Wilson v. Ac&S, Inc.

• Decision Date: 18 December 2006
• Docket Number: No. CA2006-03-056.,CA2006-03-056.
• Citation: 864 N.E.2d 682,2006 Ohio 6704,169 Ohio App.3d 720
• Parties: WILSON, Appellee, v. AC&S, INC., et al., Appellants.
• Court: Ohio Court of Appeals

864 N.E.2d 682

169 Ohio App.3d 720

2006-Ohio-6704

WILSON, Appellee, v. AC&S, INC., et al., Appellants.

No. CA2006-03-056.

Court of Appeals of Ohio, Twelfth District, Butler County.

Decided December 18, 2006.

Price Waicukauski & Riley, L.L.C., William N. Riley, and Christopher Moeller, for appellee.

Motley, Rice, L.L.C., John J. McConnell, and Vincent L. Greene, for appellee.

Vorys, Sater, Seymour & Pease, L.L.P., Richard D. Schuster, and Nina I Webb-Lawton, Columbus; Rosemary D. Welsh, Cincinnati, for appellants 3M Company, Oglebay Norton Company, Certainteed Corporation, and Union Carbide.

Oldham & Dowling and Reginald S. Kramer, Akron, for appellant CBS Corporation.

Baker & Hostetler L.L.P., Robin E. Harvey, and Angela M. Hayden, Cincinnati, for appellants Uniroyal, Inc., and Georgia-Pacific.

Gallagher Sharp, Kevin C. Alexanderson, John A. Valenti, and Colleen Mountcastle, Cleveland, for appellant Ingersoll-Rand Corporation.

Buckley King, L.P.A., and Jeffrey W. Ruple, Cleveland, for appellant Cleaver-Brooks.

Sutter, O'Connell & Farchione Co., L.P.A., Matthew C. O'Connell, and Douglas R. Simek, Cleveland, for appellants Riley Stoker Corporation and Garlock Sealing Technologies, L.L.C.

McCarthy, Lebit, Crystal & Liffman, Co., L.P.A., and David A. Schaefer, Cleveland, for appellant Rapid American Corporation.

Jim Petro, Attorney General, and Holly J. Hunt, Assistant Attorney General, for amicus curiae Ohio Attorney General Jim Petro.

Bunda, Stutz & DeWitt, and Robert Bunda, Toledo, for amicus curiae Owens-Illinois, Inc.

WILLIAM W. YOUNG, Judge.

{¶ 1} This matter is before us on an appeal¹ by numerous appellants who are challenging a decision of the Butler County Court of Common Pleas finding that the asbestos claim of plaintiff-appellee, Barbara Wilson, individually and as personal representative of the estate of Chester Wilson, is governed by the law as it existed prior to the effective date of 2004 Am.Sub. H.B. No. 292 ("H.B. 292").

{¶ 2} From 1964 to his retirement in April 2000, Chester Wilson was employed by A.K. Steel Corporation, formerly known as Armco Steel Corporation, located in Butler County, Ohio. Mr. Wilson worked in various jobs around the plant, including the position of furnace tender. On August 4, 2000, Mr. Wilson, who was a two-or-three-pack-a-day smoker, was diagnosed with lung cancer.

{¶ 3} On December 14, 2001, Mr. Wilson filed a complaint against a number of companies (hereinafter "appellants"²) that have been engaged in the mining, processing, manufacturing, sale, and distribution of asbestos or asbestos-containing products or machinery. Mr. Wilson alleged that he had been exposed to asbestos or asbestos-containing products or machinery in his occupation and that appellants were responsible for his lung disease and related physical ailments from which he suffered.

{¶ 4} On April 15, 2003, Mr. Wilson died of lung cancer. Thereafter, Mr. Wilson's wife, Barbara Wilson, was substituted as the party in interest for the deceased Mr. Wilson.

{¶ 5} On September 2, 2004, H.B. 292 went into effect. The key provisions of H.B. 292 are codified in R.C. 2307.91 to 2307.98. Among other things, these provisions require a plaintiff bringing an asbestos claim to make a prima facie showing that the exposed person has a physical impairment resulting from a medical condition and that the person's exposure to asbestos was a substantial contributing factor to the medical condition. See R.C. 2307.92(B) through (D) and 2307.93(A)(1).

{¶ 6} In March 2005, appellee filed a motion, with several exhibits attached, seeking to establish the prima facie showing required under H.B. 292. Appellants filed a memorandum in opposition, asserting that appellee's proffered evidence failed to establish a sufficient prima facie showing to allow her case to proceed and requesting that appellee's case be administratively dismissed.

{¶ 7} On August 30, 2005, the trial court held a hearing on the parties' various assertions regarding appellee's asbestos claim. At the hearing, appellee acknowledged that her evidence was insufficient to establish the prima facie showing required under H.B. 292. Nevertheless, appellee argued that H.B. 292 should not apply to her asbestos claim because applying the new law to her claim would amount to an unconstitutional retroactive application of the law.

