | 821 |
822 | |
commenced on or after | 823 |
22, 1998, notwithstanding any provision of any prior statute or | 824 |
rule of law of this state. | 825 |
Section 2. That existing section 2505.02 of the Revised Code | 826 |
is hereby repealed. | 827 |
Section 3. (A) The General Assembly makes the following | 828 |
statement of findings and intent: | 829 |
(1) Asbestos claims have created an increased amount of | 830 |
litigation in state and federal courts that the United States | 831 |
Supreme Court has characterized as "an elephant mass" of cases. | 832 |
(2) The current asbestos personal injury litigation system is | 833 |
unfair and inefficient, imposing a severe burden on litigants and | 834 |
taxpayers alike. A recent RAND study estimates that a total of | 835 |
fifty-four billion dollars have already been spent on asbestos | 836 |
litigation and the costs continue to mount. Compensation for | 837 |
asbestos claims has risen sharply since 1993. The typical claimant | 838 |
in an asbestos lawsuit now names sixty to seventy defendants, | 839 |
compared with an average of twenty named defendants two decades | 840 |
ago. The RAND Report also suggests that at best, only one-half of | 841 |
all claimants have come forward and at worst, only one-fifth have | 842 |
filed claims to date. Estimates of the total cost of all claims | 843 |
range from two hundred to two hundred sixty-five billion dollars. | 844 |
Tragically, plaintiffs are receiving less than forty-three cents | 845 |
on every dollar awarded, and sixty-five per cent of the | 846 |
compensation paid, thus far, has gone to claimants who are not | 847 |
sick. | 848 |
(3) The extraordinary volume of nonmalignant asbestos cases | 849 |
continue to strain federal and state courts. | 850 |
(a) Today, it is estimated that there are more than two | 851 |
hundred thousand active asbestos cases in courts nationwide. | 852 |
According to a recent RAND study, over six hundred thousand people | 853 |
have filed asbestos claims for asbestos-related personal injuries | 854 |
through the end of 2000. | 855 |
(b) Before 1998, five states, Mississippi, New York, West | 856 |
Virginia, Texas, and Ohio, accounted for nine per cent of the | 857 |
cases filed. However, between 1998 and 2000, these same five | 858 |
states handled sixty-six per cent of all filings. Today, Ohio has | 859 |
become a haven for asbestos claims and, as a result, is one of the | 860 |
top five state court venues for asbestos filings. | 861 |
(c) According to testimony by Laura Hong, a partner at the | 862 |
law firm of Squire, Sanders & Dempsey who has been defending | 863 |
companies in asbestos personal injury litigation since 1985, there | 864 |
are at least thirty-five thousand asbestos personal injury cases | 865 |
pending in Ohio state courts today. | 866 |
(d) If the two hundred thirty-three Ohio state court general | 867 |
jurisdictional judges started trying these asbestos cases today, | 868 |
Ms. Hong noted, each would have to try over one hundred fifty | 869 |
cases before retiring the current docket. That figure | 870 |
conservatively computes to at least one hundred fifty trial weeks | 871 |
or more than three years per judge to retire the current docket. | 872 |
(e) The current docket, however, continues to increase at an | 873 |
exponential rate. According to Judge Leo Spellacy, one of two | 874 |
Cuyahoga County Common Pleas Court judges appointed by the Ohio | 875 |
Supreme Court to manage the Cuyahoga County case management order | 876 |
for asbestos cases, in 1999 there were approximately twelve | 877 |
thousand eight hundred pending asbestos cases in Cuyahoga County. | 878 |
However, by the end of October 2003, there were over thirty-nine | 879 |
thousand pending asbestos cases. Approximately two hundred new | 880 |
asbestos cases are filed in Cuyahoga County every month. | 881 |
(4) Nationally, asbestos personal injury litigation has | 882 |
already contributed to the bankruptcy of more than seventy | 883 |
companies, including nearly all manufacturers of asbestos textile | 884 |
and insulation products, and the ratio of asbestos-driven | 885 |
bankruptcies is accelerating. | 886 |
