IN THE SUPREME COURT OF

IN RE: SPECIAL DOCKET Case No. 06-1279 NO. 73958

On Appeal from the Cuyahoga County Court of Appeals, Eighth Appellate District,

Court of Appeals Case Nos. CA 87777; CA-87816

APPELLANTS' MERIT BRIEF

Richard D. Schuster (0022813) (Counsel of Record) Nina I. Webb-Lawton (0066132) VORYS, SATER, SEYMOUR AND PEASE LLP 52 East Gay Street, P.O. Box 1008 Columbus, Ohio 43216-1008 (614) 464-6400 (614) 719-4955 (facsimile) [email protected]

COUNSEL FOR APPELLANTS GOODRICH CORPORATION, THE GOODYEAR TIRE & RUBBER COMPANY, CERTAINTEED CORPORATION, 3M COMPANY, ITT INDUSTRIES, INC., ALLIED CHEMICAL CORPORATION, UNION CARBIDE CORPORATION, AMCHEM PRODUCTS, INC., AND AMERICAN STANDARD, INC., AS ALLEGED SUCCESSOR TO WESTINGHOUSE AIR BRAKE COMPANY IN THE

IN RE: SPECIAL DOCKET . Case No. 06-1279 NO. 73958

On Appeal from the Cuyahoga County Court of Appeals, Eighth Appellate District,

Court of Appeals Case Nos. CA 87777; CA-87816

APPELLANTS' MERIT BRIEF

Richard D. Schuster (0022813) (Counselof Record) Nina I. Webb-Lawton (0066132) VORYS, SATER, SEYMOUR AND PEASE LLP 52 East Gay Street, P.O. Box 1008 Columbus, Ohio 43216-1008 (614) 464-6400 (614) 719-4955 (facsimile) rdschuster(&vssn.com

COUNSEL FOR APPELLANTS GOODRICH CORPORATION, THE GOODYEAR TIRE & RUBBER COMPANY, CERTAINTEED CORPORATION, 3M COMPANY, ITT INDUSTRIES, INC., ALLIED CHEMICAL CORPORATION, UNION CARBIDE CORPORATION, AMCHEM PRODUCTS, INC., AND AMERICAN STANDARD, INC., AS ALLEGED SUCCESSOR TO WESTINGHOUSE AIR BRAKE COMPANY Wade A. Mitchell (0030647) Susan Squire Box (0029988) Nichol M. Schoenfeld (0066631) ROETZEL & ANDRESS BAKER & HOSTETLER LLP 222 South Main Street 3200 National City Center Akron, Ohio 44308 1900 East Ninth Street (330) 376-2700 , OH 44114-3485 (330) 376-4577 (facsimile) (216) 621-0200 sbox&ralaw.com (216) 696-0740 (facsimile) COUNSEL FOR APPELLANTS wmitchell4bakerlaw.com C.P. HALL COMPANY, COUNSEL FOR APPELLANT EXXONMOBIL CORPORATION, i ERICSSON, INC. FORD MOTOR COMPANY, AND GENERAL MOTORS CORPORATION

Thomas L. Bmmn Sr. (0023397) Laura Kingsley Hong (0033147) THE BRUNN FIRM CO., L.P.A. SQUIRE, SANDERS & DEMPSEY L.L.P. Counsels for Appellants 4900 Key Tower 700 West St. Clair Avenue 127 Public Square Suite 208, Hoyt Block Building Cleveland, OH 44114-1027 Cleveland, Ohio 44113 (216) 479-8554 (216) 623-7300 (216) 479-8780 (facsimile) (216) 623-7330 (facsimile) [email protected] brunn(^a,core.com COUNSEL FOR APPELLANTS COUNSEL FOR APPELLANT AJAX MANUFACTURING CO., ALLIANCE MACHINE COMPANY ALBANY INTERNATIONAL CORP., ALCOA, INC., APPLIED INDUSTRIAL TECHNOLOGIES, INC., DURAMETALLIC CORPORATION, ECODYNE MRM, INC., GARDNER DENVER, INC., TOOL WORKS, INC., IMPROPERLY SUED AS DEVCON CORP., THE KERITE- COMPANY, NATIONAL MACHINERY CO., PARK OHIO INDUSTRIES, INC., ROBERTSON-CECO CORP. FKA H.H. ROBERTSON COMPANY, ROCKBESTOS-SURPRENANT CABLE CORP., SEEGOTT, INC., VIKING PUMP, INC., WARREN PUMPS, INC., WEIL- MCLAIN BOILERS, AND ZURN INDUSTRIES, INC.

ii John. W. Bruni (0047355) Harry T. Quick (0031239) SWARTZ CAMPBELL, LLC. James L. McCrystal Jr. (0017492) 4750 U.S. Steel Tower, 600 Grant Street Daniel F. Petticord (0060009) Pittsburgh, PA 15219 BRZYTWA QUICK & McCRYSTAL LLC (412) 232-9800 900 Skylight Office Tower (412) 232-0351 (facsimile) 1660 West Second Street i brunigswartzcamubell. com Cleveland, OH 44113-1411 COUNSEL FOR APPELLANTS (216) 664-6900 LEXINGTON PRECISION (216) 664-6901 (facsimile) CORPORATION, ALLIED GLOVE COUNSEL FOR APPELLANTS EATON CORPORATION, COOPER CORPORATION, SUED AS SUCCESSOR INDUSTRIES, INC., AND IN INTEREST TO CUTLER-HAMMER, HINCHCLIFFE & KEENER, INC. INC. N/K/A EATON ELECTRICAL, INC. AND EATON CORPORATION

