COLUMBUS — A previously shelved bill that critics argue could delay asbestos victims’ day in court has been dusted off by the Senate and is on the lame-duck track for Gov. John Kasich’s desk.
Senate Bill 380 is being pushed by the U.S. Chamber of Commerce as fairness for defendant companies that did not pursue bankruptcy to get out from under an avalanche of asbestos-related litigation. Victims and their lawyers argue that it’s an attempt to allow the companies to delay dying victims’ their day in court.
One Republican joined Democratic members of the Senate Judiciary Committee in opposing the bill Tuesday, but the measure is headed for a full Senate vote as early as today.
“This identical bill has been shopped around the country to multiple states over the past five years,” said Tom Bevan, an Akron-area asbestos plaintiff’s attorney. “This year it was defeated in Louisiana as well as Oklahoma. If this bill becomes law, the state of Ohio will become the only state in the entire country with a law such as this.”
The bill is the latest to deal with what at one time had been a long line of cases waiting to enter the courthouse based on exposure to the now-banned cancer-causing fibers.
In 2004, lawmakers passed a law that led to the dismissal of 30,000 of the 44,000 cases in the litigation pipeline at that time because the plaintiffs could not demonstrate their health already had been substantially impaired. It was no longer sufficient to simply present an X-ray showing physical changes to their lungs.
This bill would require someone who files an asbestos claim to list all the trusts they’ve sued and lay out the evidence they used in those cases. A defendant in an asbestos lawsuit could ask a judge to delay a case if it believes the plaintiff has withheld information on a trust lawsuit or has not sued a trust that it should have.
Defendant companies argued they need this information to mount their defense. Details on a plaintiff’s other lawsuits, settlements, or awards also could affect a jury’s apportionment of blame and financial responsibility when it comes to reaching a verdict, they contend.
If it becomes law, it would affect all cases not yet filed as well as those already in the pipeline but for which a trial has not yet started.
“This bill guarantees they will get 100 percent of whatever a judge or jury says,” said the bill’s sponsor, Rep. Louis Blessing (R., Cincinnati). “They’re going to get that, period. What they won’t get is seven, eight, nine, or 10 times what they’re entitled to. That’s what we’re trying to get at.”
Production of the heat-resistant fibrous product — widely used in wall and piping insulation, roofing and other construction materials, and brake pads and lining — was halted more than two decades ago. But legal fights continue in courthouses and legislative hearing rooms across the nation, particularly in Ohio, which has the eighth-highest rate of asbestos-related deaths.
Toledo-based Owens Corning and most other companies that manufactured, used, or sold products containing asbestos declared bankruptcy and created federal trusts against which plaintiffs could make claims. There are more than 60 such trusts.
This bill aims to help companies such as Perrysburg-headquartered Owens-Illinois Inc. that did not declare bankruptcy and are dealing with asbestos-related litigation on a case-by-case basis in Ohio courts.
“We’re tilting the scales of justice here to benefit large corporations,” said Rep. Mike Skindell (D., Lakewood), who opposed the bill in committee.
The bill passed the House in January, but it was soon shelved in the Senate through the Nov. 6 election. Now it is moving again and is expected to reach the governor’s desk before lawmakers bring the two-year legislative session to a close before the end of the year.
To help clear the way, outgoing Senate President Tom Niehaus (R., New Richmond) recently removed a Republican opponent of the bill, Sen. Frank LaRose (R., Akron), from the committee.
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