SENATORS Hottinger, Stivers, Amstutz, Harris, Schuler

To amend section 2505.02 and to enact sections

1

2307.84 to 2307.90, 2307.901, and 2307.902 of the

2

Revised Code to establish minimum medical

3

requirements for filing certain silicosis claims

4

or mixed dust disease claims, to establish

5

premises liability in relation to those claims, to

6

specify a plaintiff's burden of proof in tort

7

actions involving exposure to silica or mixed

8

dust, and to prescribe the requirements for

9

shareholder liability for silicosis claims or

10

mixed dust disease claims under the doctrine of

11

piercing the corporate veil.

12

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

Section 1. That section 2505.02 be amended and sections	13
2307.84, 2307.85, 2307.86, 2307.87, 2307.88, 2307.89, 2307.90,	14
2307.901, and 2307.902 of the Revised Code be enacted to read as	15
follows:	16

Sec. 2307.84.  As used in sections 2307.84 to 2307.90 and	17
2307.901 of the Revised Code:	18

(A) "AMA guides to the evaluation of permanent impairment"	19
means the American medical association's guides to the evaluation	20
of permanent impairment (fifth edition 2000) as may be modified by	21
the American medical association.	22

(B) "Board-certified internist" means a medical doctor who is	23
currently certified by the American board of internal medicine.	24

(C) "Board-certified occupational medicine specialist" means	25
a medical doctor who is currently certified by the American board	26
of preventive medicine in the specialty of occupational medicine.	27

(D) "Board-certified oncologist" means a medical doctor who	28
is currently certified by the American board of internal medicine	29
in the subspecialty of medical oncology.	30

(E) "Board-certified pathologist" means a medical doctor who	31
is currently certified by the American board of pathology.	32

(F) "Board-certified pulmonary specialist" means a medical	33
doctor who is currently certified by the American board of	34
internal medicine in the subspecialty of pulmonary medicine.	35

(G) "Certified B-reader" means an individual qualified as a	36
"final" or "B-reader" as defined in 42 C.F.R. section 37.51(b), as	37
amended.	38

(H) "Civil action" means all suits or claims of a civil	39
nature in a state or federal court, whether cognizable as cases at	40
law or in equity or admiralty. "Civil action" does not include any	41
of the following:	42

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

43

(2) A civil action alleging any claim or demand made against	44
a trust established pursuant to 11 U.S.C. section 524(g);	45

(3) A civil action alleging any claim or demand made against	46
a trust established pursuant to a plan of reorganization confirmed	47
under Chapter 11 of the United States Bankruptcy Code, 11 U.S.C.	48
Chapter 11.	49

(I) "Competent medical authority" means a medical doctor who	50
is providing a diagnosis for purposes of constituting prima-facie	51
evidence of an exposed person's physical impairment that meets the	52
requirements specified in section 2307.85 or 2307.86 of the	53
Revised Code, whichever is applicable, and who meets the following	54
requirements:	55

(1) The medical doctor is a board-certified internist,	56
pulmonary specialist, oncologist, pathologist, or occupational	57
medicine specialist.	58

(2) The medical doctor is actually treating or has treated	59
the exposed person and has or had a doctor-patient relationship	60
with the person.	61

(3) As the basis for the diagnosis, the medical doctor has	62
not relied, in whole or in part, on any of the following:	63

(a) The reports or opinions of any doctor, clinic,	64
laboratory, or testing company that performed an examination,	65
test, or screening of the claimant's medical condition in	66
violation of any law, regulation, licensing requirement, or	67
medical code of practice of the state in which that examination,	68
test, or screening was conducted;	69

(b) The reports or opinions of any doctor, clinic,	70
laboratory, or testing company that performed an examination,	71
test, or screening of the claimant's medical condition that was	72
conducted without clearly establishing a doctor-patient	73
relationship with the claimant or medical personnel involved in	74
the examination, test, or screening process;	75

(c) The reports or opinions of any doctor, clinic,	76
laboratory, or testing company that performed an examination,	77
test, or screening of the claimant's medical condition that	78
required the claimant to agree to retain the legal services of the	79
law firm sponsoring the examination, test, or screening.	80

(4) The medical doctor spends not more than twenty-five per	81
cent of the medical doctor's professional practice time in	82
providing consulting or expert services in connection with actual	83
or potential tort actions, and the medical doctor's medical group,	84
professional corporation, clinic, or other affiliated group earns	85
not more than twenty per cent of its revenues from providing those	86
services.	87

(J) "Exposed person" means either of the following, whichever	88
is applicable:	89

(1) A person whose exposure to silica is the basis for a	90
silicosis claim under section 2307.85 of the Revised Code;	91

(2) A person whose exposure to mixed dust is the basis for a	92
mixed dust disease claim under section 2307.86 of the Revised	93
Code.	94

(K) "ILO scale" means the system for the classification of	95
chest x-rays set forth in the international labour office's	96
guidelines for the use of ILO international classification of	97
radiographs of pneumoconioses (2000), as amended.	98

(L) "Lung cancer" means a malignant tumor in which the	99
primary site of origin of the cancer is inside the lungs.	100

(M) "Mixed dust" means a mixture of dusts composed of silica	101
and one or more other fibrogenic dusts capable of inducing	102
pulmonary fibrosis if inhaled in sufficient quantity.	103

(N) "Mixed dust disease claim" means any claim for damages,	104
losses, indemnification, contribution, or other relief arising out	105
of, based on, or in any way related to inhalation of, exposure to,	106
or contact with mixed dust. "Mixed dust disease claim" includes a	107
claim made by or on behalf of any person who has been exposed to	108
mixed dust, or any representative, spouse, parent, child, or other	109
relative of that person, for injury, including mental or emotional	110
injury, death, or loss to person, risk of disease or other injury,	111
costs of medical monitoring or surveillance, or any other effects	112
on the person's health that are caused by the person's exposure to	113
mixed dust.	114

(O) "Mixed dust pneumoconiosis" means the interstitial lung	115
disease caused by the pulmonary response to inhaled mixed dusts.	116

(P) "Nonmalignant condition" means a condition, other than a	117
diagnosed cancer, that is caused or may be caused by either of the	118
following, whichever is applicable:	119

