DocketNumber: No. 22026.
Citation Numbers: 2008 Ohio 6968
Judges: FAIN, J.<page_number>Page 2</page_number>
Filed Date: 12/31/2008
Status: Precedential
Modified Date: 7/6/2016
{¶ 2} Defendants-Appellants appeal from an order of the trial court holding 2003 *Page 3 Am. Sub. H.B. 292 unconstitutional, as applied.2 The trial court concluded that H.B. 292 violates Ohio's constitutional ban on retroactive legislation.
{¶ 3} H.B. 292 became effective in September 2004, after Neil's complaint was filed. H.B. 292 was intended to reform the current system of asbestos personal injury litigation, which the Ohio General Assembly characterized as:
{¶ 4} "* * * unfair and inefficient, imposing a severe burden on litigants and taxpayers alike. A recent RAND study estimates that a total of $54 billion have already been spent on asbestos litigation and the costs continue to mount. Compensation for asbestos claims has risen sharply since 1993. The typical claimant in an asbestos lawsuit now names 60 to 70 defendants, compared with an average of 20 named defendants two decades ago. The RAND Report also suggests that at best, only ½ of all claimants have come forward and at worst, only 1/5 have filed claims to date. Estimates of the total cost of all claims range from $200 billion to $265 billion. Tragically, plaintiffs are receiving less than 43¢ on every dollar awarded, and 65% of the compensation paid, thus far, has gone to claimants who are not sick." Uncodified law, Section 3(A)(2), accompanying H.B. 292.
{¶ 5} According to the General Assembly, "Ohio has become a haven for asbestos claims and, as a result, is one of the top five state court venues for asbestos filings." Id. at Section 3(A)(3)(b). At the time H.B. 292 was being considered, Ohio had 35,000 pending cases, and dockets were increasing at an exponential rate. For example, between 1999 and 2003, the number of pending asbestos cases increased *Page 4 from 12,800 to 39,000, and 200 new asbestos cases were being filed in Cuyahoga County every month. Id. at Section 3)(A)(3)(b)-(e).
{¶ 6} The General Assembly also noted that "[nationally, asbestos personal injury litigation has already contributed to the bankruptcy of more than 70 companies, including nearly all manufacturers of asbestos textile and insulation products, and the ratio of asbestos-driven bankruptcies is accelerating. * * * 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. at Section (4) and (4)(c). This, in turn, affects workers for the bankrupt companies.
{¶ 7} The General Assembly further concluded that the vast majority of claims are filed by individuals who allege exposure to asbestos and may have some physical signs of exposure, but do not have an asbestos-related impairment. Id. at Section 5. Accordingly, the General Assembly developed a system in which claimants must meet certain prima facie requirements in order to maintain tort actions that involve asbestos claims. If the trial court finds that a claimant cannot meet this prima facie burden, the court must administratively dismiss the claim without prejudice. R.C.
{¶ 8} In June 2005, Neal filed a motion to prove a prima facie case, but ultimately admitted that she could not meet the requirements of H.B. 292. Neal contended that H.B. 292 was unconstitutional as applied, and that her evidence met the standards that had been previously applied to asbestos cases.
{¶ 9} The trial court agreed with Neal that H.B. 292's prima facie case requirement could not constitutionally be applied. The trial court also rejected the defendants' contention that under pre-existing law [R.C.
{¶ 10} Defendants-appellants contend that the trial court erred in concluding that R.C.
{¶ 11} We conclude that the trial court was incorrect in finding that R.C.
{¶ 13} "THE TRIAL COURT ERRED BY CONCLUDING THAT R.C.
