Ohio Court: Law on Asbestos May be Retroactive

The Ohio Supreme Court has ruled that a 2004 law imposing stricter rules on those suing for asbestos-related injuries can be applied to cases pending before the legislation was passed, a move that could frustrate thousands of people seeking claims.

The 6-1 decision Wednesday means that many of the 40,000 Ohio cases filed before the law was enacted are likely to be dismissed. It also has potential ramifications in Florida, Georgia, Kansas and other states that have sought to use such laws to reduce litigation related to the cancer-causing substance.

The 2004 law requires that a medical expert personally treat the claimant rather than just review their files and that plaintiffs must offer specific medical evidence that asbestos exposure caused disease or medical impairment. Enacted on Sept. 2, 2004, it made the requirements retroactive to lawsuits filed before that date.

The state Supreme Court said Wednesday the law was valid because the changes were “remedial and procedural” and not in violation of the Ohio Constitution, which bars retroactive laws that change the nature or substance of a law.

Asbestos is a fibrous mineral commonly used until the mid-1970s in insulation and fireproofing material. The U.S. Department of Health and Human Services says the fibers can remain in lung tissue for long periods and that significant exposure to the material increases the risk of lung cancer, mesothelioma and other ailments. The diseases often take decades to develop.

The latest ruling concerned the case of Linda Ackison, who filed a wrongful death lawsuit in May 2004 — months before the evidentiary requirements were enacted — against her late husband’s former employer, Dayton Malleable, among other defendants. The suit alleged that long-term exposure to asbestos in the workplace contributed to the illness and death of her husband, Danny.

Attorneys for Linda Ackison sued, arguing that the heightened requirements made substantive changes to the state’s law and that the less stringent legal standards in effect when she sued should have been applied.

Richard Schuster, an attorney for several Fortune 500 companies and other businesses sued by Ackison, called the high court’s ruling significant, both to the companies and to Ohio’s ailing economy.

“For the businesses located here in Ohio, it will allow the cases to come off their books and allow them to focus on doing business and, hopefully, hiring people here in Ohio,” he said. “It really focuses the attention on those people who are ill, who have a real disease, and allows those cases to move through the courts, which have been clogged up by people who weren’t sick.”

Vin Green, an attorney for Ackison, called it “completely and totally inaccurate” to say that those who filed asbestos-related lawsuits aren’t sick.

“If you have damage to the lining of your lungs, you are sick,” he said. “The extent to which you’re symptomatic is going to vary from case to case.”

Green condemned the high court for what he said was a ruling on the side of big business. “It’s a result-oriented decision in favor of corporations against injured Ohio citizens,” he said.

After the Georgia Supreme Court struck down the retroactivity of that state’s asbestos litigation law, state lawmakers passed another law that has not been challenged in court, Schuster said. A challenge to a similar law in Florida is before the courts and a decision is expected next year. A Kansas law has not been legally challenged.