(1) Silica, as provided in section 2307.85 of the Revised	120
Code;	121

(2) Mixed dust, as provided in section 2307.86 of the Revised	122
Code.	123

(Q) "Pathological evidence of mixed dust pneumoconiosis"	124
means a statement by a board-certified pathologist that more than	125
one representative section of lung tissue uninvolved with any	126
other disease process demonstrates a pattern of peribronchiolar	127
and parenchymal stellate (star-shaped) nodular scarring and that	128
there is no other more likely explanation for the presence of the	129
fibrosis.	130

(R) "Pathological evidence of silicosis" means a statement by	131
a board-certified pathologist that more than one representative	132
section of lung tissue uninvolved with any other disease process	133
demonstrates a pattern of round silica nodules and birefringent	134
crystals or other demonstration of crystal structures consistent	135
with silica (well-organized concentric whorls of collagen	136
surrounded by inflammatory cells) in the lung parenchyma and that	137
there is no other more likely explanation for the presence of the	138
fibrosis.	139

(S) "Physical impairment" means any of the following,	140
whichever is applicable:	141

(1) A nonmalignant condition that meets the minimum	142
requirements of division (B) of section 2307.85 of the Revised	143
Code or lung cancer of an exposed person who is a smoker that	144
meets the minimum requirements of division (C) of section 2307.85	145
of the Revised Code;	146

(2) A nonmalignant condition that meets the minimum	147
requirements of division (B) of section 2307.86 of the Revised	148
Code or lung cancer of an exposed person who is a smoker that	149
meets the minimum requirements of division (C) of section 2307.86	150
of the Revised Code.	151

(T) "Premises owner" means a person who owns, in whole or in	152
part, leases, rents, maintains, or controls privately owned lands,	153
ways, or waters, or any buildings and structures on those lands,	154
ways, or waters, and all privately owned and state-owned lands,	155
ways, or waters leased to a private person, firm, or organization,	156
including any buildings and structures on those lands, ways, or	157
waters.	158

(U) "Radiological evidence of mixed dust pneumoconiosis"	159
means a chest x-ray showing bilateral rounded or irregular	160
opacities in the upper lung fields graded by a certified B-reader	161
as at least 1/1 on the ILO scale.	162

(V) "Radiological evidence of silicosis" means a chest x-ray	163
showing bilateral small rounded opacities (p, q, or r) in the	164
upper lung fields graded by a certified B-reader as at least 1/1	165
on the ILO scale.	166

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

167

(X) "Silica" means a respirable crystalline form of silicon	168
dioxide, including, but not limited to, alpha quartz,	169
cristobalite, and trydmite.	170

(Y) "Silicosis claim" means any claim for damages, losses,	171
indemnification, contribution, or other relief arising out of,	172
based on, or in any way related to inhalation of, exposure to, or	173
contact with silica. "Silicosis claim" includes a claim made by or	174
on behalf of any person who has been exposed to silica, or any	175
representative, spouse, parent, child, or other relative of that	176
person, for injury, including mental or emotional injury, death,	177
or loss to person, risk of disease or other injury, costs of	178
medical monitoring or surveillance, or any other effects on the	179
person's health that are caused by the person's exposure to	180
silica.	181

(Z) "Silicosis" means an interstitial lung disease caused by	182
the pulmonary response to inhaled silica.	183

(AA) "Smoker" means a person who has smoked the equivalent of	184
one-pack year, as specified in the written report of a competent	185
medical authority pursuant to section 2307.85 or 2307.86 and	186
section 2307.87 of the Revised Code, during the last fifteen	187
years.	188

(BB) "Substantial contributing factor" means both of the	189
following:	190

(1) Exposure to silica or mixed dust is the predominate cause	191
of the physical impairment alleged in the silicosis claim or mixed	192
dust disease claim, whichever is applicable.	193

(2) A competent medical authority has determined with a	194
reasonable degree of medical certainty that without the silica or	195
mixed dust exposures the physical impairment of the exposed person	196
would not have occurred.	197

(CC) "Substantial occupational exposure to silica" means	198
employment for a cumulative period of at least five years in an	199
industry and an occupation in which, for a substantial portion of	200
a normal work year for that occupation, the exposed person did any	201
of the following:	202

(1) Handled silica;

203

(2) Fabricated silica-containing products so that the person	204
was exposed to silica in the fabrication process;	205

(3) Altered, repaired, or otherwise worked with a	206
silica-containing product in a manner that exposed the person on a	207
regular basis to silica;	208

(4) Worked in close proximity to other workers engaged in any	209
of the activities described in division (CC)(1), (2), or (3) of	210
this section in a manner that exposed the person on a regular	211
basis to silica.	212

(DD) "Substantial occupational exposure to mixed dust" means	213
employment for a cumulative period of at least five years in an	214
industry and an occupation in which, for a substantial portion of	215
a normal work year for that occupation, the exposed person did any	216
of the following:	217

(1) Handled mixed dust;

218

(2) Fabricated mixed dust-containing products so that the	219
person was exposed to mixed dust in the fabrication process;	220

(3) Altered, repaired, or otherwise worked with a mixed	221
dust-containing product in a manner that exposed the person on a	222
regular basis to mixed dust;	223

(4) Worked in close proximity to other workers engaged in any	224
of the activities described in division (DD)(1), (2), or (3) of	225
this section in a manner that exposed the person on a regular	226
basis to mixed dust.	227

(EE) "Tort action" means a civil action for damages for	228
injury, death, or loss to person. "Tort action" includes a product	229
liability claim that is subject to sections 2307.71 to 2307.80 of	230
the Revised Code. "Tort action" does not include a civil action	231
for damages for a breach of contract or another agreement between	232
persons.	233

(FF) "Veterans' benefit program" means any program for	234
benefits in connection with military service administered by the	235
veterans' administration under title 38 of the United States Code.	236

(GG) "Workers' compensation law" means Chapters 4121., 4123.,	237
4127., and 4131. of the Revised Code.	238

Sec. 2307.85. (A) Physical impairment of the exposed person,	239
to which the person's exposure to silica is a substantial	240
contributing factor, shall be an essential element of a silicosis	241
claim in any tort action.	242

