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In the Summer 2008 issue of State Court Docket Watch, David Oswiany discussed two decisions of the Ohio Supreme Court rejecting challenges to state statutes that imposed, respectively, caps on non-economic and punitive damages and a ten-year statute of repose on product liability claims. Oswiany suggested that those decisions might “bode well” for advocates of tort reform in contrast to that court’s “long and somewhat controversial history of striking down laws enacted by the Ohio General Assembly to reform the state’s civil liability system.”1 Oswiany’s suggestion proved correct as the Ohio Supreme Court upheld a state statute prioritizing the disposition of asbestos claims that applied to claims pending when the law was enacted in Ackison v. Anchor Packing Co.2 

In 2004, the Ohio General Assembly “extensively revised state laws governing asbestos litigation... in response to the legislative finding that ‘[t]he current asbestos personal injury litigation system is unfair and inefficient, imposing a severe burden on litigants and taxpayers alike.’”3 Among other things, those revisions established threshold requirements for bringing certain asbestos claims that applied to all asbestos claims pending in Ohio courts, without regard to whether they were pending when the revised law, H.B. 292, became effective. Claimants who do not suffer from a malignant condition must file certain qualifying medical evidence supported by competent medical authority stating that asbestos exposure was a substantial contributing factor to the claimant’s medical condition.4 Without such medical evidence, the claim will be dismissed without prejudice. 

The Ohio General Assembly’s action was a response to certain aspects of asbestos litigation in Ohio. First, Ohio had become something of a magnet for such claims. As the Ohio General Assembly found, while Ohio, Mississippi, New York, West Virginia, and Texas accounted for nine percent for the asbestos claims filed nationally before 1998, those states accounted for 60 percent of all claims filed nationally by 2000. The number of cases pending in Cuyahoga County (Cleveland) jumped from about 12,800 in 1999 to 39,000 in 2000. Second, many of the claimants were not, in fact, sick. Instead, “the vast majority of new claimants—up to ninety percent —[were] ‘people who ha[d] been exposed to asbestos, and who (usually) ha[d] some marker of exposure such as changes in the pleural membrane covering the lungs, but who [were] not impaired by an asbestos-related disease and likely never [would] be.’”5 Claims by those who show signs of pleural thickening but are not sick crowd out the claims of those who are sick. 

In May 2004, some four months before the new law’s effective date, Linda Ackison, widow and executor of her husband’s estate, filed suit against his former employer and other defendants asserting that, among other things, exposure to asbestos caused or contributed to his death.6 Ackison did not submit the qualifying medical evidence of her deceased husband’s impairment, as the new statute required. An Ohio trial court rejected her challenge to the revised law and dismissed her claim without prejudice, but the court of appeals reversed and reinstated the case. That ruling by the court of appeals conflicted with the rulings of another Ohio court of appeals, and the conflict prompted review in the Ohio Supreme Court. 

The question before the court was whether the new law, with its new procedural requirements that affected the pursuit of some claims, could constitutionally be applied to claims pending before the statute’s effective date. As the court explained, while the Ohio Constitution provides that the “general assembly shall have no power to pass retroactive laws”, not all laws that apply retroactively are unconstitutional.7 The first part of the inquiry was easily met because, according to R.C. 2307.93(A)(2) and (3), the new filing requirements applied to pending cases. Accordingly, the question was whether the statute was substantive or remedial. 

Justice Robert Cupp, writing for a 5-2 majority8, concluded that the new asbestos laws were remedial and, hence, constitutional.9 He explained: 

A statute is ‘substantive’ if it impairs or takes away vested rights, affects an accrued substantive right, imposes new or additional burdens, duties, obligation[s], or liabilities as to a past transaction, or creates a new right.... Conversely, remedial laws are those affecting only the remedy provided, and include laws that substitute a new or more appropriate remedy for the enforcement of an existing right.10

As a general matter, laws that relate to procedures are classified as remedial.11 

In 2007, the court had held that R.C. 2307.92 and 2307.93 were remedial because they “pertain[ed] to the machinery for carrying on a suit.”12 Ackison sought to avoid that holding by making an as-applied challenge to the provisions of the law. In particular, she contended that, because Ohio already recognized a cause of action for pleural thickening without regard to whether any impairment or disease had developed, she had a vested right that could not constitutionally be taken away. 

