Keeping Asbestos Claims in Check

Gary Auman

Gary Auman (www.dmfdayton.com) is a Partner in the law firm of Dunlevey, Mahan & Furry in Dayton, Ohio. He graduated with an electrical engineering degree from the University of Louisville in 1969, and a law degree from The Ohio State University in 1976. Since then, his practice has focused on defending employers in workers’ compensation and OSHA cases. In 2002, Mr. Auman was awarded the Distinguished Service to Safety Award by the National Safety Council. He has worked with OSHA in its development of safety and health standards, and he has defended OSHA cases in several federal appellate courts. Mr. Auman also represents 4 national and regional trade associations in the construction industry. He can be reached at gwa@dmfdayton.com.

Laurie Dendwick-Gordon

November 1, 2004

There are an estimated 200,000 asbestos cases pending nationwide. The U.S. Supreme Court describes this vast amount of asbestos claims as "an elephant mass." Ohio, in particular, has become a "haven" for asbestos claims and is one of the top five states for such filings, declaring at least 35,000 pending claims with the number rapidly increasing. The majority of asbestos claims filed in Ohio are by individuals who, although they have physical signs of asbestos exposure, do not suffer from any asbestos-related impairment, such as cancer.

The national impact of asbestos claims is astonishing. These cases have contributed to more than 70 companies filing for bankruptcy; at least five have been Ohio-based companies. Bankruptcy has also plagued nearly all manufacturers of asbestos textile and insulation products. Nationally, it is estimated that these bankruptcies will eventually result in the loss of 423,000 jobs.

More Stringent Criteria for Claims

House Bill 292 was created as an attempt to control the extraordinary volume of asbestos claims in Ohio. This act imposes the minimum medical requirements an exposed individual must demonstrate in an asbestos claim; establishes the burden of proof an individual must meet in tort actions involving asbestos claims; establishes liability of individuals who own, lease, rent, maintain or control property (premises owners), and liability of shareholders. This act became law in Ohio on September 2, 2004.

House Bill 292 defines an asbestos claim as any claim for damages, losses, indemnification, contribution or other relief that relates to asbestos: including mental or emotional injuries, death, loss to person, risk of disease or other injury, costs of medical monitoring or surveillance, or any other affects on the person’s health that are caused by asbestos. A tort action is defined as a civil action for damages for injury, death or loss to person.

In an effort to minimize the number of claims brought by individuals who do not suffer from any asbestos-related physical impairment, the act imposes numerous medical requirements an individual must meet in order to bring an asbestos claim. Additionally, the act requires specific evidence provided by a competent medical authority, which is defined as a medical doctor who is a board-certified internist, pulmonary specialist, oncologist, pathologist or occupational medical specialist.

The act also imposes specific conditions upon the medical doctor who provides the exposed individual with a diagnosis of an asbestos-related impairment. The medical doctor must have treated the individual, be the individual’s current treating physician and must have a doctor-patient relationship with the individual. Additionally, the medical doctor cannot rely upon reports or opinions of any doctor, clinic, laboratory or testing company that performed an examination, test or screening of the individual’s medical condition if any of the following situations applies:

  • The report or opinion is in violation of any law, regulation, licensing requirement or medical code of practice;

  • A doctor-patient relationship was not established; or

  • The individual was required to retain legal services from a law firm sponsoring the examination, test or screening.

Finally, the act states that the medical doctor cannot spend more than 25 percent of his or her time in providing consultation or expert services, and the medical doctor’s affiliated group cannot earn more than 20 percent of its revenues from providing those services.

In order for an individual to bring an asbestos claim based upon a nonmalignant condition, a condition other than cancer that may be caused by asbestos, that individual must show that the asbestos exposure caused a physical impairment, that the physical impairment is a result of a medical condition, and that the individual’s exposure to asbestos is a "substantial contributing factor" to the medical condition. That is, the asbestos exposure must be the predominate cause of the physical impairment, and a medical doctor has determined that without the asbestos exposure the physical impairment would not have occurred.