{¶ 14} Appellant Owens-Illinois Inc. has filed a separate brief, which mentions one assignment of error and two issues. Owens-Illinois's sole assignment of error is as follows:
{¶ 15} "THE OHIO GENERAL ASSEMBLY ENACTED AM. SUB. H.B. 292 (``HB 292') TO CLARIFY AND REFORM CERTAIN ASPECTS OF ASBESTOS LITIGATION. IT CLARIFIED EXISTING LAW BY DEFINING PREVIOUSLY-UNDEFINED TERMS USED IN THE 1980 ASBESTOS-CLAIM-ACCRUAL STATUTE. IT REFORMED ASBESTOS LITIGATION BY ADDING A NEW PROCEDURE FOR AUTOMATIC EARLY SCRUTINY OF THE VALIDITY OF CLAIMS — REQUIRING PLAINTIFFS TO MAKE A PRIMA FACIE SHOWING OF A VALID CLAIM, AND PROVIDING FOR ``ADMINISTRATIVE DISMISSAL' IF THEY FAIL TO MEET EITHER THE NEWLY-DEFINED CRITERIA OR (IF APPLICATION OF THOSE CRITERIA TO EXITING CLAIMS WOULD BE UNCONSTITUTIONAL) THE STANDARDS OF PRIOR LAW. THE TRIAL COURT BELOW ERRED BY HOLDING THE STATUTE'S NEWLY-DEFINED CRITERIA UNCONSTITUTIONALLY RETROACTIVE, AND BY DECLINING *Page 7 TO ADMINISTRATIVELY DISMISS THE PLAINTIFF'S CLAIM DESPITE THE PLAINTIFF'S FAILURE TO MAKE A PRIMA FACIE SHOWING EITHER UNDER THE NEWLY-DEFINED CRITERIA OR UNDER PRIOR LAW."
{¶ 17} The claims in the present case involve the wrongful death and lung cancer of an exposed person who was arguably a smoker as defined by the Act. Accordingly, R.C.
{¶ 18} "No person shall bring or maintain a tort action alleging an asbestos claim that is based upon a wrongful death, as described in section
{¶ 19} "(a) A diagnosis by a competent medical authority that exposure to asbestos was a substantial contributing factor to the death of the exposed person;
{¶ 20} "(b) Evidence that is sufficient to demonstrate that at least ten years have elapsed from the date of the deceased exposed person's first exposure to asbestos until the date of diagnosis or death of the deceased exposed person. The ten-year latency period described in this division is a rebuttable presumption, and the plaintiff has the burden of proof to rebut the presumption.
{¶ 21} "(c) Either of the following:
{¶ 22} "(i) Evidence of the deceased exposed person's substantial occupational *Page 9 exposure to asbestos;
{¶ 23} "(ii) Evidence of the deceased exposed person's exposure to asbestos at least equal to 25 fiber per cc years as determined to a reasonable degree of scientific probability by a scientifically valid retrospective exposure reconstruction conducted by a certified industrial hygienist or certified safety professional based upon all reasonably available quantitative air monitoring data and all other reasonably available information about the deceased exposed person's occupational history and history of exposure to asbestos."
{¶ 24} R.C.
{¶ 25} In order to make the required prima facie showing under R.C.
{¶ 26} H.B. 292 also provides for application of prior law if the prima facie case requirement is deemed unconstitutionally retroactive because it impairs a substantive right and the impairment otherwise violates Section
{¶ 27} In the present case, the trial court concluded that H.B. 292 substantially alters substantive rights and cannot be retroactively applied. The trial court, therefore, applied prior law, and found that Neal had supplied sufficient evidence to maintain her claim. In reaching its decision on retroactivity, the court concluded that the following items in H.B. 292 are not mere clarifications of previously undefined law, but impose new burdens or obligations: (1) the definition of "competent medical authority"; (2) the definition of "substantial contributing factor"; and (3) the requirement of a "substantial occupational exposure."
{¶ 29} A retroactive statute is unconstitutional "if it impairs vested rights, affects an accrued substantive right, or imposes new or additional burdens, duties, obligations, or liabilities as to a past transaction."
