REPRESENTATIVE Widener

To enact sections 2307.84 to 2307.90 and section

1

2307.901 of the Revised Code to establish minimum

2

medical requirements for filing certain silica

3

claims or mixed dust disease claims, to establish

4

premises liability in relation to those claims,

5

and to prescribe the requirements for shareholder

6

liability for those claims under the doctrine of

7

piercing the corporate veil.

8

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

Section 1. That sections 2307.84, 2307.85, 2307.86, 2307.87,	9
2307.88, 2307.89, 2307.90, and 2307.901 of the Revised Code be	10
enacted to read as follows:	11

Sec. 2307.84.  As used in sections 2307.84 to 2307.90 of the	12
Revised Code:	13

(A) "AMA guides to the evaluation of permanent impairment"	14
means the American medical association's guides to the evaluation	15
of permanent impairment (fifth edition 2000) as may be modified by	16
the American medical association.	17

(B) "Board-certified internist" means a medical doctor who is	18
currently certified by the American board of internal medicine.	19

(C) "Board-certified occupational medicine specialist" means	20
a medical doctor who is currently certified by the American board	21
of internal medicine or the American board of preventive medicine	22
in the specialty of occupational medicine.	23

(D) "Board-certified oncologist" means a medical doctor who	24
is currently certified by the American board of internal medicine	25
in the subspecialty of medical oncology.	26

(E) "Board-certified pathologist" means a medical doctor who	27
is currently certified by the American board of pathology.	28

(F) "Board-certified pulmonary specialist" means a medical	29
doctor who is currently certified by the American board of	30
internal medicine in the subspecialty of pulmonary medicine.	31

(G) "Certified B-reader" means an individual qualified as a	32
"final" or "B-reader" as defined in 42 C.F.R. section 37.51(b), as	33
amended.	34

(H) "Exposed person" means either of the following, whichever	35
is applicable:	36

(1) A person whose exposure to silica is the basis for a	37
silica claim under section 2307.85 of the Revised Code;	38

(2) A person whose exposure to mixed dust is the basis for a	39
mixed dust disease claim under section 2307.86 of the Revised	40
Code.	41

(I) "Forced vital capacity" means forced vital capacity that	42
is maximal volume of air expired with maximum effort from a	43
position of full inspiration.	44

(J) "ILO scale" means the system for the classification of	45
chest x-rays set forth in the international labour office's	46
guidelines for the use of ILO international classification of	47
radiographs of pneumoconioses (1980), as amended.	48

(K) "Lung cancer" means a malignant tumor in which the	49
primary site of origin of the cancer is inside the lungs.	50

(L) "Mixed dust" means a mixture of dusts composed of silica	51
or asbestos or one or more other dusts.	52

(M) "Mixed dust disease claim" means any claim for damages,	53
losses, indemnification, contribution, or other relief arising out	54
of, based on, or in any way related to mixed dust pneumoconiosis.	55
"Mixed dust disease claim" includes a claim made by or on behalf	56
of any person who has been exposed to mixed dust, or any	57
representative, spouse, parent, child, or other relative of that	58
person, for injury, including mental or emotional injury, death,	59
or loss to person, risk of disease or other injury, costs of	60
medical monitoring or surveillance, or any other effects on the	61
person's health that are caused by the person's exposure to mixed	62
dust.	63

(N) "Mixed dust pneumoconiosis" means the interstitial lung	64
disease caused by the pulmonary response to inhaled mixed dusts.	65

(O) "Nonmalignant condition" means a condition, other than a	66
diagnosed cancer, that is caused or may be caused by either of the	67
following, whichever is applicable:	68

(1) Silica, as provided in section 2307.85 of the Revised	69
Code;	70

(2) Mixed dust, as provided in section 2307.86 of the Revised	71
Code.	72

(P) "Pathological evidence of mixed dust pneumoconiosis"	73
means a statement by a board-certified pathologist that more than	74
one representative section of lung tissue uninvolved with any	75
other disease process demonstrates a pattern of peribronchiolar	76
and parenchymal stellate (star-shaped) nodular scarring and that	77
there is no other more likely explanation for the presence of the	78
fibrosis.	79

(Q) "Pathological evidence of silicosis" means a statement by	80
a board-certified pathologist that more than one representative	81
section of lung tissue uninvolved with any other disease process	82
demonstrates a pattern of round silica nodules (well-organized	83
concentric whorls of collagen surrounded by inflammatory cells) in	84
the lung parenchyma and that there is no other more likely	85
explanation for the presence of the fibrosis.	86

(R) "Physical impairment" means any of the following,	87
whichever is applicable:	88

(1) A nonmalignant condition that meets the minimum	89
requirements of division (B) of section 2307.85 of the Revised	90
Code or lung cancer of an exposed person who is a smoker that	91
meets the minimum requirements of division (C) of section 2307.85	92
of the Revised Code;	93

(2) A nonmalignant condition that meets the minimum	94
requirements of division (B) of section 2307.86 of the Revised	95
Code or lung cancer of an exposed person who is a smoker that	96
meets the minimum requirements of division (C) of section 2307.86	97
of the Revised Code.	98