Bruce P. Mandel (0022026) Kevin C. Alexandersen (0037312) Kurt S. Sigfried (0063563) Colleen A. Mountcastle (0069588) ULMER & BERNE LLP Holly M. Olarczuk-Smith (0073257) 1660 West Second Street, Suite 1100 GALLAGHER,SHARP Cleveland, OH 44113-1448 Sixth Floor - Bulkley Building (216) 583-7000 1501 Euclid Avenue (216) 583-7001 (facsimile) Cleveland, Ohio 44115 [email protected] (216) 241-5310 ksieg [email protected] (216) 241-1608 (facsimile) COUNSEL FOR APPELLANTS kalexandersenna,gallaghersharp.com BORG WARNER CORPORATION, cmountcastle (a)galla¢hersharo.com CEECORP, INC. DBA THE holarczuk-smithna,gallaehersharg.com CLEVELAND GYPSUM CO., FKA THE COUNSEL FOR APPELLANTS CLEVELAND BUILDERS SUPPLY NORFOLK SOUTHERN RAILWAY COMPANY, DOSSERT CORPORATION, COMPANY, DURABLA MANUFACTURING CONSOLIDATED RAIL COMPANY, DURO DYNE CORPORATION, AMERICAN CORPORATION, THE EDWARD R. PREMIER UNDERWRITERS, INC., CSX HART COMPANY, ESSEX GROUP, TRANSPORTATION, INC., GRAND INC., KENTILE FLOORS, INC., THE TRUNK WESTERN RAILROAD MINSTER MACHINE COMPANY, OHIO CORPORATION, BEAZER EAST, INC., VALLEY INSULATING COMPANY, TASCO INSULATION, INC., ALLEN INC., AND STANDARD GLOVE AND REFRACTORIES, INC.; OSBORNE, INC., SAFETY EQUIPMENT COMPANY INGERSOLL RAND COMPANY, INGERSOLL-DRESSER PUMP COMPANY, GOULDS PUMPS, INC., THIEM CORPORATION AND ITS UNIVERSAL REFRACTORIES DIVISION, CARLISLE COMPANIES, INC., MOTION CONTROLS

iii Susan S. Henderson (0015333) INDUSTRIES, SAFETY FIRST Law Office of Susan S. Henderson INDUSTRIES, INC., O'CONNOR STEEL 7940 Sherman Road & SUPPLY CO., ALLIS CHALMERS Chesterland, Ohio 44026 PRODUCT LIABILITY TRUST, CYPRUS (440) 729-7374 INDUSTRIES MINERALS COMPANY, (440) 729-7483 (facsimile) BRYAN STEAM CORP., BURNHAM shendersona henderlaw.com CORP., AMERICAN BILTRITE, INC., COUNSEL FOR APPELLANTS PHELPS DODGE INDUSTRIES, INC., SB DECKING, INC., C.D. CENTER CORPORATION, F/K/A SELBY, BATTERSBY & SHERWIN WILLIAMS COMPANY, G.W. COMPANY BERHHEIMER CO., INC., FULTON IRON AND MANUFACTURING, INC., AND SUR SEAL GASKET PACKING CO., INC.

Matthew C. O'Connell (0029043) Michael D. Eagen (0018659) Victoria Barto (0077154) DINSMORE & SHOHL, LLP SUTTER O'CONNELL & FARCHIONE 1900 Chemed Center 3600 Erieview Tower 255 East Fifth Street 1301 East 9'h Street , Ohio 45202 Cleveland, Ohio 44114 (513) 977-8578 (216) 928-2200 (513) 977-81-41 (facsimile) (216) 928-3630 (facsimile) michael.eaeenna,dinslaw.com [email protected] COUNSEL FOR APPELLANTS COUNSEL FOR APPELLANTS NORTON COMPANY N/K/A SAINT GARLOCK SEALING TECHNOLOGIES, GOBAIN ABRASIVES, INC., KAISER LLC, DAIMLERCHRYSLER GYPSUM COMPANY, INC., AURORA CORPORATION, PUMP DIVISION OF SIGNAL CORP., SEPCO CORPORATION, GREENE, DEZURIK, INC., LINDBERG MPH, AND TWEED & COMPANY, FMC AIR BRAKE CORPORATION, D. B. RILEY, INC., VOLKSWAGEN OF AMERICA, INC., AND ACF INDUSTRIES, INC.

Dennis P. Zapka (0012609) Stephen H. Daniels (0019198) David H. Boehm (0072610) MCMAHON DEGULIS LLP MCLAUGHLIN & MCCAFFREY, LLP 812 Huron Road, E., Suite 650 1111 Superior Avenue, Suite 1350 Cleveland, Ohio 44115-1126 Cleveland, Ohio 44114 (216) 621-1312 216-623-0900 (216) 621-0577 (facsimile) 216-623-0935 (facsimile) sdaniels (-),mdllu.netc dpznn.naladin-law.com COUNSEL FOR APPELLANTS dhb(a)paladin-law.com ADVANCE AUTO PARTS, INC., JOHN COUNSEL FOR APPELLANT CRANE INC., TUTHILL CORP., AND R.E. KRAMIG & CO., INC. SEARS, ROEBUCK & CO.

