Ohio Asbestos Legislation May Serve as Model to Halt Mass Screening Cases

By: John G. Gaul, Esq.

While the "Fairness in Asbestos Injury Resolution Act of 2004" or "FAIR Act of 2004" (S.2290) failed to garner the necessary bipartisan support for passage by the United States Senate, the State of Ohio has moved forward and enacted a criteria based piece of legislation which is designed to ensure that individuals who sustained asbestos related diseases with impairment are given priority to pursue their personal injury cases in the tort system.¹ The passage of this legislation might well signal a turning point in the effort to bring some semblance of order to a litigation that has resulted in nearly 80 corporate bankruptcies² , while failing to compensate the truly impaired claimants. While the future of the federal asbestos legislation will be driven in large part by the upcoming elections, Ohio H.B. 292, signed into law by Governor Taft on June 3, 2004³, requires a plaintiff to establish a prima-facie case of impairment pursuant to strictly defined diagnostic, medical, and product exposure criteria in order to bring or maintain an asbestos action in Ohio courts.⁴ Claims that fail to meet the prima-facie showing will be administratively dismissed with the right to seek reinstatement only if the plaintiff is able to meet the minimum requirements at a subsequent time.⁵

The Ohio statute is unique in that in addition to requiring proof that a minimum level of objective pulmonary function impairment exists⁶ , and that radiological thresholds evidencing asbestos related diseases have been met according to review by a certified B-reader to maintain an action for a non-malignant claim, it also mandates that the diagnosis on which the litigation is predicated be made by a "competent medical authority" which is a defined term under the Act. In order to provide such a diagnosis for purposes of establishing the prima-facie evidence of an exposed person's physical impairment, the medical doctor must meet a number of stringent requirements designed to preclude the type of screenings that have generated well in excess of a half million lawsuits across the country, and more than 40,000 lawsuits in Ohio courts alone. The legislation places limitations on both the individuals who may make such a diagnosis, as well as the information upon which they may rely in making the diagnosis. In addition to requiring board certification in designated specialties such as occupational medicine, internal medicine, oncology, pathology or pulmonary medicine, the legislation requires the diagnosing physician to have actually treated the exposed person and requires that they have or had a doctor-patient relationship with the person. In addition, the diagnostician may not have relied on reports or opinions in formulating the diagnosis of individuals or testing facilities that may have violated laws, regulations, licensing requirements or medical codes of practices in the examination, testing or evaluation of a claimant. Further, the doctors, clinics, laboratories, or testing companies that performed the examination or tests upon which the diagnosing physician relies, must have established a doctor-patient relationship with the claimant or the medical personnel involved in the examination, test or screening process. In the event the diagnosing physician spends more than twenty-five percent of the medical doctor's professional practice time providing consulting or expert services in connection with actual or potential tort actions, or if the medical doctor's medical group, clinic, or professional corporation earns more than twenty five percent of its revenues providing those services, such diagnosis would not be considered valid for purposes of providing prima-facie evidence of an exposed person's physical impairment, and therefore establishing eligibility to remain active in the tort system.

In addition to satisfying the requirements that the diagnosing physician is a "competent medical authority", the plaintiff must also provide specific evidence verifying that the competent medical authority has taken a detailed medical, smoking, occupational and exposure history of the exposed person. If the exposed individual is deceased, then the evidence must be provided by a person most knowledgeable about the exposures that form the basis of the claim. Mandatory information includes all of the person's places of employment and exposures to airborne contaminants; whether each principal place of employment involved exposures to airborne contaminants, including, but not limited to asbestos fibers or other disease causing dusts; and the general nature, duration, and level of exposure to such contaminants.⁷

So as to ensure the validity and reproducibility of the evidence relating to physical impairment and to avoid the abuses that have heretofore produced the massive numbers of cases in the tort system, this legislation also mandates compliance with specific technical requirements relating to the underlying testing. Evidence of physical impairment, including pulmonary function testing and diffusion capacity studies must comply with the technical recommendations for examinations, testing procedures, quality assurance, quality control and equipment incorporated in the AMA Guides to the Evaluation of Permanent Impairment⁸ and the interpretive standards set forth in the official statement of the American Thoracic Society entitled "lung function testing: selection of reference values and interpretive strategies" as published in the American Review of Respiratory Disease, 1991:144:1202-1218.

