Ohio Okays Curbs On Asbestos, Silica Suits

By Susanne Sclafane

NU Online News Service, May 27, 2:52 p.m.EDT?Two bills intended to halt asbestos and silicalawsuits by individuals who show no symptoms won final passage inthe Ohio Legislature yesterday.[@@]

The measures, which drew praise from industry trade groups, areexpected to secure the signature of Republican Gov. Robert Taft,who supported them, according to Jeffrey Junkas, a spokesperson forthe Washington-based American Insurance Association.

Due for enactment are the asbestos reform bill, H.B. 292, andthe silica reform bill, H.B. 342.

Similar in scope, the two bills set minimum medical requirementsfor filing asbestos, silicosis and mixed dust claims. They also setrules for premises liability actions and attempt to limit casesthat try to "pierce the corporate veil" by naming parent companiesof firms that are more directly involved in manufacturing processesthat gives rise to the injury-causing exposure in litigation.

While judicial solutions, known as inactive dockets, have beenproposed and set up in other states, the Ohio legislation isgroundbreaking in several respects, according to Mark Behrens, alawyer for Shook, Hardy & Bacon, who is also counsel to theCoalition for Litigation Justice in Washington.

Ohio, he said, is the first state to adopt either a legislativeor a judicial plan for curbing silica suits. And it is the firststate to adopt legislative medical criteria for asbestoslitigation.

The approach is modeled after judicial approaches, referred toas inactive docket programs, which are in place in a number ofareas, he said. For example, in Boston, New York City, Syracuse,Seattle and in Madison County, Ill., registries are set up forpeople that are not sick, allowing them to file cases later whenthey can present credible evidence of illness.

There is also a petition for adopting an inactive docket pendingin the Michigan Supreme Court. (See NU, Sept. 15, 2003,page 18 for details.)

Mr. Behren highlighted the fact that Ohio was the first tolegislate a silica solution, noting that such a "holistic approach"avoids the problem of having silica lawsuits filings exacerbated bylawyers who would run into difficulties filing asbestos suits ifonly medical criteria for asbestos was enacted.

With federal reform efforts stalled, states will moreaggressively pursue their own individual reforms efforts, and Ohiois a bellwether state, he said. Although it is a Republican state,it is also a heavy manufacturing and heavy labor state, he said,noting that its size and bipartisanship are key reasons for itsbellwether status.

Mr. Junkas pointed to the large industrial base of the state asa reason why the legislation was important for, and successful inOhio. There are more than 40,000 cases in Cayahuga County, he said,noting while they are mainly asbestos cases, there are roughly1,000 silica cases.

According to an April 2002 report, "Health Effects ofOccupational Exposure to Respirable Crystalline Silica," by TheNational Institute of Occupational Safety and Health (the researcharm of OSHA), Ohio ranked second behind Pennsylvania in deathscaused by silicosis between 1990 and 1999.

According to statistics compiled by the CLJ, one unidentifiedinsurance company facing claims related to silica cases from 30,000plaintiffs had 66 percent from Mississippi, 25 percent from Texas,and only 5 percent from Ohio.

Texas enacted comprehensive tort reforms in 2003, but asbestosmedical reforms were sidetracked when other issues consumed thelegislators' time, Mr. Behrens said, noting that they are expectedto be picked up again when the lawmakers reconvene in 2005.