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2004 Bill Changing Asbestos Lawsuit Procedures May Be Applied to Cases Filed Before Law Changed

2007-0219 and 2007-0415.  Ackison v. Anchor Packing Co., Slip Opinion No. 2008-Ohio-5243.
Lawrence App. No. 05CA46, 2006-Ohio-7099.  Certified question answered in the affirmative, judgment reversed, and judgment of the trial court reinstated.
Lundberg Stratton, O'Connor, O'Donnell, Lanzinger, and Cupp, JJ., concur in the majority.
Moyer, C.J. dissents without opinion.
Pfeifer, J., dissents with opinion.
Opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2008/2008-Ohio-5243.pdf

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(Oct. 15, 2008)  The Supreme Court of Ohio ruled today that legislation enacted by the General Assembly in September 2004 imposing new requirements on plaintiffs pursuing asbestos-related injury claims may be applied to plaintiffs whose cases were already pending in state courts on the effective date of the legislation. 

The Court’s 6-1 decision, authored by Justice Robert R. Cupp, held that the legislative changes were “remedial and procedural” in nature, and therefore may be applied to cases that were filed before the effective date of the bill without offending the Ohio Constitution’s prohibition against retroactive laws that affect a party’s substantive rights.

The case involved Linda Ackison of Ironton, who filed a wrongful death suit in May 2004 against her deceased husband’s former employer and multiple other defendants alleging that her husband’s illnesses and death were caused by long-term exposure to asbestos in his workplace.

Effective Sept. 2, 2004, the General Assembly adopted H.B. 292, legislation which made extensive revisions to the state laws governing asbestos litigation. To remedy legislative findings that there was a backlog of tens of thousands of asbestos cases in state courts and that the existing system for resolving those cases “is unfair and inefficient, imposing a severe burden on litigants and taxpayers alike,” the bill established new threshold requirements that must be met by a plaintiff in order for any new or pending asbestos lawsuit to go forward.

These included requirements that the plaintiff submit specified medical evidence of current disease or medical impairment, and that such evidence be supported by the written opinion of a competent medical authority who had personally treated the claimant stating that the claimant’s exposure to asbestos was a substantial contributing factor to his medical condition. The bill stated the legislature’s intent to give priority to the cases of plaintiffs already suffering from cancer and other diagnosed asbestos-related illnesses over the claims of plaintiffs who did not exhibit current medical symptoms. To that end, it provided that the claim of any plaintiff who failed to file the required medical evidence and physician’s statement would be automatically dismissed “without prejudice,” meaning that plaintiffs whose claims were dismissed would not be time-barred from refiling them at a later date if and when the claimant could meet the H.B. 292 evidentiary requirements. The bill included a statement of legislative intent that the amended evidentiary requirements and administrative dismissal provision be applied to all asbestos cases pending in Ohio courts, regardless of whether they were filed before or after Sept. 4, 2004.

When Ms. Ackison failed to file documentation of her husband’s medical conditions that met the H.B. 292 requirements by a specified deadline, the trial court dismissed her case. She appealed the trial court’s ruling, and the Fourth District Court of Appeals reversed and reinstated her case. In its opinion, the court of appeals held that retroactive application of the H.B. 292 evidentiary requirements and administrative dismissal provision to Ackison’s claim was unconstitutional. The court stated that because Ackison’s suit had been filed prior to the effective date of the statutory changes, she had a vested substantive right to pursue recovery for her husband’s illness and death under the less-restrictive standards that were in effect at the time her complaint was filed. The Fourth District certified that its decision in this case conflicted with three cases from the 12th District Court of Appeals in which that court held that retroactive application of the H.B. 292 evidentiary standards was not unconstitutional. The Supreme Court agreed to hear arguments to resolve the conflict between appellate districts.

Writing for the Court in today’s decision, Justice Cupp analyzed each of the statutory subsections enacted or amended by H.B. 292 and challenged by Ackison, R.C. 2307.91, 2307.92 and 2307.93. He concluded that, in each instance, the new requirements imposed on litigants were “procedural” or “remedial” in nature, and therefore could be imposed retroactively in cases such as Ackison’s without offending the retroactivity clause of the state constitution.

