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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 726 {¶ 1} This matter is before us on an appeal1 by numerous appellants who are challenging a decision of the Butler County Court of Common Pleas finding that the asbestos claim of plaintiff-appellee, Barbara Wilson, individually and as personal representative of the estate of Chester Wilson, is governed by the law as it existed prior to the effective date of 2004 Am. Sub. H.B. No. 292 ("H.B. 292").
{¶ 2} From 1964 to his retirement in April 2000, Chester Wilson was employed by A.K. Steel Corporation, formerly known as Armco Steel Corporation, located in Butler County, Ohio. Mr. Wilson worked in various jobs around the plant, including the position of furnace tender. On August 4, 2000, Mr. Wilson, who was a two-or-three-pack-a-day smoker, was diagnosed with lung cancer. *Page 727
{¶ 3} On December 14, 2001, Mr. Wilson filed a complaint against a number of companies (hereinafter "appellants"2) that have been engaged in the mining, processing, manufacturing, sale, and distribution of asbestos or asbestos-containing products or machinery. Mr. Wilson alleged that he had been exposed to asbestos or asbestos-containing products or machinery in his occupation and that appellants were responsible for his lung disease and related physical ailments from which he suffered.
{¶ 4} On April 15, 2003, Mr. Wilson died of lung cancer. Thereafter, Mr. Wilson's wife, Barbara Wilson, was substituted as the party in interest for the deceased Mr. Wilson.
{¶ 5} On September 2, 2004, H.B. 292 went into effect. The key provisions of H.B. 292 are codified in R.C.
{¶ 6} In March 2005, appellee filed a motion, with several exhibits attached, seeking to establish the prima facie showing required under H.B. 292. Appellants filed a memorandum in opposition, asserting that appellee's proffered evidence failed to establish a sufficient prima facie showing to allow her case to proceed and requesting that appellee's case be administratively dismissed.
{¶ 7} On August 30, 2005, the trial court held a hearing on the parties' various assertions regarding appellee's asbestos claim. At the hearing, appellee acknowledged that her evidence was insufficient to establish the prima facie showing required under H.B. 292. Nevertheless, appellee argued that H.B. 292 should not apply to her asbestos claim because applying the new law to her claim would amount to an unconstitutional retroactive application of the law.
{¶ 8} On February 24, 2006, the trial court issued an order holding that the retroactive application of H.B. 292 was substantive rather than merely remedial in its effect and therefore violates Section
{¶ 9} Appellants now appeal from the trial court's March 7, 2006 order3 and assign the following as error:
{¶ 10} Assignment of Error No. 1:
{¶ 11} "The trial court erred in interpreting R.C.
{¶ 12} Appellants argue that the trial court erred in concluding that retrospectively applying certain provisions in H.B. 292 to this case would violate the ban on retroactive legislation in Section
{¶ 15} In 1980, the General Assembly amended R.C.
{¶ 16} "[A] cause of action for bodily injury caused by exposure to asbestos accrues upon the date on which the plaintiff is informed by competent medical authority that the plaintiff has an injury that is related to the exposure, or upon the date on which by the exercise of reasonable diligence the plaintiff should have known that the plaintiff has an injury that is related to the exposure, whichever date occurs first."
{¶ 17} Prior to September 2, 2004, the General Assembly had never defined the terms "bodily injury caused by exposure to asbestos" or "competent medical authority." *Page 729
{¶ 19} Asbestos claims have created a vastly increased amount of litigation in the state and federal courts in this country, which the United States Supreme Court has characterized as "an elephantine mass" of cases. H.B. 292, Section 3(A); Ortiz v. Fibreboard Corp. (1999), 527 U.S. 815, 821,
{¶ 20} The extraordinary volume of nonmalignant asbestos cases continues to strain federal and state courts. H.B. 292, Section 3(A). Over 600,000 people in the United States have filed asbestos claims for asbestos-related personal injuries through the end of 2000, and it is estimated that there are currently more than 200,000 active asbestos cases in courts nationwide.
{¶ 21} One report suggests "that at best, only one-half of all claimants have come forward and at worst, only one-fifth have filed claims to date." Id. Another study estimates that $54 billion have already been spent on asbestos litigation. Id. Estimates of the total costs of all asbestos claims range from $200 to $265 billion. Id.