(B) No person shall bring or maintain a tort action alleging	243
a silicosis claim based on a nonmalignant condition in the absence	244
of a prima-facie showing, in the manner described in division (A)	245
of section 2307.87 of the Revised Code, that the exposed person	246
has a physical impairment, that the physical impairment is a	247
result of a medical condition, and that the person's exposure to	248
silica is a substantial contributing factor to the medical	249
condition. That prima-facie showing shall include all of the	250
following minimum requirements:	251

(1) Evidence verifying that a competent medical authority has	252
taken a detailed occupational and exposure history of the exposed	253
person from the exposed person or, if that person is deceased,	254
from the person who is most knowledgeable about the exposures that	255
form the basis of the silicosis claim for a nonmalignant	256
condition, including all of the following:	257

(a) All of the exposed person's principal places of	258
employment and exposures to airborne contaminants;	259

(b) Whether each principal place of employment involved	260
exposures to airborne contaminants, including, but not limited to,	261
silica or other disease causing dusts, that can cause pulmonary	262
impairment and, if that type of exposure is involved, the general	263
nature, duration, and general level of exposure.	264

(2) Evidence verifying that a competent medical authority has	265
taken a detailed medical and smoking history of the exposed	266
person, including a thorough review of the exposed person's past	267
and present medical problems and the most probable causes of those	268
medical problems;	269

(3) A diagnosis by a competent medical authority, based on a	270
medical examination and pulmonary function testing of the exposed	271
person, that both of the following apply to the exposed person:	272

(a) The exposed person has a permanent respiratory impairment	273
rating of at least class 2 as defined by and evaluated pursuant to	274
the AMA guides to the evaluation of permanent impairment.	275

(b) The exposed person has silicosis based at a minimum on	276
radiological or pathological evidence of silicosis.	277

(C) No person shall bring or maintain a tort action alleging	278
that silica caused that person to contract lung cancer if the	279
exposed person is or was also a smoker, in the absence of a	280
prima-facie showing, in the manner described in division (A) of	281
section 2307.87 of the Revised Code, that the exposed person has a	282
physical impairment, that the physical impairment is a result of a	283
medical condition, and that the person's exposure to silica is a	284
substantial contributing factor to the medical condition. That	285
prima-facie showing shall include all of the following minimum	286
requirements:	287

(1) A diagnosis by a competent medical authority that the	288
exposed person has primary lung cancer and that exposure to silica	289
is a substantial contributing factor to that cancer;	290

(2) Evidence that is sufficient to demonstrate that at least	291
ten years have elapsed from the date of the exposed person's first	292
exposure to silica until the date of diagnosis of the exposed	293
person's primary lung cancer. The ten-year latency period	294
described in this division is a rebuttable presumption and the	295
plaintiff has the burden of proof to rebut the presumption.	296

(3) Both of the following:

297

(a) Radiological or pathological evidence of silicosis;

298

(b) Evidence of the exposed person's substantial occupational	299
exposure to silica.	300

(D)(1) No person shall bring or maintain a tort action	301
alleging a silicosis claim based on wrongful death, as described	302
in section 2125.01 of the Revised Code, of an exposed person, in	303
the absence of a prima-facie showing, in the manner described in	304
division (A) of section 2307.87 of the Revised Code, that the	305
death of the exposed person was the result of a physical	306
impairment, that the death and physical impairment were the result	307
of a medical condition, and that the person's exposure to silica	308
was a substantial contributing factor to the medical condition.	309
That prima-facie showing shall include all of the following	310
minimum requirements:	311

(a) A diagnosis by a competent medical authority that	312
exposure to silica was a substantial contributing factor to the	313
death of the exposed person;	314

(b) Evidence that is sufficient to demonstrate that at least	315
ten years have elapsed from the date of the exposed person's first	316
exposure to silica until the date of diagnosis under division	317
(D)(1)(a) of this section or death of the exposed person. The	318
ten-year latency period described in this division is a rebuttable	319
presumption, and the plaintiff has the burden of proof to rebut	320
the presumption.	321

(c) Both of the following:

322

(i) Radiological or pathological evidence of silicosis;

323

(ii) Evidence of the exposed person's substantial	324
occupational exposure to silica.	325

(2) If a person files a tort action that alleges a silicosis	326
claim based on wrongful death, as described in section 2125.01 of	327
the Revised Code, of an exposed person and further alleges in the	328
action that the death of the exposed person was the result of	329
living with another person who, if the tort action had been filed	330
by the other person, would have met the requirements specified in	331
division (D)(1)(c) of this section and that the exposed person	332
lived with the other person for the period of time specified in	333
division (CC) of section 2307.84 ofthe Revised Code, the exposed	334
person is considered as having satisfied the requirements	335
specified in division (D)(1)(c) of this section.	336

(E) Evidence relating to physical impairment under this	337
section, including pulmonary function testing and diffusing	338
studies, shall comply with the technical recommendations for	339
examinations, testing procedures, quality assurance, quality	340
control, and equipment incorporated in the AMA guides to the	341
evaluation of permanent impairment and reported as set forth in 20	342
C.F.R. Pt. 404, Subpt. P, App. 1, Part A, Sec. 3.00 E. and F., and	343
the interpretive standards set forth in the official statement of	344
the American thoracic society entitled "lung function testing:	345
selection of reference values and interpretive strategies" as	346
published in American review of respiratory disease,	347
1991:144:1202-1218.	348

(F) All of the following apply to the court's decision on the	349
prima-facie showing that meets the requirements of division (B),	350
(C), or (D) of this section:	351

(1) The court's decision does not result in any presumption	352
at trial that the exposed person has a physical impairment that is	353
caused by a silica-related condition.	354

(2) The court's decision is not conclusive as to the	355
liability of any defendant in the case.	356

(3) The court's findings and decision are not admissible at	357
trial.	358

(4) If the trier of fact is a jury, the court shall not	359
instruct the jury with respect to the court's decision on the	360
prima-facie showing, and neither counsel for any party nor a	361
witness shall inform the jury or potential jurors of that showing.	362