Restrictions on the ability to bring or maintain a tort action alleging an asbestos related lung cancer of an exposed person who is a smoker⁹ are also delineated. This showing must include evidence that the exposed person has a primary lung cancer and that exposure to asbestos is a substantial contributing factor to that cancer.¹⁰ Plaintiff must also demonstrate at least a ten-year latency period from the time of first exposure to asbestos to the date of diagnosis.¹¹ No prima-facie showing is required in a tort action alleging an asbestos claim based upon mesothelioma.

This legislation, unlike the silica and mixed dust legislation, applies to cases presently pending in the tort system, as well as to prospectively filed lawsuits. From a practical perspective, the parties will need to evaluate potentially tens of thousands of cases in a relatively short period of time for compliance with the new law.¹² The volume of information, limited time and stringent criteria create the potential for inefficient, duplicitous, or faulty analysis of this information from the defense standpoint unless a coordinated effort to apply consistent standards of centralized review and reporting is undertaken. It will be essential that a mechanism be established to efficiently and objectively process, apply, and evaluate the evidence required under the Revised Code in order to determine whether the minimum requirements have been satisfied by the plaintiffs so as to properly initiate or maintain an asbestos related tort action in Ohio.

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1. H.B. 292, 125th Gen. Assem., Reg. Sess. (Ohio 2004).
2. Included in this number are at least five Ohio corporations.
3. This law is scheduled to take effect 90 days from June 3, 2004. However, it is possible that this legislation may be subject to a referendum vote in the November 2004 election. If the validation of this legislation is placed on the election ballot, then the effective date will be stayed until the result of the referendum is determined.
4. See, also, H.B. 342, 125th Gen. Assem., Reg. Sess. (Ohio 2004). This legislation applies to prospective silica and mixed dust lawsuits and imposes minimum requirements for the filing and maintaining of actions in the tort system that are virtually identical to H.B. 292, except to the extent that the specific diagnostic criteria for silica and mixed dust diseases vary from the diagnosis of an asbestos related disease.
5. Although there are significant issues in the legislation dealing with premises liability, piercing the corporate veil, and recommendations to the Ohio Supreme Court concerning venue, consolidation of cases and the legal standards for sufficient proof of exposure in tort actions, these matters are beyond the scope of this article.
6. Meeting thresholds as defined in the legislation establish pulmonary impairment. Specific information concerning the level of impairment or minimum radiologic changes required will not be discussed herein.
7. Information such as required here, has not historically been contained in the materials provided by all diagnosing physicians and may lead to the reevaluation of large numbers of plaintiffs, lest they risk significant administrative dismissals.
8. As set forth in 20 C.F.R. Pt. 404, Subpt. P, App.1, Part A, Sec. 3.00 E. and F., and the interpretive standards set forth in the official statement of the American Thoracic Society entitled, "Lung Function Testing: Section of Reference Values and Interpretive Strategies" as published in the American Review of Respiratory Disease, 1991:144:1202-1218.
9. A smoker is defined as an individual who has smoked the equivalent of one-pack year, as specified in the written report of a competent medical authority. during the last fifteen years. Sec. 2307.91 (DD).
10. This is in addition to meeting all of the additional requirements referenced above concerning exposure and diagnostic criteria.
11. This latency period is a rebuttable presumption if plaintiff can produce evidence of substantial occupational exposure to asbestos or by proof of 25 fibers per cc years of exposure to asbestos by specifically delineated professionals performing a scientifically valid retrospective exposure reconstruction.
12. With respect to any asbestos claim pending on the effective date, the plaintiff must file the written report and supporting test results described in division (A)(1) of section 2307.93 within one hundred twenty days following the effective date of that section. Upon motion and for good cause shown, the Court may extend this period. Sec. 2307.93. (A)(2). In prospective filings, the plaintiff shall file within thirty days after filing the complaint or other initial pleading the report and supporting test results constituting prima-facie evidence of the exposed person's physical impairment as specified by the appropriate division of the revised code. Sec. 2307.93. (A)(1).

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