130th Ohio General Assembly
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H. B. No. 292As Introduced
As Introduced

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


REPRESENTATIVE Oelslager



A BILL
To amend sections 1701.76 and 1701.82 and to enact sections 2307.91 to 2307.97 of the Revised Code to establish minimum medical requirements for filing certain asbestos claims and to establish limitations on successor asbestos-related liabilities relating to corporations.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:
Section 1. That sections 1701.76 and 1701.82 be amended and sections 2307.91, 2307.92, 2307.93, 2307.94, 2307.95, 2307.96, and 2307.97 of the Revised Code be enacted to read as follows:
Sec. 1701.76.  (A)(1) Provided the provisions of Chapter 1704. of the Revised Code do not prevent the transaction from being effected, a lease, sale, exchange, transfer, or other disposition of all, or substantially all, of the assets, with or without the good will, of a corporation, if not made in the usual and regular course of its business, may be made upon such the terms and conditions and for such the consideration, which that may consist, in whole or in part, of money or other property of any description, including shares or other securities or promissory obligations of any other corporation, domestic or foreign, as that may be authorized as follows:
(a) By the directors, either before or after authorization by the shareholders as required in this section; and
(b) At a meeting of the shareholders held for such that purpose, by the affirmative vote of the holders of shares entitling them to exercise two-thirds of the voting power of the corporation on such the proposal, or, if the articles so provide or permit, by the affirmative vote of a greater or lesser proportion, but not less than a majority, of such the voting power, and by such the affirmative vote of the holders of shares of any particular class as that is required by the articles.
(2) At the shareholder meeting described in division (A)(1)(b) of this section or at any subsequent shareholder meeting, shareholders, by the same vote that is required to authorize the lease, sale, exchange, transfer, or other disposition of all, or substantially all, of the assets, with or without the good will, of the corporation, may grant authority to the directors to establish or amend any of the terms and conditions of the transaction, except that the shareholders shall not authorize the directors to do any of the following:
(a) Alter or change the amount or kind of shares, securities, money, property, or rights to be received in exchange for the assets;
(b) Alter or change to any material extent the amount or kind of liabilities to be assumed in exchange for the assets;
(c) Alter or change any other terms and conditions of the transaction if any of the alterations or changes, alone or in the aggregate, would materially adversely affect the shareholders or the corporation.
(3) Notice of the meeting of the shareholders described in division (A)(1)(b) of this section shall be given to all shareholders whether or not entitled to vote at the meeting and shall be accompanied by a copy or summary of the terms of the transaction.
(B) The corporation by its directors may abandon such the transaction under this section, subject to the contract rights of other persons, if the power of abandonment is conferred upon the directors either by the terms of the transaction or by the same vote of shareholders and at the same meeting of shareholders as that referred to in division (A)(1)(b) of this section or at any subsequent meeting.
(C) Dissenting holders of shares of any class, whether or not entitled to vote, shall be entitled to relief under section 1701.85 of the Revised Code.
(D) An action to set aside a conveyance by a corporation, on the ground that any section of the Revised Code applicable to the lease, sale, exchange, transfer, or other disposition of all, or substantially all, of the assets of such that corporation has not been complied with, shall be brought within ninety days after such that transaction, or such the action shall be forever barred.
(E) If a resolution of dissolution is adopted pursuant to section 1701.86 of the Revised Code, the directors may dispose of all, or substantially all, of the corporation's assets without the necessity of a shareholders' authorization under this section.
(F) The terms and conditions of any transaction under this section shall be subject to the limitations specified in section 2307.96 of the Revised Code.
Sec. 1701.82.  (A) When a merger or consolidation becomes effective, all of the following apply:
(1) The separate existence of each constituent entity other than the surviving entity in a merger shall cease, except that whenever a conveyance, assignment, transfer, deed, or other instrument or act is necessary to vest property or rights in the surviving or new entity, the officers, general partners, or other authorized representatives of the respective constituent entities shall execute, acknowledge, and deliver such those instruments and do such those acts. For these purposes, the existence of the constituent entities and the authority of their respective officers, directors, general partners, or other authorized representatives is continued notwithstanding the merger or consolidation.
(2) In the case of a consolidation, the new entity exists when the consolidation becomes effective and, if it is a domestic corporation, the articles contained in or provided for in the agreement of consolidation shall be its original articles. In the case of a merger in which the surviving entity is a domestic corporation, the articles of the domestic surviving corporation in effect immediately prior to the time the merger becomes effective shall continue as its articles after the merger except as otherwise provided in the agreement of merger.
