Ackison v. Anchor Packing Co., 2007-219.

• Decision Date: 15 October 2008
• Docket Number: No. 2007-219.,No. 2007-415.,2007-219.,2007-415.
• Citation: 120 Ohio St.3d 228,897 N.E.2d 1118,2008 Ohio 5243
• Parties: ACKISON, Appellee, et al., v. ANCHOR PACKING COMPANY et al., Appellants.
• Court: Ohio Supreme Court

897 N.E.2d 1118

120 Ohio St.3d 228

2008-Ohio-5243

ACKISON, Appellee, et al., v. ANCHOR PACKING COMPANY et al., Appellants.

No. 2007-219.

No. 2007-415.

Supreme Court of Ohio.

Submitted November 28, 2007.

Decided October 15, 2008.

Motley Rice, L.L.C., and John J. McConnell Jr.; Young, Reverman & Mazzei Co., L.P.A., Richard E. Reverman, and Kelly Thye, Cincinnati, for appellee.

Vorys, Sater, Seymour & Pease, L.L.P., Richard D. Schuster, Nina I. Webb-Lawton, and Michael J. Hendershot, Columbus, for appellants H.B. Fuller Co., Industrial Holdings Corp., Union Carbide Corp., Amchem Products, Inc. and Certainteed Corp.

Bunda, Stutz & DeWitt, P.L.L., and Rebecca C. Sechrist; Schiff Hardin, L.L.P., and Robert H. Riley, for appellant Owens-Illinois, Inc.

Gallagher Sharp, Kevin C. Alexandersen, John A. Valenti, Colleen A. Mountcastle, and Holly Olarczuk-Smith, Cleveland, for appellants Beazer East, Inc. and Ingersoll-Rand Co.

Blank Rome, L.L.P., Michael L. Cioffi, and William M. Huse, Cincinnati, for appellant Honeywell International, Inc.

David L. Day, L.P.A., and David L. Day, Columbus, for appellant John Crane, Inc.

Tucker, Ellis & West, L.L.P., Henry E. Billingsley II, Carter E. Strang, Cleveland, Rachel McQuade, and Halle M. Herbert, for appellants BOC Group, Inc., f.k.a. Airco, Inc., Hobart Brothers Co., and Lincoln Electric Co.

Oldham & Dowling and Reginald S. Kramer, Akron, for appellants General Electric Co. and CBS Corp., a Delaware corporation, f.k.a. Viacom, Inc., successor by merger to CBS Corp., a Pennsylvania corporation, f.k.a. Westinghouse Electric Corp.

Ulmer & Berne, L.L.P., Bruce P. Mandel, and Kurt S. Siegfried, Cleveland, for appellant Ohio Valley Insulating Co., Inc.

Eagen & Wykoff Co., L.P.A., Thomas L. Eagen Jr., and Christine Carey Steele, for appellant International Minerals and Chemical Corp. (Mallinckrodt).

Ulmer & Berne, L.L.P., Timothy M. Fox, Columbus, Charles R. Janes, James N. Kline, Kurt S. Siegfried, Robert E. Zulandt III, and Sally A. Jamieson, Cleveland, for appellant Georgia-Pacific L.L.C., f.k.a. Georgia-Pacific Corp.

Stewart Jaffy & Associates Co., L.P.A., Stewart R. Jaffy, and Marc J. Jaffy, Columbus, urging affirmance for amicus curiae Ohio AFL-CIO.

Brickler & Eckler, L.L.P., Kurtis A. Tunnell, and Anne Marie Sferra, Columbus, urging reversal for amici curiae Ohio Manufacturers' Association, National Federation of Independent Business/Ohio, Ohio Chamber of Commerce, Ohio Alliance for Civil Justice, and Ohio Chemistry Technology Council.

Shook, Hardy & Bacon, L.L.P., Victor E. Schwartz, Mark A. Behrens, and Christopher E. Appel, urging reversal for amici curiae American Insurance Association, National Federal of Independent Business Legal Foundation, Chamber of Commerce of the United States of America, National Association of Manufacturers, National Association of Mutual Insurance Companies, Property Casualty Insurers Association of America, and American Chemistry Council.

CUPP, J.

{¶ 1} In this appeal, we conclude that requirements in R.C. 2307.91, 2307.92, and 2307.93 pertaining to asbestos-exposure claims are remedial and procedural and may be applied without offending the Retroactivity Clause of the Ohio Constitution to cases pending on September 2, 2004.

I

{¶ 2} In May 2004, Linda Ackison, widow and administrator of the estate of Danny Ackison, filed suit against her husband's former employer and multiple other defendants alleging that her husband's illness and death were caused by long-term exposure to asbestos in his workplace. Although Ackison advanced other claims in her complaint, the only cause of action at issue in this appeal is her claim for nonmalignant asbestosis.

{¶ 3} On September 2, 2004, Am.Sub. H.B. No. 292 ("H.B. 292") became effective. 150 Ohio Laws, Part III, 3970. This legislation extensively revised state laws governing asbestos litigation and was in response to the legislative finding that "[t]he current asbestos personal injury litigation system is unfair and inefficient, imposing a severe burden on litigants and taxpayers alike." H.B. 292, Section 3(A)(2), 150 Ohio Laws, Part III, 3988.