(S) "Plethysmography" means a test for determining lung	99
volume, also known as "body plethysmography," in which the subject	100
of the test is enclosed in a chamber that is equipped to measure	101
pressure, flow, or volume changes.	102

(T) "Predicted lower limit of normal" means the fifth	103
percentile of healthy populations based on age, height, and	104
gender, as referenced in the AMA guides to the evaluation of	105
permanent impairment.	106

(U) "Premises owner" means a person who owns, in whole or in	107
part, leases, rents, maintains, or controls privately owned lands,	108
ways, or waters, or any buildings and structures on those lands,	109
ways, or waters, and all privately owned and state-owned lands,	110
ways, or waters leased to a private person, firm, or organization,	111
including any buildings and structures on those lands, ways, or	112
waters.	113

(V) "Qualified physician" means a medical doctor who is	114
providing a diagnosis for purposes of constituting prima-facie	115
evidence of an exposed person's physical impairment that meets the	116
requirements specified in section 2307.85 or 2307.86 of the	117
Revised Code, whichever is applicable, and who meets the following	118
requirements:	119

(1) The medical doctor is a board-certified internist,	120
pulmonary specialist, oncologist, pathologist, or occupational	121
medicine specialist.	122

(2) The medical doctor is actually treating or has treated	123
the exposed person and has or had a doctor-patient relationship	124
with the person.	125

(3) The medical doctor spends not more than twenty-five per	126
cent of the medical doctor's professional practice time in	127
providing consulting or expert services in connection with actual	128
or potential tort actions, and the medical doctor's medical group,	129
professional corporation, clinic, or other affiliated group earns	130
not more than twenty per cent of its revenues from providing those	131
services.	132

(W) "Radiological evidence of mixed dust pneumoconiosis"	133
means a chest x-ray showing irregular opacities in the upper lung	134
fields graded by a certified B-reader as at least 1/1 on the ILO	135
scale.	136

(X) "Radiological evidence of silicosis" means a chest x-ray	137
showing small rounded opacities in the upper lung fields graded by	138
a certified B-reader as at least 1/1 on the ILO scale.	139

(Y) "Regular basis" means on a frequent or recurring basis.

140

(Z) "Silica" means a group of naturally occurring crystalline	141
forms of silicon dioxide, including, but not limited to, quartz	142
and sand.	143

(AA) "Silica claim" means any claim for damages, losses,	144
indemnification, contribution, or other relief arising out of,	145
based on, or in any way related to silica. "Silica claim" includes	146
a claim made by or on behalf of any person who has been exposed to	147
silica, or any representative, spouse, parent, child, or other	148
relative of that person, for injury, including mental or emotional	149
injury, death, or loss to person, risk of disease or other injury,	150
costs of medical monitoring or surveillance, or any other effects	151
on the person's health that are caused by the person's exposure to	152
silica.	153

(BB) "Silicosis" means an interstitial lung disease caused by	154
the pulmonary response to inhaled silica.	155

(CC) "Smoker" means a person who has smoked the equivalent of	156
one-pack year, as specified in the written report of a qualified	157
physician pursuant to section 2307.85 or 2307.86 and section	158
2307.87 of the Revised Code, during the last fifteen years.	159

(DD) "Spirometry" means the measurement of volume of air	160
inhaled or exhaled by the lung.	161

(EE) "Substantial contributing factor" means both of the	162
following:	163

(1) Exposure to silica or mixed dust is the predominate cause	164
of the physical impairment alleged in the silica claim or mixed	165
dust disease claim, whichever is applicable.	166

(2) A qualified physician has determined with a reasonable	167
degree of medical certainty that the physical impairment of the	168
exposed person would not have occurred but for the silica or mixed	169
dust exposures.	170

(FF) "Substantial occupational exposure to silica" means	171
employment for a cumulative period of at least five years in an	172
industry and an occupation in which, for a substantial portion of	173
a normal work year for that occupation, the exposed person did any	174
of the following:	175

(1) Handled silica;

176

(2) Fabricated silica-containing products so that the person	177
was exposed to silica in the fabrication process;	178

(3) Altered, repaired, or otherwise worked with a	179
silica-containing product in a manner that exposed the person on a	180
regular basis to silica;	181

(4) Worked in close proximity to other workers engaged in any	182
of the activities described in division (FF)(1), (2), or (3) of	183
this section in a manner that exposed the person on a regular	184
basis to silica.	185

(GG) "Substantial occupational exposure to mixed dust" 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 mixed dust;

191

(2) Fabricated mixed dust-containing products so that the	192
person was exposed to mixed dust in the fabrication process;	193

(3) Altered, repaired, or otherwise worked with a mixed	194
dust-containing product in a manner that exposed the person on a	195
regular basis to mixed dust;	196

(4) Worked in close proximity to other workers engaged in any	197
of the activities described in division (GG)(1), (2), or (3) of	198
this section in a manner that exposed the person on a regular	199
basis to mixed dust.	200