(3) The surviving or new entity possesses all assets and property of every description, and every interest in the assets and property, wherever located, and the rights, privileges, immunities, powers, franchises, and authority, of a public as well as of a private nature, of each constituent entity, and, subject to the limitations specified in section 2307.96 of the Revised Code, all obligations belonging to or due to each constituent entity, all of which are vested in the surviving or new entity without further act or deed. Title to any real estate or any interest in the real estate vested in any constituent entity shall not revert or in any way be impaired by reason of such merger or consolidation.
(4) The Subject to the limitations specified in section 2307.96 of the Revised Code, the surviving or new entity is liable for all the obligations of each constituent entity, including liability to dissenting shareholders. Any claim existing or any action or proceeding pending by or against any constituent entity may be prosecuted to judgment, with right of appeal, as if the merger or consolidation had not taken place, or the surviving or new entity may be substituted in its place.
(5) All Subject to the limitations specified in section 2307.96 of the Revised Code, all the rights of creditors of each constituent entity are preserved unimpaired, and all liens upon the property of any constituent entity are preserved unimpaired, on only the property affected by such those liens immediately prior to the effective date of the merger or consolidation. If a general partner of a constituent partnership is not a general partner of the entity surviving or the new entity resulting from the merger or consolidation, then the former general partner shall have no liability for any obligation incurred after the merger or consolidation except to the extent that a former creditor of the constituent partnership in which the former general partner was a partner extends credit to the surviving or new entity reasonably believing that the former general partner continued as a general partner of the surviving or new entity.
(B) If a general partner of a constituent partnership is not a general partner of the entity surviving or the new entity resulting from the merger or consolidation, the provisions of division (B) of section 1782.434 of the Revised Code shall apply.
(C) In the case of a merger of a domestic constituent corporation into a foreign surviving corporation, limited liability company, or limited partnership that is not licensed or registered to transact business in this state or in the case of a consolidation of a domestic constituent corporation into a new foreign corporation, limited liability company, or limited partnership, if the surviving or new entity intends to transact business in this state and the certificate of merger or consolidation is accompanied by the information described in division (B)(4) of section 1701.81 of the Revised Code, then, on the effective date of the merger or consolidation, the surviving or new entity shall be considered to have complied with the requirements for procuring a license or for registering to transact business in this state as a foreign corporation, limited liability company, or limited partnership, as the case may be. In such a case, a copy of the certificate of merger or consolidation certified by the secretary of state constitutes the license certificate prescribed by the laws of this state for a foreign corporation transacting business in this state or the application for registration prescribed for a foreign limited partnership or limited liability company.
(D) Any action to set aside any merger or consolidation on the ground that any section of the Revised Code applicable to the merger or consolidation has not been complied with shall be brought within ninety days after the effective date of such that merger or consolidation or be forever barred.
(E) As used in this section, "corporation" or "entity" applies to both domestic and foreign corporations and entities where the context so permits. In the case of a foreign constituent entity or a foreign new entity, this section is subject to the laws of the state under the laws of which the entity exists or in which it has property.
Sec. 2307.91.  As used in sections 2307.91 to 2307.95 of the Revised Code:
(A) "AMA guides to the evaluation of permanent impairment" means the American medical association's guides to the evaluation of permanent impairment (fifth edition 2000) as may be modified by the American medical association.
(B) "Asbestos" means chrysotile, amosite, crocidolite, tremolite asbestos, anthophyllite asbestos, actinolite asbestos, and any of these minerals that have been chemically treated or altered.
(C) "Asbestos claim" means any claim for damages, losses, indemnification, contribution, or other relief arising out of, based on, or in any way related to asbestos. "Asbestos claim" includes a claim made by or on behalf of any person who has been exposed to asbestos, or any representative, spouse, parent, child, or other relative of that person, for injury, including mental or emotional injury, death, or loss to person, risk of disease or other injury, costs of medical monitoring or surveillance, or any other effects on the person's health that are caused by the person's exposure to asbestos.
(D) "Asbestosis" means bilateral diffuse interstitial fibrosis of the lungs caused by inhalation of asbestos fibers.
(E) "Board-certified internist" means a medical doctor who is currently certified by the American board of internal medicine.
(F) "Board-certified oncologist" means a medical doctor who is currently certified by the American board of internal medicine in the subspecialty of medical oncology.