{¶ 30} Merely remedial statutes do not offend Section
{¶ 31} After State v. Ferguson, supra, it was logical to assume that the prohibition against retroactive laws contained in Section
{¶ 32} But, just two weeks later, Ackison v. Anchor PackingCompany, Ohio St.3d, 2008-Ohio-5243, was decided. That decision, without commenting on the contrary definition of "remedial" in the context of Section
{¶ 33} "``A statute is "substantive" if it impairs or takes away vested rights, affects an accrued substantive right, imposes new or additional burdens, duties, obligations, 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.' [State v.] Cook (1998),
{¶ 34} That the definition of "remedial" in Ackison is inconsistent with the definition of "remedial" in Ferguson is evident from the fact that employing the Ackison definition would lead to a different result in Ferguson. Clearly, the additional reporting requirements for sexual offenders required by the statutory enactment under review inFerguson constituted "new or additional burdens, duties, obligations or liabilities as to a past transaction," rendering that enactment other than "remedial" under the Ackison definition.
{¶ 35} An example of a criminal law enactment that would be "remedial" under the Ackison definition would be the adoption of the requirement, in Crim. R. 12(C)(3), that motions to suppress evidence upon the ground that the evidence was illegally obtained, must be filed before trial. The criminal defendant's right not to have illegally obtained evidence used against the defendant at trial has not been taken away; the requirement that the defendant must move to suppress the evidence before trial merely affects the remedy by which the defendant's right in this regard is to be vindicated. Therefore, this is a remedial statute, and its application to a defendant whose alleged criminal act occurred before its enactment would not offend Section
{¶ 36} In the case before us, we need not be troubled by the apparent inconsistency between the State v. Ferguson and Ackison v. AnchorPacking Company decisions. The latter decision is both later in time, and directly pertinent to the facts in the case before us, involving, as it does, the retroactive application of R.C.
{¶ 37} In Ackison v. Anchor Packing Co., supra, the Ohio Supreme Court first *Page 14
concluded that the General Assembly had expressly intended the prima facie requirements to apply to cases that were pending on the effective date of H.B. 292. 2008-Ohio-5243, at ¶ 13. The Ohio Supreme Court then concluded that "the requirements in R.C.
{¶ 38} "these two statutes establish ``a procedural prioritization' of asbestos-related cases. * * * ``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 * * *' * * * Instead, the enactments ``merely substitute a new or more appropriate remedy for the enforcement of an existing right.'" Id. at ¶ 17 (citations omitted).
{¶ 39} After making the above statements, the Ohio Supreme Court went on to discuss four specific claims that had been made concerning the alleged substantive changes in pre-H.B. 292 law. These included the following contentions: (1) that before 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"; (2) that the definition of "competent medical authority" in R.C.
{¶ 40} The trial court in the case before us addressed items (2), (3), and (4), and concluded that R.C.
{¶ 42} According to the defendants, the lack of a definition of "competent medical authority" and "bodily injury" in R.C.
{¶ 43} The prima-facie showing under R.C.
{¶ 44} "a medical doctor who is providing a diagnosis for purposes of constituting prima-facie evidence of an exposed person's physical impairment that meets the requirements specified in section
{¶ 45} "(1) The medical doctor is a board-certified internist, pulmonary specialist, oncologist, pathologist, or occupational medicine specialist.
{¶ 46} "(2) The medical doctor is actually treating or has treated the exposed person and has or had a doctor-patient relationship with the person.
{¶ 47} "(3) As the basis for the diagnosis, the medical doctor has not relied, in whole or in part, on any of the following:
{¶ 48} "(a) The reports or opinions of any doctor, clinic, laboratory, or testing company that performed an examination, test, or screening of the claimant's medical condition in violation of any law, regulation, licensing requirement, or medical code of practice of the state in which that examination, test, or screening was conducted;
{¶ 49} "(b) The reports or opinions of any doctor, clinic, laboratory, or testing company that performed an examination, test, or screening of the claimant's medical condition that was conducted without clearly establishing a doctor-patient relationship with the claimant or medical personnel involved in the examination, test, or screening process;
{¶ 50} "(c) The reports or opinions of any doctor, clinic, laboratory, or testing company that performed an examination, test, or screening of the claimant's medical *Page 17 condition that required the claimant to agree to retain the legal services of the law firm sponsoring the examination, test, or screening.
