OHIO GENERAL ASSEMBLY

Bill makes filing suits over asbestos harder

3/26/2012

COLUMBUS — Eight years ago, Ohio lawmakers raised the bar to dramatically reduce the number of people who can sue manufacturers and other businesses that exposed them to cancer-causing asbestos.

More than 30,000 out of roughly 44,000 asbestos lawsuits pending in Ohio courts at the time were dismissed.

Now would-be plaintiffs and their attorneys are arguing that lawmakers are just piling on with a new bill that has already passed the House that they say is designed to erect another wall in front of the courthouse door.

“That ability to bring the plaintiff into that courtroom alive scares the bejeebers out of the people who caused your cancer,” Kevin McDermott, an asbestos plaintiff’s attorney, told the Senate Judiciary Committee last week.

Asbestos, a fibrous, heat-resistant product used in manufacturing and construction, was banned more than two decades ago but has been the subject of heavy litigation since the 1970s. It was widely used in such products as wall and piping insulation, roofing and other building materials, and brake pads and linings.

In many cases, manufacturers of such products, such as Toledo-based Owens Corning, and everyone else in the supply and use chain sought bankruptcy protection.

More than 60 independently operated federal bankruptcy trusts have been created through which those injured by those companies’ products seek compensation. A single plaintiff often will file claims against multiple trusts.

Senate Bill 380, sponsored by Rep. Louis Blessing (R., Cincinnati), is designed to benefit companies that did not seek federal bankruptcy protection and are still dealing with asbestos-related lawsuits in Ohio courts.

The bill would require anyone filing an asbestos claim in an Ohio court to detail each of the federal trusts they’ve sued and the evidence they presented to back up each claim.

It would allow a defendant in an Ohio lawsuit to ask a court to hold up the litigation if it believes that a trust claim has not been disclosed or believes that another claim should be filed by the plaintiff that wasn’t.

“This particular piece of legislation does not preclude recovery from any legitimate source,” said Joe O’Hara, vice president, assistant general counsel, and a board member of Perrysburg-based Owens-Illinois. The company is an example of one that did not seek bankruptcy protection and is dealing with asbestos lawsuits on a case-by-case basis in court.

“It does not take away their right to anyone they want to sue,” he said. “They can make claims against any trust they want. It could cause a delay only to the extent that a trial judge is persuaded that there’s good reason to delay. As far as I am concerned …, this is an attempt to get the most relevant information in the case out on the table as early as we can, at the same time that plaintiff lawyers are investigating.”

Knowing that more parties have been involved and, in some cases, have already paid out damages could affect jury decisions as they apportion responsibility for a plaintiff’s injury. Such decisions ultimately affect how much a company may be forced to pay in damages.

“We really have dual compensation systems that are essentially blind to each other, even though the claims are for the exact same injury,” Mr. O’Hara said. “The claims being raised and compensated in the [Ohio] tort-litigation system are the same as in the [federal] trust claim system. … This is designed to ensure more transparency and openness with the two systems.”

Opponents say they have no problem with the transparency provisions, noting such information is often disclosed during the discovery process now as court cases progress. But they argue that giving a defendant the potential power to put a case on hold because it believes another claim should have been filed against a federal trust is tantamount to another delay tactic to keep a plaintiff out of a courtroom.

“It throws more roadblocks into their bringing of a claim,” Mr. McDermott said. “There will never be a trial to confront the people who cause them harm.”

All of this occurs against the backdrop of the groundbreaking Ohio law passed in 2004 that led to the dismissal of more than 30,000 cases that were pending at the time in the asbestos litigation pipeline. The number of new case filings has since slowed dramatically.

The law requires plaintiffs to have a medical expert who personally treated them state that their health has been substantially impaired by exposure to asbestos. Plaintiffs could no longer make claims based solely on physical changes to their lungs that show up on an X-ray.

“They said [in 2004], ‘If only we could devote the time to the people who have cancer, then we can truly compensate them,’?” Mr. McDermott said. “They’re back, and they want to take away [injured people’s] opportunity to come into court.”

Rick Schuster, a Columbus attorney specializing in defending clients against asbestos lawsuits, said the bill could reveal inconsistencies in the evidence that plaintiff attorneys presented to multiple trusts about how their clients were exposed to the asbestos dust.

“Who is in control of all the information? The plaintiff and plaintiff’s counsel,” he said. “There would be no delay if they would do what they’re supposed to do up front. … If they want this to move along, all they have to do is file what they’re supposed to file.”

As a toddler, Sarah Groff Edelman watched from her jumper as her grandfather, Bob Groff, worked on brakes in his garage. The Avon man didn’t realize that he was exposing himself and Sarah to asbestos fibers.

At 21, Ms. Groff was diagnosed with mesothelioma, an asbestos-related cancer, in her abdomen while she was a student at Kent State University. She underwent major surgery, including a hysterectomy, and suffered through complications that followed. But today, at 29, she is married and the mother of triplets, delivered through surrogacy.

Because of the seriousness of her illness, she was not blocked from suing under the 2004 law and has received compensation.

“I am thankful it worked out for me, but it should not stop at me …,” Ms. Edelman told the Senate committee last week. “If you pass this bill, you are stealing that option for other people.”

Bob Groff, her grandfather from Avon, Ohio, has lung scarring from breathing asbestos dust and has trouble breathing, but his illness has not progressed enough to sue under the 2004 law.

“It hasn’t turned into cancer yet, but if I live long enough, it will,” Mr. Groff said.

The bill would have little impact on Owens Corning because it went through bankruptcy and set up a trust through which future asbestos claims must go.

“It appears this bill would create greater transparency, and we do believe transparency is helpful in maintaining confidence and trust in all our institutions,” spokesman Matt Schroder said.

Contact Jim Provance at: jprovance@theblade.com or 614-221-0496.