(G) "Board-certified pathologist" means a medical doctor who is currently certified by the American board of pathology.
(H) "Board-certified pulmonary specialist" means a medical doctor who is currently certified by the American board of internal medicine in the subspecialty of pulmonary medicine.
(I) "Certified B-reader" means an individual qualified as a "final" or "B-reader" as defined in 42 C.F.R. section 37.51(b), as amended.
(J) "Civil action" means all suits or claims of a civil nature in state or federal court, whether cognizable as cases at law or in equity or admiralty. The term "civil action" does not include an action relating to any workers' compensation law.
(K) "Exposed person" means any person whose exposure to asbestos or to asbestos-containing products is the basis for an asbestos claim.
(L) "Exposure years" means the following:
(1) Each single year of exposure prior to 1972 will be counted as one year.
(2) Each single year of exposure from 1972 through 1979 will be counted as one-half year.
(3) Exposure after 1979 will not be counted, except that each year from 1972 forward for which the plaintiff can establish exposure exceeding the occupational safety and health administration (OSHA) limit for eight-hour time-weighted average airborne concentration for a substantial portion of the year will count as one year.
(M) "FEV1" means forced expiratory volume in the first second, which is the maximal volume of air expelled in one second during performance of simple spirometric tests.
(N) "FVC" means forced vital capacity that is maximal volume of air expired with maximum effort from a position of full inspiration.
(O) "ILO scale" means the system for the classification of chest x-rays set forth in the international labour office's guidelines for the use of ILO international classification of radiographs of pneumoconioses (1980), as amended.
(P) "Lung cancer" means a malignant tumor in which the primary site of origin of the cancer is inside the lungs, but that term does not include an asbestos claim based upon mesothelioma.
(Q) "Mesothelioma" means a malignant tumor with a primary site of origin in the pleura or the peritoneum, which has been diagnosed by a board-certified pathologist, using standardized and accepted criteria of microscopic morphology and appropriate staining techniques.
(R) "Nonmalignant condition" means a condition that is caused or may be caused by asbestos other than a diagnosed cancer.
(S) "Nonsmoker" means the exposed person has not smoked cigarettes or used any other tobacco products within the last fifteen years.
(T) "Pathological evidence of asbestosis" means a statement by a board-certified pathologist that more than one representative section of lung tissue uninvolved with any other disease process demonstrates a pattern of peribronchiolar or parenchymal scarring in the presence of characteristic asbestos bodies and that there is no other more likely explanation for the presence of the fibrosis.
(U) "Physical impairment" means a nonmalignant condition that meets the minimum requirements of division (B) of section 2307.92 of the Revised Code, lung cancer that meets the minimum requirements of division (C) of section 2307.92 of the Revised Code, or cancer of the colon, rectum, larynx, pharynx, esophagus, or stomach that meets the minimum requirements of division (D) of section 2307.92 of the Revised Code.
(V) "Predicted lower limit of normal" means the fifth percentile of healthy populations based on age, height, and gender, as referenced in the AMA guides to the evaluation of permanent impairment.
(W) "Qualified physician" means a medical doctor who is providing a diagnosis for purposes of constituting prima-facie evidence of an exposed person's physical impairment that meets the requirements of section 2307.92 of the Revised Code and who meets the following requirements:
(1) The medical doctor is a board-certified internist, pulmonary specialist, oncologist, or pathologist.
(2) The medical doctor is actually treating or has treated the exposed person and has or had a doctor-patient relationship with the person.
(3) The medical doctor spends not more than ten per cent of the medical doctor's professional practice time in providing consulting or expert services in connection with actual or potential civil actions, and the medical doctor's medical group, professional corporation, clinic, or other affiliated group earns not more than twenty per cent of its revenues from providing those services.
(4) The medical doctor is currently licensed to practice and actively practices in the state where the plaintiff's civil action was filed.
(5) The medical doctor receives or received payment for the treatment of the exposed person from that person's HMO or other medical provider.
(X) "Radiological evidence of asbestosis" means a chest x-ray showing small, irregular opacities (s, t) graded by a certified B-reader as at least 1/1 on the ILO scale.
(Y) "Radiological evidence of diffuse pleural thickening" means a chest x-ray showing bilateral pleural thickening graded by a certified B-reader as at least B2 on the ILO scale and blunting of at least one costophrenic angle.