iv David L. Gray (0021665) Jennifer A. Riester (0070889) BUNDA STUTZ & DeWITT, PLL WESTON HURD L.L.P. One SeaGate, Suite 650 1301 East 9`h Street, Suite 1900 Toledo, Ohio 43604 Cleveland, Ohio 44114 (419) 241-2777 (216) 241-6602 (419) 241-4697 (facsimile) (216) 6210-8369 (facsimile) dleravna.bsd-law.com JRiester(n)westonhurd.com COUNSEL FOR APPELLANT COUNSEL FOR APPELLANTS FOR OWENS-ILLINOIS, INC. ENGELHARD CORPORATION, FIDELITY BUILDERS SUPPLY, STEVENS PAINTON CORPORATION, GRAYBAR ELECTRIC CO., INC., MORTON INTERNATIONAL, INC., A ROHM & HAAS COMPANY, AND AKRON GASKET & PACKING ENTERPRISE, INC.

C. Richard McDonald (0017537) John L. Reyes (0023508) Jennifer Sardina (0072608) Michael J. Matasich (0078333) DAVIS & YOUNG BUCKINGI-IAM DOOLITTLE & 1700 Midland Building BURROUGHS LLP 101 Prospect Avenue West 50 S. Main Street, 10th Floor Cleveland, Ohio 44115 Akron, Ohio 44308 (216) 348-1700 (330) 258-6469 (216) 621- 0602 (facsimile) (330) 252-5469 (facsimile) rmcdonaln.davisvoun .com [email protected] jsardina(cr^davisyoung . com COUNSEL FOR APPELLANT COUNSEL FOR APPELLANTS NOCK HARWICK CHEMICAL CORP. REFRACTORIES COMPANY, JOHN HANCOCK LIFE INSURANCE COMPANY, HYSTER COMPANY, AND HYSTER MID EAST

Christopher J. Caryl (0069676) Samuel R. Martillotta (0006473) TUCKER ELLIS & WEST LLP Edward O. Patton (0042004) 1150 Huntington Bldg. MANSOUR, GAVIN, GERLACK 925 Euclid Ave & MANOS CO., L.P.A. Cleveland, Ohio 44115-1414 55 Public Square, Suite 2150 (216) 592-5000 Cleveland, Ohio 44113-1994 (216) 592-5009 (facsimile) (216) 523-1500 ccar 1 a.tuckerellis.com (216) 523-1705 (facsimile) COUNSEL FOR APPELLANTS THE smartillottaC^a.mgg

v THE ESAB GROUP, INC., HOBART COUNSEL FOR APPELLANT BROTHERS COMPANY, LINCOLN F.B. WRIGHT COMPANY ELECTRIC COMPANY, MCCORD CORPORATION; PNEUMO ABEX LLC, AS SUCCESSOR-IN-INTEREST TO ABEX CORPORATION, AND A.W. CHESTERTON COMPANY

Ruth A. Antinone, Esq. (0005727) Mark I. Wallach (0010948) WILLMAN & ARNOLD, L.L.P. CALFEE, HALTER & GRISWOLD LLP 705 McKnight Park Drive 1400 McDonald Investment Center Pittsburgh, 15237 800 Superior Avenue (412) 366-3333 Cleveland, Ohio 44114-2688 (412) 366-3462 (facsimile) (216) 622-8200 rantinonena.willmanlaw.com (216) 241-0816 (facsimile) COUNSEL FOR APPELLANTS [email protected] HONEYWELL INTERNATIONAL, INC. cstevensna,oalfee.com F/K/A ALLIEDSIGNAL, INC. F/K/A COUNSEL FOR APPELLANTS BENDIX CORPORATION, BONDEX INTERNATIONAL, INC., AND AND PITTSBURGH METALS RPM, INC. _ PURIFYING COMPANY

Robin E. Harvey (0014183) Ken Argentiera (0067493) BAKER & HOSTETLER LLP KIRKPATRICK & LOCKHART 312 Walnut Street, Suite 3200 NICHOLSON GRAHAM LLP Cincinnati, Ohio 45202-4074 Henry W. Oliver Building (513) 929-3400 535 Smithfield Street (513) 929-0303 (facsimile) Pittsburgh, Pennsylvania 15222 rharvey(d,baker-hostetler.com (412) 355-6501 (412) 355-6505 (faosimile) and karg en tiera(^a,kln¢.com nvari ,king.com Diane L. Feigi (0070286) COUNSEL FOR APPELLANT CRANE Edward D. Papp (0068574) CO. BAKER & HOSTETLER LLP 3200 National City Center 1900 East 9th Street Cleveland, OH 44114-3485 (216) 621-0200 (216) 696-0740 (facsimile) dfeiei(^a.baker-hostetler.com COUNSEL FOR APPELLANT -PACIFIC CORPORATION

vi Thomas I. Michals (0040822) William D. Bonezzi (0018093) Matthew M. Mendoza (0068231) Kevin 0. Kadlec (0037783) Dineen LaMonica (0073500) James E. Stephenson (0074403) CALFEE, HALTER & GRISWOLD LLP Joseph T. Ostrowski (0068806) 1400 McDonald Investment Center BONEZZI SWITZER MURPHY & 800 Superior Avenue POLITO CO. Cleveland, OH 44114-2688 1400 Leader Building (216) 622-8200 526 Superior Avenue (216) 241-0816 (facsimile) Cleveland, OH 44114 tmichals@,calfee.com (216) 875-2767 mmendozana,calfee.com (216) 875-1570 (facsimile) [email protected] asbestosCc^^-bsmnlaw.com COUNSEL FOR APPELLANTS COUNSEL FOR APPELLANTS THE CLEVELAND ELECTRIC F.B. WRIGHT COMPANY OF ILLUMINATING COMPANY, THE CINCINNATI, A.O. SMITH TOLEDO EDISON COMPANY, AND CORPORATION, OHIO EDISON COMPANY SUPPLY COMPANY, HERSH PACKING AND RUBBER COMPANY, HOLLOW CENTER PACKING COMPANY, DONALD MCKAY SMITH, AND BRANDON DRYING FABRICS