(HH) "Timed gas dilution" means a method for measuring total	201
lung capacity in which the subject breathes into a spirometer	202
containing a known concentration of an inert and insoluble gas for	203
a specific time, and the concentration of the inert and insoluble	204
gas in the lung is then compared to the concentration of that type	205
of gas in the spirometer.	206

(II) "Tort action" means a civil action for damages for	207
injury, death, or loss to person. "Tort action" includes a product	208
liability claim that is subject to sections 2307.71 to 2307.80 of	209
the Revised Code or a silica claim or mixed dust claim that is	210
subject to sections 2307.84 to 2307.88 of the Revised Code. "Tort	211
action" does not include any of the following:	212

(1) A civil action for damages for a breach of contract or	213
another agreement between persons;	214

(2) A civil action relating to any workers' compensation law;

215

(3) A civil action alleging any claim or demand made against	216
a trust established pursuant to 11 U.S.C. section 524(g);	217

(4) A civil action alleging any claim or demand made against	218
a trust established pursuant to a plan of reorganization confirmed	219
under Chapter 11 of the United States Bankruptcy Code.	220

(JJ) "Total lung capacity" means the volume of air contained	221
in the lungs at the end of a maximal inspiration.	222

(KK) "Veterans' benefit program" means any program for	223
benefits in connection with military service administered by the	224
veterans' administration under title 38 of the United States Code.	225

(LL) "Workers' compensation law" means Chapters 4121., 4123.,	226
4127., and 4131. of the Revised Code.	227

Sec. 2307.85. (A) Physical impairment of the exposed person,	228
to which the person's exposure to silica is a substantial	229
contributing factor, shall be an essential element of a silica	230
claim in any tort action.	231

(B) No person shall bring or maintain a tort action alleging	232
a silica claim based on a nonmalignant condition in the absence of	233
a prima-facie showing, in the manner described in division (A) of	234
section 2307.87 of the Revised Code, that the exposed person has a	235
physical impairment, that the physical impairment is a result of a	236
medical condition, and that the person's exposure to silica is a	237
substantial contributing factor to the medical condition. That	238
prima-facie showing shall include all of the following minimum	239
requirements:	240

(1) Evidence verifying that a qualified physician has taken a	241
detailed occupational and exposure history of the exposed person	242
from the exposed person or, if that person is deceased, from the	243
person who is most knowledgeable about the exposures that form the	244
basis of the silica claim for a nonmalignant condition, including	245
all of the following:	246

(a) All of the exposed person's principal places of	247
employment and exposures to airborne contaminants;	248

(b) Whether each place of employment involved exposures to	249
airborne contaminants, including, but not limited to, silica or	250
other disease causing dusts, that can cause pulmonary impairment	251
and, if that type of exposure is involved, the nature, duration,	252
and level of exposure.	253

(2) Evidence verifying that a qualified physician has taken a	254
detailed medical and smoking history of the exposed person,	255
including a thorough review of the exposed person's past and	256
present medical problems and the most probable causes of those	257
medical problems;	258

(3) A diagnosis by a qualified physician, based on a medical	259
examination and pulmonary function testing of the exposed person,	260
that all of the following apply to the exposed person:	261

(a) The exposed person has a permanent respiratory impairment	262
rating of at least class 2 as defined by and evaluated pursuant to	263
the AMA guides to the evaluation of permanent impairment.	264

(b) The exposed person has silicosis based at a minimum on	265
radiological or pathological evidence of silicosis. In the case of	266
death of an exposed person, if no pulmonary function testing	267
results are available, the pathological or radiological evidence	268
of silicosis and evidence from a qualified physician who treated	269
the exposed person showing that the silicosis was a substantial	270
contributing factor of the exposed person's physical impairment	271
prior to death or a substantial contributing factor of the exposed	272
person's death are sufficient to satisfy the minimum requirements	273
for a prima-facie showing under division (B) of this section.	274

(c) The silicosis described in division (B)(3)(b) of this	275
section is a substantial contributing factor to the exposed	276
person's physical impairment or death, based at a minimum on a	277
determination that the exposed person has any of the following:	278

(i) A forced vital capacity below the predicted lower limit	279
of normal;	280

(ii) A total lung capacity, by plethysmography or timed gas	281
dilution, below the predicted lower limit of normal;	282

(iii) A chest x-ray showing small, rounded opacities in the	283
upper lung fields graded by a certified B-reader at least 1/1 on	284
the ILO scale.	285

(C)(1) No person shall bring or maintain a tort action	286
alleging a silica claim based upon lung cancer of an exposed	287
person who is a smoker, in the absence of a prima-facie showing,	288
in the manner described in division (A) of section 2307.87 of the	289
Revised Code, of all of the following minimum requirements:	290

(a) A diagnosis by a board-certified pathologist,	291
board-certified pulmonary specialist, or board-certified	292
oncologist that the exposed person has primary lung cancer and	293
that exposure to silica is a substantial contributing factor to	294
that cancer;	295

(b) Evidence that is sufficient to demonstrate that at least	296
ten years have elapsed from the date of the exposed person's first	297
exposure to silica until the date of diagnosis of the exposed	298
person's primary lung cancer. The ten-year latency period	299
described in this division is a rebuttable presumption and the	300
plaintiff has the burden of proof to rebut the presumption.	301

