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A growing number of states across the country are approving or considering medical-criteria laws in an attempt to control large numbers of asbestos or silica claims filed by people diagnosed with related diseases who have no physical impairment. Bills are awaiting governors’ signatures in Kansas, South Carolina and Tennessee. These states are following the lead of Ohio, which first enacted medical criteria for asbestos cases in 2004. Laws establishing medical criteria for asbestos and silica claimants took effect last year in Georgia, Florida and Texas. Kentucky, Louisiana, Michigan, Missouri, New York, Pennsylvania, Virginia and West Virginia are the other states where medical-criteria legislation either was pending or introduced in the latest legislative session. Similar medical-criteria legislation also could surface in California before that state’s current legislative session ends on Aug. 30. Representatives of the asbestos plaintiffs’ bar, unions and corporate defendants have been negotiating the language since last year. Why is momentum gaining? “Success breeds success,” said Mark A. Behrens, a partner in Kansas City, Mo.-based Shook, Hardy & Bacon’s public policy group in Washington. “The fact that bills containing similar scientific language have passed in four other states and are seen to be very effective so far in filtering out claims by the nonsick-and without adverse and unintended consequences-generates momentum for more states to pass them.” But there are some sticking points. Ohio and Georgia courts must rule on whether their states’ medical-criteria laws can be applied retroactively, while others predict challenges on constitutional grounds. Asbestos and silica medical-criteria legislation restricts claimants to those diagnosed by a treating doctor to have an asbestos- or silica-related debilitating breathing impairment, lung cancer or mesothelioma, as well as their widows and families. Those who claim asbestos or silica exposure but have no impairment may not assert an active claim until that condition meets specific medical criteria. The push for legislation limiting claimants is driven in part by alleged abuses by plaintiffs’ firms that generated large numbers of claims through mass screenings of potentially exposed workers. The legislation was conceived to address abuses in the ways in which plaintiffs’ lawyers allegedly used screening companies and nontreating doctors to round up massive numbers of asbestos and silica claimants. U.S. District Judge Janis Graham Jack’s seminal June 2005 opinion- which excoriated plaintiffs’ lawyers, screening companies and doctors involved in the silica multidistrict litigation for manufacturing claims for money-is credited with focusing national attention on abuses. But evidence that already had come to light in several years of congressional hearings over the federal Fairness in Asbestos Injury Resolution legislation also played an important part. Retroactivity issue Richard D. Schuster, chairman of Columbus, Ohio-based Vorys, Sater, Seymour and Pease’s national toxic tort defense litigation practice, said that Ohio’s medical-criteria bill “dramatically cut the number of new case filings by more than 90%” and that “on the silica side, it’s basically eliminated new case filings.” Before the new law, Cuyahoga County, Ohio’s 44,000 asbestos cases made it the largest single docket of any jurisdiction in the country, with 3,000 cases in 35 of Ohio’s 88 county courts, as well as 20,000 cases in federal court in Cleveland that went to the federal multidistrict litigation in Philadelphia, Schuster said. “The Ohio trial courts have put 30,000 cases on the inactive docket since the end of March 2005 . . . and administratively dismissed 3,755 cases” based on two since-discredited doctors’ screenings, he said. Thomas W. Bevan of Bevan & Associates of Northfield, Ohio, who represents asbestos plaintiffs, said that he expects challenges to the constitutionality of barring the courthouse door to people disabled by asbestos-related illnesses but who fail to meet the criteria. “What’s the court going to do with the case of a person whose treating physician has diagnosed him with an asbestos-related disease, he can’t work and is totally disabled, but for some reason he doesn’t fit into the arbitrary criteria? This guy has no remedy under Ohio law,” Bevan said. Schuster said that another critical issue making its way through Ohio appellate courts is whether the new law can be applied retroactively to cases filed before the law took effect. Courts have taken two approaches: They have applied or stricken the law on its face, or they have incorporated the medical criteria into case-management orders, creating an inactive docket for unimpaired claimants, Schuster said. So far, two counties’ trial courts have ruled that the medical-criteria law cannot be applied to cases brought by unimpaired plaintiffs before the law was passed, and a third trial court has held that it is constitutional and can be applied retroactively, he said. If the Ohio Supreme Court affirms that the law can be applied retroactively, “Ohio will have cleared up the largest concentration of asbestos cases in the country,” Schuster said. The issue also is being briefed in the Georgia Supreme Court in a set of cases to be argued on May 22. DaimlerChrysler Corp. v. Ferrante, No. S06A0902, and