{¶ 51} "(4) The medical doctor spends not more than twenty-five per cent of the medical doctor's professional practice time in providing consulting or expert services in connection with actual or potential tort actions, and the medical doctor's medical group, professional corporation, clinic, or other affiliated group earns not more than twenty per cent of its revenues from providing those services."
{¶ 52} In discussing whether the definition of "competent medical authority" substantively alters evidentiary requirements, the Ohio Supreme Court did not mention R.C.
{¶ 53} "Before the enactment of R.C.
{¶ 54} We do not agree with the Ohio Supreme Court's analysis, but we are bound to follow it. In Denicola, the Ohio Supreme Court considered newly enacted R.C.
{¶ 55} "R.C.
{¶ 56} Other than making the above statement, the Ohio Supreme Court did not discuss its reasoning for the holding in Denicola. However,Denicola differs from the present case, because R.C.
{¶ 57} In cases to which R.C.
{¶ 58} Assume that an individual dies as a result of lung cancer caused by asbestos exposure prior to filing suit, and that the individual was not treated by a board-certified specialist. Alternatively, assume that the decedent was treated by a board-certified specialist, but the specialist happened to spend twenty-six percent of his time consulting for potential tort actions. In either situation, no "competent medical authority" exists who can testify as to a prima facie case. The plaintiffs case ends at this point and is "administratively dismissed" without prejudice. The statute provides for reinstatement of the case upon proper proof of a prima facie case, but there is no conceivable way that the case can ever be resurrected, because the plaintiff died before the case began and cannot establish a physician-patient relationship with someone else.
{¶ 59} In contrast, plaintiffs in the Denicola situation may use expert witnesses, rather than a treating physician. A Denicola plaintiff also has the ability to choose experts who meet the statutory criteria, regardless of what transactions may have existed in the past. However, the deceased plaintiff in the asbestos case cannot choose a new doctor who meets the statutory criteria, because the transaction in question has *Page 20 already occurred and there is no possibility of ever altering those circumstances.
{¶ 60} Justice Pfeifer made this point in his dissenting opinion inAckison, although he did not specifically discuss the differences between the statutes involved in Denicola and Ackison. Justice Pfeiffer noted the substantive changes in evidence required to prove a claim, and stressed that R.C.
{¶ 61} Despite reservations, we are bound to follow the decision inAckison. Accordingly, the trial court erred in concluding that R.C.
{¶ 63} "(1) Exposure to asbestos is the predominate cause of the physical impairment alleged in the asbestos claim.
{¶ 64} "(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."
{¶ 65} Before H.B. 292 was enacted, plaintiffs had the burden on summary judgment of proving "exposure to the defendant's product and that the product was a *Page 21
substantial factor in causing the plaintiffs injury." Horton v. HarwickChem. Corp.,
{¶ 66} "The word "substantial" is used to denote the fact that the defendant's conduct has such an effect in producing the harm as to lead reasonable men to regard it as a cause, using that word in a popular sense, in which there always lurks the idea of responsibility, rather than the so-called "philosophical sense," which includes every one of the great number of events without which any happening would not have occurred.'"
{¶ 67} In Wilson v. AC S, Inc.,
{¶ 68} "(a) the number of other factors that contribute to produce the harm and the extent of the effect they have in producing it;
{¶ 69} "(b) whether the actor's conduct has created a force or series of forces which are in continuous and active operation up to the time of the harm, or has created a situation harmless unless acted upon by other forces for which the actor is not responsible; *Page 22
{¶ 70} "(c) lapse of time." Restatement of the Law 2d, Torts (1965), Section 433.
