Asbestos plaintiffs in Ohio continue to have to adjust to the provisions of Ohio’s asbestos reform legislation. In Neal v. A-Best Products Co., et al., 2008 WL 5423494 (Ohio App. 2 Dist.), the appellate court recently rejected the plaintiffs’ latest arguments that retroactive application of the statute was unconstitutional.

According to the state’s General Assembly, Ohio had become a haven for asbestos claims and, as a result, is one of the top five state court venues for asbestos filings. At the time the legislation was being considered, Ohio had 35,000 pending cases, and dockets were increasing at an exponential rate. For example, between 1999 and 2003, the number of pending asbestos cases increased from 12,800 to 39,000, and 200 new asbestos cases were being filed in Cuyahoga County alone every month. In response, the General Assembly developed a system in which claimants must meet certain prima facie requirements in order to maintain tort actions that involve asbestos claims. For example, in a wrongful death case, plaintiff must make a prima-facie showing of a diagnosis by a competent medical authority that exposure to asbestos was a substantial contributing factor to the death of the exposed person. If the trial court finds that a claimant cannot meet this prima facie burden, the court must administratively dismiss the claim without prejudice.

Here, the appeals court concluded that the trial court was incorrect in finding that the statute cannot be retroactively applied to claims pending when the law was passed. Under the reasoning of  Ackison v. Anchor Packing Co., Slip Opinion No.2008-Ohio-5243, 2008 WL 4601676, these statutes do not impair substantive rights, and therefore do not run afoul of the prohibition against retroactive laws found in the Ohio Constitution. MassTortDefense discussed the Ackison case before.

Generally speaking, a statute is “substantive” if it impairs or takes away vested rights, affects an accrued substantive right, imposes new or additional burdens, duties, obligations, 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 merely substitute a new or more appropriate remedy for the enforcement of an existing right.

Interestingly, the appeals court, while noting it was bound to follow Ackison, repeatedly implicitly criticized the reasoning of the state supreme court and quoted the dissent.