Ackison v. Anchor Packing Co.

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 Aekison, widow and administrator of the estate of Danny Aekison, 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 Aekison 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 Aekison 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. CA200606-134, 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 thrfeshold 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, 410-11, 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 substantive right, imposes new or additional burdens, duties, obligation[s], or liabilities as to a past transaction, or creates a new right. * * * Conversely, remedial laws are those affecting only the remedy provided, and include laws that merely substitute a new or more appropriate remedy for the enforcement of an existing right.” Cook, 83 Ohio St.3d at 411, 700 N.E.2d 570, citing Van Fossen, 36 Ohio St.3d at 107, 522 N.E.2d 489. “Further, while we have recognized the occasional substantive effect, we have found that it is generally true that laws that relate to procedures are ordinarily remedial in nature.” Id.

{¶ 16} 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.” Norfolk S. Ry. Co. v. Bogle, 115 Ohio St.3d 455, 2007-Ohio-5248, 875 N.E.2d 919, ¶ 17. We reiterate today that the requirements in R.C. 2307.92 and 2307.93 are remedial and procedural in nature and are, therefore, not unconstitutionally retroactive.

{¶ 17} As we have previously recognized, these two statutes establish “a procedural prioritization” of asbestos-related cases. Id. at ¶ 16. “Simply put, these statutes create a procedure to prioritize the administration and resolution of a cause of action that already exists. No new substantive burdens are placed on claimants * * *.” Id. Instead, the enactments “merely substitute a new or more appropriate remedy for the enforcement of an existing right.” Cook, 83 Ohio St.3d at 411, 700 N.E.2d 570.

Ill

{¶ 18} Despite our conclusions in Bogle, Ackison argues that various provisions of H.B. 292 are unconstitutional as applied to her claim because they impair vested rights and affect accrued substantive rights by altering substantive common-law rules pertaining to asbestos claims. Because Ackison asserts an “as applied” challenge to the statute, she “bears the burden of presenting clear and convincing evidence of a presently existing set of facts that make the statutes unconstitutional and void when applied to those facts.” Groch v. Gen. Motors Corp., 117 Ohio St.3d 192, 2008-Ohio-546, 883 N.E.2d 377, ¶ 181, citing Harrold v. Collier, 107 Ohio St.3d 44, 2005-Ohio-5334, 836 N.E.2d 1165, ¶ 38, and Belden v. Union Cent. Life Ins. Co. (1944), 143 Ohio St. 329, 28 O.O. 295, 55 N.E.2d 629, paragraph six of the syllabus.

{¶ 19} Ackison’s chief argument in this regard is that before the enactment of H.B. 292, asbestos-related conditions were compensable under Ohio law when there was merely an alteration of the lungs (such as pleural thickening), irrespective of whether any impairment or disease had developed. Assuming for purposes of argument that the common law can be sufficiently settled to give rise to a vested right to its application, we must find, in order to accept her argument, that common-law liability existed in Ohio for asymptomatic pleural thickening at the time Ackison’s claim was filed.

{¶ 20} Before the enactment of H.B. 292, there was no statewide standard for what constituted an “injury” giving rise to an asbestos claim. Indeed, this court did not address that question when it reviewed former R.C. 2305.10 with respect to when an asbestos claim accrues. O’Stricker v. Jim Walter Corp. (1983), 4 Ohio St.3d 84, 4 OBR 335, 447 N.E.2d 727. Although this court held in O’Stricker that an asbestos plaintiffs cause of action arises “upon the date on which the plaintiff is informed by competent medical authority that he has been injured, or upon the date on which, by the exercise of reasonable diligence, he should have become aware that he had been injured, whichever date occurs first,” id. at 91, 4 OBR 335, 447 N.E.2d 727, the court did not define what constitutes an injury in an asbestos-exposure claim. Only two Ohio appellate court decisions address the issue.

{¶ 21} In Verbryke v. Owens-Coming Fiberglas Corp. (1992), 84 Ohio App.3d 388, 616 N.E.2d 1162, the Sixth District Court of Appeals stated that “pleural plaque or pleural thickening is an alteration to the lining of the lung. Accordingly, pleural plaque or thickening meets the definition of ‘bodily harm,’ which is a subspecies of ‘physical harm’ and thus satisfies the injury requirements of Sections 388 and 402A of the Restatement [of the Law 2d, Torts (1965)].” Id. at 395, 616 N.E.2d 1162. This principle was later cited approvingly by the Eight District Court of Appeals in In re Cuyahoga Cty. Asbestos Cases (1998), 127 Ohio App.3d 358, 364, 713 N.E.2d 20.