Sec. 2307.86.  (A) Physical impairment of the exposed person,	363
to which the person's exposure to mixed dust is a substantial	364
contributing factor, shall be an essential element of a mixed dust	365
disease claim in any tort action.	366

(B) No person shall bring or maintain a tort action alleging	367
a mixed dust disease claim based on a nonmalignant condition in	368
the absence of a prima-facie showing, in the manner described in	369
division (A) of section 2307.87 of the Revised Code, that the	370
exposed person has a physical impairment, that the physical	371
impairment is a result of a medical condition, and that the	372
person's exposure to mixed dust is a substantial contributing	373
factor to the medical condition. That prima-facie showing shall	374
include all of the following minimum requirements:	375

(1) Evidence verifying that a competent medical authority has	376
taken a detailed occupational and exposure history of the exposed	377
person from the exposed person or, if that person is deceased,	378
from the person who is most knowledgeable about the exposures that	379
form the basis of the mixed dust disease claim for a nonmalignant	380
condition, including all of the following:	381

(a) All of the exposed person's principal places of	382
employment and exposures to airborne contaminants;	383

(b) Whether each principal place of employment involved	384
exposures to airborne contaminants, including, but not limited to,	385
mixed dust, that can cause pulmonary impairment and, if that type	386
of exposure is involved, the general nature, duration, and general	387
level of the exposure.	388

(2) Evidence verifying that a competent medical authority has	389
taken a detailed medical and smoking history of the exposed	390
person, including a thorough review of the exposed person's past	391
and present medical problems and the most probable causes of those	392
medical problems;	393

(3) A diagnosis by a competent medical authority, based on a	394
medical examination and pulmonary function testing of the exposed	395
person, that both of the following apply to the exposed person:	396

(a) The exposed person has a permanent respiratory impairment	397
rating of at least class 2 as defined by and evaluated pursuant to	398
the AMA guides to the evaluation of permanent impairment.	399

(b) The exposed person has mixed dust pneumoconiosis, based	400
at a minimum on radiological or pathological evidence of mixed	401
dust pneumoconiosis.	402

(C) No person shall bring or maintain a tort action alleging	403
that mixed dust caused that person to contract lung cancer if the	404
exposed person is or was also a smoker, in the absence of a	405
prima-facie showing, in the manner described in division (A) of	406
section 2307.87 of the Revised Code, that the exposed person has a	407
physical impairment, that the physical impairment is a result of a	408
medical condition, and that the person's exposure to mixed dust is	409
a substantial contributing factor to the medical condition. That	410
prima-facie showing shall include all of the following minimum	411
requirements:	412

(1) A diagnosis by a competent medical authority that the	413
exposed person has primary lung cancer and that exposure to mixed	414
dust is a substantial contributing factor to that cancer;	415

(2) Evidence that is sufficient to demonstrate that at least	416
ten years have elapsed from the date of the exposed person's first	417
exposure to mixed dust until the date of diagnosis of the exposed	418
person's primary lung cancer. The ten-year latency period	419
described in this division is a rebuttable presumption, and the	420
plaintiff has the burden of proof to rebut the presumption.	421

(3) Both of the following:

422

(a) Radiological or pathological evidence of mixed dust	423
pneumoconiosis;	424

(b) Evidence of the exposed person's substantial occupational	425
exposure to mixed dust.	426

(D)(1) No person shall bring or maintain a tort action	427
alleging a mixed dust disease claim based on wrongful death, as	428
described in section 2125.01 of the Revised Code, of an exposed	429
person, in the absence of a prima-facie showing, in the manner	430
described in division (A) of section 2307.87 of the Revised Code,	431
that the death of the exposed person was the result of a physical	432
impairment, that the death and physical impairment were the result	433
of a medical condition, and that the person's exposure to mixed	434
dust was a substantial contributing factor to the medical	435
condition. That prima-facie showing shall include all of the	436
following minimum requirements:	437

(a) A diagnosis by a competent medical authority that	438
exposure to mixed dust was a substantial contributing factor to	439
the death of the exposed person;	440

(b) Evidence that is sufficient to demonstrate that at least	441
ten years have elapsed from the date of the exposed person's first	442
exposure to mixed dust until the date of diagnosis under division	443
(D)(1)(a) of this section or death of the exposed person. The	444
ten-year latency period described in this division is a rebuttable	445
presumption, and the plaintiff has the burden of proof to rebut	446
the presumption.	447

(c) Both of the following:

448

(i) Radiological or pathological evidence of mixed dust	449
pneumoconiosis;	450

(ii) Evidence of the exposed person's substantial	451
occupational exposure to mixed dust.	452

(2) If a person files a tort action that alleges a mixeddust	453
disease claim based on wrongful death, as defined in section	454
2125.01 of the Revised Code, of an exposed person and further	455
alleges in the action that the death of the exposed person was the	456
result of living with another person who, if the tort action had	457
been filed by the other person, would have met the requirements	458
specified in division (D)(1)(c) of this section and that the	459
exposed person lived with the other person for the period of time	460
specified in division (DD) of section 2307.84 of the Revised Code,	461
the exposed person is considered as havingsatisfied the	462
requirements specified in division (D)(1)(c) of this section.	463

(E) Evidence relating to physical impairment under this	464
section, including pulmonary function testing and diffusing	465
studies, shall comply with the technical recommendations for	466
examinations, testing procedures, quality assurance, quality	467
control, and equipment incorporated in the AMA guides to the	468
evaluation of permanent impairment and reported as set forth in 20	469
C.F.R. Pt. 404, Subpt. P, App. 1, Part A, Sec. 3.00 E. and F., and	470
the interpretive standards set forth in the official statement of	471
the American thoracic society entitled "lung function testing:	472
selection of reference values and interpretive strategies" as	473
published in American review of respiratory disease,	474
1991:144:1202-1218.	475

(F) All of the following apply to the court's decision on the	476
prima-facie showing that meets the requirements of division (B),	477
(C), or (D) of this section:	478

(1) The court's decision does not result in any presumption	479
at trial that the exposed person has a physical impairment that is	480
caused by a mixed dust-related condition.	481

(2) The court's decision is not conclusive as to the	482
liability of any defendant in the case.	483