John A. Sivinski, Esq. Christopher J. Hickey, Esq. Kelley & Ferraro, LLP Brent Coon & Associates 1901 Penton Media Building Suite 303 1300 East Ninth Street 1220 West Sixth Street Cleveland, OH 44114 Cleveland, OH 44113 COUNSEL FOR APPELLEES COUNSEL FOR APPELLEES

Mark C. Meyer, Esq. Theresa Nelson Ruck, Esq. Goldberg, Persky & White, P.C. Baron & Budd Third Floor Plaza South Two, Suite 200 1030 Fifth Avenue 7261 Engle Road Pittsburgh, PA 15219 Cleveland, OH 44130 COUNSEL FOR APPELLEES COUNSEL FOR APPELLEES

Thomas W. Bevan, Esq. Richard E. Reverman, Esq. Bevan & Associates Young, Reverman & Mazzei Co., L.P.A. 10360 Northfield Road The Kroger Building, Suite 2400 Northfield, OH 44067 1014 Vine Street COUNSEL FOR APPELLEES Cincinnati, OH 45202 COUNSEL FOR APPELLEES

vii John I. Kittel, Esq. Robert E. Sweeney, Esq. Mazur & Kittel, PLLC Robert E. Sweeney Co., L.P.A. Suite 175 1500 Illuminating Building 30665 Northwestem Highway 55 Public Square Farmington Hills, MI 48334 Cleveland, OH 44113 COUNSEL FOR APPELLEES COUNSEL FOR APPELLEES

John Peca, Esq. Clirnaco, Lefkowitz, Peca, Wilcox & Garofoli, L.P.A. Tenth Floor, Suite 1000 1220 Huron Road Cleveland, OH 44115 COUNSEL FOR APPELLEES

viii TABLE OF CONTENTS PAGE

TABLE OF AUTHORITIES ...... :...... xii STATEMENT OF FACTS ...... :...... I

ARGUMENT ...... 4

Proposition of law :...... 4 As mandated by P.C. 2505.02(A)(3) and (B)(4), any party to an asbestos case may immediately appeal a finding made by a trial court under R.C. 2307.93(A)(3) ...... 4 1. The Eighth District Decision misapplied the final order statute ...... 5

A. R.C. 2307.93(A) fmdings are provisional remedies ...... 5

B. The R.C. 2307.93(A)(3) provisional remedy is presumptively appealable ...... 6

C. Presumptively or not, the trial court order is final under the requirements of R.C. 2505.02(B)(4) ...... 8

D. Any suggestion that full relief for appellants is possible after final judgment ignores the General Assembly's findings and the observations of courts across the nation ...... 11

II. Any suggestion that the January 6 Order was an advisory opinion ignores the Cuyahoga County Judges' efforts to manage the crush of asbestos litigation on their dockets ...... 19

A. A appellate court recently rejected this exact argument ...... 20

B. The January 6 Order decided a live issue - whether pending asbestos cases in Cuyahoga County would proceed under H.B. 292 or not ...... 20

III. The Eighth District's decision reads the 2004 amendments to R.C. 2505.02 out of the statute ...... 22

CONCLUSION ...... 23

PROOF OF SERVICE ...... 31

I f ix APPENDIX Appx. Paee

Notice of Appeal to the Ohio Supreme Court (July 3, 2006) ...... 1 Journal Entry of the Eighth District Court of Appeals (May 18, 2006) ...... 19 Entry and Opinion of the Cuyahoga County Court of Common Pleas (January 6, 2006) ...... 21

UNREPORTED CASES ...... Anpx. Page

Felson v. Grudzinsk (Ohio App. 151 Dist. Dec. 19, 2001), No. C-010467, 2001 WL 1887701 ...... 24 In re: All Kelley & Ferraro Asbestos v. Amchem Prods., Inc., 8th Dist. No. 82424, 2003-Ohio-7239 ...... 26 In re: Asbestos Prods. Liab. Litig. (No. VI) (E.D.Pa. 2002), No. MDL 875, 2002 WL 32151574 ...... 31 In re: Guidant Defibrillators Prods. Liab: Litig. (D.Minn. 2006), No. MDL 05-1706 DWFAJB, 2006 WL 692292 ...... 33 Mahaffey v. Blackwell, 10`h Dist. No. 06AP-963, 2006-Ohio-5319 ...... 38 Mays v. Dunaway, 2"a Dist. No. 20717, 2005-Ohio-1592 ...... 46 Ormet Aluminum Prods. Corp. v. United Steelworkers ofAm., 7th Dist. No. 05-MO-1, 2006-Ohio-3782 ...... 'n ...... 50 Overhead, Inc. v. Standen Contracting (Ohio App. 6 Dist. March 11, 2002), No. L-01-1397, 2002 WL 398342 ...... 57 Smalley v. Friedman, Domiano & Smith Co. L.P.A, 8' Dist. No. 83636, 2004Ohio-2351 ...... 61

