Measure aims to halt asbestos-exposure suits

December 12 2003

T C Brown

Plain Dealer Bureau

Columbus - The reform bill cleared its first major hurdle after 1 a.m. yesterday in the Ohio House of Representatives. If the bill becomes law, Ohio would be the first state in the nation to require strict, specified medical evidence to prove exposure to asbestos caused a physical injury.

Weary members of the House, who worked through the night on numer ous bills, passed House Bill 292 in a 61-36, mostly party-line, vote. Six Republicans abandoned the majority to join 30 Democrats in dissent.

The legislation will be considered by the state Senate next year.

The bill is retroactive, meaning that half or more of the 40,000 asbestos cases now in Ohio courts could be dismissed because plaintiffs do not qualify for compensation under the new medical standards.

"The eyes of the country are looking at the Statehouse in Columbus right now," said Steve Schneider, Midwest region vice president of the American Insurance Association.

"No other state has gotten as far in the debate or legislative process as has Ohio," Schneider said.

Supporters say the legislation will weed out those who are not sick, clearing the way for those who have become ill to be compensated quickly by the courts.

But opponents call the legislation a recipe for more disaster for victims already traumatized from exposure to asbestos.

The bill is written with the purpose of eliminating as many asbestos claims as possible, said attorney Thomas Bevan, whose Northfield firm represents many of Ohio's plaintiffs.

"This bill is a hose job," Bevan said. "We would be the first state in the country to bar most of its citizens from filing asbestos claims when they have injuries."

About 5,000 people a year die from asbestos exposure. Asbestos is the generic name for a mineral that is as strong as piano wire and as flexible as thread, which was widely used as a fire retardant.

It became a widely known health crisis in the 1970s, causing diseases ranging from acute respiratory disorders to cancers, including deadly mesothelioma, which can develop decades after exposure.

Legal claims for harm done by exposure to asbestos have swamped courts across the country. More than 700,000 lawsuits have been filed with more than 200,000 coming in the last couple of years, studies show.

Businesses and insurers are desperate to stem the tide of legal claims.

A study by Tillinghast-Towers Perrin found that more than 90 percent of nearly 53,000 asbestos claims filed in 2000 involved claimants who were not sick. Some estimate those lawsuits were filed out of a fear that once- deep pockets were now empty.

Nationally, nearly 70 companies, including five in Ohio, have declared bankruptcy due to asbestos claims.

And A.M. Best Co., a national insurance rating agency, estimates insurers have lost $65 billion to asbestos settlements. A.M. Best also predicts the industry has underfunded reserves to pay for future claims by at least $20 billion.

"Despite the industry's attempts in recent years to slow the onslaught of asbestos-related claims, A.M. Best's outlook for the insurance industry's exposure to accelerating asbestos losses remains negative," the company said in a special report in October. "Promising reform remains a distant hope."

Congress has been unable to craft a federal trust fund, similar to Big Tobacco's settlement, that would all but eliminate the lawsuits. Now insurers and business groups are looking to the Ohio legislation, hoping it will spawn reform in other states.

"We've got to go somewhere," the insurance association's Schneider said. "We're gratified the bill is still alive here."

The House Civil and Commercial Law Committee, chaired by Rep. William Seitz, a Cincinnati Republican, held nine hearings on the bill, with the last on Wednesday.

Seitz called the bill "a very complicated legal mine field," and he was unhappy that it was pushed for a quick vote by his own majority caucus, eager to go home for the holidays.

"We have to give everybody a two-hour explanation of the bill," Seitz said after the committee hearing. He was concerned that members would vote on a bill they might not fully understand.

Democrats opposed the bill in part over concerns that its retroactivity will not stand up to constitutional challenges, said Rep. Todd Book, the ranking Democrat on the committee.

Book said the bill could have a "devastating effect" on cases now in the courts.

Lawsuits would be set aside for plaintiffs unable to establish medical evidence of their injury. They could refile a suit if their medical conditions deteriorate. The bill gives plaintiffs the right to appeal a dismissal of their cases.

Another provision gives a judge some discretion to continue a case if the court believes a plaintiff's basic rights would be violated by a dismissal. Proponents believe that provision would be a "safety valve" to protect the constitutionality of the bill's retroactive aspects.

Many observers, however, believe the legislation will end up before the Ohio Supreme Court, which in past years has junked three other legislative attempts at civil justice reform.

It could go even higher, said William Weisenberg, director of government affairs for the Ohio State Bar Association. The state bar recommended splitting asbestos reform from a larger civil- justice-reform bill sent to the House from the Senate in June after only six weeks of debate.

"It's very likely this will end up in the Supreme Court of the United States," Weisenberg said.

But for now, major supporters like the Ohio Alliance for Civil Justice, representing 200 businesses and trade organizations, applaud the House action.

"Ohio House members today demonstrated that enough is enough," said David Hansen, chairman of the alliance. "In Ohio we are one of the top five states for asbestos litigation."

Hansen argues that the weight of all the cases bogs down the judicial system.

The majority of cases are filed in Cuyahoga County, which has two retired judges working full time on resolutions.

On Wednesday, Ohio Supreme Court Chief Justice Thomas Moyer, in a letter to the bill's sponsor, Rep. Scott Oelslager, a Canton Republican, said the judicial system was being administered "very efficiently."

Doug Stephens, director of the Supreme Court's judicial services, said asbestos cases are not bogged down.

"They do a good job of moving cases through the system," Stephens said. "We have not received complaints that the asbestos docket is holding anybody up."

Meanwhile, plaintiff attorneys like Bevan believe the medical standards established in the bill are arbitrary and would make it nearly impossible, especially for those who do not have cancer, to prove they were injured by asbestos.

"You could have the disease, but it might not affect you severely as far as impairment goes," Bevan said. "This will eliminate a large percentage of cases in Ohio."

Read complete story at: Cleveland.Com