(3) The court's findings and decision are not admissible at	484
trial.	485

(4) If the trier of fact is a jury, the court shall not	486
instruct the jury with respect to the court's decision on the	487
prima-facie showing, and neither counsel for any party nor a	488
witness shall inform the jury or potential jurors of that showing.	489

Sec. 2307.87. (A) The plaintiff in any tort action who	490
alleges a silicosis claim or a mixed dust disease claim shall	491
file, within thirty days after filing the complaint or other	492
initial pleading, a written report and supporting test results	493
constituting prima-facie evidence of the exposed person's physical	494
impairment that meets the minimum requirements specified in	495
division (B), (C), or (D) of section 2307.85 or division (B), (C),	496
or (D) of section 2307.86 of the Revised Code, whichever is	497
applicable. The defendant in the case shall be afforded a	498
reasonable opportunity, upon the defendant's motion, to challenge	499
the adequacy of the proffered prima-facie evidence of the physical	500
impairment for failure to comply with the minimum requirements	501
specified in division (B), (C), or (D) of section 2307.85 or	502
division (B), (C), or (D) of section 2307.86 of the Revised Code,	503
whichever is applicable. The defendant has one hundred twenty days	504
from the date the prima-facie evidence of the exposed person's	505
physical impairment is proffered to challenge the adequacy of that	506
prima-facie evidence. If the defendant makes that challenge and	507
uses a physician to do so, the physician must meet the	508
requirements specified in divisions (I)(1), (3), and (4) of	509
section 2307.84 of the Revised Code.	510

(B) If the defendant challenges the adequacy of the	511
prima-facie evidence of the exposed person's physical impairment	512
as provided in division (A) of this section, the court shall	513
determine from all of the evidence submitted whether the proffered	514
prima-facie evidence meets the minimum requirements specified in	515
division (B), (C), or (D) of section 2307.85 or division (B), (C),	516
or (D) of section 2307.86 of the Revised Code, whichever is	517
applicable. The court shall resolve the issue of whether the	518
plaintiff has made the prima-facie showing required by any of	519
those divisions as applicable, by applying the standard for	520
resolving a motion for summary judgment.	521

(C) The court shall administratively dismiss the plaintiff's	522
claim without prejudice upon a finding of failure to make the	523
prima-facie showing required by division (B), (C), or (D) of	524
section 2307.85 or division (B), (C), or (D) of section 2307.86 of	525
the Revised Code, whichever is applicable. The court shall	526
maintain its jurisdiction over any case that is administratively	527
dismissed under this division. Any plaintiff whose case has been	528
administratively dismissed under this division may move to	529
reinstate the plaintiff's case if the plaintiff makes a	530
prima-facie showing that meets the minimum requirements specified	531
in any of those divisions as applicable.	532

(D) This section applies only to tort actions that allege a	533
silicosis claim or a mixed dust disease claim and that are filed	534
on or after the effective date of this section.	535

Sec. 2307.88.  (A) Notwithstanding any other provision of the	536
Revised Code, with respect to any silicosis claim or mixed dust	537
disease claim based upon a nonmalignant condition that is not	538
barred as of the effective date of this section, the period of	539
limitations shall not begin to run until the exposed person	540
discovers, or through the exercise of reasonable diligence should	541
have discovered, that the person has a physical impairment due to	542
a nonmalignant condition. A silicosis claim or a mixed dust	543
disease claim based upon a nonmalignant condition that is filed	544
before the cause of action pursuant to this division arises is	545
preserved for purposes of the period of limitations.	546

(B) A silicosis claim or a mixed dust disease claim that	547
arises out of a nonmalignant condition shall be a distinct cause	548
of action from a silicosis claim or a mixed dust disease claim, as	549
the case may be, relating to the same exposed person that arises	550
out of silica-related cancer or mixed dust-related cancer. No	551
damages shall be awarded for fear or risk of cancer in any tort	552
action asserting only a silicosis claim or a mixed dust disease	553
claim for a nonmalignant condition.	554

(C) No settlement of a silicosis claim or a mixed dust	555
disease claim for a nonmalignant condition that is concluded after	556
the effective date of this section shall require, as a condition	557
of settlement, the release of any future claim for silica-related	558
cancer or mixed dust-related cancer.	559

Sec. 2307.89. The following apply to all tort actions for	560
silicosis or mixed dust disease claims brought against a premises	561
owner to recover damages or other relief for exposure to silica or	562
mixed dust on the premises owner's property:	563

(A) A premises owner is not liable for any injury to any	564
individual resulting from silica or mixed dust exposure unless	565
that individual's alleged exposure occurred while the individual	566
was at the premises owner's property.	567

(B) If exposure to silica or mixed dust is alleged to have	568
occurred before January 1, 1972, it is presumed that a premises	569
owner knew that this state had adopted safe levels of exposure for	570
silica or mixed dust and that products containing silica or mixed	571
dust were used on its property only at levels below those safe	572
levels of exposure. To rebut this presumption, the plaintiff must	573
prove by a preponderance of the evidence that the premises owner	574
knew or should have known that the levels of silica or mixed dust	575
in the immediate breathing zone of the plaintiff regularly	576
exceeded the threshold limit values adopted by this state and that	577
the premises owner allowed that condition to persist.	578

(C)(1) A premises owner is presumed to be not liable for any	579
injury to any invitee who was engaged to work with, install, or	580
remove products containing silica or mixed dust on the premises	581
owner's property if the invitee's employer held itself out as	582
qualified to perform the work. To rebut this presumption, the	583
plaintiff must demonstrate by a preponderance of the evidence that	584
the premises owner had actual knowledge of the potential dangers	585
of the products containing silica or mixed dust at the time of the	586
alleged exposure that was superior to the knowledge of both the	587
invitee and the invitee's employer.	588

(2) A premises owner that hired a contractor before January	589
1, 1972, to perform the type of work at the premises owner's	590
property that the contractor was qualified to perform cannot be	591
liable for any injury to any individual resulting from silica or	592
mixed dust exposure caused by any of the contractor's employees or	593
agents on the premises owner's property unless the premises owner	594
directed the activity that resulted in the injury or gave or	595
denied permission for the critical acts that led to the	596
individual's injury.	597