Georgia Pacific Corp. v. Mitchell, No. S06A1219. And Florida plaintiffs’ attorney David A. Jagolinzer of Ferraro Associates in Miami said that he has filed motions in a number of cases in two Florida counties’ trial courts to get rulings on retroactivity in order to get the issue into the appellate courts. Sapp v. American Optical Corp., No. 03-11957 (Broward Co., Fla., Cir. Ct.). As to whether the Florida medical-criteria law has affected the roughly 16,000 asbestos cases Jagolinzer and his colleagues have pending, he replied: “Not too much. All it’s really done is basically slowed down the system. People are still settling cases, even nonmalignant ones. “The only effect that it’s had is an impact on malignant cases, giving the defendants the opportunity to play games by making people dying of mesothelioma and other cancers jump though more hoops,” he said. But Tracy E. Tomlin, who worked on the Florida legislation in Tallahassee, rejected the idea that any genuinely sick person must jump through more hoops or is denied his or her day in court. “The theory behind [the legislation] is that the really sick people come to the front of the bus,” Tomlin said, adding that filings are down because people who are not really sick no longer qualify as claimants. Tomlin, the managing partner of Nelson Mullins Riley & Scarborough’s Charlotte, N.C., office, represents asbestos defendants. Tremors in Texas Bryan O. Blevins of Provost & Umphrey, a national plaintiffs’ practice based in Beaumont, Texas, said that comprehensive state tort reform later supplemented by medical-criteria legislation has affected filings in Texas “in capitals and bold letters and raised to the 10th degree. “After generic tort reform legislation on issues such as venue, joint and several liability, and third-party employer liability took effect in Texas in September 2003, asbestos and silica filings dropped dramatically from the thousands of cases to the hundreds,” Blevins said. And after the state’s medical-criteria bill took effect two years later, “it virtually eliminated asbestos filings, which went from the hundreds to the tens,” he said. “The only cases getting filed now are cancer cases, which are 12% to 15% of the cases being filed nationwide. I think we are going to see dramatic, dramatic changes when the numbers come in from last year,” Blevins said. George Scott Christian, general counsel of the Texas Civil Justice League, an Austin, Texas, tort reform group, said “[w]e’ve made Texas a forum of last resort for asbestos plaintiffs. We’ve done a pretty good job of shutting down the asbestos factory.” Blevins also said that the drop in filings and legislation drafted to give priority to the sickest asbestos claimants has led asbestos bankruptcy trusts-which currently pay claimants five cents on the dollar-to consider raising their payment percentages. Jodye Marvin, general counsel of Claims Resolution Management Corp., which administers the Johns-Manville bankruptcy trust, said that a rate increase had been considered. But after extensive study by outside experts and consultation with legal representatives for the beneficiaries and for future claimants, the trust reported to the bankruptcy court earlier this month that it had decided to maintain its current 5% payment percentage, Marvin said. She added that if recent trends in its investment performance and claim filings continue, the trust anticipates that there could be an increase in the pro rata payment in the future. S.C.’s preventive medicine In contrast to Ohio and Texas, states such as Kansas and South Carolina, which never had large numbers of asbestos case filings, passed legislation on the theory that it is better to be safe than sorry. R. Bruce Shaw of Nelson Mullins Riley & Scarborough’s Columbia, S.C., home office, who has been defending asbestos cases nationally for almost 30 years, called the bill “preventive medicine.” South Carolina never had a deluge of asbestos filings, and most of the 70 to 80 silica cases filed have been dismissed, said Shaw, who represents U.S. Silica Co. in silica litigation and helped draft the South Carolina legislation. But this is not to say that it can never happen, he said, and “if you get a lot of cases it’s hard to fix.” In addition, by enacting a law before there is a problem, South Carolina will not have to worry about the constitutional issues relating to whether it can be applied retroactively to a large inventory of cases, as in Ohio. The legislation lets all claimants file cases, but directs courts to route those filed by the unimpaired to an inactive docket until they satisfy the medical criteria, Shaw said, adding that he expects it to be law within a month. Joseph F. Rice of Mount Pleasant, S.C., plaintiffs’ firm Motley Rice said that in providing only for an inactive docket, South Carolina’s medical-criteria bill is different from other states’ laws because it does not eliminate the right of an unimpaired victim to file a claim. “All they’ve done is create a procedural rule through a legislative act,” Rice said. He added that state legislatures like Georgia’s and Ohio’s, which have eliminated the unimpaireds’ right to sue, have taken away citizens’ right to participate in the asbestos bankruptcy trust claims procedure because they cannot make a claim without a valid state cause of action.

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