He rejected the Fourth District’s holding that pleural plaque (thickening of the walls of the lung), the non-cancerous lung condition with which Ackison’s husband was diagnosed prior to his death, was recognized as compensable “physical harm” in Ohio prior to the enactment of H.B. 292. While acknowledging that two of the state’s 12 appellate districts had issued decisions finding the condition to constitute compensable harm in asbestos actions, Justice Cupp cited the 2005 Restatement of Torts and multiple court decisions from other states holding the opposite. 

He wrote: “This court has never held that asymptomatic pleural thickening is, by itself, sufficient to establish a compensable injury for asbestos exposure. Verbryke and Cuyahoga Cty. Asbestos Cases ... are the only two appellate courts that have addressed the issue in Ohio, but those decisions rest on a misreading of the Restatement. Accordingly, we conclude that Ackison has not established that the settled common law in Ohio permitted tort recovery for asymptomatic pleural thickening in asbestos exposure cases prior to the enactment of H.B. 292. Moreover, with respect to this case specifically, although there was evidence of pleural thickening in Mr. Ackison’s lungs, he had not been diagnosed with any asbestos-related illness or impairment. The provisions of H.B. 292 at issue here did not prevent Ackison from pursuing her claim. Although the legislation caused a hold to be placed on the claim, the hold did not by itself extinguish the claim. Thus, Ackison has failed to carry her burden of proving that the statute was unconstitutional and void when applied to the facts of this case.”

With regard to Ackison’s claim that a definition of “competent medical authority” adopted as part of H.B. 292 imposed limits on  the use of medical experts that were not in place when her claim was filed, Justice Cupp wrote: “Before the enactment of R.C. 2307.91, the term ‘competent medical authority’ was not defined by either statute or case law. By choosing to define that term, the legislature did not take away Ackison’s right to pursue her claim. Nor did the definition alter the quantum of proof necessary for a plaintiff to prevail in an asbestos-related claim. Rather, it merely defined the procedural framework by which trial courts are to adjudicate such claims. The definition of competent medical authority pertains to the witness’s competency to testify and is, in essence, more akin to a rule of evidence. As such, it is procedural in nature. .. Therefore, the definition does not alter a vested substantive right possessed by Ackison; she did not have a vested right to have the undefined term remain undefined.”

The majority decision was joined by Chief Justice Thomas J. Moyer and Justices Evelyn Lundberg Stratton, Maureen O’Connor, Terrence O’Donnell and Judith Ann Lanzinger.

Justice Paul E. Pfeifer entered an extensive dissenting opinion in which he challenged the majority’s legal analysis on multiple issues and stated that in his view retroactive application of H.B. 292 to the wrongful death claim filed by Ackison was clearly unconstitutional because the legal changes made by the bill effectively “legislated away” the plaintiff’s previously actionable claim in a case that was filed and pending several months before the legislation was passed. He wrote: “H.B. 292 changes the law so that people who had viable claims before its passage no longer have viable claims afterward. It achieves its end by changing the substance of what constitutes a valid injury, altering the nature of the medical proof necessary to prove a claim, modifying what constitutes causation in an asbestos-exposure claim, and essentially overruling this court in establishing new requirements for the extent of exposure to asbestos that is necessary to prove a claim. There is no way around it: H.B. 292 places new, substantive burdens on people with asbestos-exposure claims.”

“The majority writes that, in Ackison’s case, ‘[a]lthough the legislation caused a hold to be placed on the claim, the hold did not by itself extinguish the claim.’ True. But claimants like Danny Ackison will not get a chance to avail themselves of R.C. 2307.93(A)(3)(c)’s ‘come back when you’re sicker’ provision. Danny Ackison will not be getting sicker. And he will never have the opportunity to vindicate his rights that existed on the day he learned that his workplace exposure to asbestos had made him sick. H.B. 292 established that Ackison’s compensable harm was no longer a compensable harm.”

Richard D. Schuster, 614.464.5475, for Anchor Packing Co. and other defendants.

John J. McConnell Jr. 401.457.7711 or Richard Reverman, 513.721.1200, for Linda Ackison.