(c) Both of the following:

302

(i) Radiological or pathological evidence of silicosis;

303

(ii) Evidence of the exposed person's substantial	304
occupational exposure to silica.	305

(2) If a plaintiff files a tort action that alleges a silica	306
claim based upon lung cancer of an exposed person who is a smoker	307
and further alleges in the action that the plaintiff's exposure to	308
silica was the result of living with another person who, if the	309
tort action had been filed by the other person, would have met the	310
requirements specified in division (C)(1)(c) of this section and	311
that the plaintiff lived with the other person for the period of	312
time specified in division (FF) of section 2307.84 of the Revised	313
Code, the plaintiff is considered as having satisfied the	314
requirements specified in division (C)(1)(c) of this section.	315

(D) Evidence relating to physical impairment under this	316
section, including pulmonary function testing and diffusing	317
studies, shall comply with the technical recommendations for	318
examinations, testing procedures, quality assurance, quality	319
control, and equipment incorporated in the AMA guides to the	320
evaluation of permanent impairment and reported as set forth in 20	321
C.F.R. Pt. 404, Subpt. P, App. 1, Part A, Sec. 3.00 E. and F., and	322
the interpretive standards set forth in the official statement of	323
the American thoracic society entitled "lung function testing:	324
selection of reference values and interpretive strategies" as	325
published in American review of respiratory disease,	326
1991:144:1202-1218.	327

(E) All of the following apply to the presentation of	328
prima-facie evidence that meets the requirements of division (B)	329
or (C) of this section:	330

(1) It does not result in any presumption at trial that the	331
exposed person has a physical impairment that is caused by a	332
silica-related condition.	333

(2) It is not conclusive as to the liability of any defendant	334
in the case.	335

(3) It is not admissible at trial.

336

Sec. 2307.86.  (A) Physical impairment of the exposed person,	337
to which the person's exposure to mixed dust is a substantial	338
contributing factor, shall be an essential element of a mixed dust	339
disease claim in any tort action.	340

(B) No person shall bring or maintain a tort action alleging	341
a mixed dust disease claim based on a nonmalignant condition in	342
the absence of a prima-facie showing, in the manner described in	343
division (A) of section 2307.87 of the Revised Code, that the	344
exposed person has a physical impairment, that the physical	345
impairment is a result of a medical condition, and that the	346
person's exposure to mixed dust is a substantial contributing	347
factor to the medical condition. That prima-facie showing shall	348
include all of the following minimum requirements:	349

(1) Evidence verifying that a qualified physician has taken a	350
detailed occupational and exposure history of the exposed person	351
from the exposed person or, if that person is deceased, from the	352
person who is most knowledgeable about the exposures that form the	353
basis of the mixed dust disease claim for a nonmalignant	354
condition, including all of the following:	355

(a) All of the exposed person's principal places of	356
employment and exposures to airborne contaminants;	357

(b) Whether each place of employment involved exposures to	358
airborne contaminants, including, but not limited to, mixed dust,	359
that can cause pulmonary impairment and, if that type of exposure	360
is involved, the nature, duration, and level of the exposure;	361

(2) Evidence verifying that a qualified physician has taken a	362
detailed medical and smoking history of the exposed person,	363
including a thorough review of the exposed person's past and	364
present medical problems and the most probable causes of those	365
medical problems;	366

(3) A diagnosis by a qualified physician, based on a medical	367
examination and pulmonary function testing of the exposed person,	368
that all of the following apply to the exposed person:	369

(a) The exposed person has a permanent respiratory impairment	370
rating of at least class 2 as defined by and evaluated pursuant to	371
the AMA guides to the evaluation of permanent impairment.	372

(b) The exposed person has mixed dust pneumoconiosis, based	373
at a minimum on radiological or pathological evidence of mixed	374
dust pneumoconiosis. In the case of death of an exposed person, if	375
no pulmonary function testing results are available, the	376
pathological or radiological evidence of mixed dust pneumoconiosis	377
and evidence from a qualified physician who treated the exposed	378
person showing that the mixed dust pneumoconiosis was a	379
substantial contributing factor of the exposed person's physical	380
impairment prior to death or a substantial contributing factor of	381
the exposed person's death are sufficient to satisfy the minimum	382
requirements for a prima-facie showing under division (B) of this	383
section.	384

(c) The mixed dust pneumoconiosis described in division	385
(B)(3)(b) of this section is a substantial contributing factor to	386
the exposed person's physical impairment or death, based at a	387
minimum on a determination that the exposed person has any of the	388
following:	389

(i) A forced vital capacity below the predicted lower limit	390
of normal;	391

(ii) A total lung capacity, by plethysmography or timed gas	392
dilution, below the predicted lower limit of normal;	393

(iii) A chest x-ray showing irregular stellate (star-shaped)	394
opacities in the upper lung field graded by a certified B-reader	395
at least 1/1 on the ILO scale.	396

