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Ohio is the first state in the nation to enact legislation that critics charge will choke off suits filed by victims of asbestos and silica dust exposure. The controversial laws set numerous thresholds over which workers must step before they can file an action. The new laws, which take effect in about 90 days, define the place of injury, the type and extent of illness, the manner of diagnosis, the extent of exposure, and the kind of doctor from whom a claimant must have been treated before he or she can establish a prima facie case sufficient to begin litigating. But the bills, recently signed into law by Ohio Governor Robert Taft, must withstand likely challenges from the toxic tort plaintiffs’ bar. They assert that the legislation sets arbitrary standards that will prevent injured workers from getting their day in court. The Ohio AFL-CIO, some of whose members may be adversely affected by the laws, declined comment. Supporters claim the bills represent legitimate “tort reform” that will benefit those most ill. “They are merely a means to get at the legitimate claims and eliminate the rest,” asserted Rick Schuster of Columbus, Ohio’s Vorys, Sater, Seymour and Pease. His firm represents several companies that are defendants in some of the approximately 40,000 asbestos and 1,000 silica/mixed-dust cases pending in Cleveland’s Cuyahoga County. Toxic tort attorney Steven D. Wolens of Dallas’ Baron & Budd charged that the bill is blatantly unfair. The asbestos bill “unilaterally and arbitrarily cuts off peoples’ prior and prospective rights by redefining what an injury is,” Wolens said. It contains “arbitrary medical and exposure criteria�even a minimum number of years one had to be exposed, depending on the disease. It’s designed to eliminate court access to those exposed to asbestos.” Under the bills, a board-certified treating doctor must make a diagnosis of a qualifying disease without relying on reports ordered by a nontreating doctor, or in a situation that “required the claimant to agree to retain the legal services of the law firm sponsoring the examination, test or screening.” Also, a person cannot be considered a treating doctor for the purpose of establishing a prima facie case if he or she, or their medical practice, earns more than 25% of their revenues from “providing consultant or expert services in connection with actual or potential tort actions.” The asbestos law is retroactive; the silica law isn’t. Schuster asserted that most claimants these days aren’t ill. “I don’t see the kind of people today in depositions that I used to�those who were on oxygen and clearly had asbestosis,” he said. “Most of the people we see now have never seen a doctor.” Wolens disputes that claim. “These are progressive lung diseases for which there is no treatment,” he said. “In the suits we file, doctors have diagnosed an asbestos-related disease�how far it has advanced is for a jury to determine�some are sicker than others, but there is always a physical manifestation of an asbestos-related injury.” Wolens disputes proponents’ most basic claim: that the bill will allow the sickest to get paid. As an example, he cites provisions that set out the kind of premises where the injury had to occur. “Mothers and children whose only exposure was shaking off dad’s clothing�even if they have mesothelioma�would not be able to make a claim under the bill” because they weren’t injured at a work site, asserted Wolens The Ohio Chamber of Commerce was part of the Ohio Alliance for Civil Justice, which led the drive for the new law. “The goals that we had in mind were to make sure that the doors to the courthouse remained opened to those who are truly sick from exposure to asbestos and mixed dust while preserving the right for those who have been exposed but not sick to file claims should they become ill,” said Tony Fiore, director of labor and human resources policy for the chamber. Fiore hopes that this legislation will become a model for other states until “the feds take action�which could be never,” he said. Opponents will try to squelch the legislation by referendum�which will require 193,000 signatures to get it on a ballot before the laws take effect�or by court challenge or both, said Wolens.

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