(a) As stated by Linda Woggon, Vice President of Governmental | 887 |
Affairs of the Ohio Chamber of Commerce, a recent RAND study found | 888 |
that during the first ten months of 2002, fifteen companies facing | 889 |
significant asbestos-related liabilities filed for bankruptcy and | 890 |
more than sixty thousand jobs have been lost because of these | 891 |
bankruptcies. The RAND study estimates that the eventual cost of | 892 |
asbestos litigation could reach as high as four hundred | 893 |
twenty-three thousand jobs. | 894 |
(b) Joseph Stiglitz, Nobel award-winning economist, in "The | 895 |
Impact of Asbestos Liabilities on Workers in Bankrupt Firms," | 896 |
calculated that bankruptcies caused by asbestos have already | 897 |
resulted in the loss of up to sixty thousand jobs and that each | 898 |
displaced worker in the bankrupt companies will lose, on average, | 899 |
an estimated twenty-five thousand to fifty thousand dollars in | 900 |
wages over the worker's career, and at least a quarter of the | 901 |
accumulated pension benefits. | 902 |
(c) At least five Ohio-based companies have been forced into | 903 |
bankruptcy because of an unending flood of asbestos cases brought | 904 |
by claimants who are not sick. | 905 |
(d) Owens Corning, a Toledo company, has been sued four | 906 |
hundred thousand times by plaintiffs alleging asbestos-related | 907 |
injury and as a result was forced to file bankruptcy. The type of | 908 |
job and pension loss many Toledoans have faced because of the | 909 |
Owens Corning bankruptcy also can be seen in nearby Licking County | 910 |
where, in 2000, Owens Corning laid off two hundred seventy-five | 911 |
workers from its Granville plant. According to a study conducted | 912 |
by NERA Economic Consulting in 2000, the ripple effect of those | 913 |
losses is predicted to result in a total loss of five hundred jobs | 914 |
and a fifteen-million to twenty-million dollar annual reduction in | 915 |
regional income. | 916 |
(e) According to testimony presented by Robert Bunda, a | 917 |
partner at the firm of Bunda, Stutz & DeWitt in Toledo, Ohio who | 918 |
has been involved with the defense of asbestos cases on behalf of | 919 |
Owens-Illinois for twenty-four years, at least five Ohio-based | 920 |
companies have gone bankrupt because of the cost of paying people | 921 |
who are not sick. Wage losses, pension losses, and job losses have | 922 |
significantly affected workers for the bankrupt companies like | 923 |
Owens Corning, Babcox & Wilcox, North American Refractories, and | 924 |
A-Best Corp. | 925 |
(5) The General Assembly recognizes that the vast majority of | 926 |
Ohio asbestos claims are filed by individuals who allege they have | 927 |
been exposed to asbestos and who have some physical sign of | 928 |
exposure to asbestos, but who do not suffer from an | 929 |
asbestos-related impairment. Eighty-nine per cent of asbestos | 930 |
claims come from people who do not have cancer. Sixty-six to | 931 |
ninety per cent of these non-cancer claimants are not sick. | 932 |
According to a Tillinghast-Towers Perrin study, ninety-four per | 933 |
cent of the fifty-two thousand nine hundred asbestos claims filed | 934 |
in 2000 concerned claimants who are not sick. As a result, the | 935 |
General Assembly recognizes that reasonable medical criteria are a | 936 |
necessary response to the asbestos litigation crisis in this | 937 |
state. Medical criteria will expedite the resolution of claims | 938 |
brought by those sick claimants and will ensure that resources are | 939 |
available for those who are currently suffering from | 940 |
asbestos-related illnesses and for those who may become sick in | 941 |
the future. As stated by Dr. James Allen, a pulmonologist, | 942 |
Professor and Vice-Chairman of the Department of Internal Medicine | 943 |
at The Ohio State University, the medical criteria included in | 944 |
this act are reasonable criteria and are the first step toward | 945 |
ensuring that impaired plaintiffs are compensated. In fact, Dr. | 946 |
Allen noted that these criteria are minimum medical criteria. In | 947 |
his clinical practice, Dr. Allen stated that he always performs | 948 |