(C)(1) No person shall bring or maintain a tort action	397
alleging a mixed dust disease claim based upon lung cancer of an	398
exposed person who is a smoker, in the absence of a prima-facie	399
showing, in the manner described in division (A) of section	400
2307.87 of the Revised Code, of all of the following minimum	401
requirements:	402

(a) A diagnosis by a board-certified pathologist,	403
board-certified pulmonary specialist, or board-certified	404
oncologist that the exposed person has primary lung cancer and	405
that exposure to mixed dust is a substantial contributing factor	406
to that cancer;	407

(b) Evidence that is sufficient to demonstrate that at least	408
ten years have elapsed from the date of the exposed person's first	409
exposure to mixed dust until the date of diagnosis of the exposed	410
person's primary lung cancer. The ten-year latency period	411
described in this division is a rebuttable presumption, and the	412
plaintiff has the burden of proof to rebut the presumption.	413

(c) Both of the following:

414

(i) Radiological or pathological evidence of mixed dust	415
pneumoconiosis;	416

(ii) Evidence of the exposed person's substantial	417
occupational exposure to mixed dust.	418

(2) If a plaintiff files a tort action that alleges a mixed	419
dust disease claim based upon lung cancer of an exposed person who	420
is a smoker and further alleges in the action that the plaintiff's	421
exposure to mixed dust was the result of living with another	422
person who, if the tort action had been filed by the other person,	423
would have met the requirements specified in division (C)(1)(c) of	424
this section and that the plaintiff lived with the other person	425
for the period of time specified in division (GG) of section	426
2307.84 of the Revised Code, the plaintiff is considered as having	427
satisfied the requirements specified in division (C)(1)(c) of this	428
section.	429

(D) Evidence relating to physical impairment under this	430
section, including pulmonary function testing and diffusing	431
studies, shall comply with the technical recommendations for	432
examinations, testing procedures, quality assurance, quality	433
control, and equipment incorporated in the AMA guides to the	434
evaluation of permanent impairment and reported as set forth in 20	435
C.F.R. Pt. 404, Subpt. P, App. 1, Part A, Sec. 3.00 E. and F., and	436
the interpretive standards set forth in the official statement of	437
the American thoracic society entitled "lung function testing:	438
selection of reference values and interpretive strategies" as	439
published in American review of respiratory disease,	440
1991:144:1202-1218.	441

(E) All of the following apply to the presentation of	442
prima-facie evidence that meets the requirements of division (B)	443
or (C) of this section:	444

(1) It does not result in any presumption at trial that the	445
exposed person has a physical impairment that is caused by a mixed	446
dust-related condition.	447

(2) It is not conclusive as to the liability of any defendant	448
in the case.	449

(3) It is not admissible at trial.

450

Sec. 2307.87. (A) The plaintiff in any tort action who	451
alleges a silica claim or a mixed dust disease claim shall file,	452
within thirty days after filing the complaint or other initial	453
pleading, a written report and supporting test results	454
constituting prima-facie evidence of the exposed person's physical	455
impairment that meets the minimum requirements specified in	456
division (B) or (C) of section 2307.85 or division (B) or (C) of	457
section 2307.86 of the Revised Code, whichever is applicable. With	458
respect to any silica claim or mixed dust disease claim that is	459
pending on the effective date of this section, the plaintiff shall	460
file the written report and supporting test results described in	461
this division within one hundred twenty days following the	462
effective date of this section. The defendant in the case shall be	463
afforded a reasonable opportunity, upon the defendant's motion, to	464
challenge the adequacy of the proffered prima-facie evidence of	465
the physical impairment for failure to comply with the minimum	466
requirements specified in division (B) or (C) of section 2307.85	467
or division (B) or (C) of section 2307.86 of the Revised Code,	468
whichever is applicable. The defendant has one hundred twenty days	469
from the date the prima-facie evidence of the exposed person's	470
physical impairment is proffered to challenge the adequacy of that	471
prima-facie evidence. If the defendant makes that challenge and	472
uses a physician to do so, the physician must meet the	473
requirements specified in divisions (V)(1) and (3) of section	474
2307.84 of the Revised Code.	475

(B) If the defendant challenges the adequacy of the	476
prima-facie evidence of the exposed person's physical impairment	477
as provided in division (A) of this section, the court shall	478
determine from all of the evidence submitted whether the proffered	479
prima-facie evidence meets the minimum requirements specified in	480
division (B) or (C) of section 2307.85 or division (B) or (C) of	481
section 2307.86 of the Revised Code, whichever is applicable. The	482
court shall resolve the issue of whether the plaintiff has made	483
the prima-facie showing required by any of those divisions as	484
applicable, by applying the standard for resolving a motion for	485
summary judgment.	486

(C) The court shall administratively dismiss the plaintiff's	487
claim without prejudice upon a finding of failure to make the	488
prima-facie showing required by division (B) or (C) of section	489
2307.85 or division (B) or (C) of section 2307.86 of the Revised	490
Code, whichever is applicable. The court shall maintain its	491
jurisdiction over any case that is administratively dismissed	492
under this division. Any plaintiff whose case has been	493
administratively dismissed may move to reinstate the plaintiff's	494
case if the plaintiff makes a prima-facie showing that meets the	495
minimum requirements specified in any of those divisions as	496
applicable.	497