{¶ 22} Before 1998, Ohio, Mississippi, New York, West Virginia, and Texas accounted for nine per cent of all filings of asbestos claims. However, between 1998 and 2000, these same five states handled 66 percent of all asbestos filings. As a result, Ohio has now become a haven for asbestos claims and is one of the top five state-court venues for asbestos filings. Id.
{¶ 23} There are at least 35,000 asbestos personal-injury cases pending in Ohio state courts. Id. If the 233 Ohio state-court general jurisdictional judges started trying these asbestos cases today, each would have to try over 150 cases before retiring the current docket. H.B. 292, Section 3(A). That figure conservatively computes to at least 150 trial weeks, or more than three years per judge to retire the current docket. Id.
{¶ 24} "The current docket, however, continues to increase at an exponential rate." Id. For example, in 1999 there were approximately 12,800 pending asbestos cases in Cuyahoga County. Id. However, by the end of October 2003, there were over 39,000 pending asbestos cases. Id. Approximately 200 new asbestos cases are filed in Cuyahoga County every month. Id.
{¶ 25} Asbestos personal-injury litigation has already contributed to the bankruptcy of more than 70 companies nationwide, including nearly all manufacturers of asbestos textile and insulation products. Id. "At least five Ohio-based companies have been forced into bankruptcy because of an unending flood of asbestos cases brought by claimants who are not sick." Id. *Page 730
{¶ 26} The General Assembly has recognized "that the vast majority of Ohio asbestos claims are filed by individuals who allege they have been exposed to asbestos and who have some physical sign of exposure to asbestos, but who do not suffer from an asbestos-related impairment." Id. Indeed, 89 percent of asbestos claims come from people who do not have cancer, and 66 to 90 percent of these noncancer claimants are not sick. Id. Furthermore, according to one study, 94 percent of the 52,900 asbestos claims filed in the year 2000 involved claimants who are not sick. Id.
{¶ 27} Tragically, plaintiffs with asbestos claims are receiving less than 43 cents on every dollar awarded, and 65 per cent of the compensation paid, thus far, has gone to claimants who are not sick. Id.
{¶ 29} H.B. 292 was signed into law on June 3, 2004, and took effect on September 2, 2004. The key portions of the law are codified in R.C.
{¶ 31} Section 3(B) of H.B. 292 states:
{¶ 32} "In enacting sections
{¶ 34} R.C.
{¶ 35} The case sub judice involves a claimant, i.e., appellant, who is acting as the personal representative of her late husband, who was a smoker. Appellant claims that her late husband's lung cancer was caused by his exposure to asbestos. Appellant is also bringing a wrongful-death claim. Therefore, appellant's claims would be governed by R.C.
{¶ 36} R.C.
{¶ 37} "(a) A diagnosis by a competent medical authority that the exposed person has primary lung cancer and that exposure to asbestos is a substantial contributing factor to that cancer;
{¶ 38} "(b) Evidence that is sufficient to demonstrate that at least ten years have elapsed from the date of the exposed person's first exposure to asbestos until the date of diagnosis of the exposed person's primary lung cancer. * * *
{¶ 39} "(c) Either of the following:
{¶ 40} "(i) Evidence of the exposed person's substantial occupational exposure to asbestos;
{¶ 41} "(ii) Evidence of the exposed person's exposure to asbestos at least equal to 25 fiber per cc years as determined to a reasonable degree of scientific probability * * *."
{¶ 42} R.C.
{¶ 44} R.C.
{¶ 45} If the defendant in an asbestos action challenges the adequacy of the prima facie evidence of the exposed person's physical impairment as provided in R.C.
{¶ 46} If the trial court finds that the plaintiff failed to make the requisite prima facie showing, the court must administratively dismiss the plaintiff's claim without prejudice. R.C.
{¶ 47} R.C.
{¶ 49} R.C.
{¶ 50} If the court finds that the plaintiff has failed to provide sufficient evidence to support his or her cause of action under R.C.
{¶ 52} H.B. 292 defines at least one phrase not previously defined by either the General Assembly or the Ohio Supreme Court, namely, "competent medical authority."
{¶ 53} R.C.