The court disagreed, concluding that the holdings of two Ohio intermediate appellate courts on which Ackison relied were both incorrect as a matter of law and were not part of the Sate’s common law. In Verbryke v. Owens-Corning Fiberglass Corp.,13 Ohio’s Sixth District Court of Appeals stated “a pleural plaque or thickening meets the definition of ‘bodily harm,’ which is a subspecies of ‘physical harm’ and thus satisfies the injury requirements of Sections 388 and 402A of the Restatement [of the Law 2d, Torts (1965)].”14 The court found that the Verbryke holding rested on the erroneous incorporation of “intentional-tort principles into an analysis of negligence” in that the portion of the Restatement on which it relied related to harm caused by intentional torts.15 Because the Ohio Supreme Court had never held that asymptomatic pleural thickening, by itself, was sufficient to cause an injury, and the Verbryke holding rested on a misreading of the Restatement, Ackison had no vested right to pursue such a claim. Absent such a vested right, the revised statute could constitutionally be applied to her claim. The court drew support from the proposed Final Draft No. 1 of the Restatement 3d of Torts. Th at draft contains a Reporter’s note that states, in part: 

An unfortunate and aberrational exception to the [general tendency] of small or trivial harms [to remain unlitigated] is asbestos claims by plaintiffs who suffer no clinical symptoms but have abnormal lung X-rays, a condition known as pleural plaque. These claims exist only because of the number of such claimants and the efficiencies of aggregating such claims to make them economically viable for litigation. Some courts have responded by requiring that an asbestos plaintiff prove the existence of clinical symptoms before sufficient bodily injury exists.16 

The Reporter’s draft cites cases from the United States District Court in Hawaii and state appellate courts in Maryland and Pennsylvania holding that pleural plaque is not a legally recognized injury, and a 1985 decision of the Fifth Circuit of Appeals that goes the other way.17 

Ackison also contended that the definition of “competent medical authority” in H.B. 292 and the requirement that a claimant provide evidence that exposure to asbestos was a “substantial contributing factor” to his or her medical condition represented substantive changes to the law. The court quickly disposed of the first contention, concluding that the definition of “competent medical authority” related to the competency of a witness and was, therefore, “more akin to a rule of evidence.”18 Accordingly it was a procedural change. 

With respect to the definition of “substantial contributing factor,” the court found the General Assembly’s use of the verb “predominate” as an adjective to be “perplexing.”19 If interpreted to mean “predominant,” the new definition would change the substantive law relating to proximate cause and, therefore, be unconstitutional.20 But, the court pointed to the presumption that the General Assembly acts constitutionally, noting, as well, that it had made some portions of the new law prospective in operation. It explained: “Rather than impose a construction that results in unconstitutional application, we construe the statute to be consistent with the common law.”21 Construed in that fashion, the phrase “is, in essence, a ‘but for’ test of causation, which is the standard test for establishing cause in fact.”22 Thus, the new law was “intended to require that asbestos exposure be a significant, direct cause of the injury to the degree that without the exposure to asbestos the injury would not have occurred.”23 As a result, the new statute did not change the common law, it restated it. 

The court next found Ackison’s reliance on Horton v. Harwick Chem. Corp.24 to be misplaced. There, the Ohio Supreme Court held that, in a multidefendant asbestos case, the plaintiff did not have to prove exposure to a particular manufacturer’s product to the exclusion of the others. Instead, the plaintiff had to prove exposure to that product and that the defendant’s product was a substantial factor in causing the injury. The court pointed out that Horton “did not address the issue here, which is whether exposure to asbestos was ‘the predominate cause of the physical impairment’ without which ‘the physical impairment... would not have occurred.”25 

Finally, the court rebuffed Ackison’s contention that the definition of “substantial occupational exposure” was the General Assembly’s attempt to adopt a test that the Ohio Supreme Court had specifically rejected in Horton. First, the court noted that Ackison was the wrong person to make that claim. The definition of “substantial occupational exposure” applies “only to claims alleging lung cancer caused by asbestos when the victim is a smoker and to wrongful death claims....”26 More generally, it concluded that, to the extent that the General Assembly had adopted the test, the provision that did so operated prospectively. Accordingly, to the extent there was a change in the substantive law, it did not operate unconstitutionally in a retroactive manner. 