(Z) "Smoker" means a person who has smoked cigarettes or other tobacco products within the last fifteen years.
(AA) "Spirometry" means the measurement of volume of air inhaled or exhaled by the lung.
(BB) "Substantial contributing factor" means all of the following:
(1) Exposure to asbestos is the predominate cause of the physical impairment alleged in the asbestos claim.
(2) The exposure to asbestos took place on a regular basis over an extended period of time and in close proximity to the exposed person.
(3) A qualified physician has determined with a reasonable degree of medical certainty that the physical impairment of the exposed person would not have occurred but for the asbestos exposures.
(CC) "Veterans' benefit program" means any program for benefits in connection with military service administered by the veterans' administration under title 38 of the United States Code.
(DD) "Workers' compensation law" means Chapters 4121., 4123., 4127., and 4131. of the Revised Code.
Sec. 2307.92.  (A) Physical impairment of the exposed person, to which the person's exposure to asbestos is a substantial contributing factor, shall be an essential element of an asbestos claim.
(B) No person shall bring or maintain a civil action alleging an asbestos claim based on a nonmalignant condition in the absence of a prima-facie showing that the exposed person has a physical impairment, that the physical impairment is a result of a medical condition, and that the person's exposure to asbestos is a substantial contributing factor to the medical condition. That prima-facie showing shall include all of the following minimum requirements:
(1) Evidence verifying that a qualified physician has taken a detailed occupational and exposure history of the exposed person from the exposed person or, if that person is deceased, from the person who is most knowledgeable about the exposures that form the basis of the asbestos claim for a nonmalignant condition, including all of the following:
(a) All of the exposed person's principal places of employment and exposures to airborne contaminants;
(b) Whether each place of employment involved exposures to airborne contaminants, including, but not limited to, asbestos fibers or other disease causing dusts, that can cause pulmonary impairment and, if that type of exposure is involved, the nature, duration, and level of the exposure.
(2) Evidence verifying that a qualified physician has taken a detailed medical and smoking history of the exposed person, including a thorough review of the exposed person's past and present medical problems and the most probable causes of those medical problems;
(3) A diagnosis by a qualified physician, based on a medical examination and pulmonary function testing of the exposed person, that all of the following apply to the exposed person:
(a) The exposed person has a permanent respiratory impairment rating of at least class 2 as defined by and evaluated pursuant to the AMA guides to the evaluation of permanent impairment.
(b) The exposed person has asbestosis or diffuse pleural thickening, based at a minimum on radiological or pathological evidence of asbestosis or radiological evidence of diffuse pleural thickening.
(c) The asbestosis or diffuse pleural thickening described in division (B)(3)(b) of this section, rather than solely chronic obstructive pulmonary disease, is a substantial contributing factor to the exposed person's physical impairment, based at a minimum on a determination that the exposed person has either of the following:
(i) A forced vital capacity below the predicted lower limit of normal and a ratio of FEV1 to FVC that is equal to or greater than the predicted lower limit of normal;
(ii) A chest x-ray showing small, irregular opacities (s, t) graded by a certified B-reader at least 2/1 on the ILO scale.
(C) No person shall bring or maintain a civil action alleging an asbestos claim based upon lung cancer in the absence of a prima-facie showing of all of the following minimum requirements:
(1) A diagnosis by a board-certified pathologist, board-certified pulmonary specialist, or board-certified oncologist that the exposed person has primary lung cancer and that exposure to asbestos is a substantial contributing factor to that cancer;
(2) Evidence that is sufficient to demonstrate that at least ten years have elapsed between the date of the exposed person's first exposure to asbestos and the date of diagnosis of the exposed person's primary lung cancer;
(3) Either of the following:
(a) In the case of an exposed person who is a nonsmoker, either of the following requirements:
(i) Radiological or pathological evidence of asbestosis or radiological evidence of diffuse pleural thickening;
(ii) Evidence of the exposed person's occupational exposure to asbestos for any of the applicable minimum exposure periods in the occupations as specified in divisions (D)(3)(b)(i), (ii), and (iii) of this section.
(b) In the case of an exposed person who is a smoker, both of the requirements specified in divisions (C)(3)(a)(i) and (ii) of this section.