CONSTITUTIONAL PROVISIONS; STATUTES ...... Annx. Page

Fla. Code. Ann. § 774.201 ...... 68 Fla. Code. Ann. § 774.204(2) ...... 72 flhio Constitution, Section 3(B)(2), Art. IV ...... 78 R.C. 2307.91 ...... 81 R.C. 2307.93 ...... 92 R.C. 2307.94(A) ...... 94

x R.C. 2505.02 ...... 95 R.C. 2505.03 ...... 97 Tex. Civ. Prac. & Rem. Code § 90.001 ...... :...... 98 Tex. Civ. Prac. & Rem. Code § 90.003 ...... 104

xi TABLE OF AUTHORITIES

PAGE CASES

Allstate Ins. Co. v. Kaklamanos (Fla. 2003), 843 So.2d 885 ...... 18 Blakeman's Valley Office Equip., Inc. v. Bierdeman (7`s Dist.), 152 Ohio App. 3 d 86, 2003-Ohio-1074 ...... 7 Bob Krihwan Pontiac-GMC Truck, Inc. v. General Motors Corp. (10`h Dist. 2001), 141 Ohio App.3d 777 ...... 11 Carter v. Div. of Water (1946), 146 Ohio St. 203 ...... 23 Cascioli v. Cent. Mut. Ins. Co. (1983), 4 Ohio St.3d 179 ...... 21 City of N. Canton v. Hutchinson (1996), 75 Ohio St.3d 112 ...... 22 De Groot v. Sheffield (Fla. 1957), 95 So.2d 912 ...... 18 Egan v. Nat'l Distillers & Chemical Corp. (1986), 25 Ohio St.3d 176 ...... 21 Felson v. Grudzinsk (Ohio App. 151 Dist. Dec. 19, 2001), No. C-010467 ...... 7 In re: All Kelley & Ferraro Asbestos v. Amchem Prods., Inc., 8`h Dist. No. 82424, 2003-Ohio-7239 ...... : ...... 19 In re: Asbestos Litigation (Fla.App. 3`d Dist. 2006), 933 So.2d 613 ...... 18, 20 In re: Asbestos Prods. Liab. Litig. (No. VI) (E.D.Pa. 2002), No. MDL 875 ...... 14, 15 In re: Collins (C.A.3, 2000), 233 F.3d 809 ...... :...... 14 In re: Guidant Defibrillators Prods. Liab. Litig. (D.Minn. 2006), No. MDL 05-1706 DWFAJB ...... 19 In re: Silica Prod. Liab. Litig. (S.D.Tex. 2005), 398 F. Supp. 2d 563 ...... 13, 14, 15 In re: Special Docket No. 73958 (Jan. 26, 2006), Cuy. C.P. No. SD 73958 ...... 1, 2, 21 In re: Special Docket No. 73958 (May 18, 2006), 8u' Dist. Nos. CA-87777, CA-97816 ...... 3 In re: Sunrise Sec. Litig. (E.D.Pa. 1991), 138 F.R.D. 60 ...... :...... 19 LCP Holding Co. v. Taylor (11`h Dist.), 158 Ohio App.3d 546, 2004-Ohio- 5324 ...... 9 Lynch v. Gallia County. Bd. of Comm'rs (1997), 79 Ohio St.3d 251 ...... 23 Mahaffey v. Blackwell, 10'' Dist. No. 06AP-963, 2006-Ohio-5319 ...... 10, 11 Mays v. Dunaway, 2a Dist. No. 20717, 2005-Ohio-1592 ...... 7 Myers v. Toledo, 110 Ohio St.3d 218, 2006-Ohio-4353 ...... 6 Ormet Aluminum Prods. Corp. v. United Steelworkers ofAm., 7a' Dist. No. 05-MO-1 ...... 10, 11

xii Overhead, Inc. v. Standen Contracting (Ohio App. 6`h Dist. March 11, 2002), No. L-01-1397 ...... 9 Owens Corning v. Credit Suisse First Boston (D.Del. 2005), 322 B.R. 719 ...... 14 Sarmiento v. Grange Mut. Cas. Co., 106 Ohio St.3d 403, 2005-Ohio-5410 ...... 23 Smalley v. Friedman, Domiano & Smith Co. L.P.A, 8th Dist. No. 83636, 2004-Ohio-2351 ...... :...... 6 State ex rel. Park Investment Co. v. Bd of Tax Appeals, 31 Ohio St.2d 183 ...... 21 State ex rel. White v. Kilbane, 96 Ohio St.3d 395 ...... 21 State v. Muncie (2001), 91 Ohio St.3d 440 ...... 6 State v. Upshaw (2006), 110 Ohio St.3d 189 ...... 5, 8, 9, 10 Swearigan v. Waste Techs. Indus. (7th Dist. 2002), 134 Ohio App.3d 702 ...... 9 Tschantz v. Ferguson (1991), 57 Ohio St.3d 131 ...... 21 Wachendorf v. Shaver ( 1948), 149 Ohio St. 231 ...... 23

