Court of Appeals Holds That H.B. 292 Does Not Violate Ohio Constitution's Ban on Retroactive Laws

Full text of the Wilson decision

On December 18, 2006, the Twelfth District Court of Appeals reversed the trial court's decision and held that certain provisions of Ohio's 2004 asbestos law (H.B. 292) are not unconstitutionally retroactive when applied to cases pending prior to the effective date of H.B. 292. In rendering its unanimous twenty-nine page decision in Wilson v. AC&S, Inc. (Case No. CA2006-03-056), the Twelfth District became the first appellate court to reach the merits of this important issue.

Relevant Facts

In August 2000, Chester Wilson, a two-to-three-pack-a-day cigarette smoker, was diagnosed with lung cancer. He filed a complaint in 2001 against a number of companies alleging that he had been exposed to asbestos in his occupation and that such exposure caused injury to him, including lung cancer. Wilson died of lung cancer in April 2003 and his wife was substituted as the Plaintiff. On September 2, 2004, Ohio's new laws pertaining to asbestos personal injury claims became effective (H.B. 292).

In March 2005, Plaintiff filed a motion with attachments seeking to establish the prima facie showing required under H.B. 292. The defendants opposed the motion and requested that Plaintiff's case be administratively dismissed for lack of evidence to establish a sufficient prima facie showing. Plaintiff argued that H.B. 292 should not apply to her claim because such application would amount to an unconstitutional retroactive application of the law. The Butler County Court of Common Pleas issued an order finding that the retroactive application of H.B. 292 was substantive rather than remedial in its effect and, thus, violates the ban on retroactive laws found in Article II, Section 28 of the Ohio Constitution. The trial court also indicated that for all asbestos personal injury case filed before the effective date of H.B. 292, it would adjudicate substantive issues according to the law as it existed prior to the enactment of H.B. 292. Defendants appealed.

Summary of Twelfth District's Decision

The Court of Appeals began its analysis with an overview of the asbestos personal injury litigation system -- both before and after the enactment of H.B. 292. It then considered the General Assembly's intent in enacting H.B. 292 (found in Section 3(B) of H.B. 292). With this as a backdrop, the Court of Appeals analyzed the prima facie showing requirements, the "savings clause," and other provisions of H.B. 292. The Court of Appeals concluded that retroactive application of the provisions in H.B. 292 does not take away Plaintiff's vested right in proceeding with her cause of action. Rather, "the relevant provisions of H.B. 292 merely affect the methods and procedure by which that cause of action is recognized, protected and enforced, not the cause of action itself." Wilson at 16. The Court of Appeals directly rejected Plaintiff's argument (and the trial court's finding) that "H.B. 292 should not be applied to cases that were pending on the date the statute became effective, because the new statute requires plaintiffs who bring an asbestos claim 'to meet an evidentiary threshold that extends above and beyond the common law standard -- the standard that existed at the time [Mr. Wilson] filed his claim.'" Id. at 17.

Relying on Ohio Supreme Court precedent, the Court of Appeals concluded that "the provisions in H.B. 292 at issue in this case, i.e., R.C. 2307.91 through 2307.93, constitute remedial provisions that merely affect 'the methods and procedure by which rights are recognized, protected and enforced, not *** the rights themselves' . . . . These provisions 'merely substitute a new or more appropriate remedy for the enforcement of an existing right.'" Wilson at 27.

Plaintiff filed a Notice of Appeal to the Ohio Supreme Court but the case was dismissed on April 17, 2007 due to the certification of the conflict between the Wilson case and Ackison v. Anchor Packing Co. The Wilson case will be briefed and heard as part of the Ackison case.

For more information on the litigation discussed above, please contact Kurt Tunnell, Anne Marie Sferra, or Miranda Motter.