Sec. 2307.88.  (A) Notwithstanding any other provision of the	498
Revised Code, with respect to any silica claim or mixed dust	499
disease claim based upon a nonmalignant condition that is not	500
barred as of the effective date of this section, the period of	501
limitations shall not begin to run until the exposed person	502
discovers, or through the exercise of reasonable diligence should	503
have discovered, that the person has a physical impairment due to	504
a nonmalignant condition.	505

(B) A silica claim or a mixed dust disease claim that arises	506
out of a nonmalignant condition shall be a distinct cause of	507
action from a silica claim or a mixed dust disease claim, as the	508
case may be, relating to the same exposed person that arises out	509
of silica-related cancer or mixed dust-related cancer. No damages	510
shall be awarded for fear or risk of cancer in any tort action	511
asserting only a silica claim or a mixed dust disease claim for a	512
nonmalignant condition.	513

(C) No settlement of a silica claim or a mixed dust disease	514
claim for a nonmalignant condition that is concluded after the	515
effective date of this section shall require, as a condition of	516
settlement, the release of any future claim for silica-related	517
cancer or mixed dust-related cancer.	518

Sec. 2307.89. The following apply to all tort actions for	519
silica or mixed dust disease claims brought against a premises	520
owner to recover damages or other relief for exposure to silica or	521
mixed dust on the premises owner's property:	522

(A) A premises owner is not liable for any injury to any	523
individual resulting from silica or mixed dust exposure unless	524
that individual's alleged exposure occurred while the individual	525
was at the premises owner's property.	526

(B) If exposure to silica or mixed dust is alleged to have	527
occurred before January 1, 1972, it is presumed that a premises	528
owner knew that this state had adopted safe levels of exposure for	529
silica or mixed dust and that products containing silica or mixed	530
dust were used on its property only at levels below those safe	531
levels of exposure. To rebut this presumption, the plaintiff must	532
prove by a preponderance of the evidence that the premises owner	533
knew or should have known that the levels of silica or mixed dust	534
in the immediate breathing zone of the plaintiff regularly	535
exceeded the threshold limit values adopted by this state and that	536
the premises owner allowed that condition to persist.	537

(C)(1) A premises owner is presumed to be not liable for any	538
injury to any invitee who is engaged to work with, install, or	539
remove products containing silica or mixed dust on the premises	540
owner's property if the invitee's employer holds itself out as	541
qualified to perform the work. To rebut this presumption, the	542
plaintiff must demonstrate by a preponderance of the evidence that	543
the premises owner has actual knowledge of the potential dangers	544
of the products containing silica or mixed dust that is superior	545
to the knowledge of both the invitee and the invitee's employer.	546

(2) A premises owner that hired a contractor before January	547
1, 1972, to perform the type of work at the premises owner's	548
property that the contractor was qualified to perform is not	549
liable for any injury to any individual resulting from silica or	550
mixed dust exposure caused by any of the contractor's employees or	551
agents on the premises owner's property unless the premises owner	552
directed the activity that resulted in the injury or gave or	553
denied permission for the critical acts that led to the	554
individual's injury.	555

(3) If exposure to silica or mixed dust is alleged to have	556
occurred after January 1, 1972, a premises owner is not liable for	557
any injury to any individual resulting from that exposure caused	558
by a contractor's employee or agent on the premises owner's	559
property unless the plaintiff establishes the premises owner's	560
intentional violation of an established safety standard that is in	561
effect at the time of the exposure and that the alleged violation	562
was in the plaintiff's breathing zone and was the proximate cause	563
of the plaintiff's medical condition.	564

(D) As used in this section:

565

(1) "Threshold limit values" means that, for the years 1946	566
through 1971, the concentration of silica or mixed dust in the	567
worker's breathing zone did not exceed the following maximum	568
allowable exposure limits for an eight-hour time-weighted average	569
airborne concentration:	570

(a) Silica, free or uncombined, over forty per cent: five	571
million particles per cubic foot. For purposes of the maximum	572
allowable concentrations for silica, the free silica content is	573
the per cent of free silica in the fraction of the airborne dust	574
in the breathing zone of the worker that is smaller than five	575
microns in maximum diameter.	576

(b) Silica, free or uncombined, between twenty and forty per	577
cent: ten million particles per cubic foot. For purposes of the	578
maximum allowable concentrations for silica, the free silica	579
content is the per cent of free silica in the fraction of the	580
airborne dust in the breathing zone of the worker that is smaller	581
than five microns in maximum diameter.	582

(c) Silica, free or uncombined, between ten and twenty per	583
cent: twenty million particles per cubic foot. For purposes of the	584
maximum allowable concentrations for silica, the free silica	585
content is the per cent of free silica in the fraction of the	586
airborne dust in the breathing zone of the worker that is smaller	587
than five microns in maximum diameter.	588

(2) "Established safety standard" means that, for the years	589
after 1971, the concentration of silica or mixed dust in the	590
breathing zone of the worker does not exceed the maximum allowable	591
exposure limits for the eight-hour time-weighted average airborne	592
concentration as promulgated by the occupational safety and health	593
administration (OSHA) in effect at the time of the alleged	594
exposure.	595