{¶ 22} The Verbryke court’s analysis was predicated upon a reading of several sections of the Restatement of Torts together (Sections 388, 402A, 7, and 15), with the conclusion that impairment to the body consists of an “alteration to the structure of the body even though no other harm is caused.” Verbryke, 84 Ohio App.3d at 395, 616 N.E.2d 1162 (citing Comment a to Section 15 of the Restatement). In doing so, the Verbryke court rejected the analysis of a Maryland court that reached the opposite conclusion.

{¶ 23} In Owens-Illinois, Inc. v. Armstrong (1991), 87 Md.App. 699, 591 A.2d 544, reversed in part on other grounds (1992), 326 Md. 107, 604 A.2d 47, the Court of Special Appeals of Maryland held that the Restatement did not support the conclusion that pleural plaque and pleural thickening alone were sufficient to constitute harm. Id. at 732-735, 591 A.2d 544. The Maryland court noted that Section 15 of the Restatement was inapposite “because it broadly defines bodily harm only in the context of an action based on the intentional tort of battery.” Id. at 735, 591 A.2d 544. Indeed, Section 15 of the Restatement relates to harm caused by intentional torts.

{¶ 24} We determine that the Maryland court’s approach is the better-reasoned one. The Verbryke court’s incorporation of Section 15 into its chain of logic incorrectly imputed intentional-tort principles into an analysis of negligence. Thus, the Verbryke decision is based upon a faulty interpretation of the Restatement — an interpretation that also has been rejected by courts in other states. In fact, the latest draft of the Restatement offers the following comment to Section 4, which defines physical harm: “ ‘Bodily harm’ is employed to mean physical impairment to the human body and includes physical injury, illness, disease, and death.” (Emphasis added.) Proposed Final Draft No. 1, Restatement of the Law 3d, Torts (Apr. 6, 2005), Section 4, Comment a. A Reporter’s Note contains the following discussion specifically related to asbestos claims:

{¶ 25} “An unfortunate and aberrational exception to the [general tendency] of small or trivial harms [to remain unlitigated] explained in this Comment is asbestos claims by plaintiffs who suffer no clinical symptoms but who have abnormal lung X-rays, a condition known as pleural plaque. These claims exist only because of the massive number of such claimants and the efficiencies of aggregating such claims to make them economically viable for litigation. Some courts have responded by requiring that an asbestos plaintiff prove the existence of clinical symptoms before sufficient bodily injury exists. See, e.g., In re Haw. Fed. Asbestos Cases, 734 F.Supp. 1563 (D.Haw.1990) (pleural plaque does not constitute legally cognizable injury); Owens-Ill. v. Armstrong, 87 Md.App. 699, 591 A.2d 544 (1991) (pleural scarring does not entail physical harm that is compensable in tort), affd in relevant part, 326 Md. 107, 604 A.2d 47 (1992); Giffear v. Johns-Manville Corp., 429 Pa.Super. 327, 632 A.2d 880 (1993) (pleural plaque is not a legally cognizable injury). * * * But see Gideon v. Johns-Manville Sales Corp., 761 F.2d 1129 (5th Cir.1985) (applying Texas law) (cause of action accrued when plaintiff suffered pleural plaque).” Reporter’s Note, Tentative Draft, Restatement of Torts 3d, Section 4, Comment c.

{¶ 26} The 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 in her case. This court has never held that asymptomatic pleural thickening is, by itself, sufficient to establish a compensable injury for asbestos exposure. Verbryke and Cuyahoga Cty. Asbestos Cases, 127 Ohio App.3d 358, 713 N.E.2d 20, are the only two appellate decisions that have addressed the issue in Ohio, but those decisions rest on a misreading of the Restatement. Accordingly, we conclude that Ackison has not established that the settled common law in Ohio permitted tort recovery for asymptomatic pleural thickening in asbestos exposure cases prior to the enactment of H.B. 292.