Justice Paul Pfeifer wrote a dissenting opinion in which he expressed the view that the new statute was unconstitutional because it operated retroactively.27 In his view, H.B. 292 “change[s] the substance of what constitutes a valid injury, alter[s] the nature of the medical proof necessary to prove a claim, modif[ies] what constitutes causation in an asbestos-exposure claim, and essentially overrul[es] this court in establishing new requirements for the extent of exposure to asbestos that is necessary to prove a claim.”28 He went on to question the General Assembly’s wisdom and the majority’s characterization of its role. In Justice Pfeifer’s view, pleural thickening had been recognized as an injury in 1998.29 While that recognition did not come from the Ohio Supreme Court, “it is the law in the Ohio appellate district where the vast majority of asbestos cases are litigated, it was never appealed to this court, and no Ohio appellate court has ever held differently.”30 The new law required plaintiffs suffering from pleural thickening to provide the court with information that was previously unnecessary. Even if a plaintiff ’s failure to provide that information resulted only in a dismissal without prejudice, Danny Ackison, who could no longer come up with that evidence because he was dead,31 would never be able to vindicate his rights. 

Significantly, Justice Pfeifer disagreed with the legislature’s conclusion that there was a crisis, referring to an “alleged litigation crisis.”32 He pointed to statements from Chief Justice Moyer, who did not join his dissent, and the director of the state’s judicial services to the effect that the system was operating efficiently. He asserted, “The fact is that the judicial system on its own, and especially in Cuyahoga County, has found a way to effectively administer asbestos litigation.”33 Th is led him to ask whether it “could... be that the General Assembly’s declaration of an asbestos-litigation crisis is overblown?”34 Justice Pfeifer concluded by criticizing the majority stating: 

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. Our role in this state is to protect the rights guaranteed by the Constitution, not to guide what might or might not be a good legislative idea. This court’s complicity with the General Assembly when it violates the Constitution is not judicial restraint; it is doing the work of the legislature from the bench.35 

The majority had pointed to Ohio statutory law, which, in pertinent part, states, “In enacting a statute it is presumed that [c]ompliance with the constitution of the state and of the United States is intended....”36 Accordingly, the majority declined to construe a portion of the statute in a way that would make it unconstitutional. Whether that constitutes legislating from the bench is for the reader to decide. 

 

* Jack Park serves as Special Assistant to the Inspector General for the Corporation for National and Community Service. He was formerly an Assistant Attorney General for the State of Alabama. 

 

Endnotes

 

1   Oswiany, Ohio Supreme Court Upholds Civil Liability Reforms, State Court Docket Watch (Federalist Society Summer 2008), at 2, available at www.fed-soc.org/pub;ications/pubid.1150/pub_ detail.asp, last viewed 10/31/2008.

2   2008 WL 4601676,  __ N. W. 3d __, slip op. No. 2008-Ohio5423 (Ohio S. Ct. Oct. 15, 2008).

3   Id., 2008 WL 4601676 at * 2 (quoting H.B. 292, Section 3(A) (2), 150 Ohio Laws, Part III, 3988).

4   R.C. 2307.92, 2307.93(c). 

5   Behrens & Goldberg, The Asbestos Litigation Crisis: The Tide Appears To Be Turning, 12 Conn. Ins. L. J. 477, 478-79 (quoting The Fairness in Asbestos Compensation Act of 1999: Hearing on H.R. 1283 Before the House Comm. On the Judiciary, 106th Cong.5 (July 1, 1999) (statement of Christopher Edley, Jr., Professor Harvard Law School)).

6   The death certificate for Danny Ackison identifies the cause of death as congestive heart failure and aortic stenosis.

7   2008 WL 4601676 at * 3 (quoting Bielat v. Bielat (2000), 87 Ohio St. 3d 350, 353, 71 N.E. 2d 28 ([R]etroactivity itself is not always forbidden by Ohio law.  Though the language of Section28, Article II of the Ohio Constitution provides that the General Assembly ‘shall have no power to pass retroactive laws,’ Ohio courts have long recognized that there is a crucial distinction between statutes that merely apply retroactively (or ‘retrospectively’) and those that do so in a manner that off ends our Constitution.”).

