On June 8, 2007, the NAM joined other business groups in filing an amicus brief in this case involving a recently enacted Ohio law that defers claims of injury due to exposure to asbestos until and unless there is evidence of asbestos-caused impairment. The estate of Danny Ackison brought suit to try to establish a relationship, although congestive heart failure and aortic stenosis are listed on his death certificate as the cause of death.
The issue is whether the statute may, consistent with constitutional requirements, be applied to cases pending on the date it was enacted. The defendant, supported by the NAM, argued that it may. The brief outlined the history of asbestos litigation and the severe problems caused to defendants, and to plaintiffs with actual injuries, when plaintiffs bring suit without any actual symptoms or medical evidence that asbestos caused an injury. The statute simply puts such claims on hold until actual symptoms develop. We have participated in similar recent cases in Georgia and Florida.
On Oct. 15, 2008, the Ohio Supreme Court ruled 5-2 that the law may be applied to cases pending on the date it was enacted. It ruled that the law was "remedial and procedural" rather than a retroactive change in vested or substantive rights. The law established a procedural prioritization of asbestos-related cases without putting new substantive burdens on plaintiffs. It also ruled that pleural thickening alone is insufficient to establish a compensable injury for asbestos exposure under common law in Ohio, and the plaintiff had not been diagnosed with any asbestos-related illness or impairment. The legislation does not prevent plaintiffs from pursuing pending actions that satisfy the actual-injury requirement.
The is an important decision upholding the validity of the retroactive application of case-management procedures involving about 40,000 asbestos-related suits. Shortly after the decision, a three-judge panel in Cuyahoga County dismissed 30,000 asbestos claims.