Summary of Am. Sub. H.B. 292
Asbestos Legislation
Sections 2307.91 - 2307.98 Ohio Revised Code

The Medical & Exposure Criteria

• Requires a showing of the following medical criteria for asbestos claims based on nonmalignant conditions (Section 2307.92(B)):

  • Occupational and exposure history;

  • Medical and smoking history; and

  • Diagnosis by competent medical authority of: (1) permanent respiratory impairment and (2) evidence of asbestosis substantiated by either (a) a chest x-ray of 1/1 or (b) a chest x-ray of 1/0 with additional testing.

• Requires a showing of the following exposure criteria for asbestos claims based on lung cancer where the claimant is a smoker (Section 2307.92(C)):

  • Diagnosis by competent medical authority of primary lung cancer for which exposure to asbestos is a substantial contributing factor to that cancer;

  • Evidence of a 10-year latency period (plaintiff has the right to rebut presumption of 10 year latency period); and

  • Evidence of exposure substantiated by a proof of either: (1) exposure of at least 5 years, or (2) exposure at a level equal to 25 fiber per cc years. (Note, if the claimant whose lung cancer was caused from living with another person who was exposed to asbestos and that other person can meet the exposure requirements in either (1) or (2) above, the claimant has met this requirement for purposes of the exposure criteria.)

• Requires a showing of the following exposure criteria for asbestos claims based on wrongful death (Section 2307.92(D)):

  • Diagnosis by competent medical authority that exposure to asbestos was a substantial contributing factor to the death;

  • Evidence of a 10-year latency period (plaintiff has the right to rebut presumption of 10-year latency period); and

  • Evidence of exposure substantiated by either: (1) exposure of at least 5 years, or (2) exposure at a level equal to 25 fiber per cc years. (Note, if the claimant whose death was caused from living with another person who was exposed to asbestos and that other person can meet the exposure requirements in either (1) or (2) above, the claimant has met this requirement for purposes of the exposure criteria.)

• Provides that the medical/exposure criteria do not apply to mesothelioma cases (Section 2307.92(E)).

Filing the Prima Facie Evidence

• For cases filed after the effective date of the bill (September 1, 2004) -- requires a plaintiff to file the prima facie evidence within 30 days of filing the complaint or any other initial pleading (Section 2307.93(A)(1));

• For pending cases -- requires a plaintiff to file the prima facie evidence within 120 days from the effective date of House Bill 292 (Section 2307.93(A)(2));

• Provides that the court’s decision on the prima facie showing is not admissible at trial (Section 2307.92(G));

• Provides a “safety valve” for pending cases that permits the court to determine whether: (1) a substantive right of the claimant has been impaired, and (2) if so, whether the impairment is a violation of Ohio’s constitutional provision relating to retroactive laws (Section 2307.93(A)(3));

• Requires a court to administratively dismiss any claims that do not meet the required prima facie showing (Section 2307.93(C)); and

• Provides that a prima facie determination pursuant to Section 2307.92 and a “safety valve” determination pursuant to Section 2307.93 are both final appealable orders (Section 2505.02).

The Statute of Limitations

• Provides that the period of limitations does not begin to run until the exposed person is physically impaired (Section 2307.94 (A));

• Provides that a nonmalignant claim is a distinct cause of action from an asbestos-related cancer claim (Section 2307.94(B)); and

• Provides that a settlement of a nonmalignant claim, which is concluded after the effective date of the bill, cannot require as a condition of the settlement, the release of any future claims for asbestos-related cancer (Section 2307.94(C)).

Premises Liability

• Provides that a premises owner is not liable for any injury resulting from asbestos exposure unless the individual’s exposure occurred while the individual was at the premises owner’s property (Section 2307.941(A)(1));

• For asbestos exposures that occurred prior to 1972, provides that a plaintiff must prove by a preponderance of the evidence that the premises owner knew or should have known that the levels of exposure exceeded certain threshold value limits adopted by this state (Section 2307.941(A)(2));

• Provides that a premises owner is not liable to any invitees if an invitee’s employer held itself out as qualified to perform that type of work unless the plaintiff proves by a preponderance of the evidence that the owner had actual knowledge of potential dangers of the products containing asbestos at the time of the exposure that was superior to both the invitee and the employer (Section 2307.941(A)(3)(a));

• Where the contractor was hired prior to Jan. 1, 1972, provides that a premises owner cannot be liable to any individual for asbestos exposure caused by the contractor’s employees or agents unless the owner directed the activity that caused the injury or gave or denied permission for the critical acts that led to the individual’s injury (Section 2307.941(A)(3)(b)) and

• Where the contractor was hired on or after Jan. 1, 1972, provides that a premises owner is not liable to any individual for asbestos exposure caused by the contractor’s employees or agents unless the plaintiff establishes the premises owner’s intentional violation of an established safety standard that was in effect at the time of the exposure and that the alleged violation was in the plaintiff’s breaking zone and was the proximate cause of the plaintiff’s medical condition (Section 2307.941(A)(3)(c)).

Other Provisions

• The Lohrmann Standard. Adopts a standard, utilized by the majority of federal courts, when determining whether a particular plaintiff’s exposure to a particular defendant’s asbestos was a substantial factor in causing the plaintiff’s injury or loss (Section 2307.96);

• Piercing the Corporate Veil. Codifies current Ohio law with respect to the obligations and liabilities of entities for asbestos claims under the doctrine of piercing the corporate veil (Section 2307.98); and

• Requests the Ohio Supreme Court to adopt venue and consolidation rules relating to asbestos claims (Section 4)

Application of House Bill 292

• Provides that House Bill 292 does not apply to bankruptcy proceedings (Section 2307.95(A));

• Provides that House Bill 292 does not apply to workers’ compensation claims or veterans’ benefits programs (Section 2307.95(B)); and

• Provides that, except with respect to the exposure requirements mentioned above, House Bill 292 does not apply to statutory wrongful death claims (Section 2307.95(C)).