(3) "Employee" means an individual who performs labor or	596
provides construction services pursuant to a construction	597
contract, as defined in section 4123.79 of the Revised Code, or a	598
remodeling or repair contract, whether written or oral, if at	599
least ten of the following criteria apply:	600

(i) The individual is required to comply with instructions	601
from the other contracting party regarding the manner or method of	602
performing services.	603

(ii) The individual is required by the other contracting	604
party to have particular training.	605

(iii) The individual's services are integrated into the	606
regular functioning of the other contracting party.	607

(iv) The individual is required to perform the work	608
personally.	609

(v) The individual is hired, supervised, or paid by the other	610
contracting party.	611

(vi) A continuing relationship exists between the individual	612
and the other contracting party that contemplates continuing or	613
recurring work even if the work is not full time.	614

(vii) The individual's hours of work are established by the	615
other contracting party.	616

(viii) The individual is required to devote full time to the	617
business of the other contracting party.	618

(ix) The individual is required to perform the work on the	619
premises of the other contracting party.	620

(x) The individual is required to follow the order of work	621
set by the other contracting party.	622

(xi) The individual is required to make oral or written	623
reports of progress to the other contracting party.	624

(xii) The individual is paid for services on a regular basis,	625
including hourly, weekly, or monthly.	626

(xiii) The individual's expenses are paid for by the other	627
contracting party.	628

(xiv) The individual's tools and materials are furnished by	629
the other contracting party.	630

(xv) The individual is provided with the facilities used to	631
perform services.	632

(xvi) The individual does not realize a profit or suffer a	633
loss as a result of the services provided.	634

(xvii) The individual is not performing services for a number	635
of employers at the same time.	636

(xviii) The individual does not make the same services	637
available to the general public.	638

(xix) The other contracting party has a right to discharge	639
the individual.	640

(xx) The individual has the right to end the relationship	641
with the other contracting party without incurring liability	642
pursuant to an employment contract or agreement.	643

Sec. 2307.90. (A) Nothing in sections 2307.84 to 2307.90 of	644
the Revised Code is intended to do, and nothing in any of those	645
sections is interpreted to do, either of the following:	646

(1) Affect the rights of any party in bankruptcy proceedings;

647

(2) Affect the ability of any person who is able to make a	648
showing that the person satisfies the claim criteria for	649
compensable claims or demands under a trust established pursuant	650
to a plan of reorganization under Chapter 11 of the United States	651
Bankruptcy Code, to make a claim or demand against that trust.	652

(B) Sections 2307.84 to 2307.90 of the Revised Code shall not	653
affect the scope or operation of any workers' compensation law or	654
veterans' benefit program or the exclusive remedy of subrogation	655
under the provisions of that law or program and shall not	656
authorize any lawsuit that is barred by any provision of any	657
workers' compensation law.	658

Sec. 2307.901. (A) A holder has no obligation to, and has no	659
liability to, the covered entity or to any person with respect to	660
any obligation or liability of the covered entity in a silica	661
claim or a mixed dust disease claim under the doctrine of piercing	662
the corporate veil unless the person seeking to pierce the	663
corporate veil demonstrates all of the following:	664

(1) The holder exerted such control over the covered entity	665
that the covered entity had no separate mind, will, or existence	666
of its own.	667

(2) The holder caused the covered entity to be used for the	668
purpose of perpetrating, and the covered entity perpetrated an	669
actual fraud on the person seeking to pierce the corporate veil	670
primarily for the direct pecuniary benefit of the holder.	671

(3) The person seeking to pierce the corporate veil sustained	672
an injury or unjust loss as a direct result of the control	673
described in division (A)(1) of this section and the fraud	674
described in division (A)(2) of this section.	675

(B) A court shall not find that the holder exerted such	676
control over the covered entity that the covered entity did not	677
have a separate mind, will, or existence of its own or to have	678
caused the covered entity to be used for the purpose of	679
perpetrating a fraud solely as a result of any of the following	680
actions, events, or relationships:	681

(1) The holder is an affiliate of the covered entity and	682
provides legal, accounting, treasury, cash management, human	683
resources, administrative, or other similar services to the	684
covered entity, leases assets to the covered entity, or makes its	685
employees available to the covered entity.	686

(2) The holder loans funds to the covered entity or	687
guarantees the obligations of the covered entity.	688

(3) The officers and directors of the holder are also	689
officers and directors of the covered entity.	690

(4) The covered entity makes payments of dividends or other	691
distributions to the holder or repays loans owed to the holder.	692

(5) In the case of a covered entity that is a limited	693
liability company, the holder or its employees or agents serve as	694
the manager of the covered entity.	695

(C) The person seeking to pierce the corporate veil has the	696
burden of proof on each and every element of the person's claim	697
and must prove each element by a preponderance of the evidence.	698

(D) Any liability of the holder described in division (A) of	699
this section for an obligation or liability that is limited by	700
that division is exclusive and preempts any other obligation or	701
liability imposed upon that holder for that obligation or	702
liability under common law or otherwise.	703

(E) This section is intended to codify the elements of the	704
common law cause of action for piercing the corporate veil and to	705
abrogate the common law cause of action and remedies relating to	706
piercing the corporate veil in silica claims and mixed dust	707
disease claims. Nothing in this section shall be construed as	708
creating a right or cause of action that did not exist under the	709
common law as it existed on the effective date of this section.	710

(F) This section applies to all silica claims and mixed dust	711
disease claims commenced on or after the effective date of this	712
section or commenced prior to and pending on the effective date of	713
this section.	714

(G) This section applies to all actions asserting the	715
doctrine of piercing the corporate veil brought against a holder	716
if any of the following apply:	717

(1) The holder is an individual and resides in this state.