(3) If exposure to silica or mixed dust is alleged to have	598
occurred after January 1, 1972, a premises owner is not liable for	599
any injury to any individual resulting from that exposure caused	600
by a contractor's employee or agent on the premises owner's	601
property unless the plaintiff establishes the premises owner's	602
intentional violation of an established safety standard that was	603
in effect at the time of the exposure and that the alleged	604
violation was in the plaintiff's breathing zone and was the	605
proximate cause of the plaintiff's medical condition.	606

(D) As used in this section:

607

(1) "Threshold limit values" means the maximum allowable	608
concentration of silica, or other dust, set forth in regulation	609
247 of the "regulations for the prevention and control of diseases	610
resulting from exposure to toxic fumes, vapors, mists, gases, and	611
dusts in order to preserve and protect the public health," as	612
adopted by the public health council of the department of health	613
on January 1, 1947, and set forth by the industrial commission of	614
Ohio in bulletin no. 203, "specific requirements and general	615
safety standards of the industrial commission of Ohio for work	616
shops and factories, chapter XV, ventilation and exhausts,"	617
effective January 3, 1955.	618

(2) "Established safety standard" means that, for the years	619
after 1971, the concentration of silica or mixed dust in the	620
breathing zone of the worker does not exceed the maximum allowable	621
exposure limits for the eight-hour time-weighted average airborne	622
concentration as promulgated by the occupational safety and health	623
administration (OSHA) in effect at the time of the alleged	624
exposure.	625

(3) "Employee" means an individual who performs labor or	626
provides construction services pursuant to a construction	627
contract, as defined in section 4123.79 of the Revised Code, or a	628
remodeling or repair contract, whether written or oral, if at	629
least ten of the following criteria apply:	630

(a) The individual is required to comply with instructions	631
from the other contracting party regarding the manner or method of	632
performing services.	633

(b) The individual is required by the other contracting party	634
to have particular training.	635

(c) The individual's services are integrated into the regular	636
functioning of the other contracting party.	637

(d) The individual is required to perform the work	638
personally.	639

(e) The individual is hired, supervised, or paid by the other	640
contracting party.	641

(f) A continuing relationship exists between the individual	642
and the other contracting party that contemplates continuing or	643
recurring work even if the work is not full time.	644

(g) The individual's hours of work are established by the	645
other contracting party.	646

(h) The individual is required to devote full time to the	647
business of the other contracting party.	648

(i) The individual is required to perform the work on the	649
premises of the other contracting party.	650

(j) The individual is required to follow the order of work	651
set by the other contracting party.	652

(k) The individual is required to make oral or written	653
reports of progress to the other contracting party.	654

(l) The individual is paid for services on a regular basis,	655
including hourly, weekly, or monthly.	656

(m) The individual's expenses are paid for by the other	657
contracting party.	658

(n) The individual's tools and materials are furnished by the	659
other contracting party.	660

(o) The individual is provided with the facilities used to	661
perform services.	662

(p) The individual does not realize a profit or suffer a loss	663
as a result of the services provided.	664

(q) The individual is not performing services for a number of	665
employers at the same time.	666

(r) The individual does not make the same services available	667
to the general public.	668

(s) The other contracting party has a right to discharge the	669
individual.	670

(t) The individual has the right to end the relationship with	671
the other contracting party without incurring liability pursuant	672
to an employment contract or agreement.	673

Sec. 2307.90. (A) Nothing in sections 2307.84 to 2307.90 of	674
the Revised Code is intended to do, and nothing in any of those	675
sections is interpreted to do, either of the following:	676

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

677

(2) Affect the ability of any person who is able to make a	678
showing that the person satisfies the claim criteria for	679
compensable claims or demands under a trust established pursuant	680
to a plan of reorganization under Chapter 11 of the United States	681
Bankruptcy Code, 11 U.S.C. Chapter 11, to make a claim or demand	682
against that trust.	683

(B) Sections 2307.84 to 2307.90 of the Revised Code shall not	684
affect the scope or operation of any workers' compensation law or	685
veterans' benefit program or the exclusive remedy of subrogation	686
under the provisions of that law or program and shall not	687
authorize any lawsuit that is barred by any provision of any	688
workers' compensation law.	689

(C) Nothing in sections 2307.85, 2307.86, 2307.87, and	690
2307.88 of the Revised Code shall require or permit the exhumation	691
of bodies in making the prima-facie showing as required by section	692
2307.85 or 2307.86 of the Revised Code or rebutting the	693
presumption as provided in section 2307.85 or 2307.86 of the	694
Revised Code.	695

Sec. 2307.901. (A) If a plaintiff in a tort action alleges	696
any injury or loss to person resulting from exposure to silica or	697
mixed dust as a result of the tortious act of one or more	698
defendants, in order to maintain a cause of action against any of	699
those defendants based on that injury or loss, the plaintiff must	700
prove that the conduct of that particular defendant was a	701
substantial factor in causing the injury or loss on which the	702
cause of action is based.	703

(B) A plaintiff in a tort action who alleges any injury or	704
loss to person resulting from exposure to silica or mixed dust has	705
the burden of proving that the plaintiff was exposed to silica or	706
mixed dust that was manufactured, supplied, installed, or used by	707
the defendant in the action and that the plaintiff's exposure to	708
the defendant's silica or mixed dust was a substantial factor in	709
causing the plaintiff's injury or loss. In determining whether	710
exposure to a particular defendant's silica or mixed dust was a	711
substantial factor in causing the plaintiff's injury or loss, the	712
trier of fact in the action shall consider, without limitation,	713
all of the following:	714

(1) The manner in which the plaintiff was exposed to the	715
defendant's silica or mixed dust;	716

(2) The proximity of the defendant's silica or mixed dust to	717
the plaintiff when the exposure to the defendant's silica or mixed	718
dust occurred;	719

(3) The frequency and length of the plaintiff's exposure to	720
the defendant's silica or mixed dust;	721

(4) Any factors that mitigated or enhanced the plaintiff's	722
exposure to silica or mixed dust.	723

