As Reported by the Senate Judiciary Committee

125th General Assembly
Regular Session
2003-2004
Sub. H. B. No. 292


REPRESENTATIVES Oelslager, Seitz, Widener, Aslanides, Collier, Daniels, Faber, Flowers, Schaffer, Setzer



A BILL
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


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

       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, or suppression of evidence, a prima-facie showing pursuant 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 action798
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 or811
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 be814
maintained as a class action.815

       (C) When a court issues an order that vacates or sets aside a816
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 the effective date of 821
this amendmentJuly22, 1998, and all claims filed or actions 822
commenced on or after the effective date of this amendmentJuly823
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