718

(2) The holder is a corporation organized under the laws of	719
this state.	720

(3) The holder is a corporation with its principal place of	721
business in this state.	722

(4) The holder is a foreign corporation that is authorized to	723
conduct or has conducted business in this state.	724

(5) The holder is a foreign corporation the parent	725
corporation of which is authorized to conduct business in this	726
state.	727

(6) The person seeking to pierce the corporate veil is a	728
resident of this state.	729

(H) As used in this section, unless the context otherwise	730
requires:	731

(1) "Affiliate" and "beneficial owner" have the same meanings	732
as in section 1704.01 of the Revised Code.	733

(2) "Mixed dust," "mixed dust disease claim," "silica," and	734
"silica claim" have the same meanings as in section 2307.84 of the	735
Revised Code.	736

(3) "Covered entity" means a corporation, limited liability	737
company, limited partnership, or any other entity organized under	738
the laws of any jurisdiction, domestic or foreign, in which the	739
shareholders, owners, or members are generally not responsible for	740
the debts and obligations of the entity. Nothing in this section	741
limits or otherwise affects the liabilities imposed on a general	742
partner of a limited partnership.	743

(4) "Holder" means a person who is the holder, beneficial	744
owner, or subscriber of shares or any other ownership interest of	745
a covered entity, a member of a covered entity, or an affiliate of	746
any person who is the holder, beneficial owner, or subscriber of	747
shares or any other ownership interest of a covered entity.	748

(5) "Piercing the corporate veil" means any and all common	749
law doctrines by which a holder may be liable for an obligation or	750
liability of a covered entity on the basis that the holder	751
controlled the covered entity, the holder is or was the alter ego	752
of the covered entity, or the covered entity has been used for the	753
purpose of actual or constructive fraud or as a sham to perpetrate	754
a fraud or any other common law doctrine by which the covered	755
entity is disregarded for purposes of imposing liability on a	756
holder for the debts or obligations of that covered entity.	757

(6) "Person" has the same meaning as in section 1701.01 of	758
the Revised Code.	759

Section 2. (A) As used in this section, "exposed person,"	760
"mixed dust," "mixed dust disease claim," "silica," "silica	761
claim," and "substantial contributing factor" have the same	762
meanings as in section 2307.84 of the Revised Code.	763

(B) The General Assembly acknowledges the Court's authority	764
in prescribing rules governing practice and procedure in the	765
courts of this state, as provided by Section 5 of Article IV of	766
the Ohio Constitution.	767

(C) The General Assembly hereby requests the Supreme Court to	768
adopt rules to specify procedures for venue and consolidation of	769
silica claims or mixed dust disease claims brought pursuant to	770
sections 2307.84 to 2307.90 of the Revised Code.	771

(D) With respect to procedures for venue in regard to silica	772
claims or mixed dust disease claims, the General Assembly hereby	773
requests the Supreme Court to adopt a rule that requires that a	774
silica claim or a mixed dust disease claim meet specific nexus	775
requirements, including the requirement that the plaintiff be	776
domiciled in Ohio or that Ohio is the state in which the	777
plaintiff's exposure to silica or mixed dust is a substantial	778
contributing factor.	779

(E) With respect to procedures for consolidation of silica	780
claims or mixed dust disease claims, the General Assembly hereby	781
requests the Supreme Court to adopt a rule that permits	782
consolidation of silica claims or mixed dust disease claims only	783
with the consent of all parties, and in absence of that consent,	784
permits a court to consolidate for trial only those silica claims	785
or mixed dust disease claims that relate to the same exposed	786
person and members of the exposed person's household.	787

Section 3.  If any item of law that constitutes the whole or	788
part of a section of law contained in this act, or if any	789
application of any item of law that constitutes the whole or part	790
of a section of law contained in this act, is held invalid, the	791
invalidity does not affect other items of law or applications of	792
items of law that can be given effect without the invalid item of	793
law or application. To this end, the items of law of which the	794
sections contained in this act are composed, and their	795
applications, are independent and severable.	796

Section 4. If any item of law that constitutes the whole or	797
part of a section of law contained in this act, or if any	798
application of any item of law contained in this act, is held to	799
be preempted by federal law, the preemption of the item of law or	800
its application does not affect other items of law or applications	801
that can be given affect. The items of law of which the sections	802
of this act are composed, and their applications, are independent	803
and severable.	804