{¶ 54} Furthermore, as the basis for the diagnosis, the medical doctor must not have relied, in whole or in part, on the reports or opinions of any doctor, clinic, laboratory, or testing company that performed an examination, test, or screening of the claimant's medical condition (1) in violation of any law, regulation, licensing requirement, or medical code of practice of the state in which that examination, test, or screening was conducted; (2) that was conducted without clearly establishing a doctor-patient relationship with the claimant or medical personnel involved in the examination, test, or screening process; or (3) that required the claimant to agree to retain the legal services of the law firm sponsoring the examination, test, or screening. R.C.
{¶ 55} Additionally, the medical doctor must not spend more than 25 percent of his or her professional practice time in providing consulting or expert services in connection with actual or potential tort actions, and the medical doctor's medical group, professional corporation, clinic, or other affiliated group must not earn more than 20 percent of its revenues from providing those services. R.C.
{¶ 56} "[B]odily injury caused by exposure to asbestos" is defined, for purposes of R.C.
{¶ 57} Finally, R.C.
{¶ 59} Appellants assert that the trial court erred in finding that the retroactive application of several provisions of H.B. 292 to appellee's asbestos claim violates the Ohio Constitution. We agree with appellants' argument.
{¶ 61} The decision as to whether or not a statute is constitutional presents a question of law.Andreyko v. Cincinnati
{¶ 62} "[Ohio] statutes enjoy a strong presumption of constitutionality. `An enactment of the General Assembly is presumed to be constitutional, and before a court may declare it unconstitutional it must appear beyond a reasonable doubt that the legislation and constitutional provisions are clearly incompatible.' State ex rel. Dickmanv. Defenbacher (1955),
{¶ 64} The test for determining whether a statute may be applied retroactively was summarized in Bielat v.Bielat (2000),
{¶ 65} "Section
{¶ 66} "* * * [R]etroactivity itself is not always forbidden by Ohio Law. Though the language of Section
{¶ 67} "The test for unconstitutional retroactivity requires the court first to determine whether the General Assembly expressly intended the statute to apply retroactively. R.C.
{¶ 69} As to the first prong of the VanFossen, Cook, and Bielat test for determining whether a statute can be constitutionally applied retroactively, we note that the trial court and all parties to this action agree that the General Assembly expressly intended for the provisions in R.C.
{¶ 71} "[A] retroactive statute is substantive — and therefore unconstitutionally retroactive — if it impairs vested rights, affects an accrued substantive right, or imposes new or additional burdens, duties, obligations, or liabilities as to a past transaction."Bielat,
{¶ 73} One of the primary purposes of the retroactivity clause in Section
{¶ 74} "A vested right is one which it is proper for the state to recognize and protect, and which an individual cannot be deprived of arbitrarily without injustice[,]"State v. Muqdady (2000),
{¶ 75} Appellee argues that retroactive application of the provisions of H.B. 292 will unconstitutionally impair Mr. Wilson's "vested right in his cause of action." We disagree with this argument.
{¶ 76} Initially, we agree with appellee's assertion that after a cause of action has accrued, it cannot be taken away or diminished by legislative action. State exrel. Slaughter v. Indus. Comm. (1937),
{¶ 77} However, retroactive application of the provisions in H.B. 292 does not take away appellee's vested right in proceeding with her cause of action for bodily injury caused by exposure to asbestos. Appellee still has the right to proceed with that cause of action and to recover for an injury caused by her husband's exposure to asbestos. 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. Bielat,
{¶ 78} For example, R.C.
{¶ 79} However, because this statute "pertains to the competency of a witness to testify * * * it is of a remedial or procedural [rather than substantive] nature." Denicola v.Providence Hosp. (1979),
{¶ 80} Both the trial court and appellee have argued in these proceedings 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 *Page 738
the common law standard — the standard that existed at the time [Mr. Wilson] filed his claim." As an example of the common-law standard, the trial court cited In re CuyahogaCounty Asbestos Cases (1998),
{¶ 81} While a vested right may be created by the common law, see Weil,
{¶ 82} Furthermore, as the Ohio Attorney General has pointed out in his amicus curiae brief, "[i]t is difficult to maintain * * * that someone has a vested right to a standard that is not the law of the entire State, and is certainly not binding on other appellate districts across the State."
{¶ 83} Additionally, a right cannot be considered "vested" unless it amounts to something more than a mere expectation of future benefit or interest founded upon an anticipated continuance of existing laws. Roberts,
{¶ 84} In light of the foregoing, we conclude that appellee has failed to demonstrate that the retroactive application of H.B. 292 will deprive or diminish any vested right held by her or her late husband.