additional tests before assigning a diagnosis of asbestosis and | 949 |
would never rely solely on these medical criteria. | 950 |
(6) The cost of compensating exposed individuals who are not | 951 |
sick jeopardizes the ability of defendants to compensate people | 952 |
with cancer and other serious asbestos-related diseases, now and | 953 |
in the future; threatens savings, retirement benefits, and jobs of | 954 |
the state's current and retired employees; adversely affects the | 955 |
communities in which these defendants operate; and impairs Ohio's | 956 |
economy. | 957 |
(7) The public interest requires the deferring of claims of | 958 |
exposed individuals who are not sick in order to preserve, now and | 959 |
for the future, defendants' ability to compensate people who | 960 |
develop cancer and other serious asbestos-related injuries and to | 961 |
safeguard the jobs, benefits, and savings of the state's employees | 962 |
and the well being of the Ohio economy. | 963 |
(B) In enacting sections 2307.91 to 2307.98 of the Revised | 964 |
Code, it is the intent of the General Assembly to: (1) give | 965 |
priority to those asbestos claimants who can demonstrate actual | 966 |
physical harm or illness caused by exposure to asbestos; (2) fully | 967 |
preserve the rights of claimants who were exposed to asbestos to | 968 |
pursue compensation should those claimants become impaired in the | 969 |
future as a result of such exposure; (3) enhance the ability of | 970 |
the state's judicial systems and federal judicial systems to | 971 |
supervise and control litigation and asbestos-related bankruptcy | 972 |
proceedings; and (4) conserve the scarce resources of the | 973 |
defendants to allow compensation of cancer victims and others who | 974 |
are physically impaired by exposure to asbestos while securing the | 975 |
right to similar compensation for those who may suffer physical | 976 |
impairment in the future. | 977 |
Section 4. (A) As used in this section, "asbestos," "asbestos | 978 |
claim," "exposed person," and "substantial contributing factor" | 979 |
have the same meanings as in section 2307.91 of the Revised Code. | 980 |
(B) The General Assembly acknowledges the Supreme Court's | 981 |
authority in prescribing rules governing practice and procedure in | 982 |
the courts of this state, as provided by Section 5 of Article IV | 983 |
of the Ohio Constitution. | 984 |
(C) The General Assembly hereby requests the Supreme Court to | 985 |
adopt rules to specify procedures for venue and consolidation of | 986 |
asbestos claims brought pursuant to sections 2307.91 to 2307.95 of | 987 |
the Revised Code. | 988 |
(D) With respect to procedures for venue in regard to | 989 |
asbestos claims, the General Assembly hereby requests the Supreme | 990 |
Court to adopt a rule that requires that an asbestos claim meet | 991 |
specific nexus requirements, including the requirement that the | 992 |
plaintiff be domiciled in Ohio or that Ohio is the state in which | 993 |
the plaintiff's exposure to asbestos is a substantial contributing | 994 |
factor. | 995 |
(E) With respect to procedures for consolidation of asbestos | 996 |
claims, the General Assembly hereby requests the Supreme Court to | 997 |
adopt a rule that permits consolidation of asbestos claims only | 998 |
with the consent of all parties, and in absence of that consent, | 999 |
permits a court to consolidate for trial only those asbestos | 1000 |
claims that relate to the same exposed person and members of the | 1001 |
exposed person's household. | 1002 |
Section 5. It is the intent of the General Assembly in | 1003 |
enacting section 2307.96 of the Revised Code in this act to | 1004 |
establish specific factors to be considered when determining | 1005 |
whether a particular plaintiff's exposure to a particular | 1006 |
defendant's asbestos was a substantial factor in causing the | 1007 |
plaintiff's injury or loss. The consideration of these factors | 1008 |
involving the plaintiff's proximity to the asbestos exposure, | 1009 |
frequency of the exposure, or regularity of the exposure in tort | 1010 |