(D) No person shall bring or maintain a civil action alleging an asbestos claim based upon cancer of the colon, rectum, larynx, pharynx, esophagus, or stomach, in the absence of a prima-facie showing of all of the following minimum requirements:
(1) A diagnosis by a board-certified pathologist, board-certified pulmonary specialist, or board-certified oncologist, whichever is appropriate for the type of cancer claimed, that the exposed person has primary cancer of the colon, rectum, larynx, pharynx, esophagus, or stomach and that exposure to asbestos was a substantial contributing factor to that particular cancer;
(2) Evidence that is sufficient to demonstrate that at least ten years have elapsed between the date of the exposed person's first exposure to asbestos and the date of diagnosis of the exposed person's particular cancer;
(3) Either of the following requirements:
(a) Radiological or pathological evidence of asbestosis or radiological evidence of diffuse pleural thickening;
(b) Evidence of the exposed person's occupational exposure to asbestos for any of the following applicable minimum exposure periods in the specified occupations:
(i) Five exposure years for insulators, shipyard workers, workers in manufacturing plants handling raw asbestos, boilermakers, shipfitters, steamfitters, or other trades performing similar functions;
(ii) Ten exposure years for utility and power house workers, secondary manufacturing workers, or other trades performing similar functions;
(iii) Fifteen exposure years for general construction, maintenance workers, chemical and refinery workers, marine engine room personnel and other personnel on vessels, stationary engineers and firefighters, railroad engine repair workers, or other trades performing similar functions.
(E) No prima-facie showing is required in a civil action alleging an asbestos claim based upon mesothelioma.
(F) Evidence relating to physical impairment under this section, including pulmonary function testing and diffusing studies, shall comply with the technical recommendations for examinations, testing procedures, quality assurance, quality control, and equipment incorporated in the AMA guides to the evaluation of permanent impairment and reported as set forth in 20 C.F.R. Pt. 404, Subpt. P, App. 1, Part A, Sec. 3.00 E. and F., and the interpretive standards set forth in the official statement of the American thoracic society entitled "lung function testing: selection of reference values and interpretive strategies" as published in American review of respiratory disease, 1991:144:1202-1218.
(G) All of the following apply to the presentation of prima-facie evidence that meets the requirements of division (B), (C), or (D) of this section:
(1) It does not result in any presumption at trial that the exposed person has a physical impairment that is caused by an asbestos-related condition.
(2) It is not conclusive as to the liability of any defendant in the case.
(3) It is not admissible at trial.
Sec. 2307.93.  The plaintiff in any civil action who alleges an asbestos claim shall file together with the complaint or other initial pleading a written report and supporting test results constituting prima-facie evidence of the exposed person's physical impairment that meets the minimum requirements of division (B), (C), or (D) of section 2307.92 of the Revised Code, whichever is applicable. With respect to any asbestos claim that is pending on the effective date of this section, the plaintiff shall file the written report and supporting test results described in this section sixty days following the effective date of this section or thirty days prior to trial, whichever is earlier. The defendant in the case shall be afforded a reasonable opportunity to challenge the adequacy of the proffered prima-facie evidence of the physical impairment. The court shall dismiss the plaintiff's claim without prejudice upon a finding of failure to make the prima-facie showing required by division (B), (C), or (D) of section 2307.92 of the Revised Code.
Sec. 2307.94.  (A) Notwithstanding any other provision of the Revised Code, with respect to any asbestos claim based upon a nonmalignant condition that is not barred as of the effective date of this section, the period of limitations shall not begin to run until the exposed person discovers, or through the exercise of reasonable diligence should have discovered, that the person has a physical impairment due to a nonmalignant condition.
(B) An asbestos claim that arises out of a nonmalignant condition shall be a distinct cause of action from an asbestos claim relating to the same exposed person that arises out of asbestos-related cancer. No damages shall be awarded for fear or risk of cancer in any civil action asserting only an asbestos claim for a nonmalignant condition.
(C) No settlement of an asbestos claim for a nonmalignant condition that is concluded after the effective date of this section shall require, as a condition of settlement, the release of any future claim for asbestos-related cancer.
Sec. 2307.95.  Sections 2307.91 to 2307.95 of the Revised Code shall not affect the scope or operation of any workers' compensation law or veterans' benefit program or the exclusive remedy of subrogation under the provisions of that law or program and shall not authorize any lawsuit that is barred by any provision of any workers' compensation law.
Sec. 2307.96. (A) As used in this section and section 2307.97 of the Revised Code:
(1) "Asbestos" has the same meaning as in section 2307.91 of the Revised Code.