xiii CONSTITUTIONAL PROVISIONS; STATUTES PAGE

Fla. Code. Ann. § 774.201 ...... 16 Fla. Code. Ann. § 774.204(2) ...... 16 Ohio Constitution, Section 3(B)(2), Art. IV ...... 5 R.C. 2307.91 § 3(A)(2) ...... 1, 12, 13, 22 R.C. 2307.91 § 3(A)(3) ...... 12 R.C. 2307.91 § 3(A)(3)(d) ...... 12 R.C. 2307.91 § 3(A)(4)(c) ...... 12 R.C. 2307.91 § 3(A)(5) ...... 12, 13 R.C. 2307.91 § 3(A)(6) ...... 12 R.C. 2307.91 § 3(A)(7) ...... 24 R.C. 2307.93(A) ...... 5, 6 R.C. 2307.93(A)(2) ...... 1 R.C. 2307.93(A)(3) ...... passim R.C. 2307.93(A)(3)(a) ...... :...... 2, 6, 9 R.C. 2307.93(C) ...... :...... 2, 13 R.C. 2307.94(A) ...... 2, 13 R.C. 2505.02 ...... 6, 22, 23 R.C. 2505.02(A)(3) ...... 4, 6, 7, 22 R.C. 2505.02(B)(4) ...... 4, 6, 7 R.C. 2505.02(B)(4)(a) ...... 8, 9 R.C. 2505.02(B)(4)(b) ...... 10, 11 R.C. 2505.03 ...... 5 Tex. Civ. Prac. & Rem. Code § 90.001 ...... 16, 17 Tex. Civ. Prac. & Rem. Code § 90.003(a)(1) ...... 15 Tex. Civ. Prac. & Rem. Code § 90.003(a)(2)(E) ...... 15

xiv STATEMENT OF FACTS

This case arises from a hearing at which Cuyahoga County's specially appointed asbestos judges decided that the General Assembly's efforts to reform asbestos litigation in this state do not apply to pending cases. On appeal, the Eighth District held that the trial court ruling was not appealable, despite a statute granting either party the right to appeal a determination of whether the asbestos-reform statute (Am. Sub. H.B. 292) applies to pending cases.

On September 2, 2004, the asbestos reform statute became the law of Ohio. That law required each asbestos plaintiff, including those in pending cases, to submit prima- facie evidence that he or she suffered from an asbestos-related personal injury. R.C.

2307.93(A)(2). The purpose of these submissions, in the General Assembly's own words, was to fix an "unfair and inefficient" asbestos litigation system, a system that unfairly penalizes the truly sick and directs less than half of every dollar awarded to plaintiffs. R.C. 2307.91, uncodified law at § 3(A)(2).

Thousands of asbestos lawsuits are pending on the dockets of trial courts across

Ohio. The trial court order in this case impacts all pending cases in Cuyahoga County.

At the time the General Assembly heard testimony on the bill that is now R.C. 2307.91, et. seq., there were at least 39,000 cases in Cuyahoga County. To handle this volume, the judges in Cuyahoga County use a single docket number for orders that govem all cases.

The judges and litigants in Cuyahoga County understand that the special docket number is where the court and parties docket orders or file motions that apply to all asbestos cases. Those orders, issued under number SD 073958, bind litigants as surely as orders entered under the case number for an individual case. The order that is the subject of this appeal is no different, it governs all pending asbestos cases in Cuyahoga County.

In the fall of 2005, Judges Hanna and Spellacy and Justice Sweeney announced that they would hold hearings to determine whether a plaintiff has satisfied the medical criteria set forth in H.B. 292. These hearings raised the possibility that the judges would administratively dismiss some plaintiffs' cases. Administrative dismissal, a new tool the

General Assembly gave courts to manage asbestos litigation, operates as a non- prejudicial dismissal that tolls the statute of limitations. R.C. 2307.93(C); 2307.94(A). It is aimed at clearing space in court for those plaintiffs who are sick now and who are ready for trial. Rather than prove they were presently sick and ready for trial, thousands of plaintiffs challenged the trial court's decision to hold hearings about which cases should be administratively dismissed pursuant to the criteria in H.B. 292. Plaintiffs also attacked the constitutionality of the Act. Both sides extensively briefed the constitutional issues plaintiffs' raised in their challenges.

Eventually, Judges Hanna and Spellacy and Justice Sweeney held a hearing to address the challenges to the application of the Act, and reversed their earlier course. In that decision, Judges Hanna and Spellacy and Justice Sweeney decided that, because H.B.

292 "impairs the substantive rights of plaintiffs who filed their claims before the effective date," pursuant to R.C. 2307.93 (A)(3)(a) they "[would] adjudicate substantive issues in asbestos cases filed before September 2, 2004 according to the law as it existed prior to the bill's enactment" In re: Special Docket No. 73958 (Jan. 26, 2006), Cuy. C.P. No. SD

73958, 2-3. Because it was issued under the Special Docket number, that order governs all plaintiffs and defendants litigating asbestos cases in Cuyahoga County.

2 Defendants, contending that the judges misapplied Ohio constitutional law, appealed to the Eighth District. A panel of that court, labeling the appeal "premature," entered a two-line dismissal. In re: Special Docket No. 73958 (May 18, 2006), 81h Dist.

Nos. CA-87777, CA-97816.

Because the Eighth District ignored the plain text of the statute, which makes these decisions appealable, defendants appealed to this Court on July 3, 2006. This Court accepted jurisdiction on October 18, 2006.

3 ARGUMENT

This appeal involves a simple question: Did the Eighth District err when it

ignored the General Assembly's command that R.C. 2307.93(A)(3) findings are appealable?

Yes.

