Ohio Okays Curbs On Asbestos, Silica Suits

By Susanne Sclafane

NU Online News Service, May 27, 2:52 p.m. EDT?Two bills intended to halt asbestos and silica lawsuits by individuals who show no symptoms won final passage in the Ohio Legislature yesterday.[@@]

The measures, which drew praise from industry trade groups, are expected to secure the signature of Republican Gov. Robert Taft, who supported them, according to Jeffrey Junkas, a spokesperson for the Washington-based American Insurance Association.

Due for enactment are the asbestos reform bill, H.B. 292, and the silica reform bill, H.B. 342.

Similar in scope, the two bills set minimum medical requirements for filing asbestos, silicosis and mixed dust claims. They also set rules for premises liability actions and attempt to limit cases that try to "pierce the corporate veil" by naming parent companies of firms that are more directly involved in manufacturing processes that gives rise to the injury-causing exposure in litigation.

While judicial solutions, known as inactive dockets, have been proposed and set up in other states, the Ohio legislation is groundbreaking in several respects, according to Mark Behrens, a lawyer for Shook, Hardy & Bacon, who is also counsel to the Coalition for Litigation Justice in Washington.

Ohio, he said, is the first state to adopt either a legislative or a judicial plan for curbing silica suits. And it is the first state to adopt legislative medical criteria for asbestos litigation.

The approach is modeled after judicial approaches, referred to as inactive docket programs, which are in place in a number of areas, he said. For example, in Boston, New York City, Syracuse, Seattle and in Madison County, Ill., registries are set up for people that are not sick, allowing them to file cases later when they can present credible evidence of illness.

There is also a petition for adopting an inactive docket pending in the Michigan Supreme Court. (See NU, Sept. 15, 2003, page 18 for details.)

Mr. Behren highlighted the fact that Ohio was the first to legislate a silica solution, noting that such a "holistic approach" avoids the problem of having silica lawsuits filings exacerbated by lawyers who would run into difficulties filing asbestos suits if only medical criteria for asbestos was enacted.

With federal reform efforts stalled, states will more aggressively pursue their own individual reforms efforts, and Ohio is a bellwether state, he said. Although it is a Republican state, it is also a heavy manufacturing and heavy labor state, he said, noting that its size and bipartisanship are key reasons for its bellwether status.

Mr. Junkas pointed to the large industrial base of the state as a reason why the legislation was important for, and successful in Ohio. There are more than 40,000 cases in Cayahuga County, he said, noting while they are mainly asbestos cases, there are roughly 1,000 silica cases.

According to an April 2002 report, "Health Effects of Occupational Exposure to Respirable Crystalline Silica," by The National Institute of Occupational Safety and Health (the research arm of OSHA), Ohio ranked second behind Pennsylvania in deaths caused by silicosis between 1990 and 1999.

According to statistics compiled by the CLJ, one unidentified insurance company facing claims related to silica cases from 30,000 plaintiffs had 66 percent from Mississippi, 25 percent from Texas, and only 5 percent from Ohio.

Texas enacted comprehensive tort reforms in 2003, but asbestos medical reforms were sidetracked when other issues consumed the legislators' time, Mr. Behrens said, noting that they are expected to be picked up again when the lawmakers reconvene in 2005.

Special Reports /

Ohio Okays Curbs On Asbestos, Silica Suits

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