To enact sections 2307.84 to 2307.90 and section 2307.901 of the Revised Code to establish minimum medical requirements for filing certain silica claims or mixed dust disease claims, to establish premises liability in relation to those claims, and to prescribe the requirements for shareholder liability for those claims under the doctrine of piercing the corporate veil.

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

Sec. 2307.84.  As used in sections 2307.84 to 2307.90 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) "Board-certified internist" means a medical doctor who is currently certified by the American board of internal medicine.

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

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

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

(F) "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.

(G) "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.

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

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

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

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

(J) "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.

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

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

(M) "Mixed dust disease claim" means any claim for damages, losses, indemnification, contribution, or other relief arising out of, based on, or in any way related to mixed dust pneumoconiosis. "Mixed dust disease claim" includes a claim made by or on behalf of any person who has been exposed to mixed dust, 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 mixed dust.

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

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

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

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

(P) "Pathological evidence of mixed dust pneumoconiosis" 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 and parenchymal stellate (star-shaped) nodular scarring and that there is no other more likely explanation for the presence of the fibrosis.

(Q) "Pathological evidence of silicosis" 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 round silica nodules (well-organized concentric whorls of collagen surrounded by inflammatory cells) in the lung parenchyma and that there is no other more likely explanation for the presence of the fibrosis.

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

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

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

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

(T) "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.

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

(V) "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 specified in section 2307.85 or 2307.86 of the Revised Code, whichever is applicable, and who meets the following requirements:

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

(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 twenty-five per cent of the medical doctor's professional practice time in providing consulting or expert services in connection with actual or potential tort 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.

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

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

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

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

(AA) "Silica claim" means any claim for damages, losses, indemnification, contribution, or other relief arising out of, based on, or in any way related to silica. "Silica claim" includes a claim made by or on behalf of any person who has been exposed to silica, 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 silica.

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

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

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

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

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

(2) 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 silica or mixed dust exposures.

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

(1) Handled silica;

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

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

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

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

(1) Handled mixed dust;

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

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

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

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

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

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

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

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

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

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

(KK) "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.

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

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

(B) No person shall bring or maintain a tort action alleging a silica claim based on a nonmalignant condition in the absence of a prima-facie showing, in the manner described in division (A) of section 2307.87 of the Revised Code, 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 silica 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 silica 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, silica or other disease causing dusts, that can cause pulmonary impairment and, if that type of exposure is involved, the nature, duration, and level of 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 silicosis based at a minimum on radiological or pathological evidence of silicosis. In the case of death of an exposed person, if no pulmonary function testing results are available, the pathological or radiological evidence of silicosis and evidence from a qualified physician who treated the exposed person showing that the silicosis was a substantial contributing factor of the exposed person's physical impairment prior to death or a substantial contributing factor of the exposed person's death are sufficient to satisfy the minimum requirements for a prima-facie showing under division (B) of this section.

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

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

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

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

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

(a) 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 silica is a substantial contributing factor to that cancer;

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

(c) Both of the following:

(i) Radiological or pathological evidence of silicosis;

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

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

(D) 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.

(E) All of the following apply to the presentation of prima-facie evidence that meets the requirements of division (B) or (C) 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 a silica-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. 2307.86.  (A) Physical impairment of the exposed person, to which the person's exposure to mixed dust is a substantial contributing factor, shall be an essential element of a mixed dust disease claim in any tort action.

(B) No person shall bring or maintain a tort action alleging a mixed dust disease claim based on a nonmalignant condition in the absence of a prima-facie showing, in the manner described in division (A) of section 2307.87 of the Revised Code, 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 mixed dust 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 mixed dust disease 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, mixed dust, 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 mixed dust pneumoconiosis, based at a minimum on radiological or pathological evidence of mixed dust pneumoconiosis. In the case of death of an exposed person, if no pulmonary function testing results are available, the pathological or radiological evidence of mixed dust pneumoconiosis and evidence from a qualified physician who treated the exposed person showing that the mixed dust pneumoconiosis was a substantial contributing factor of the exposed person's physical impairment prior to death or a substantial contributing factor of the exposed person's death are sufficient to satisfy the minimum requirements for a prima-facie showing under division (B) of this section.

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

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

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

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

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

(a) 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 mixed dust is a substantial contributing factor to that cancer;

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

(c) Both of the following:

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

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

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

(D) 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.

(E) All of the following apply to the presentation of prima-facie evidence that meets the requirements of division (B) or (C) 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 a mixed dust-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. 2307.87. (A) The plaintiff in any tort action who alleges a silica claim or a mixed dust disease claim shall file, within thirty days after filing 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 specified in division (B) or (C) of section 2307.85 or division (B) or (C) of section 2307.86 of the Revised Code, whichever is applicable. With respect to any silica claim or mixed dust disease 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 division within one hundred twenty days following the effective date of this section. The defendant in the case shall be afforded a reasonable opportunity, upon the defendant's motion, to challenge the adequacy of the proffered prima-facie evidence of the physical impairment for failure to comply with the minimum requirements specified in division (B) or (C) of section 2307.85 or division (B) or (C) of section 2307.86 of the Revised Code, whichever is applicable. The defendant has one hundred twenty days from the date the prima-facie evidence of the exposed person's physical impairment is proffered to challenge the adequacy of that prima-facie evidence. If the defendant makes that challenge and uses a physician to do so, the physician must meet the requirements specified in divisions (V)(1) and (3) of section 2307.84 of the Revised Code.

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

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

Sec. 2307.88.  (A) Notwithstanding any other provision of the Revised Code, with respect to any silica claim or mixed dust disease 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) A silica claim or a mixed dust disease claim that arises out of a nonmalignant condition shall be a distinct cause of action from a silica claim or a mixed dust disease claim, as the case may be, relating to the same exposed person that arises out of silica-related cancer or mixed dust-related cancer. No damages shall be awarded for fear or risk of cancer in any tort action asserting only a silica claim or a mixed dust disease claim for a nonmalignant condition.

(C) No settlement of a silica claim or a mixed dust disease 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 silica-related cancer or mixed dust-related cancer.

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

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

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

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

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

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

(D) As used in this section:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(B) Sections 2307.84 to 2307.90 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. 2307.901. (A) A holder has no obligation to, and has no liability to, the covered entity or to any person with respect to any obligation or liability of the covered entity in a silica claim or a mixed dust disease claim under the doctrine of piercing the corporate veil unless the person seeking to pierce the corporate veil demonstrates all of the following:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Section 2. (A) As used in this section, "exposed person," "mixed dust," "mixed dust disease claim," "silica," "silica claim," and "substantial contributing factor" have the same meanings as in section 2307.84 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 silica claims or mixed dust disease claims brought pursuant to sections 2307.84 to 2307.90 of the Revised Code.

(D) With respect to procedures for venue in regard to silica claims or mixed dust disease claims, the General Assembly hereby requests the Supreme Court to adopt a rule that requires that a silica claim or a mixed dust disease 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 silica or mixed dust is a substantial contributing factor.

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

Section 3.  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 4. 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.