The General Assembly recognized that its efforts to reform asbestos litigation

would be toothless without appellate review. That is why they amended the final order

statute to permit immediate appeals - by plaintiffs or defendants - of the law's key

provisions, including R.C. 2307.93(A)(3). The Eighth District erred when it disregarded this amendment. The language of the final order statute, the purposes of the asbestos-

reform bill, and this Court's all contradict the Eighth District's decision. The judiciary is not free to ignore constitutional acts of the General Assembly. This Court

should reverse to preserve the division of authority between the judiciary and the

legislature.

Proposition of law: As mandated by R.C. 2505.02(A)(3) and (B)(4), any party to an asbestos case may immediately appeal a finding made by a trial court under R.C. 2307.93(A)(3)

The Eighth District's decision is wrong because it misapplies the fmal order

statute, because it ignores the purpose of the asbestos-reform statutes, and because it

contradicts this Court's command that the judiciary must give meaning to all words the

General Assembly puts in a statute.

4 I. The Eighth District Decision misapplied the final order statute

Ohio's appellate courts have jurisdiction to review fmal orders from the state's trial courts. "Courts of appeals shall have such jurisdiction as may be provided by law to

review and affirm, modify, or reverse judgments or final orders." Ohio Constitution,

Section 3(B)(2), Art. IV, Ohio Const. The General Assembly has "provided by law" that

"[e]very final order, judgment, or decree of a court ... may be reviewed on appeal by ...

a court of appeals...." R.C. 2505.03. The General Assembly has defined "final order"

to include an order that grants or denies a provisional remedy if that order, 1) determines

the provisional remedy adverse to the appealing party and 2) denies the appealing party

meaningful review after final judgment as to all issues and parties. R.C. 2505.02(A)(3),

(b).

In August, this Court reiterated the proper analysis for provisional remedy

appeals. The Court held that appeals courts have jurisdiction over a trial court order that:

1) grants or denies a provisional remedy,

2) prevents judgment in favor of the appealing party on the provisional remedy, and

3) denies the appellant meaningful relief if review is delayed until after final judgment.

State v. Upshaw (2006), 110 Ohio St.3d 189, 2006-Ohio-4253, 852 N.E.2d 711, ¶ 15

(reversing appeals court). The order of the three asbestos judges meets each of these

criteria.

A. R.C. 2307.93(A) findings are provisional remedies

The first Upshaw criterion looks to the defmition of provisional remedy. The

fmal order statute defines a provisional remedy as "a proceeding ancillary to an action,

5 including, but not limited to,... discovery of privileged matter, suppression of evidence,

... or a finding made pursuant to division (A)(3) of section 2307.93 of the Revised

Code." H.B. 292 directs trial courts to decide whether the medical evidence requirements in the law impair plaintiffs' vested rights. R.C. 2307.93(A)(3)(a). This is a "finding made pursuant to division (A)(3) of section 2307.93 of the Revised Code." R.C.

2505.02(A)(3).

As this Court has said, "To satisfy the definition of 'final order' contained in R.C.

2505.02(B)(4), the order at issue must either grant or deny a provisional remedy. To answer this question, the reviewing court must refer to the definition of `provisional remedy' that the General Assembly provided ...." State v. Muncie (2001), 91 Ohio

St.3d 440, 447, 746 N.E.2d 1092; see also, Myers v. Toledo , 110 Ohio St.3d 218, 2006-

Ohio-4353, ¶ 24, 852 N.E.2d 1176 ("[i]f the order in question affects the discovery of a privileged matter it is by defmition a provisional remedy"); Smalley v. Friedman,

Domiano & Smith Co. L.P.A, 8a' Dist. No. 83636, 2004-Ohio-2351, ¶ 14 ("[the] challenged order grants a provisional remedy, as the [challenged order] is expressly listed

as a provisional remedy under R.C. 2505.02."). The trial judges did as the statute

commands. The General Assembly has defined that act as a provisional remedy.

B. The R.C. 2307.93(A)(3) provisional remedy is nresumi)tivelv anyealable

The General Assembly's decision to specifically list R.C. 2307.93(A) findings in

the final order statute must have some meaning. This Court's analysis can stop after

concluding that R.C. 2307.93(A) fmdings are provisional remedies because the General

Assembly's decision to list them by name instead of relegating them to the catch-all

provision expresses an intent to make those findings presumptively appealable.

6 C. Presumptively or not, the trial court order is final under the requirements of R.C. 2505.02(B)(4).

Even if the Court scrutinizes the trial court order under the two-part test set forth in R.C. 2505.02(B)(4), the January 6 Order satisfies that inquiry. Subsection (B)(4) restricts the class of appealable provisional remedies as follows: "[1] the order must determine the action with respect to the provisional remedy so as to prevent judgment in favor of the party prosecuting the appeal, and [2] a delay in review of the order until after final judgment would deprive the appellant of any meaningfal or effective relief." State v. Upshaw, 110 Ohio St.3d 189, 2006-Ohio-4253, 852 N.E.2d 711, ¶ 15.

The January 6 Order determines the issue of what medical evidence all asbestos plaintiffs in Cuyahoga County need to file under R.C. 2307.93(A)(3). This

"determines... the provisional remedy" and denies "meaningful or effective relief' if there is no immediate appeal.

1. The trial court order determines the provisional remedy

As this Court explained in Upshaw, subsection 2505.02(B)(4)(a) asks whether the trial court order determines the provisional remedy "so as to prevent judgment in favor of' the appellant. 2006-Ohio-4253, ¶ 15. The January 6 Order on appeal fully disposes of the provisional remedy in R.C. 2307.93(A)(3) because a determination of what medical evidence plaintiffs must file ts the provisional remedy. The January 6 Order is not a step toward final resolution of the provisional remedy, it is the entire provisional remedy. This means the January 6 order is a final, appealable determination of the R.C.