8   Justice Pfeifer wrote a dissenting opinion, and Chief Justice Moyer dissented without opinion.

9   Justice Cupp  was elected in 2006 and is the court’s junior member.  He spent 25 years in private practice, served 16 years in the Ohio Senate, was elected to the 3d District Court of Appeals, and has experience as a prosecutor. See Adler & Adler, A More Modest Court: The Ohio Supreme Court’s Newfound Judicial Restraint (Federalist Society, 2008), at 5.

10 2008 WL 4601676 at *4 (quoting State v. Cook (1998), 83 Ohio St. 3d 404, 411, 700 N.E. 2d 570).

11 Id.

12 Norfolk S. Ry. Co. v. Bogle, 115 Ohio St. 3d 455, 875 N. E. 2d 919 (2007). Justice Pfeifer wrote a dissent in Bogle that Chief Justice Moyer joined. 

13 84 Ohio App. 3d 388, 616 N.E. 2d 1162 (1992).

14 Id., 84 Ohio App. 3d at 395, 616 N.E. 2d at 1167.

15 2008 WL 4601676 at * 6.

16 Id. (quoting Proposed Final Draft No. 1, Restatement of the law, 3d, Torts (Apr. 6, 2005), Section 4, Comment c).

17 Id. The Reporter’s draft cites In re Haw. Fed. Asbestos Cases, 734 F. Supp. 1563 (D. Haw. 1990); Owens-Ill. v. Armstrong, 591 A. 2d 544 (Md. Ct. Spec. App. 1991), aff ’d in relevant part, 604 A. 2d 47 (Md. 1992); Giff ear v. Johns-Manville Corp., 632 A. 2d 880 (Pa. Super. Ct., 1993); and Gideon v. Johns-Manville Sales Corp., 761 F.2d 1129 (5th Cir. 1985). 

18 Id. at * 7.

19 Id. at * 8.

20 Id.

21 Id. at * 9.

22 Id. 

23 Id.

24 (1995) 73 Ohio  St. 3d 675, 653 N.E.2d 1196.

25 2008 WL 4601676 at * 9 (quoting R.C. 2307.91(FF)).

26 Id. at * 10.

27 Justice Pfeiffer is the only remaining member of the so-called “Gang of Four.” Before 2002, the Ohio Supreme Court “invalidated several legislatively adopted tort reform measures and invalidated the state system of school financing four times in the span of five years.” Adler & Adler, supra note 9, at 3. One commentator criticized the court for “blurr[ing] the lines between the legislative and judicial branches of government and essentially turn[ing] the court into a super-legislature on several major public policy issues in Ohio.” Id. (quoting Oswiany, supra note 1 at 1-2).

Pfeifer was first elected in 1992. Before being elected, he had experience as an assistant county prosecutor and in private practice. He also served in both houses of the Ohio General Assembly. In response to criticism for taking a long time to produce opinions, Justice Pfeifer said that he is “slow because he puts as much thought into writing opinions for the majority as he does in penning dissents, which he wants to be as entertaining as they are legally sound.” See Adler & Adler, supra note 9, at 4 (quoting Fields, Ohio Supreme Court Writing Opinions Quicker, Cleveland Plain Dealer, Jan. 27, 2008).  Pfeifer’s administrative assistant helps with his speeches and his weekly newspaper columns. Adler & Adler, supra note 9, at 19, n. 24.

Pfeifer has also criticized the fundraising that is part of a judicial election campaign. He said, “I never felt so much like a hooker down by the bus station in any race I’ve ever been in as I did in a judicial race... Everyone interested in contributing has very specific interests. They mean to be buying a vote.” Adler & Adler, supra note 9, at 4 (quoting Liptak & Roberts, Campaign Cash Mirrors a High Court’s Rulings, N.Y. Times, Oct. 1, 2006.  

28 2008 WL 4601676 at * 12. (Pfeifer, J., dissenting).

29 Id., at * 12 (citing In re Cuyahoga Cty. Asbestos Cases (1998) 127 Ohio App. 3d 358, 713 N.E.2d 20. 

30 Id.  

31 See fn. 6. 

32 Id.

33 Id. at * 18.

34 Id. at * 17.

35 Id. at * 18.

36 Id. at * 9 (quoting R.C. 1.47(A)).

Note from the Editor: The Federalist Society takes no positions on particular legal and public policy matters. Any expressions of opinion are those of the author. We welcome responses to the views presented here. To join the debate, please email us at info@fedsoc.org.