{¶ 86} The term "accrued substantive rights" has often been used synonymously with the term "vested rights." See, e.g., Bielat,
{¶ 87} Appellee asserts that R.C.
{¶ 88} As appellants themselves acknowledge, the General Assembly is not free to make retroactive changes to the settled meaning of a law. When the Ohio Supreme Court interprets a key word or phrase in a statute, those interpretations define substantive rights given to persons who are affected by the statute. Hearing v. Wylie (1962),
{¶ 89} Appellee argues that the definitions of "substantial contributing factor" and "substantial occupational exposure to asbestos" in R.C.
{¶ 90} In Horton, the Ohio Supreme Court was asked to "set forth the appropriate summary judgment standard for causation in asbestos cases." Id. at 682,
{¶ 91} "For each defendant in a multidefendant asbestos case, the plaintiff has the burden of proving exposure to the defendant's product and that the product was a substantial factor in causing the plaintiff's injury." Id., paragraph one of the syllabus. *Page 740
{¶ 92} In defining the phrase "substantial factor," the court in Horton adopted the definition of that phrase contained in Restatement of the Law 2d, Torts (1965), Section 431, Comment a:
{¶ 93} "`The word "substantial" is used to denote the fact that the defendant's conduct has such an effect in producing the harm as to lead reasonable men to regard it as a cause, using that word in a popular sense, in which there always lurks the idea of responsibility, rather than the so-called "philosophical sense," which includes every one of the great number of events without which any happening would not have occurred.'" Horton,
{¶ 94} Horton rejected the standard for proving "substantial causation" set forth in Lohrmann v.Pittsburgh Corning Corp. (C.A.4, 1986),
{¶ 95} R.C.
{¶ 96} In support of her position, appellee focuses on the phrase "a cause" in Comment a of Section 431 of the Restatement and asserts that the "predominant cause" requirement in R.C.
{¶ 97} Furthermore, Comment c to Section 431 states:
{¶ 98} "A number of considerations which in themselves or in combination with one another are important in determining whether the actor's conduct is a substantial factor in bringing about harm to another are stated in [section] 433."
{¶ 99} Section 433 of the Restatement of the Law 2d, Torts (1965) states: *Page 741
{¶ 100} "The following considerations are in themselves or in combination with one another important in determining whether the actor's conduct is a substantial factor in bringing harm to another:
{¶ 101} "(a) the number of other factors which contribute in producing the harm and the extent of the effect which they have in producing it[.]"
{¶ 102} The "Comment on Clause (a)" of Section 433 states:
{¶ 103} "d. There are frequently a number of events each of which is not only a necessary antecedent to the other's harm, but is also recognizable as having an appreciable effect in bringing it about. Of these the actor's conduct is only one. Some other event which is a contributing factor in producing the harm may have such a predominant effect in bringing it about as to make the effect of the actor's negligence insignificant and, therefore, to prevent it from being a substantial factor." (Emphasis added.)
{¶ 104} When all of the foregoing is considered, it is apparent that the "predominant cause" element in R.C.
{¶ 105} We also reject appellee's argument that R.C.
{¶ 106} Furthermore, including a "but for" component in the definition of "substantial contributing factor" contained in R.C.
{¶ 107} We also agree with the following arguments presented by Owens-Illinois, Inc., in its amicus curiae brief, regarding these issues:
{¶ 108} "R.C.
{¶ 109} "R.C.
{¶ 110} "There is a section of HB 292 that contravenes Horton, but it is expressly made only prospective, raising no retroactivity issues. R.C.
{¶ 111} "* * *
{¶ 112} "Finally, HB 292's requirement (in smoker/lung cancer and wrongful death cases only) of a prima facie showing either of `substantial occupational exposure' to asbestos or of exposure equal to 25 fiber per cc years (R.C.
{¶ 113} "Rather than addressing the question at issue in Horton (how a plaintiff may prove that a particular defendant, out of all the parties to whose products the plaintiff was exposed, is liable for its role in causing an injury), the `substantial occupational exposure' provisions are one of two alternative means by which a plaintiff may satisfy a prima facie asbestos exposure threshold in lung cancer and wrongful death cases. Since 1980 it has been the law in Ohio by statute that an asbestos claim requires `injury caused by exposure to asbestos.' R.C.
