The Ohio Supreme Court, in a move that drew praise from insurance interests, ruled 6-1 today that a 2004 state law, requiring plaintiffs to submit medical proof of injury from asbestos before their cases are heard, can be applied retroactively.

According to the court, the statute can be applied without violating the Ohio Constitution Retroactivity Clause because the law is "procedural and remedial."

At the time the law was passed, the legislature found the existing asbestos personal injury litigation system in the state to be "unfair and inefficient, imposing a severe burden on litigants and taxpayers alike," the court noted.

Without preliminary medical evidence of physical impairment, asbestos cases can be administratively dismissed without prejudice. They can be reinstated if such proof is brought under the law.

The case was brought by Linda Ackison, the widow of Danny Ackison, against his employer, Dayton Malleable of Ironton, Ohio, and other defendants, claiming nonmalignant asbestosis. Her case was administratively dismissed by a trial judge but reversed by an appeals court, which the State Supreme Court overruled today.

The court said the law would only be unconstitutional if it impaired or took away a right, or imposed new or additional burdens, duties, obligations or liabilities as to a past transaction, or creates a new right.

A remedial law, the court said in an opinion written by Justice Robert R. Cupp, has been found to be one that affects only the remedy provided, and includes laws that merely substitute a new or more appropriate remedy for enforcement of an existing right.

The court's action drew a stinging rebuke in the minority opinion written by Justice Paul E. Pfeiffer. "This court's job in this case is not to fix a crisis declared by the General Assembly. Our duty is to determine what is right for Danny Ackison under the Ohio Constitution," he wrote.

His opinion also said the court's "complicity with the General Assembly when it violates the Constitution is not judicial restraint--it is doing the work of the legislature from the bench."

But in the view of the American Insurance Association (AIA), the ruling "upholds the nation's first asbestos litigation reform legislation, thereby helping truly sick victims of asbestos exposure get compensated quickly and fairly for their injuries."

The decision "upholds a process that prioritizes the handling and resolution of asbestos claims and litigation," said AIA's vice president and deputy general counsel, Lynda Mounts.

"For too long, the bulk of asbestos claims that have caused dozens of Ohio companies to go bankrupt were specious. The reform measure, now validated by the court, simply requires plaintiffs to provide solid medical evidence of an asbestos-related illness for a lawsuit to proceed," she said.

"The truly sick will still get compensated, and for those that, thankfully, are not sick but may become sick, they can still have their day in court," she added.

Special Reports /

Ohio Supreme Court: Asbestos Law Can Apply Retroactively

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