Military veterans, trial lawyers and state lawmakers on both sides of the aisle are warning that a Republican-backed Ohio Senate bill would block cancer victims and their widows from getting asbestos cases to a jury.
The legislation, passed through a split Senate committee last month, would require anyone launching an asbestos lawsuit to disclose highly specific information about their exposure within a 30-day window of filing the lawsuit. Plaintiffs attorneys say this amounts to a sleight of hand meant to choke out the suits. Asbestos cases are often are brought by those living with mesothelioma or their surviving family members, including veterans exposed via their military service.
If passed, it would require submitting specifics like when the victim was exposed, the manufacturer and seller of the defendant’s product that contained asbestos, dates, and the “specific location” and address of that exposure site. Failure to do so within 30 days would result in a mandatory dismissal.
Plaintiff’s lawyers who bring these kinds of lawsuits acknowledge they’d need to prove all these things in a trial. But this information, the attorneys say, would realistically be in the hands of the defendants because asbestos-related diseases only set in 30 to 40 years after exposure, and most lawsuits are brought on behalf of deceased victims.
The proposed law requires the filing before the discovery process, where both parties must exchange relevant evidence in the case. That could include records like sales logs and engineering reports that might document any products that contained asbestos.
Veterans specifically say the bill narrows their rights. If someone dies of mesothelioma, a cancer in the lining of the lungs almost always caused by asbestos exposure, their spouse likely wouldn’t know where exactly on a sprawling aircraft carrier they were exposed. Even a living patient might not know those answers.
“When you’re in the military at 19, 20, you don’t pay attention to the addresses,” said David Root, legislative chairman for the Ohio chapter of the Veterans of Foreign Wars and a Navy sailor who served in Vietnam.
“And even if you did, you’re never going to remember them 40, 50 years later, when you start getting sick.”
Scott Palider, legislative chairman for the American Legion Department of Ohio, said the legislation will harm veterans, who file an outsize percentage of asbestos lawsuits because of their exposure.
“It is important to remind this committee that asbestos related illnesses take decades to show themselves. Decades.” he said to lawmakers in written testimony. “So having a veteran or their surviving spouse know all of this information off the top of their head from an exposure that happened 30 years ago is wrong. It is cruel. It is an injustice to the veterans and their families that have suffered from asbestos exposure here in the state of Ohio.”
For fire fighters, the bill’s requirements would be “impossible” to meet, according to Jon Harvey, the president of the Ohio Association of Professional Firefighters and the captain of the Middletown Fire Department. He warned of “unintended consequences” to fire fighters under the bill.
Nearly 8 in 10 people with mesothelioma report asbestos exposure, according to the American Lung Association. Asbestos, a heat and fire-resistant fiber, was used in insulation, firefighting materials, mining, milling, ship building, plumbing, pipefitting, car parts and others. Even those living with someone heavily exposed to asbestos face risks of second-hand exposure. After a latency period (lag between exposure and disease) lasting as long as decades, mesothelioma causes symptoms like shortness of breath, chest pain, coughing. Malignant mesothelioma cases are almost always fatal, according to the Cleveland Clinic.
Just before Thanksgiving, the Ohio Senate Insurance Committee passed Senate Bill 63 on a 7-6 vote. It passed with only Republican votes after lobbying from the Ohio Chamber of Commerce and insurance industries who say it protects against a scourge of innocent businesses being improperly sued in asbestos lawsuits.
Three Republicans joined three Democrats on the committee in opposition.
“It really just boils down to it being what seems to be a very clever way to say, ‘We don’t want any more of these asbestos lawsuits being filed against us,’” said Sen. Lou Blessing, a Colerain Township Republican.
Sen. Nathan Manning, a North Ridgeville Republican, acknowledged there’s a problem with the “over-naming” of defendants in asbestos cases. But he said the bill goes far beyond that and toward giving sellers of asbestos-containing products a “competitive advantage” when they get sued. He pitched amendments that would give judges more discretion instead of forcing them to dismiss cases with plaintiffs that can’t produce all the information up front. The amendments gained no traction, so he voted no in committee.
Shawn Acton, an attorney who represents victims in mesothelioma cases, said 90% of cases he brings are on behalf of dead victims. If this bill is signed into law, he said, there’s an absolute certainty of legitimate victims seeing their cases dismissed after brining claims against culpable defendants.
“Early on, you don’t have all the information necessary to prove your case. These cancer victims just don’t possess all the detailed info required to prove the case,” he said. “That comes from the employers.”
Sen. George Lang, a West Chester Republican, sponsored the bill. He declined interview requests. But addressing lawmakers in the committee, he said companies who are “innocent bystanders” all too often are named in lawsuits in asbestos cases and eventually dismissed, but only after eating thousands in legal costs.
Root, of the VFW, sat down with Lang and an Ohio Chamber of Commerce lobbyist in March, according to scheduling emails he provided. He said Lang offered a sense of understanding at the meeting, but he never amended the bill to mitigate the concerns.
The Ohio Chamber of Commerce declined to make any of its officials available for an interview. In a statement, CEO and President Steve Stivers said the bill is necessary to limit the “over-naming” of businesses, which causes increases in operating costs, unpredictability, and harm to the business and legal climate.
“SB63 does not limit the recovery of Ohioans who were exposed to asbestos – regardless of their status as a veteran – because nothing in the legislation curtails or weakens any possible monetary award that plaintiffs can recover from the responsible party,” said Stivers, a veteran of the Army National Guard
Mark Behrens, a lobbyist with the national U.S. Chamber Institute for Legal Reform, said at a committee hearing that the bill isn’t about taking money away from sick people. Rather, it’s about reducing legal spending by “innocent companies” that are being swept up into cases they had nothing to do with.
“It’s saying, tell us why these companies are being sued,’” he said of the bill. “How did you pick these 20 companies that you named in the lawsuit? What evidence do you have that they had something to do with your client’s disease?”
In 2021, North Dakota, West Virginia and Tennessee passed bills that are near-identical to the one under consideration in Ohio.
A 2004 “tort reform” law raised the legal bar in Ohio for people exposed to asbestos, requiring them to prove in court how they were exposed, the proximity of a defendant’s asbestos to the plaintiff, the frequency and length of exposure, and other details.
A recent state Supreme Court ruling highlights the complicated nature of such lawsuits. Kathleen Schwartz died from mesothelioma in 2012 at the age of 43, survived by a husband and four children. She was exposed to asbestos via her father, who was exposed via his work as an electrician between 1963 and 1996 or as the family’s car mechanic from 1964 to 1986. Schwartz might have been exposed when she helped do the family’s laundry, or when walking through the garage while her father worked on the car’s brakes, manufactured by a company later acquired by Honeywell.
Her husband sued Honeywell – among an array of other companies who were later dismissed – in 2014. A Cuyahoga County jury found Honeywell 5% responsible for the cumulative asbestos exposure that led to her injuries and awarded a judgment of more than $1 million to her spouse.
Honeywell challenged the ruling, arguing Schwartz failed to prove the brake exposure caused her disease. The court agreed, six years after Kathleen’s death, rejecting the cumulative exposure concept and finding that the evidence presented failed to prove the specific brakes acted as a “substantial factor” causing her disease. The justices reversed the judgment.
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