{¶ 27} Moreover, with respect to this case specifically, although there was evidence of pleural thickening in Mr. Ackison’s lungs, he had not been diagnosed with any asbestos-related illness or impairment. The provisions of H.B. 292 at issue here did not prevent Ackison from pursuing her claim. Although the legislation caused a hold to be placed on the claim, the hold did not by itself extinguish the claim. Thus, Ackison has failed to carry her burden of proving that the statute was unconstitutional and void when applied to the facts of this case.

IV

{¶ 28} Ackison’s remaining arguments generally relate to the definition of certain terms in R.C. 2307.91, as enacted by H.B. 292. First, Ackison claims that the definition of “competent medical authority” contained in R.C. 2307.91(Z) substantively alters evidentiary requirements for asbestos claims. (See Appendix for text of R.C. 2307.91(Z).)

{¶ 29} Before the enactment of R.C. 2307.91, the term “competent medical authority” was not defined by either statute or case law. By choosing to define that term, the legislature did not take away Ackison’s right to pursue her claim. Nor did the definition alter the quantum of proof necessary for a plaintiff to prevail in an asbestos-related claim. Rather, it merely defined the procedural framework by which trial courts are to adjudicate such claims. The definition of competent medical authority pertains to the witness’s competence to testify and is, in essence, more akin to a rule of evidence. As such, it is procedural in nature. Compare Denicola v. Providence Hosp. (1979), 57 Ohio St.2d 115, 11 O.O.3d 290, 387 N.E.2d 231 (new statute defining qualifications of expert witnesses in a medical claim is procedural rather than substantive). Therefore, the definition does not alter a vested substantive right possessed by Ackison; she did not have a vested right to have the undefined term remain undefined.

{¶ 30} Second, Ackison contends that the statutory changes affected her accrued substantive rights in that they altered the substantive elements of causation that must be established to recover on a claim. Specifically, Ackison takes exception to the requirement in R.C. 2307.92 that a claimant provide prima facie evidence that the claimant’s exposure to asbestos was a “substantial contributing factor” to the claimant’s medical condition.

{¶ 31} R.C. 2307.91(FF) defines “substantial contributing factor” as follows:

{¶ 32} “ ‘Substantial contributing factor’ means both of the following:

{¶ 33} “(1) Exposure to asbestos is the predominate cause of the physical impairment alleged in the asbestos claim.

{¶ 34} “(2) A competent medical authority has determined with a reasonable degree of medical certainty that without the asbestos exposures the physical impairment of the exposed person would not have occurred.”

{¶ 35} Ackison contends that the requirement that exposure to asbestos be the “predominate cause” of the alleged impairment is a departure from the common-law standard for proximate cause in tort. Specifically, Ackison contends that the General Assembly’s choice of the word “predominate” requires a plaintiff to prove that all other potential causes of injury are insignificant, thereby altering the common-law standard for proximate causation in asbestos claims.

{¶ 36} The General Assembly’s choice of the word “predominate” in R.C. 2307.91(FF)(1) is indeed perplexing.¹ The word “predominate” is a verb, but it is used in that subsection as an adjective. As a result, it is susceptible of more than one meaning and is therefore ambiguous. “ ‘The object of judicial investigation in the construction of a statute is to ascertain and give effect to the intent of the law-making body which enacted it.’ Slingluff v. Weaver (1902), 66 Ohio St. 621, 64 N.E. 574, paragraph one of the syllabus. This court may engage in statutory interpretation when the statute under review is ambiguous.” Tomasik v. Tomasik, 111 Ohio St.3d 481, 2006-Ohio-6109, 857 N.E.2d 127, ¶ 13.

{¶ 37} In construing such a statute, we are guided by the principles of construction found in R.C. 1.49, which states:

{¶ 38} “If a statute is ambiguous, the court, in determining the intention of the legislature, may consider among other matters:

{¶ 39} “(A) The object sought to be attained;

{¶ 40} “(B) The circumstances under which the statute was enacted;

{¶ 41} “(C) The legislative history;

{¶ 42} “(D) The common law or former statutory provisions, including laws upon the same or similar subjects;

{¶ 43} “(E) The consequences of a particular construction.”

{¶ 44} Following these principles, we observe that one possible construction of the word “predominate” is the adjective “predominant,” which is an apparent variation. See Bryan A. Garner, A Dictionary of Modem Legal Usage (2d Ed. 1995) 682.² But interpreting the term in that way would alter the common-law element of proximate causation and render the statute unconstitutionally retroactive in this case. R.C. 1.47 states:

{¶ 45} “In enacting a statute, it is presumed that:

{¶ 46} “(A) Compliance with the constitutions of the state and of the United States is intended.”