(C) This section applies only to tort actions that allege any	724
injury or loss to person resulting from exposure to silica or	725
mixed dust and that are brought on or after the effective date of	726
this section.	727

Sec. 2307.902. (A) A holder has no obligation to, and has no	728
liability to, the covered entity or to any person with respect to	729
any obligation or liability of the covered entity in a silicosis	730
claim or a mixed dust disease claim under the doctrine of piercing	731
the corporate veil unless the person seeking to pierce the	732
corporate veil demonstrates all of the following:	733

(1) The holder exerted such control over the covered entity	734
that the covered entity had no separate mind, will, or existence	735
of its own.	736

(2) The holder caused the covered entity to be used for the	737
purpose of perpetrating, and the covered entity perpetrated, an	738
actual fraud on the person seeking to pierce the corporate veil	739
primarily for the direct pecuniary benefit of the holder.	740

(3) The person seeking to pierce the corporate veil sustained	741
an injury or unjust loss as a direct result of the control	742
described in division (A)(1) of this section and the fraud	743
described in division (A)(2) of this section.	744

(B) A court shall not find that the holder exerted such	745
control over the covered entity that the covered entity did not	746
have a separate mind, will, or existence of its own or to have	747
caused the covered entity to be used for the purpose of	748
perpetrating a fraud solely as a result of any of the following	749
actions, events, or relationships:	750

(1) The holder is an affiliate of the covered entity and	751
provides legal, accounting, treasury, cash management, human	752
resources, administrative, or other similar services to the	753
covered entity, leases assets to the covered entity, or makes its	754
employees available to the covered entity.	755

(2) The holder loans funds to the covered entity or	756
guarantees the obligations of the covered entity.	757

(3) The officers and directors of the holder are also the	758
officers and directors of the covered entity.	759

(4) The covered entity makes payments of dividends or other	760
distributions to the holder or repays loans owed to the holder.	761

(5) In the case of a covered entity that is a limited	762
liability company, the holder or its employees or agents serve as	763
the manager of the covered entity.	764

(C) The person seeking to pierce the corporate veil has the	765
burden of proof on each and every element of the person's claim	766
and must prove each element by a preponderance of the evidence.	767

(D) Any liability of the holder described in division (A) of	768
this section for an obligation or liability that is limited by	769
that division is exclusive and preempts any other obligation or	770
liability imposed upon that holder for that obligation or	771
liability under common law or otherwise.	772

(E) This section is intended to codify the elements of the	773
common law cause of action for piercing the corporate veil and to	774
abrogate the common law cause of action and remedies relating to	775
piercing the corporate veil in silicosis claims and mixed dust	776
disease claims. Nothing in this section shall be construed as	777
creating a right or cause of action that did not exist under the	778
common law as it existed on the effective date of this section.	779

(F) This section applies to all silicosis claims and mixed	780
dust disease claims commenced on or after the effective date of	781
this section or commenced prior to and pending on the effective	782
date of this section.	783

(G) This section applies to all actions asserting the	784
doctrine of piercing the corporate veil brought against a holder	785
if any of the following apply:	786

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

787

(2) The holder is a corporation organized under the laws of	788
this state.	789

(3) The holder is a corporation with its principal place of	790
business in this state.	791

(4) The holder is a foreign corporation that is authorized to	792
conduct or has conducted business in this state.	793

(5) The holder is a foreign corporation the parent	794
corporation of which is authorized to conduct business in this	795
state.	796

(6) The person seeking to pierce the corporate veil is a	797
resident of this state.	798

(H) As used in this section, unless the context otherwise	799
requires:	800

(1) "Affiliate" and "beneficial owner" have the same meanings	801
as in section 1704.01 of the Revised Code.	802

(2) "Mixed dust," "mixed dust disease claim," "silica," and	803
"silicosis claim" have the same meanings as in section 2307.84 of	804
the Revised Code.	805

(3) "Covered entity" means a corporation, limited liability	806
company, limited partnership, or any other entity organized under	807
the laws of any jurisdiction, domestic or foreign, in which the	808
shareholders, owners, or members are generally not responsible for	809
the debts and obligations of the entity. Nothing in this section	810
limits or otherwise affects the liabilities imposed on a general	811
partner of a limited partnership.	812

(4) "Holder" means a person who is the holder, beneficial	813
owner, or subscriber of shares or any other ownership interest of	814
a covered entity, a member of a covered entity, or an affiliate of	815
any person who is the holder, beneficial owner, or subscriber of	816
shares or any other ownership interest of a covered entity.	817

(5) "Piercing the corporate veil" means any and all common	818
law doctrines by which a holder may be liable for an obligation or	819
liability of a covered entity on the basis that the holder	820
controlled the covered entity, the holder is or was the alter ego	821
of the covered entity, or the covered entity has been used for the	822
purpose of actual or constructive fraud or as a sham to perpetrate	823
a fraud or any other common law doctrine by which the covered	824
entity is disregarded for purposes of imposing liability on a	825
holder for the debts or obligations of that covered entity.	826

(6) "Person" has the same meaning as in section 1701.01 of	827
the Revised Code.	828

Sec. 2505.02.  (A) As used in this section:

829

(1) "Substantial right" means a right that the United States	830
Constitution, the Ohio Constitution, a statute, the common law, or	831
a rule of procedure entitles a person to enforce or protect.	832

(2) "Special proceeding" means an action or proceeding that	833
is specially created by statute and that prior to 1853 was not	834
denoted as an action at law or a suit in equity.	835

(3) "Provisional remedy" means a proceeding ancillary to an	836
action, including, but not limited to, a proceeding for a	837
preliminary injunction, attachment, discovery of privileged	838
matter, or suppression of evidence, or a prima-facie showing	839
pursuant to section 2307.85 or 2307.86 of the Revised Code.	840

(B) An order is a final order that may be reviewed, affirmed,	841
modified, or reversed, with or without retrial, when it is one of	842
the following:	843

(1) An order that affects a substantial right in an action	844
that in effect determines the action and prevents a judgment;	845

(2) An order that affects a substantial right made in a	846
special proceeding or upon a summary application in an action	847
after judgment;	848

(3) An order that vacates or sets aside a judgment or grants	849
a new trial;	850