(2) "Asbestos claim" means any claim for damages, losses, indemnification, contribution, or other relief arising out of, based on, or in any way related to asbestos. "Asbestos claim" includes any of the following:
(a) A claim made by or on behalf of any person who has been exposed to asbestos, or any representative, spouse, parent, child, or other relative of that person, for injury, including mental or emotional injury, death, or loss to person, risk of disease or other injury, costs of medical monitoring or surveillance, or any other effects on the person's health that are caused by the person's exposure to asbestos;
(b) A claim for damage or loss to property that is caused by the installation, presence, or removal of asbestos.
(3) "Successor" means a domestic corporation or a subsidiary of a domestic corporation that acquired any assets of or the stock of a foreign business corporation, if all of the following apply:
(a) The transaction occurred on or before July 29, 1977.
(b) The purchasing domestic corporation paid less than five million dollars for the acquisition.
(c) The principal place of business of the foreign corporation was located outside the state of Ohio.
(4)(a) "Successor asbestos-related liabilities," in relation to an asset purchase or a stock purchase by a successor means any liabilities, whether known or unknown, asserted or unasserted, absolute or contingent, accrued or unaccrued, liquidated or unliquidated, or due or to become due, if the liabilities are related in any way to asbestos claims and are assumed or incurred by a successor as a result of or in connection with the asset purchase or stock purchase, merger, or consolidation, or the agreement of the asset purchase or stock purchase.
(b) "Successor asbestos-related liabilities" includes any liabilities described in division (A)(4)(a) of this section that, after the effective date of the asset purchase or stock purchase, are paid, otherwise discharged, committed to be paid, or committed to be otherwise discharged by or on behalf of the successor, or by or on behalf of a transferor, in connection with any judgment, settlement, or other discharge of those liabilities in this state or another jurisdiction.
(5) "Transferor" means a foreign corporation or its shareholders from which successor asbestos-related liabilities are assumed or incurred by the successor.
(B)(1) Except as otherwise provided in division (B)(2) of this section, the cumulative successor asbestos-related liabilities of a successor shall be limited to the fair market value of the acquired assets or stock as determined on the effective date of the asset purchase or stock purchase, merger, or consolidation.
(2) If a transferor had assumed or incurred successor asbestos-related liabilities in connection with a prior asset purchase, stock purchase, merger, or consolidation involving a prior transferor, the successor asbestos-related liabilities of the successor described in division (B)(1) of this section shall be limited to the fair market value of the previously acquired assets or stock as determined on the effective date of the prior asset purchase, stock purchase, merger, or consolidation.
(3) The successor described in division (B)(1) or (2) of this section shall have no responsibility for any successor asbestos-related liabilities in excess of the limitation of those liabilities as described in the applicable division.
(C)(1) Except as otherwise provided in division (C)(2) of this section, the assets of a successor shall be exempt from restraint, attachment, or execution on any judgment entered in this state or another jurisdiction related to any claim for successor asbestos-related liabilities if the cumulative amounts of those liabilities that, after the effective date of the asset purchase or stock purchase that is covered by division (B) of this section, are paid or committed to be paid by or on behalf of the successor, or by or on behalf of the transferor, in connection with any judgment, settlement, or other discharge of claims of asbestos-related liabilities exceed the fair market value of the assets or stock as determined on the effective date of the asset purchase or stock purchase, merger, or consolidation.
(2) If a transferor had assumed or incurred successor asbestos-related liabilities in connection with a prior asset purchase, stock purchase, merger, or consolidation involving a prior transferor, the assets of the successor described in division (C)(1) of this section shall be exempt from restraint, attachment, or execution on any judgment entered in this state or another jurisdiction related to any claim for successor asbestos-related liabilities if the cumulative amounts of those liabilities that, after the effective date of the prior asset purchase, stock purchase, merger, or consolidation, are paid or committed to be paid by or on behalf of the successor, or by or on behalf of the prior transferor, in connection with any judgment, settlement, or other discharge of claims of asbestos-related liabilities, exceed the fair market value of the previously acquired assets or stock as determined on the effective date of the prior asset purchase, stock purchase, merger, or consolidation.
(D)(1) A successor may establish the fair market value of total assets under division (B) or (C) of this section by means of any method that is reasonable under the circumstances, including by reference to the going-concern value of those assets, to the purchase price attributable to or paid for the assets in an arm's length transaction, or, in the absence of other readily available information from which fair market value can be determined, to the value of those assets recorded on a balance sheet. Total assets shall include intangible assets. A showing by the successor of a reasonable determination of the fair market value of total assets is prima-facie evidence of the fair market value of those assets.