{¶ 47} Accordingly, we will not construe the term predominate, as used in R.C. 2307.91(FF)(1), to mean predominant. Doing so would render the provision unconstitutionally retroactive, contrary to the guideline in R.C. 1.47(A). Furthermore, we observe that the General Assembly, in enacting this comprehensive reform legislation, was careful to make substantive changes prospective only. See, e.g., R.C. 2307.96(C). Thus, it does not appear to us that the General Assembly intended a substantive change by using the term “predominate.”

{¶ 48} Rather than impose a construction that results in unconstitutional application, we construe the statute to be consistent with the common law. The phrase “predominate cause” contained in R.C. 2307.91(FF)(1) must be read in pari materia with R.C. 2307.91(FF)(2) because both are elements of the statutory definition of “substantial contributing factor.” R.C. 2307.91(FF)(2) requires that a competent medical authority determine that “without the asbestos exposures the physical impairment of the exposed person would not have occurred.” This requirement is, in essence, a “but for” test of causation, which is the standard test for establishing cause in fact. See Anderson v. St. Francis—St. George Hosp., Inc. (1996), 77 Ohio St.3d 82, 84-85, 671 N.E.2d 225. Cause in fact is distinct from proximate, or legal, cause. Once cause in fact is established, a plaintiff then must establish proximate cause in order to hold a defendant liable. See id. at 86, 671 N.E.2d 225, citing Prosser & Keeton, Law of Torts (5 Ed.1984) 265-266. See also Prosser & Keeton, id., at 272-273.

{¶ 49} When R.C. 2307.91(FF)(1) and (2) are read in pari materia, it appears that the two subsections were intended to require that asbestos exposure be a significant, direct cause of the injury to the degree that without the exposure to asbestos, the injury would not have occurred. Thus, the statute reflects the common-law requirement that asbestos exposure be both a cause in fact and the direct cause of the plaintiffs illness. This is an embodiment of the common law, not an alteration of it. Because we hold that R.C. 2307.91(FF) does not alter the common law that existed at the time Ackison filed her claim, the statute is not unconstitutionally retroactive and may be applied to her pending claim.

{¶ 50} Ackison also contends that R.C. 2307.91(FF) alters the standard of causation for asbestos-exposure cases specifically, as established in Horton v. Harwick Chem. Corp. (1995), 73 Ohio St.3d 679, 653 N.E.2d 1196. We disagree. Horton addressed a multidefendant situation, in which the issue was the degree of exposure to the product of a particular defendant that the plaintiff must prove to avoid summary judgment. We held that in such a multidefendant asbestos case, the plaintiff has the burden of proving both exposure to each defendant’s product and that the product was a “substantial factor” in causing the plaintiffs injury. Id. at paragraph one of the syllabus. We further held that in proving that the product was a substantial factor in causing his injury, the plaintiff “need not prove that he was exposed to a specific product on a regular basis over some extended period of time in close proximity to where the plaintiff actually worked.” Id. at paragraph two of the syllabus (declining to follow Lohrmann v. Pittsburgh Coming Corp. (C.A.4, 1986), 782 F.2d 1156).

{¶ 51} However, Horton did not address the issue here, which is whether exposure to asbestos was “the predominate cause of the physical impairment” without which “the physical impairment * * * would not have occurred.” R.C. 2307.91(FF). The Horton inquiry, rather, pertained to determining which exposure to a particular defendant’s asbestos-containing product, in a case involving multiple defendants, was sufficient to hold that defendant legally responsible.

{¶ 52} Consequently, there is no inconsistency between R.C. 2307.91(FF) and the substantive law as set forth in Horton. The provisions of H.B. 292 at issue address only the prima facie showing of whether a plaintiffs claimed injuries are genuinely asbestos-related. The provisions do not involve the more detailed inquiry of whether a particular defendant’s product is the cause of the plaintiffs illness. The definition of “substantial contributing factor” does not alter the proof necessary to establish particular causation by a particular defendant when the trier of fact reviews the merits of a claim. Therefore, the definition does not affect accrued substantive rights.