(4) An order that grants or denies a provisional remedy and	851
to which both of the following apply:	852

(a) The order in effect determines the action with respect to	853
the provisional remedy and prevents a judgment in the action in	854
favor of the appealing party with respect to the provisional	855
remedy.	856

(b) The appealing party would not be afforded a meaningful or	857
effective remedy by an appeal following final judgment as to all	858
proceedings, issues, claims, and parties in the action.	859

(5) An order that determines that an action may or may not be	860
maintained as a class action.	861

(C) When a court issues an order that vacates or sets aside a	862
judgment or grants a new trial, the court, upon the request of	863
either party, shall state in the order the grounds upon which the	864
new trial is granted or the judgment vacated or set aside.	865

(D) This section applies to and governs any action, including	866
an appeal, that is pending in any court on the effective date of	867
this amendmentJuly22, 1998, and all claims filed or actions	868
commenced on or after the effective date of this amendmentJuly	869
22, 1998, notwithstanding any provision of any prior statute or	870
rule of law of this state.	871

Section 2. That existing section        Sec. 2505.02.  of the Revised Code	872
is hereby repealed.	873

Section 3. (A) As used in this section, "exposed person,"	874
"mixed dust," "mixed dust disease claim," "silica," "silicosis	875
claim," and "substantial contributing factor" have the same	876
meanings as in section 2307.84 of the Revised Code.	877

(B) The General Assembly acknowledges the Court's authority	878
in prescribing rules governing practice and procedure in the	879
courts of this state, as provided by Section 5 of Article IV of	880
the Ohio Constitution.	881

(C) The General Assembly hereby requests the Supreme Court to	882
adopt rules to specify procedures for venue and consolidation of	883
silicosis claims or mixed dust disease claims brought pursuant to	884
sections 2307.84 to 2307.90 of the Revised Code.	885

(D) With respect to procedures for venue in regard to	886
silicosis claims or mixed dust disease claims, the General	887
Assembly hereby requests the Supreme Court to adopt a rule that	888
requires that a silicosis claim or a mixed dust disease claim meet	889
specific nexus requirements, including the requirement that the	890
plaintiff be domiciled in Ohio or that Ohio is the state in which	891
the plaintiff's exposure to silica or mixed dust is a substantial	892
contributing factor.	893

(E) With respect to procedures for consolidation of silicosis	894
claims or mixed dust disease claims, the General Assembly hereby	895
requests the Supreme Court to adopt a rule that permits	896
consolidation of silicosis claims or mixed dust disease claims	897
only with the consent of all parties, and in absence of that	898
consent, permits a court to consolidate for trial only those	899
silicosis claims or mixed dust disease claims that relate to the	900
same exposed person and members of the exposed person's household.	901

Section 4. It is the intent of the General Assembly in	902
enacting section 2307.901 of the Revised Code in this act to	903
establish specific factors to be considered when determining	904
whether a particular plaintiff's exposure to a particular	905
defendant's silica or mixed dust was a substantial factor in	906
causing the plaintiff's injury or loss. The consideration of these	907
factors, involving the plaintiff's proximity to the dust exposure,	908
frequency of the exposure, or regularity of the exposure in tort	909
actions involving exposure to silica or mixed dust is consistent	910
with the factors listed by the court in Lohrmann v. Pittsburgh	911
Corning Cor. (4th Cir. 1986), 782 F.2d 1156. The General Assembly,	912
by its enactment of these factors, intends to clarify and define	913
for judges and juries the evidence that is relevant to the common	914
law requirement that the plaintiff must prove proximate causation.	915
The General Assembly recognizes that the language in section	916
2307.091 of the Revised Code, as enacted by this act, is contrary	917
to the language contained in paragraph 2 of the Syllabus of the	918
Ohio Supreme Court in Horton v. Harwick Chemical Corp. (1995), 73	919
Ohio St.3d 679. However, the General Assembly also recognizes that	920
the courts of Ohio prior to the Horton decision generally followed	921
the rationale of the Lohrmann decision in determining whether a	922
plaintiff had submitted any evidence that a particular defendant's	923
product was a substantial cause of the plaintiff's injury in tort	924
actions involving exposure to certain hazardous or toxic	925
substances, and that the Lohrmann factors were of great assistance	926
to the trial courts in the consideration of motions for summary	927
judgment and to juries when deciding issues of proximate	928
causation. The General Assembly further recognizes that a large	929
number of states have adopted the Lohrmann standard. The General	930
Assembly also has held hearings in which medical evidence has been	931
submitted indicating that such a standard is medically appropriate	932
and is scientifically sound public policy.	933

The Lohrmann standard provides litigants, juries, and the	934
courts of Ohio an objective and easily applied standard for	935
determining whether a plaintiff has submitted evidence that is	936
sufficient to sustain the plaintiff's burden of proof as to	937
proximate causation. Where specific evidence of frequency of	938
exposure to, or proximity and length of exposure to, a particular	939
defendant's silica or mixed dust is lacking, summary judgment is	940
appropriate in tort actions involving silica or mixed dust because	941
such a plaintiff lacks any evidence of an essential element that	942
is necessary to prevail. To submit the legal concept of	943
"substantial factor" to a jury in these complex cases without	944
those scientifically valid defining factors would be to invite	945
speculation on the part of juries, something that the General	946
Assembly has determined not to be in the best interests of Ohio	947
and its courts.	948

Section 5.  If any item of law that constitutes the whole or	949
part of a section of law contained in this act, or if any	950
application of any item of law that constitutes the whole or part	951
of a section of law contained in this act, is held invalid, the	952
invalidity does not affect other items of law or applications of	953
items of law that can be given effect without the invalid item of	954
law or application. To this end, the items of law of which the	955
sections contained in this act are composed, and their	956
applications, are independent and severable.	957

Section 6. If any item of law that constitutes the whole or	958
part of a section of law contained in this act, or if any	959
application of any item of law contained in this act, is held to	960
be preempted by federal law, the preemption of the item of law or	961
its application does not affect other items of law or applications	962
that can be given affect. The items of law of which the sections	963
of this act are composed, and their applications, are independent	964
and severable.	965