To make this showing, the individual must provide evidence establishing that a medical doctor has taken a history of all of the individual’s places of employment and any exposures to airborne contaminants, including whether each place of employment involved exposures to airborne contaminants. The individual must also provide evidence showing that a medical doctor has taken a detailed medical and smoking history, and has reviewed the individual’s past and present medical problems and determined the most probable cause of those medical problems. Additionally, a medical doctor must diagnose the individual with a permanent respiratory impairment rating of at least Class 2 under the American Medical Association guides and with either asbestosis or diffuse pleural thickening. This diagnosis must be based upon a medical examination and pulmonary function test.

In asbestos claims that involve lung cancer in individuals with a history of smoking, that individual must prove that the asbestos exposure caused a physical impairment; that the physical impairment is a result of a medical condition; and that the individual’s exposure to asbestos is a substantial contributing factor to the medical condition. The individual must provide a diagnosis by a medical doctor establishing that the individual has lung cancer and that exposure to asbestos is a substantial contributing factor to the lung cancer. The individual must also establish that 10 years have elapsed from the date the individual was first exposed to asbestos until the date of diagnosis. Finally, the individual must provide evidence of substantial occupational exposure to asbestos or evidence of exposure to asbestos at least equal to 25 fiber per cc years, as established by a certified industrial hygienist or certified safety professional.

As a result of House Bill 292, an individual who files an asbestos claim must file a written report and provide supporting test results within 30 days after filing the complaint or other initial pleading. The defendant, upon motion, is then provided an opportunity to challenge the adequacy of that individual’s evidence within 120 days from the date the evidence is filed. If the defendant uses a physician to challenge the individual’s evidence, that physician must meet all of the requirements set forth for a competent medical authority, with the exception of the requirement that the medical doctor must be treating or has treated the individual. Note that the other requirements defining competent medical authority remain in effect.

For asbestos claims that are pending on the effective date of the minimum medical requirement section of the act, the individual who filed the asbestos claim must file a written report and provide supporting test results within 120 days following the effective date. If an individual has an asbestos claim that arose prior to the effective date, then the individual must provide all of the minimum medical requirements established by the act.

Liability Issues

The act also sets forth requirements needed in order to bring an asbestos claim against a premises owner. It provides that a premises owner is not liable for any injury resulting from asbestos exposure unless the exposure occurred while the exposed individual was on the premises owner’s property.

If the individual alleges that exposure occurred prior to January 1, 1972, there is a presumption that the premises owner knew that Ohio adopted safe levels of exposure for asbestos and that products containing asbestos on the premises owner’s property were below this safe level. To overcome this presumption, the individual must prove that the premises owner knew or should have known that the levels of asbestos exceeded the safe level.

In a situation where the exposed individual works with, installs or removes asbestos products, a premises owner is presumed not liable for asbestos exposure if the exposed individual holds himself or herself out as qualified to perform the work. To overcome this presumption, the individual must prove that at the time he or she was exposed, the premises owner had actual knowledge of the dangers of asbestos that was superior to the knowledge of the exposed individual.

If a premises owner hired an individual prior to January 1, 1972, to perform work in which the individual was qualified to perform, the premises owner is not liable for any injury resulting from asbestos exposure unless the premises owner directed the activity that resulted in the injury or denied permission for critical acts that led to the individual’s injury. If a premises owner hired an individual on or after January 1, 1972, the premises owner is not liable for any injury resulting from asbestos exposure unless the individual proves that the premises owner intentionally violated an established safety standard.

In a situation where an individual claims that asbestos exposure resulted from the tortious act of multiple people, the exposed individual must show that the conduct of each person was a substantial factor in causing the injury or loss. If the individual claims an injury or loss resulted from exposure to asbestos, that individual must prove that he or she was exposed to asbestos that was manufactured, supplied, installed or used by the defendant and that the exposure was a substantial factor in causing the individual’s injury or loss.

This act does not affect a person or corporation’s right to file for bankruptcy, and does not affect the laws and rules governing workers’ compensation, veterans’ benefit program, or the exclusive right of subrogation.

At this time, foes of the legislation have filed a challenge into the Ohio Eighth District Court of Appeals in Cleveland. This action was taken on August 18, 2004. An attorney whose firm represents clients in approximately 32,000 asbestos cases in Cuyahoga County, Ohio, filed the suit on behalf of several labor unions. Although the suit contends that the law has many problems, its chief complaint of unconstitutionality is directed at the retroactivity provisions of the law.