{¶ 53} Finally, Aekison takes exception to the definition of the term “substantial occupational exposure” contained in R.C. 2307.91(GG), which states:

{¶ 54} “ ‘Substantial occupational exposure to asbestos’ means employment for a cumulative period of at least five years in an industry and an occupation in which, for a substantial portion of a normal work year for that occupation, the exposed person did any of the following:

{¶ 55} “(1) Handled raw asbestos fibers;

{¶ 56} “(2) Fabricated asbestos-containing products so that the person was exposed to raw asbestos fibers in the fabrication process;

{¶ 57} “(3) Altered, repaired, or otherwise worked with an asbestos-containing product in a manner that exposed the person on a regular basis to asbestos fibers;

{¶ 58} “(4) Worked in close proximity to other workers engaged in any of the activities described in division (GG)(1), (2), or (3) of this section in a manner that exposed the person on a regular basis to asbestos fibers.”

{¶ 59} Aekison argues that the statutory definition of “substantial occupational exposure” is a legislative attempt to adopt the so-called Lohrmann test, 782 F.2d 1156, which this court specifically rejected in Horton. If this claim is true, then the provision could not be retroactively applied without offending the Constitution. Aekison fails to demonstrate how this definition affects her claim. The requirement of showing “substantial occupational exposure” applies only to claims alleging lung cancer caused by exposure to asbestos when the victim is a smoker and to wrongful-death claims, neither of which is the case here. See R.C. 2307.92(C)(1)(c)(i) and (D)(1)(c)(i). In any event, we disagree that the definition is an adoption of the Lohrmann test.

{¶ 60} The Lohrmann test was specifically directed at the merits of an asbestos claim. In sum, it holds that in order to establish causation, “there must be evidence of exposure to a specific product on a regular basis over some extended period of time in proximity to where the plaintiff actually worked.” Lohrmann, 782 F.2d at 1162-1163.

{¶ 61} While H.B. 292 defined the term “substantial occupational exposure” in R.C. 2307.91(GG), the bill simultaneously enacted R.C. 2307.96. The latter provision legislatively adopted the Lohrmann test as a substantive requirement for proving an asbestos-related claim. R.C. 2307.96(B); H.B. 292, Section 5, 150 Ohio Laws, Part III, 3992-3993. The General Assembly expressly acknowledged that its specific intent was to adopt the Lohrmann test and that doing so was contrary to our syllabus language in Horton. Id. Consequently, the General Assembly explicitly made that provision prospective only, reflecting the substantive nature of the change. R.C. 2307.96(C). Because the General Assembly confined its adoption of the Lohrmann test to the prospective provisions of R.C. 2307.96, we cannot conclude that its simultaneous adoption of R.C. 2307.91(GG) was substantive in nature. The definition, as it relates to the “procedural prioritization” of asbestos claims, Bogle, 115 Ohio St.3d 455, 2007-Ohio-5248, 875 N.E.2d 919, ¶ 16, does not alter the substantive law of causation in the same vein as the adoption of R.C. 2307.96. We conclude that R.C. 2307.91(GG) is consistent with common law and not unconstitutionally retroactive.

Conclusion

{¶ 62} For the reasons expressed herein, we hold that the 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. Accordingly, we reverse the judgment of the court of appeals and reinstate the judgment of the trial court.

Judgment reversed.

Lundberg Stratton, O’Connor, O’Donnell, and Lanzinger, JJ., concur. Moyer, C.J., dissents without opinion. Pfeifer, J., dissents with opinion.

1 . The phrase “predominate cause” is not a phrase common to Ohio law. It does appear to be common in cases within at least one nearby jurisdiction; yet, even in those cases, it is regarded as either less demanding than or equal to proximate cause. See, e.g., Morgan v. Utica Mut. Ins. Co. (C.A.6), 229 F.3d 1153 (applying Tennessee law); Doe v. Rogers (Jan. 31, 1997), Tenn.App. No. 03A01-9606-CV-00212, 1997 WL 36834. Significantly, this issue is largely left undiscussed in the briefs or the parties and their amici.

2 . Indeed, Garner observes that “predominate” is a “needless variant” of the word “predominant.” Bryan A. Garner, A Dictionary of Modern Legal Usage (2d Ed.1995) 682. Such variant forms, he observes, “lead not to precision in technical writing but to uncertainties about authorial intention.” Id. at 583. This observation is consistent with our finding that the use of “predominate” in R.C. 2307.91(FF)(1) is ambiguous.