{¶ 71} The Twelfth District mentioned only the first item in Section 433-Subsection (a), and focused on only one of the comments to that item. The comment in question — "d." — states that:
{¶ 72} "``d. There are frequently a number of events each of which is not only a necessary antecedent to the other's harm, but is also recognizable as having an appreciable effect in bringing it about. Of these the actor's conduct is only one. Some other event which is a contributing factor in producing the harm may have such apredominant effect in bringing it about as to make the effect of the actor's negligence insignificant and, therefore, to prevent it from being a substantial factor.'" Wilson,
{¶ 73} After quoting from Comment d., the Twelfth District concluded that the "predominant clause" element in R.C.
{¶ 74} In Ackison, the Ohio Supreme Court confessed that it was "perplexed" by the legislature's use of the word "predominate." 2008-Ohio-5243, at ¶ 36. The court found this word ambiguous, noting that it is capable of more than one meaning and is an apparent variation of the word "predominant." Id. at ¶ 36-44. The Ohio Supreme Court concluded that using the variation of "predominant," "would alter the common-law element of proximate causation and render the statute unconstitutionally retroactive." Id. *Page 23
at ¶ 44. As a result, the Ohio Supreme Court declined to use this interpretation. The court was able to salvage the statute's constitutionality by construing R.C.
{¶ 75} "When R.C.
{¶ 76} In Ackison, the Ohio Supreme Court also rejected the argument that R.C.
{¶ 77} "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.
{¶ 78} Justice Pfeifer's dissent in Ackison again criticized the majority's reasoning. Justice Pfeifer noted that: *Page 24
{¶ 79} "Latching on to the idea that the grammatically shaky word ``predominate' might or might not mean ``predominant,' the majority finds that the word is ambiguous and decides to interpret the statute in a manner ``consistent with the common law.' To do so, it excises ``predominate' from the statute:
{¶ 80} "* * *
{¶ 81} "So much for the vital skepticism underlying the separation of powers. The majority imputes constitutional motives to the General Assembly even though the General Assembly's true motives were revealed in the language the majority has seen fit to remove. I would find R.C.
{¶ 82} While Ackison's construction of the statutory language is strained, the result is at least consistent with Ohio law, which incorporates the concept of dual causation. Notably, Section 433 of the Restatement does not address situations in which two or more causes have contributed to harm a person, and each cause may be found "substantial." One example of this situation could be an asbestos claim based on lung cancer of an exposed person who is a smoker. See R.C.
{¶ 83} "(1) Except as stated in Subsection (2), the actor's negligent conduct is not a substantial factor in bringing about harm to another if the harm would have been sustained even if the actor had not been negligent. *Page 25
{¶ 84} "(2) If two forces are actively operating, one because of the actor's negligence, the other not because of any misconduct on his part, and each of itself is sufficient to bring about harm to another, the actor's negligence may be found to be a substantial factor in bringing it about."
{¶ 85} Comment d. to Subsection (2) further states that:
{¶ 86} "The statement in Subsection (2) applies not only when the second force which is operating simultaneously with the force set in motion by the defendant's negligence is generated by the negligent conduct of a third person, but also when it is generated by an innocent act of a third person or when its origin is unknown." Id.
{¶ 87} In 1991, the Ohio Supreme Court cited Section 432, stressing that:
{¶ 88} "It is a well-established principle of tort law that an injury may have more than one proximate cause. See Prosser and Keeton, Law of Torts (5 Ed. 1984) 266-268, Section 41; 2 Restatement of the Law 2d,Torts (1965) 432, Section 433; 1B Larson, Law of Workers' Compensation (1991) 7-612 to 7-941, Section 588 41.64; 1 Ohio Jury Instructions (1988) 183, Section 11.10 (There may be more than one proximate cause.'). Ohio case law also supports this fundamental tenet of tort law: ``In Ohio, when two factors combine to produce damage or illness, each is a proximate cause.'" Murphy v. Carrollton Mfg. Co. (1991),
{¶ 89} The same concept was applied in Norris v. Babcock WilcoxCo. (1988),
{¶ 90} The Ohio Supreme Court also emphasized in Murphy that the issue of proximate cause is a "factual issue to be determined by the factfinder."
