Ohio Supreme Court Applies Prima Facie Filing Requirements To Asbestos Claimants Asserting
Federal Claims

Anne Marie Sferra
Bricker & Eckler LLP
October 2007

Full text of the Ohio Supreme Court decision

On October 10, 2007, the Ohio Supreme Court decided Norfolk Southern Railway Co. v. Bogle, holding that the "prima facie filing requirements of R.C. 2307.92 are procedural in nature," and that the statute's "application to claims pursuant to the Federal Employee's Liability Act [FELA] and the Locomotive Boiler Inspection Act [LBIA] does not unnecessarily burden a federally created right."

Based on a belief that the "current asbestos personal injury litigation system is unfair and inefficient," the General Assembly enacted H.B. 292, codified as R.C. 2307.91-98, to prioritize asbestos-related claims. R.C. 2307.92 requires claimants to make a prima facie showing in order to proceed with their claims. Claimants with cases pending before the enactment of H.B. 292 had 120 days from the bill's effective date - September 2, 2004 - to comply with the prima facie requirements, or face administrative dismissal.

Before the General Assembly enacted H.B. 292, the Bogle claimants filed suits against Norfolk alleging asbestos-related injuries under the LBIA and FELA. The Bogle claimants asserted that they did not need to comply with the prima facie requirements because they were asserting federal claims.

The primary question before the Court was whether R.C. 2907.92 violates the Supremacy Clause of the U.S.Constitution, and, therefore, is preempted by the FELA and LBIA. The Court held that R.C. 2907.92 does not violate the Supremacy Clause.

First, the Court found that the prima facie requirements are procedural rules because their impact is "to establish a procedural prioritization of the asbestos-related cases on the court's docket . . . Nothing more." R.C. 2907.91-98 simply "create a procedure to prioritize the administration and resolution of a cause of action that already exists . . . No new burdens are placed on claimants . . . ." Thus, the statutes are "procedural in nature, not substantive" because they "pertain to the machinery for carrying on a suit" and do not change the burden faced by FELA claimants.

Second, the Court held that application of the prima facie filing requirements does not unnecessarily burden the federal rights of FELA claimants. The prima facie requirements of R.C. 2907.91-98 are "neutral state rules regarding the administration of the state courts . . . that do not bear upon the substantive right to recover."

In the larger framework of asbestos-related litigation, this case suggests that the Ohio Supreme Court is willing to apply statutes designed to prioritize and manage the overwhelming number of asbestos-related personal injury claims retroactively.

The 5-2 opinion was written by Justice O'Donnell. Justice Pfeifer dissented, and Chief Justice Moyer concurred in the dissenting opinion.