Attorneys Split On Impact From Ohio High Court Asbestos Ruling

The impact of Wednesday’s Ohio Supreme Court decision putting restrictions on the filing of asbestos injury cases may not immediately produce any readily discernable impact, a plaintiff’s attorney said.

The plaintiff’s lawyer, Vincent Greene, made his remarks in the wake of the high court’s ruling that a 2004 state law, requiring plaintiffs to submit medical proof of harmful injury from asbestos before their cases are heard, can be applied retroactively.

His comments were disputed, however, by a defense lawyer who countered that there would be “tremendous” impact.

According to the Property Casualty Insurers Association of America, at the time the law was passed in an effort to clear court dockets, there were 40,000 cases pending in Cuyahoga County alone.

Mr. Greene said he thought the immediate impact of the decision will be “muted.” He noted that several counties have stayed cases rather than dismiss them, pending the Supreme Court ruling.

So the affect will not be “that dramatic.” The law at issue, he noted has been on the books for four years so “it’s not cataclysmic or titanic. There will be individuals whose conditions will worsen and they can meet that standard later on.”

Other plaintiffs, he said, may develop cancers as a result of exposure and that can be a cause for a suit that the law permits,

Mr. Greene represented Linda Ackison on behalf of her late husband Danny Ackison. Mr. Ackison also had cancer of the esophagus so the case can continue, he said. Mr. Ackison was a laborer at Dayton Malleable, in Ironton, Ohio, where he was exposed to asbestos gaskets and packing.

He called the court’s decision a results-oriented one in favor of business and against sound jurisprudence.

The court said the law would only have been unconstitutional if it impaired or took away a right, or imposed new or additional burdens, duties, obligations or liabilities as to a past transaction, or creates a new right.

As a remedial law, the court said in an opinion written by Justice Robert R. Cupp, has been found to be one that affects only the remedy provided, and includes laws that merely substitute a new or more appropriate remedy for enforcement of an existing right.

The court’s action drew an angry dissent written by Justice Paul E. Pfeiffer. “This court’s job in this case is not to fix a crisis declared by the General Assembly. Our duty is to determine what is right for Danny Ackison under the Ohio Constitution,” he wrote.

Robin Harvey, with Baker Hostetler law firm in Cincinnati, who represented a company which was dismissed, said the decision was part of a movement to clean up “a cesspool of abuse” with cases developed by radiology mills.

The Ohio statute calls for a plaintiff to have had an established competent, doctor patient relationship.

She said the law ruled out “unimpaired cases” where only thing shown was a change on the pleural lining of the lungs, but the plaintiff had no physical symptoms.

Ms. Harvey said 37,000 cases that are pending are unimpaired. In the past, she said that plaintiff attorneys would package one valid case of mesothelioma with a bunch of unimpaired cases and use it to leverage settlements of “garbage cases.”