{¶ 114} In light of the foregoing, we conclude that applying R.C.
{¶ 116} As to the issue of whether retroactive application of the relevant provisions of H.B. 292 would impose "new or additional burdens, duties, obligations, *Page 744 or liabilities as to a past transaction," we first note that appellants contend that this branch of the test for unconstitutional retroactivity "concerns vested rights in past acts, such as business activity or contracts, and has no obvious application to tort actions."
{¶ 117} However, it appears that this branch of the test for unconstitutional retroactivity has a wider application than business activity or contracts. For instance, in Bielat, the court stated, "The retroactivity clause nullifies those new laws that `reach back and create new burdens, new duties, new obligations, or new liabilities not existing at the time [the statute becomes effective].'"Bielat,
{¶ 118} Nevertheless, we conclude that the retroactive application of the relevant provisions of H.B. 292 does not impose any "new or additional burdens, duties, obligations, or liabilities" on persons seeking to bring an asbestos claim. The changes made by H.B. 292, such as defining "competent medical authority," are procedural or remedial, and not substantive. Therefore, the retroactive application of H.B. 292 does not offend the Ohio Constitution. See Bielat,
{¶ 120} A retroactive statute is remedial — and therefore constitutionally retroactive — if it is one that affects "only the remedy provided, and include[s] laws that merely substitute a new or more appropriate remedy for the enforcement of an existing right." Cook,
{¶ 122} We conclude that the provisions in H.B. 292 at issue in this case, i.e., R.C.
{¶ 123} The relevant provisions of H.B. 292 remedially changed the law in this state by clarifying the meaning of ambiguous phrases like "bodily injury caused by exposure to asbestos" and "competent medical authority." The ambiguity in these phrases resulted in an extraordinary volume of cases that strains the courts in this state and threatens to overwhelm our judicial system. See Section 3(A)(3) of H.B. 292. The extraordinary volume of cases has led to circumstances in which the plaintiffs in asbestos actions are receiving less than 43 cents on every dollar awarded, and 65 percent of the compensation paid, thus far, has gone to claimants who are not sick. Id. at Section 3(A)(2), Thus, the remedial legislation in the relevant provisions of H.B. 292 serves to avoid a multiplicity of suits and the accumulation of costs and promotes "the interests of all parties." Bielat,
{¶ 125} Our conclusion that the provisions in R.C.
{¶ 126} By enacting the disputed provisions of H.B. 292, the General Assembly was curing and rendering valid, by a remedial retrospective statute, that which it could have authorized in the first instance. See Bielat,
{¶ 127} As we have indicated, the ambiguity of those phrases has produced an extraordinary volume of cases that strains our courts and that threatens to overwhelm the judicial system in this state. Because of the overwhelming number of asbestos cases that have been filed by persons who may have been exposed to asbestos but who are not sick, the ability of defendants to compensate those plaintiffs who have been exposed to asbestos and who are sick has been seriously compromised. See Section 3(A)(2) and(5) of H.B. 292.
{¶ 128} To resolve this problem, the General Assembly saw fit to enact more precise definitions of ambiguous terms like "competent medical authority" and "bodily injury caused by exposure to asbestos" to ensure that only those parties who actually have been harmed by exposure to asbestos receive compensation for their injuries. Thus, as the Ohio Constitution and Burgett expressly permit, the relevant provisions of H.B. 292 cure an omission, defect, or error in the proceedings involving asbestos personal injury litigation in this state. See Bielat,
{¶ 130} Finally, appellee raises the following argument in her conclusion:
{¶ 131} "H.B. 292 takes away the remedy for the enforcement of the vested right of certain asbestos plaintiffs, including [decedent] Chester Wilson [who is now represented by appellee], and only promotes the interests of the [appellants]. After passage of H.B. 292, asbestos plaintiffs who cannot meet the new requirements set forth in H.B. 292 have no remaining remedy in a cause of action that arose and vested well before the enactment of the statute." We find this argument unpersuasive.
{¶ 132} As the Ohio Supreme Court has recently stated:
{¶ 133} "`"It is not a court's function to pass judgment on the wisdom of the legislation, for that is the task of the legislative body which enacted the legislation."'Klein v. Lets,
{¶ 134} In light of the foregoing, appellants' assignment of error is sustained. *Page 747
Judgment reversed and cause remanded.
POWELL, P.J., and BRESSLER, J., concur.