(2) After a successor has established a reasonable determination of the fair market value of total assets under division (D)(1) of this section, a claimant that disputes that determination of the fair market value has the burden of establishing a different fair market value of those assets.
(3) For the purpose of adjusting the limitations set forth in division (B) or (C) of this section to account for the passage of time, the fair market value of total assets on the effective date of the applicable asset purchase or stock purchase under the applicable division shall be increased annually, at the rate equal to the prime rate as listed in the first edition of the Wall Street Journal published for each calendar year since the asset purchase or stock purchase plus one per cent, not compounded, until the earlier of either of the following:
(a) The date of the judgment, settlement, or other discharge of claims of successor asbestos-related liabilities to which the limitations in division (B) or (C) of this section are being applied;
(b) The date on which the adjusted fair market value of total assets under division (D)(3) of this section is first exceeded by the cumulative amounts of successor asbestos-related liabilities that are paid or committed to be paid by or on behalf of the successor, or by or on behalf of a transferor, after the effective date of the asset purchase or stock purchase in connection with any judgment, settlement, or other discharge of the successor asbestos-related liabilities.
(E)(1) The limitations set forth in divisions (B) and (C) of this section shall apply to the following:
(a) All asbestos claims, including asbestos claims that are pending on the effective date of this section, and all litigation involving asbestos claims, including litigation that is pending on the effective date of this section;
(b) Successors of a successor to which this section applies.
(2) The limitations set forth in divisions (B) and (C) of this section do not apply to any of the following:
(a) Workers' compensation benefits that are paid by or on behalf of an employer to an employee pursuant to any provision of Chapter 4121., 4123., 4127., or 4131. of the Revised Code or comparable workers' compensation law of another jurisdiction;
(b) Any claim against a successor that does not constitute a claim for a successor asbestos-related liability;
(c) An insurance corporation;
(d) Any obligations arising under the "National Labor Relations Act," 49 Stat. 449, 29 U.S.C. 151 et seq., as amended, or under any collective bargaining agreement.
Sec. 2307.97.  (A) A holder of shares, an owner of any beneficial interest in shares, or a subscriber for shares whose subscription has been accepted, or any affiliate or holding company of that holder, owner, or subscriber or of the corporation, shall be under no obligation to, and shall have no liability to, the corporation or to any person with respect to any obligation or liability of the corporation relating in any way to asbestos claims on the basis that the holder, owner, subscriber, affiliate, or holding company described in division (A) of this section controlled the corporation or is or was the alter ego of the corporation, or on the basis of actual fraud or constructive fraud, a sham to perpetrate a fraud, a fraudulent conveyance, piercing the corporate veil, or any other similar theory, unless the person demonstrates that the holder, owner, subscriber, affiliate, or holding company caused the corporation to be used for the purpose of perpetrating and did perpetrate an actual fraud on the person primarily for the direct pecuniary benefit of the holder, owner, subscriber, affiliate, or holding company, and then only to the extent of that direct pecuniary benefit.
(B) Any liability of the holder, owner, or subscriber of shares of a corporation described in division (A) of this section or any affiliate or holding company of that holder, owner, or subscriber or of the corporation for an obligation or liability that is limited by that division is exclusive and preempts any other obligation or liability imposed upon a holder, owner, or subscriber of shares of a corporation described in that division or any affiliate or holding company of that holder, owner, or subscriber or of the corporation for that obligation or liability under common law or otherwise.
Section 2. That existing sections 1701.76 and 1701.82 of the Revised Code are hereby repealed.
Section 3. (A) The General Assembly makes the following statement of findings and intent:
(1) Asbestos claims have created an increased amount of litigation in state and federal courts that the United States Supreme Court has characterized as "an elephant mass" of cases that "defies customary judicial administration and calls for national legislation." Ortiz v. Fibreboard Corporation (1999), 119 S.Ct. 2295, 2303.
(2) The current asbestos personal injury litigation system is unfair and inefficient, imposing a severe burden on litigants and taxpayers alike.
(3) The extraordinary volume of nonmalignant asbestos cases continue to strain federal and state courts, with over two hundred thousand cases pending and over fifty thousand new cases filed each year.
(4) Asbestos personal injury litigation has already contributed to the bankruptcy of more than sixty companies, including nearly all manufacturers of asbestos textile and insulation products, and the ratio of asbestos-driven bankruptcies is accelerating.