{¶ 91} Accordingly, the trial court erred in concluding that R.C.
3. Substantial Occupational Exposure — R.C.
{¶ 92} R.C.
{¶ 93} "(i) Evidence of the exposed person's substantial occupational exposure to asbestos;
{¶ 94} "(ii) Evidence of the exposed person's exposure to asbestos at least equal to 25 fiber per cc years as determined to a reasonable degree of scientific probability by a scientifically valid retrospective exposure reconstruction conducted by a certified industrial hygienist or certified safety professional based upon all reasonably available quantitative air monitoring data and all other reasonably available information about the exposed person's occupational history and history of exposure to asbestos."
{¶ 95} "Substantial occupational exposure" is now statutorily defined in R.C.
{¶ 96} "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:
{¶ 97} "(1) Handled raw asbestos fibers;
{¶ 98} "(2) Fabricated asbestos-containing products so that the person was exposed to raw asbestos fibers in the fabrication process;
{¶ 99} "(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;
{¶ 100} "(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."
{¶ 101} After reviewing the above definition, the trial court concluded that
the requirement of a "substantial occupational exposure" directly contradicts the standard that the Ohio Supreme Court adopted inHorton,
{¶ 102} "For each defendant in a multidefendant asbestos case, the plaintiff has the burden of proving exposure to the defendant's product and that the product was a substantial factor in causing the plaintiff's injury. A 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 in order to prove that the product was a substantial factor in causing his injury."Horton,
{¶ 103} Because Horton rejected time and qualitative exposure requirements, the trial court concluded that H.B. 292 substantially alters existing law by *Page 28 imposing those requirements. Defendants contend that this is erroneous, because Horton only involves the specific causative standard to be applied to each defendant in multi-defendant cases, or the causative role of exposure to a particular defendant's product — not the general causative role of asbestos. Again, the Ohio Supreme Court settled this point in Ackison.
{¶ 104} The plaintiff in Ackison contended that the statutory definition in R.C.
{¶ 105} "To support a reasonable inference of substantial causation from circumstantial evidence, 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 v.Pittsburgh Corning Corp. (C.A. 4, 1986),
{¶ 106} Lohrman did not outline specific time frames, but noted that its rule was in keeping with the opinion of the plaintiffs medical expert, who "testified that even thirty days exposure, more or less, was insignificant as a causal factor in producing the plaintiff's disease." Id. at 1163. The only other guidance in Lohrman about the specific meaning of the time frames is that exposure to an asbestos covering on ten to fifteen occasions of between one and eight hours each, during thirty-nine years of employment, "was not sufficient to raise a permissible inference that such exposure was a substantial factor in the development" of the plaintiffs asbestosis. Id.
{¶ 107} In Horton, the Ohio Supreme Court rejected theLohrman standard, noting that: *Page 29
{¶ 108} "We are asked in this case to set forth the appropriate summary judgment standard for causation in asbestos cases, and specifically, whether Ohio courts should adopt the Lohrmann test. While this court is aware of the docketing problems that may exist with asbestos-exposure cases, we will not cause plaintiffs in such cases to carry a greater summary judgment burden than other personal injury plaintiffs. In our view, the Lohrmann standard casts judges in an inappropriate role, is overly burdensome, and is unnecessary."
