Court Nixes Ohio Effort To Block Asbestos Law

Court Nixes Ohio Effort To Block Asbestos Law

By Arthur D. Postal, Washington Bureau Chief

NU Online News Service, Sept. 2, 4:31 p.m. EDT?Rejecting a plea from a group of unions, an Ohio court has decided to allow the nation's first statewide law creating objective medical criteria for asbestos litigation to go into effect while an appeal is pending.[@@]

In allowing the law to take effect pending appeal, the Cuyahoga County Eighth District Court of Appeals also set a deadline for motions to be filed on or before Sept. 20 with any responses due by Oct. 12.

"While there is still a long road ahead for supporters of HB 292[the Ohio legislation creating the law], we are pleased with the Court's interim ruling," said Steve Schneider, vice president, Midwest Region, for the American Insurance Association. "The Court demonstrated wisdom and prudence in denying the writ while granting each side an opportunity to present their position."

Mark Behrens, a lawyer in Washington, D. C. with Shook, Hardy & Bacon L.L.P., who tracks statewide asbestos litigation and legislation, said, the decision means "that Ohio courts can begin to focus scarce resources on the truly sick rather than continue to watch those resources depleted in payments to individuals whose claims are either premature--because they are not sick now--or actually meritless, because they will never develop an asbestos-related injury."

He added that another impact will be that "The sickest claimants will be able to proceed to trial without having to wait in line behind earlier-filing claimants that are not sick."

The lawsuit seeking to block implementation of the law pending appeal was filed by attorney Michael Kelley, of the firm of Kelley & Ferraro, on behalf of several unions whose workers were involved in asbestos-related industries.

The unions are especially concerned about the retroactivity provisions of the new law. The unions took to the courts after deciding in mid-August that it would be impossible to get 192,000 signatures needed for a referendum on the law before today's deadline for filing.

The plaintiffs argued in their suit that new law will change the rules governing asbestos-related lawsuits already in the courts and make it more difficult for those who haven't filed claims prior to that date but have already been exposed to asbestos.

The setback is the second in a state court for plaintiff's lawyers and their asbestos clients in recent weeks. On Aug. 26, the Mississippi Supreme Court changed existing rules in that state by mandating that each plaintiff seeking damages from exposure to asbestos in the workplace must independently prove their injury.

For the past four or five years, according to lawyers in Mississippi, courts in that state have allowed plaintiff's lawyers to file multi-plaintiff lawsuits on behalf of a few people suffering from exposure to asbestos, as well as hundreds or even thousands of others who could have been exposed but are not showing symptoms of exposure.

Regarding the latest case, the AIA's Mr. Schneider said that, "Supporters of asbestos litigation reform in Ohio, and across the country, must remain vigilant in their efforts to have HB 292 officially and fully implemented."

Mr. Behrens added, "The court acted wisely to request a full briefing before acting on the new legislation." He added that, "When the court considers the law and policy behind the General Assembly's decision to help sick asbestos victims and stem the tide of asbestos-related bankruptcies, the court should uphold the new legislation. The asbestos law is constitutional."