Court Says Ohio Asbestos Law May Be Retroactively Applied

The state Supreme Court 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's Supreme Court overruled.

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, 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."

The impact of the decision may not immediately produce any readily discernable impact, according to the attorney representing the Ackison claim, Vincent Greene, who said he thought the immediate effect will be "muted."

He noted that several counties have stayed cases rather than dismiss them, pending the Supreme Court ruling, thus the effect will not be "that dramatic."

The law at issue, he noted, has been on the books for four years, so "it's not cataclysmic or titanic. There will be individuals whose conditions will worsen and they can meet that standard later on."

Other plaintiffs, he said, may develop cancers as a result of exposure, and that can be a cause for a suit that the law permits.

Mr. Greene called the court's decision a results-oriented one in favor of business and against sound jurisprudence.

His comments were disputed, however, by a defense lawyer who countered that there would be "tremendous" impact.

Robin Harvey, with the Baker Hostetler law firm in Cincinnati, who represented a company dismissed from an asbestos claim, said the decision was part of a movement to clean up "a cesspool of abuse" with cases developed by radiology mills. She said the Ohio statute calls for a plaintiff to have had an established doctor-patient relationship.

She said the law ruled out "unimpaired cases" where the only thing shown was a change on the pleural lining of the lungs, but the plaintiff had no physical symptoms.

Ms. Harvey said 37,000 cases that are pending are unimpaired. In the past, she said, plaintiff attorneys would package one valid case of mesothelioma with a bunch of unimpaired cases and use it to leverage settlements of "garbage cases."

According to the Property Casualty Insurers Association of America, at the time the law was passed in an effort to clear court dockets, there were 40,000 cases pending in Cuyahoga County alone.