{¶ 4} Among other sections, this bill enacted R.C. 2307.91 (definitions), 2307.92 (requirements for prima facie showing of physical impairment in certain asbestos claims), and 2307.93 (filing of reports and test results showing physical impairment; dismissals). These provisions establish certain threshold requirements. Among these requirements are that no person shall bring or maintain certain kinds of asbestos claims (including claims alleging a nonmalignant condition) without filing with the court certain qualifying medical evidence of physical impairment, and that such evidence must be supported by the written opinion of a competent medical authority stating that the claimant's exposure to asbestos was a substantial contributing factor to his medical condition. R.C. 2307.92. The claim of any plaintiff who does not file the required preliminary medical evidence and physician's statement is to be administratively dismissed "without prejudice" with the court retaining jurisdiction, meaning that a plaintiff would not be barred from reinstating the claim in the future when and if the plaintiff could meet the threshold evidentiary requirements. R.C. 2307.93(C). The legislation also provides that the threshold 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 the effective date of H.B. 292. R.C. 2307.93(A)(2) and (3).

{¶ 5} The trial court determined that the revised asbestos legislation applied to Ackison and that the legislation did not impair any substantive rights so as to violate Section 28, Article II of the Ohio Constitution. The trial court also administratively dismissed Ackison's claims because Ackison had failed to file the statutorily required documentation.

{¶ 6} Ackison appealed the trial court's ruling. The court of appeals reversed and reinstated the case. In its opinion, the court of appeals held that the retroactive application to Ackison's claim of the H.B. 292 evidentiary requirements 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 statutes that were in effect at the time her complaint was filed.

{¶ 7} The court of appeals certified that its decision conflicted with three cases from the Twelfth District Court of Appeals, each of which held that retroactive application of the H.B. 292 standards was not unconstitutional. See Wilson v. AC&S, Inc., 169 Ohio App.3d 720, 2006-Ohio-6704, 864 N.E.2d 682; Staley v. AC&S, Inc., Butler App. No. CA2006-06-133, 2006-Ohio-7033, 2006 WL 3833883; and Stahlheber v. Lac D'Amiante Du Quebec, LTEE., Butler App. No. CA2006-06-134, 2006-Ohio-7034, 2006 WL 3833888.

{¶ 8} We accepted jurisdiction and recognized the conflict on the following question: "Can R.C. 2307.91, 2307.92, and 2307.93 be applied to cases already pending on September 2, 2004?" Ackison v. Anchor Packing Co., 113 Ohio St.3d 1465, 2007-Ohio-1722, 864 N.E.2d 652, 113 Ohio St.3d 1464, 2007-Ohio-1722, 864 N.E.2d 651.

II

{¶ 9} The essential question in this case is whether R.C. 2307.91, 2307.92, and 2307.93 can validly be applied to Ackison's claims or whether these statutory provisions are unconstitutionally retroactive.

{¶ 10} The Ohio Constitution provides that the "general assembly shall have no power to pass retroactive laws * * *." Section 28, Article II, Constitution. Yet "retroactivity itself is not always forbidden by Ohio law. Though the language of Section 28, Article II of the Ohio Constitution provides that the General Assembly `shall have no power to pass retroactive laws,' Ohio courts have long recognized that there is a crucial distinction between statutes that merely apply retroactively (or `retrospectively') and those that do so in a manner that offends our Constitution." Bielat v. Bielat (2000), 87 Ohio St.3d 350, 353, 721 N.E.2d 28.

A

{¶ 11} Guided by R.C. 1.48, which provides that a statute is presumed to apply prospectively unless expressly declared to be retroactive, this court has developed a two-part inquiry to determine whether a statute is unconstitutionally retroactive. We recently summarized this test as follows:

{¶ 12} "First, the reviewing court must determine as a threshold matter whether the statute is expressly made retroactive. [State v.] LaSalle, 96 Ohio St.3d [178, 2002-Ohio-4009], 772 N.E.2d 1172, citing Van Fossen [v. Babcock & Wilcox Co. (1988) ], 36 Ohio St.3d 100, 522 N.E.2d 489, at paragraphs one and two of the syllabus. The General Assembly's failure to clearly enunciate retroactivity ends the analysis, and the relevant statute may be applied only prospectively. Id. If a statute is clearly retroactive, though, the reviewing court must then determine whether it is substantive or remedial in nature. LaSalle [96 Ohio St.3d 178, 2002-Ohio-4009], 772 N.E.2d 1172." State v. Consilio, 114 Ohio St.3d 295, 2007-Ohio-4163, 871 N.E.2d 1167, ¶ 10.

{¶ 13} In this case, the General Assembly expressly directed that the prima facie filing requirements at issue apply to cases pending on—and thus filed before—the effective date of the legislation. R.C. 2307.93(A)(2) and (3). Because the General Assembly so specified, we must next consider "whether the statute is substantive, rendering it unconstitutionally retroactive, as opposed to merely remedial." (Emphasis sic.) Bielat, 87 Ohio St.3d at 353, 721 N.E.2d 28, citing State v. Cook (1998), 83 Ohio St.3d 404, 410-411, 700 N.E.2d 570.

B

{¶ 14} In determining whether a statute is substantive or remedial, we have established the following parameters:

{¶ 15} "A statute is `substantive' if it impairs or takes away vested rights, affects an accrued...