(5) The General Assembly recognizes that the vast majority of asbestos claims are filed by individuals who allege they have been exposed to asbestos and who have some physical sign of exposure to asbestos, but who do not suffer from an asbestos-related impairment.
(6) The cost of compensating exposed individuals who are not ill jeopardizes the ability of defendants to compensate people with cancer and other serious asbestos-related diseases, now and in the future; threatens savings, retirement benefits, and jobs of the state's current and retired employees; adversely affects the communities in which these defendants operate; and impairs Ohio's economy.
(7) As stated in testimony by Robert Bunda, a trial lawyer who has been involved with the defense of asbestos claims on behalf of Owens-Illinois, Inc. for twenty-four years, there is something terribly wrong with the current civil justice system, evidenced by the fact that Owens-Illinois has been sued over three hundred thousand times for its brief involvement in manufacturing asbestos. According to Mr. Bunda, at least five Ohio-based companies have gone bankrupt because of the cost of paying people who are not sick. These bankruptcies have imperiled the availability of even modest compensation for the most seriously injured asbestos workers. They have also imperiled jobs, the health benefits, and the retirement funds of tens of thousands of blue-collar workers. New jobs are not being created in Ohio, and existing Ohio jobs are being destroyed.
(8) According to a study conducted by NERA Economic Consulting, in 2000, Owens-Corning laid off two hundred and seventy-five employees from its Granville, Ohio plant. The ripple effect of those job losses predicts total employment in the county of almost five hundred jobs and a fifteen million to twenty million dollar annual reduction in regional income.
(9) The public interest requires the deferring of claims of exposed individuals who are not ill in order to preserve, now and for the future, defendants' ability to compensate people who develop cancer and other serious asbestos-related injuries and to safeguard the jobs, benefits, and savings of the state's employees and the well being of the Ohio economy.
(B) In enacting sections 2307.91 to 2307.97 of the Revised Code, it is the intent of the General Assembly to: (1) give priority to those asbestos claimants who can demonstrate actual physical harm or illness caused by exposure to asbestos; (2) fully preserve the rights of claimants who were exposed to asbestos to pursue compensation should those claimants become impaired in the future as a result of such exposure; (3) enhance the ability of the state's judicial systems and federal judicial systems to supervise and control litigation and asbestos-related bankruptcy proceedings; and (4) conserve the scarce resources of the defendants to allow compensation of cancer victims and others who are physically impaired by exposure to asbestos while securing the right to similar compensation for those who may suffer physical impairment in the future.
Section 4. (A) As used in this section, "asbestos," "asbestos claim," "exposed person," and "substantial contributing factor" have the same meanings as in section 2307.91 of the Revised Code.
(B) The General Assembly acknowledges the Court's authority in prescribing rules governing practice and procedure in the courts of this state, as provided by Section 5 of Article IV of the Ohio Constitution.
(C) The General Assembly hereby requests the Supreme Court to adopt rules to specify procedures for venue and consolidation of asbestos claims brought pursuant to sections 2307.91 to 2307.95 of the Revised Code.
(D) With respect procedures for venue in regard to asbestos claims, the General Assembly hereby requests the Supreme Court to adopt a rule that requires that an asbestos claim meet specific nexus requirements, including the requirement that the plaintiff be domiciled in Ohio or that Ohio is the state in which the plaintiff's exposure to asbestos is a substantial contributing factor.
(E) With respect to procedures for consolidation of asbestos claims, the General Assembly hereby requests the Supreme Court to adopt a rule that permits consolidation of asbestos claims only with the consent of all parties, and in absence of that consent, permits a court to consolidate for trial only those asbestos claims that relate to the same exposed person and members of the exposed person's household.
Section 5.  If any item of law that constitutes the whole or part of a section of law contained in this act, or if any application of any item of law that constitutes the whole or part of a section of law contained in this act, is held invalid, the invalidity does not affect other items of law or applications of items of law that can be given effect without the invalid item of law or application. To this end, the items of law of which the sections contained in this act are composed, and their applications, are independent and severable.
Section 6. If any item of law that constitutes the whole or part of a section of law contained in this act, or if any application of any item of law contained in this act, is held to be preempted by federal law, the preemption of the item of law or its application does not affect other items of law or applications that can be given affect. The items of law of which the sections of this act are composed, and their applications, are independent and severable.
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