actions involving exposure to asbestos is consistent with the | 1011 |
factors listed by the court in Lohrmann v. Pittsburgh Corning Cor. | 1012 |
(4th Cir. 1986), 782 F.2d 1156. The General Assembly by its | 1013 |
enactment of those factors intends to clarify and define for | 1014 |
judges and juries that evidence which is relevant to the common | 1015 |
law requirement that plaintiff must prove proximate causation. It | 1016 |
recognizes this section's language is contrary to the language | 1017 |
contained in paragraph 2 of the Syllabus of the Ohio Supreme Court | 1018 |
in Horton v. Harwick Chemical Corp. (1995), 73 Ohio St.3d 679. | 1019 |
However, the General Assembly also recognizes that the courts of | 1020 |
Ohio prior to the Horton decision generally followed the rationale | 1021 |
of the Lohrmann decision in determining whether plaintiff had | 1022 |
submitted any evidence that a particular defendant's product was a | 1023 |
substantial cause of the plaintiff's injury in tort actions | 1024 |
involving exposure to certain hazardous or toxic substances, and | 1025 |
that the Lohrmann factors were of great assistance to the trial | 1026 |
courts in the consideration of summary judgment motions and to | 1027 |
juries when deciding issues of proximate causation. The General | 1028 |
Assembly further recognizes that a large number of states have | 1029 |
adopted this standard. It has also held hearings where medical | 1030 |
evidence has been submitted indicating such a standard is | 1031 |
medically appropriate and is scientifically sound public policy. | 1032 |
The Lohrmann standard provides litigants, juries, and the courts | 1033 |
of Ohio an objective and easily applied standard for determining | 1034 |
whether a plaintiff has submitted evidence sufficient to sustain | 1035 |
plaintiff's burden of proof as to proximate causation. Where | 1036 |
specific evidence of frequency of exposure, proximity and length | 1037 |
of exposure to a particular defendant's asbestos is lacking, | 1038 |
summary judgment is appropriate in tort actions involving asbestos | 1039 |
because such a plaintiff lacks any evidence of an essential | 1040 |
element necessary to prevail. To submit a legal concept such as a | 1041 |
"substantial factor" to a jury in these complex cases without such | 1042 |
scientifically valid defining factors would be to invite | 1043 |
speculation on the part of juries, something that the General | 1044 |
Assembly has determined not to be in the best interests of Ohio | 1045 |
and its courts. | 1046 |
Section 6. If any item of law that constitutes the whole or | 1047 |
part of a section of law contained in this act, or if any | 1048 |
application of any item of law that constitutes the whole or part | 1049 |
of a section of law contained in this act, is held invalid, the | 1050 |
invalidity does not affect other items of law or applications of | 1051 |
items of law that can be given effect without the invalid item of | 1052 |
law or application. To this end, the items of law of which the | 1053 |
sections contained in this act are composed, and their | 1054 |
applications, are independent and severable. | 1055 |
Section 7. If any item of law that constitutes the whole or | 1056 |
part of a section of law contained in this act, or if any | 1057 |
application of any item of law contained in this act, is held to | 1058 |
be preempted by federal law, the preemption of the item of law or | 1059 |
its application does not affect other items of law or applications | 1060 |
that can be given affect. The items of law of which the sections | 1061 |
of this act are composed, and their applications, are independent | 1062 |
and severable. | 1063 |
Section 8. The General Assembly hereby requests the Supreme | 1064 |
Court to collect data regarding the number of awards made pursuant | 1065 |
to section 2323.42 or 2323.51 of the Revised Code to parties to | 1066 |
civil actions in the courts of common pleas who were adversely | 1067 |
affected by frivolous conduct as defined in section 2323.51 of the | 1068 |
Revised Code or by the bringing of a civil action for which there | 1069 |
was not a reasonable good faith basis. | 1070 |