{¶ 8} On February 24, 2006, the trial court issued an order holding that the retroactive application of H.B. 292 was substantive rather than merely remedial in its effect and therefore violates Section 28, Article II of the Ohio Constitution. Consequently, the trial court announced its intention to "adjudicate substantive issues in asbestos cases filed before September 2, 2004 according to the law as it existed prior to [H.B. 292]'s enactment, and [to] administratively dismiss, without prejudice, any claim that fails to meet the requisite evidentiary threshold." The trial court journalized its order on March 7, 2006.

{¶ 9} Appellants now appeal from the trial court's March 7, 2006 order³ and assign the following as error:

{¶ 10} Assignment of Error No. 1:

{¶ 11} "The trial court erred in interpreting R.C. 2307.92 and concluding that the statute would violate the Ohio Constitution."

{¶ 12} Appellants argue that the trial court erred in concluding that retrospectively applying certain provisions in H.B. 292 to this case would violate the ban on retroactive legislation in Section 28, Article II of the Ohio Constitution. We agree with this argument.

I

{¶ 13} OVERVIEW OF OHIO'S PERSONAL-INJURY ASBESTOS LITIGATION SYSTEM — PAST and PRESENT

A {¶ 14} Ohio's Personal-Injury Asbestos Litigation System — Pre-H.B. 292

{¶ 15} In 1980, the General Assembly amended R.C. 2305.10 to state when a cause of action for an asbestos-related personal injury arises or accrues under Ohio law. 138 Ohio Laws, Part II, 3412. R.C. 2305.10(B)(5) now states:

{¶ 16} "[A] cause of action for bodily injury caused by exposure to asbestos accrues upon the date on which the plaintiff is informed by competent medical authority that the plaintiff has an injury that is related to the exposure, or upon the date on which by the exercise of reasonable diligence the plaintiff should have known that the plaintiff has an injury that is related to the exposure, whichever date occurs first."

{¶ 17} Prior to September 2, 2004, the General Assembly had never defined the terms "bodily injury caused by exposure to asbestos" or "competent medical authority."

B {¶ 18} Ohio's Asbestos Litigation Crisis

{¶ 19} Asbestos claims have created a vastly increased amount of litigation in the state and federal courts in this country, which the United States Supreme Court has characterized as "an elephantine mass" of cases. H.B. 292, Section 3(A); Ortiz v. Fibreboard Corp. (1999), 527 U.S. 815, 821, 119 S.Ct. 2295, 144 L.Ed.2d 715.

{¶ 20} The extraordinary volume of nonmalignant asbestos cases continues to strain federal and state courts. H.B. 292, Section 3(A). Over 600,000 people in the United States have filed asbestos claims for asbestos-related personal injuries through the end of 2000, and it is estimated that there are currently more than 200,000 active asbestos cases in courts nationwide.

{¶ 21} One report suggests "that at best, only one-half of all claimants have come forward and at worst, only one-fifth have filed claims to date." Id. Another study estimates that $54 billion have already been spent on asbestos litigation. Id. Estimates of the total costs of all asbestos claims range from $200 to $265 billion. Id.

{¶ 22} Before 1998, Ohio, Mississippi, New York, West Virginia, and Texas accounted for nine per cent of all filings of asbestos claims. However, between 1998 and 2000, these same five states handled 66 percent of all asbestos filings. As a result, Ohio has now become a haven for asbestos claims and is one of the top five state-court venues for asbestos filings. Id.

{¶ 23} There are at least 35,000 asbestos personal-injury cases pending in Ohio state courts. Id. If the 233 Ohio state-court general jurisdictional judges started trying these asbestos cases today, each would have to try over 150 cases before retiring the current docket. H.B. 292, Section 3(A). That figure conservatively computes to at least 150 trial weeks, or more than three years per judge to retire the current docket. Id.

{¶ 24} "The current docket, however, continues to increase at an exponential rate." Id. For example, in 1999 there were approximately 12,800 pending asbestos cases in Cuyahoga County. Id. However, by the end of October 2003, there were over 39,000 pending asbestos cases. Id. Approximately 200 new asbestos cases are filed in Cuyahoga County every month. Id.

{¶ 25} Asbestos personal-injury litigation has already contributed to the bankruptcy of more than 70 companies nationwide, including nearly all manufacturers of asbestos textile and insulation products. Id. "At least five Ohio-based companies have been forced into bankruptcy because of an unending flood of asbestos cases brought by claimants who are not sick." Id.

{¶ 26} The General Assembly has recognized "that the vast majority of Ohio asbestos claims are filed by individuals who allege they have been exposed to asbestos and who have some physical sign of exposure to asbestos, but who do not suffer from an asbestos-related impairment." Id. Indeed, 89 percent of asbestos claims come from people who do not have cancer, and 66 to 90 percent of these noncancer claimants are not sick. Id. Furthermore, according to one study, 94 percent of the 52,900 asbestos claims filed in the year 2000 involved claimants who are not sick. Id.

{¶ 27} Tragically, plaintiffs with asbestos claims are receiving less than 43 cents on every dollar awarded, and 65 per cent of the compensation paid, thus far, has gone to claimants who are not sick. Id.

C {¶ 28} Amended Substitute House Bill 292

{¶ 29} H.B. 292 was signed into law on June...