In a long-awaited decision, on October 15, 2008, the Ohio Supreme Court held that the nation’s first asbestos reform legislation – Ohio House Bill 292 – may be applied to cases pending prior to its effective date without offending the Retroactivity Clause of the Ohio Constitution. Ackison v. Anchor Packing Company, Slip Op. No. 2008-Ohio-5243. As of the effective date of H.B. 292, nearly 40,000 asbestos personal injury cases were pending in Ohio.
Recognizing that the “current asbestos personal injury litigation system is unfair and inefficient, imposing a severe burden on litigants and taxpayers alike” the General Assembly enacted H.B. 292 (codified as R.C. 2307.91-980) to prioritize asbestos-related claims.
The primary question before the Court was whether R.C. 2307.91, 2307.92, and 2307.93 can be applied to Plaintiff’s claim, which had been filed prior to September 2, 2004, the effective date of H.B. 292, or whether such application is unconstitutionally retroactive. In short:
- R.C. 2307.01 sets forth the definitions for the sections.
- R.C. 2307.92 requires claimants to make a prima facie showing in order to proceed with their claims.
- R.C. 2307.93 requires claimants with cases pending before the enactment of H.B. 292 to file evidence of physical impairment within a certain period of time, or face administrative dismissal.
First, the Court reiterated its own prior conclusion, about the remedial nature of R.C 2307.92 and 2307.93:
We have previously concluded that R.C. 2307.92 and 2307.93 ‘do not relate to the rights and duties that give rise to this cause of action or otherwise make it more difficult for a claimant to succeed on the merits of a claim. Rather, they pertain to the machinery for carrying on a suit. They are therefore procedural in nature, not substantive’...[T]hese two statutes establish a ‘procedural prioritization’ of asbestos-related claims. Simply put, these statutes create a cause of action that already exists. No new substantive burdens are placed on claimants.1
Second, the Court held that various provisions of H.B. 292 are not unconstitutional as applied to Plaintiff’s claim because they do not impair vested rights and affect substantive rights by altering substantive common-law rules pertaining to asbestos-related claims.
In this regard, the Court rejected the Sixth District Court of Appeals’ conclusion that pleural plaque or pleural thickening constitutes “bodily harm” and thus is a compensable asbestos-related condition under Ohio law. In Verbryke v. Owens-Corning Fiberglass Corp. (1992), 83 Ohio App.3d 388, 616 N.E.2d 1162, the Sixth District Court of Appeals held “pleural plaque or pleural thickening is an alteration to the lining of the lung. Accordingly, a pleural plaque or thickening meets the definition of ‘bodily harm,’ which is a subspecies of ‘physical harm’ and thus satisfies the injury requirements of Section 388 and 402A of the Restatement [of Law 2d, Torts (1965)]. The Verbryke decision was based upon a “faulty interpretation of the Restatement.” Accordingly, “[t] he Verbryke court’s holding that pleural thickening alone is sufficient to constitute an injury was not the common law of this state such that Ackison had a vested right to its application to her case.”
This case is important to Ohio courts, to the everexpanding list of companies named as defendants in asbestos personal injury lawsuits, and to those that are truly sick as a result of exposure to asbestos, as it allows for the “procedural prioritization” of literally tens of thousands of asbestos-related personal injury claims currently pending in Ohio courts.
The 5-2 opinion was written by Justice Cupp. Chief Justice Thomas Moyer dissented, as did Justice Paul Pfeifer