Ohio Supreme Court asbestos ruling affects old cases

The Ohio Supreme Court ruled Wednesday that a 2004 law making it more difficult to seek damages for asbestos-related deaths and illnesses can constitutionally be applied to cases that were in the pipeline before the law went into effect.

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

Ohio at one time had the largest backlog of asbestos-related cases in the nation. The 2004 law requires a plaintiff to show that a medical expert who personally treated the plaintiff has found that the patient's health has been substantially impaired by exposure to asbestos.

Writing for the majority, Justice Robert Cupp said Ohio's law can be applied retroactively because the changes were "remedial and procedural," simply putting holds on the claims of thousands of Ohioans who were not yet showing symptoms of asbestos-related cancers. The Ohio Constitution bars retroactive laws that change the nature, or substance, of a law, justices said.

In the case heard by the high court, Ironton widow Linda Ackison filed a wrongful death suit in May 2004 against her late husband's former employer, Dayton Malleable, and multiple other defendants. Ackison alleged in the suit that long-term exposure to asbestos in the workplace contributed to the illness and death of her husband Danny.

The strong, fibrous asbestos is heat resistant, and it has been use by many industrial companies. 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 lung disorders.

Only Justice Paul Pfeifer sided with Ackison in Wednesday's lengthy ruling, saying the 2004 law couldn't be considered merely procedural when state lawmakers effectively "legislated away" her claim to her husband's damages.

"Claimants like Danny Ackison will not get a chance to avail themselves of (the law)'s 'come back when you're sicker' provision," Pfeifer wrote. "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."

Richard Schuster, an attorney for several Fortune 500 firms and other businesses sued by Ackison, called the ruling significant 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."

He said the asbestos lawsuits appeared in such volume after workers at potentially hazardous work sites around the country were offered mass screenings in search of related health conditions.

Vin Green, an attorney for Ackison, said it is "completely and totally inaccurate" to say that those who filed asbestos-related lawsuits aren't sick.

"That's a fiction that's propagated by the defendants and by the insurance industry," he said. "If you have damage to the lining of your lungs, you are sick. 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 expected to be decided next year. A Kansas law has not been legally challenged.