When Linda Ackison filed an asbestos-related wrongful-death suit against her late husband’s employer in 2004, she did not intend it to become the test case that would lead to the dismissal of more than 31,000 similar claims. But that’s what happened after the Ohio Supreme Court put its weight behind a landmark retroactive medical criteria law and opened the door for sweeping changes in asbestos litigation nationwide.
Courts in Ohio have been clogged for decades with tens of thousands of suits alleging that asbestos exposure caused serious illness or death. Defense counsel questioned the legitimacy of a majority of those claims. So the Ohio General Assembly enacted legislation (H.B. 292) imposing new requirements on plaintiffs pursuing asbestos-related injury claims, including the submission of specified medical evidence of current disease or medical impairment, supported by the written opinion of a doctor who treated the plaintiff.
In October the state supreme court ruled in Ackison v. Anchor Packing Co. that H.B. 292, the nation’s first medical criteria law, could be applied to suits filed before the bill’s passage. The court held that the changes were “remedial and procedural” in nature and did not violate the state constitution’s prohibition against retroactive laws that affect a party’s substantive rights. The Cuyahoga County Court of Common Pleas then administratively dismissed 31,656 cases related to pending asbestos claims that did not comply with Ackison.
The decision may have implications beyond Ohio because five other states–Florida, Georgia, Kansas, Texas and South Carolina–have enacted medical criteria laws of their own. More states are considering similar legislation.
“We would like to think that this decision will guide other state supreme courts and trial courts across the country,” says Darren McKinney, director of communications for the American Tort Reform Association. “We would be popping champagne corks and cheering wildly if this had been a U.S. Supreme Court decision.”
Medical Evidence Required
Ackison filed suit in May 2004 against her husband’s former employer and multiple other defendants, claiming that his illnesses and death were caused by long-term exposure to asbestos in his workplace.
Four months later, Ohio adopted the medical criteria legislation that made extensive revisions to state laws governing asbestos litigation. The massive backlog of asbestos cases in the state courts and the existing system for resolving them were “unfair and inefficient, imposing a severe burden on litigants and taxpayers alike,” the bill stated.
When Ackison failed to file the medical documentation the new legislation requires, the trial court dismissed her case. The 4th District Ohio Court of Appeals reversed and reinstated her case, but the state supreme court upheld the trial court decision, saying Ackison “failed to carry her burden of proving that the statute was unconstitutional.”
McKinney says the decision will force a closer scrutiny of what constitutes a valid asbestos case.
“There is a growing body of evidence that suggests the vast majority of asbestos claims made during the last two decades have come from people who are not sick and may never get sick,” he says.
But Vincent Greene, a Motley Rice partner who represented Ackison, calls the ruling a dangerous precedent.
“It’s a decision designed to eliminate asbestos claims in favor of businesses,” Greene says.
In his dissenting opinion, Justice Paul E. Pfeifer wrote, “H.B. 292 changes the law so that people who had viable claims before its passage no longer have viable claims afterward.”
Bogus Case Backlog
The few court rulings thus far on other states’ medical criteria laws have reached different results with respect to retroactive application of these laws. In November 2006, for example, the Georgia Supreme Court ruled in Daimler Chrysler Corp. v. Ferrante that the state’s asbestos litigation reform law unconstitutionally required plaintiffs with pre-existing claims to establish a new medical element to prove their case. The legislature then passed a revised version of the law, making it prospective only and stating that only those who become sick through exposure to asbestos can sue companies that used the material.
Greene believes that medical criteria laws are an injustice to “thousands of litigants who have nonmalignant conditions.” But McKinney says they ensure that “legitimate” litigants get their day in court without waiting years for their cases to come to trial.
“If you set aside all the economic damage that has been wreaked by selfish and unscrupulous wheelers and dealers, the biggest injustice is to the folks who are waiting for their day in court and, because of this massive backlog of bogus cases, sometimes never get it before they die,” he says.
The decision will allow the courts to focus on cases from people who really are sick, such as the hundreds of pending mesothelioma (or “asbestos cancer”) cases in Ohio, says Richard Schuster, a partner at Vorys, Sater, Seymour and Pease. Schuster represented Anchor Packing.
“The majority of the Ohio cases that were dismissed involved individuals who were exposed to asbestos but weren’t showing any symptoms of an asbestos-related injury,” he says.
Plaintiffs in those 31,000-plus cases do have some recourse, Schuster notes. They could return to trial court with evidence of impairment. He sees only a small number doing so.
“They were given years to produce evidence to the court,” he says, “and they never did.”