{¶ 109} The Ohio Supreme Court criticized the Lohrman standard on various grounds, including the fact that it causes trial judges to usurp the traditional role of medical or scientific experts and establishes a "mechanistic test which no contrary expert testimony can overcome." Id. at 683. The court also criticized the temporal aspects of the standard as "scientifically dubious," and noted that the "proximity aspect * * * chooses sides in a scientifically disputed area." Id. at 684. Furthermore, the court remarked that the test had resulted from "law and public policy outstripping the science at the heart of the asbestos problem." Id. at 685. The court finally objected to the fact that theLohrman standard:
{¶ 110} "invites a trial judge into the domain of the jury. The temporal aspects of the test, frequency and regularity, are subject to an unlimited range of possibilities. How many exposures does it take to meet the acceptable level of frequency? Can a judge be sure that one less exposure could not have caused asbestos-related disease? What is a regular basis? Does intense exposure over a shorter duration reduce the regularity requirement? In regard to proximity, how close to the product is close enough? Will a few feet make the difference? *Page 30
{¶ 111} "The Lohrmann test does not call for simple responses which follow directly from a presentation of the evidence. Instead, the test involves a weighing of the plaintiff's evidence on the sliding scale of the test's three loosely defined criteria. The inquiry by the trial judge should be whether there is evidence of exposure and evidence tying that exposure to the disease. Whether that evidence is strong enough to prove causation is an issue for the jury." Id. at 686.
{¶ 112} In Ackison, the Ohio Supreme Court agreed that R.C.
{¶ 113} As an additional reason for its decision, the Ohio Supreme Court concluded that 2307.91(GG) does not adopt the Lohrman test. In this regard, the court stressed that:
{¶ 114} "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 *Page 31 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.' * * *
{¶ 115} "While H.B. 292 defined the term ``substantial occupational exposure' in R.C.
{¶ 116} Once again, Justice Pfeifer was not impressed with the majority's analysis, and argued that:
{¶ 117} "The majority seems to say that R.C.
{¶ 118} "But the requirements of R.C.
{¶ 119} "The majority says that a retroactive adoption of theLohrmann test would be a substantive change. However, in R.C.
{¶ 120} Because we are bound by the majority decision inAckison, we must conclude that the trial court erred in holding that R.C.
{¶ 122} "THE TRIAL COURT ERRED BY CONCLUDING THAT APPELLEE *Page 33 HAS SUBMITTED SUFFICIENT EVIDENCE TO DEMONSTRATE AN ACCRUED CAUSE OF ACTION FOR ASBESTOS INJURY (JAN. 18, 2007 ORDER)."
{¶ 123} Under this assignment of error, Defendants contend that even if prior law is applied, Neal failed to submit sufficient evidence to show that the cause of action for asbestos injury had accrued. Before addressing this point, we note that Owens-Illinois did not assign this error separately, but has raised the same point in the "Issues Presented," by contending that Neal failed to make a prima-facie showing under the standards of the prior law. Owens-Illinois also incorporated this issue into the wording of its sole assignment of error, along with statements about the retroactive application of H.B. 292.
{¶ 124} H.B. 292 contains a savings clause that is applied where the trial court finds that a party's substantive rights have been impaired in violation of Section
{¶ 125} The trial court concluded that the pre-existing law, R.C.
{¶ 126} Defendants contend that the trial court erred because the evidence was not sufficient under established Ohio law. According to defendants, the only evidence presented was an X-ray report, which indicated findings "consistent with pneumonoconiosis." Defendants argue that pre-existing law requires more. In response, Neal argues that the case should be allowed to proceed because Arthur Neal was diagnosed with malignant adenocarcinoma of the lung, which is an asbestos-related illness. Neal contends that this is all that is required because the common law standard only requires that asbestos has caused an alteration of the lining of the lung.
{¶ 127} In view of the disposition of the First Assignment of Error, this assignment of error is moot. On remand, the trial court must apply H.B. 292 and must administratively dismiss Neal's claim without prejudice, because Neal has admitted that she cannot meet the requirements for establishing a prima facie case. This is the only option under the applicable law.
{¶ 128} Defendants' Second Assignment of Error is overruled as moot. *Page 35
WOLFF, P.J., and BROGAN, J., concur.
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Hon. Mary Katherine Huffman *Page 1