2307.93(A)(3) choice-of-law issue.

Cases interpreting provisional remedies show that the focus of the (B)(4)(a) test is whether the appealing party has lost the provisional remedy, not whether they have lost

8 other issues in the case. In Upshaw, this Court held that a defendant's commitment following a finding of incompetence to stand trial was a "final determination adverse to

Upshaw" even though a later order might free him. 2006-Ohio-4253, ¶ 17. Ohio appellate opinions also recognize that subsection (B)(4)(a) is satisfied if the appellant loses the provisional remedy. See, e.g., Swearigen v. Waste Techs. Indus. (7`h Dist.

2002), 134 Ohio App.3d 702, 713. 731 N.E.2d 1229. ("trial court[,] having decided not to provide the relief sought by appellants [pro hac vice admission], ...[le8] no further opportunity to petition the court for the remedy being sought."); LCP Holding Co. v.

Taylor (11" Dist.), 158 Ohio App.3d 546, 2004-Ohio-5324, 817 N.E.2d 439, ¶ 26 (order denying preliminary injunction prevented judgment "with regard to the preliminary injunction") (emphasis added); Overhead, Inc. v. Standen Contracting (Ohio App. 0

Dist. March 11, 2002), No. L-01-1397, 2002 WL 398342, at *3 (order enforcing forum selection clause "ma[de] a full determination of the issue").

As in Upshaw, Swearigen, LCP Holding, and Overhead, Revised Code

2307.93(A)(3)(a) directs trial courts to decide a provisional remedy in favor of one party.

R.C. 2307.93(A)(3)(a) requires trial courts to determine whether the new medical criteria in H.B. 292 will apply to pending cases. The trial court ruling from Judges Hanna and

Spellacy and Justice Sweeney has "prevent[ed] judgment in favor of' the defendants because they declared that no plaintiff with a pending case in Cuyahoga County needs to comply with the new law.

That order settles the provisional remedy: all pending cases in Cuyahoga County now proceed under pre-H.B. 292 law if filed before September 2, 2004. Nothing short of reversal will change how those thousands of cases proceed. Without appellate review,

9 the General Assembly's plan to reform asbestos litigation is nullified in Cuyahoga

County - the venue with the vast majority of Ohio's asbestos cases. No reasonable reading of the trial court order could interpret it as leaving the R.C. 2307.91(A)(3)(a) question open. The three judges charged with resolving all of the asbestos cases in

Ohio's most populous county have spoken. Now the question is for the appellate courts.

This Court should not allow the Eighth District to ignore its duty to review that order.

2. The appellants will be denied an effective remedy if relief must wait until fnal judgment

The Eighth District's decision renouncing its obligation to hear this appeal is also incompatible with the fmal order statute's second inquiry. As this Court explained in

Upshaw, subsection 2505.02(B)(4)(b) asks whether an appealed order can be effectively reviewed after final judgment. Whether postponed review will be effective depends on the purpose of the provisional remedy. Cases from this and other courts recognize that most provisional remedies involve decisions that cannot be undone by a delayed appeal - the opportanity is now or never.

The Upshaw decision typifies the urgency of interlocutory appeals from

provisional remedy decisions. There, the provisional remedy was a trial court finding

that a defendant was incompetent to stand trial. Deciding that the defendant's desire to

stand trial immediately could not be vindicated by a later appeal, this Court explained,

"without immediate judicial review, that mistake is uncorrectable." 2006-Ohio-4253, ¶

18. Appellate opinions are in accord. See, e.g., Mahaffey v. Blackwell, 10'h Dist. No.

06AP-963, 2006-Ohio-5319, ¶ 13 (denying "an immediate appeal from the trial court's

order ... would [deny] meaningful relief altogether") (referendum challenge); Ormet

Aluminum Prods. Corp. v. United Steelworkers ofAm., 7`" Dist. No. 05-MO-1, 05-MO-2,

10 05-MO-10, 05-MO-11, 2006-Ohio-3782, ¶ 28 (restrictions on picketing in preliminary injunction affected present ability of picketers to "get their message out"; delaying appeal would compromise this right); Bob Krihwan Pontiac-GMC Truck, Inc. v. General Motors

Corp. ( 10`" Dist. 2001), 141 Ohio App.3d 777, 781, 753 N.E.2d 864 ("we do not construe

R.C. 2505.02(B)(4)(b) to require the absence of every theoretical remedy in order to find that appellant would be denied a`meaningful' or `effective' remedy following final judgment. This is particularly so when ... the court will be unable to fashion a remedy

[after final judgment]"). As with the remedies in Ormet, Mahaffey, and Krihwan, a remedy applying the medical criteria after final judgment is no remedy at all.

The order from Judges Hanna and Spellacy and Justice Sweeney involves a now- or-never decision about applying the medical criteria to asbestos plaintiffs before trial. If left unreviewed, this decision will permitthousands of cases to proceed to trial despite the General Assembly's directive that those cases first pass through the H.B. 292 filtering criteria. The purpose of H.B. 292 is to prioritize which cases go to trial and when. If a reviewing court later decides that the trial court erred by declining to follow the General

Assembly's command that H.B. 292 apply to all cases, the delay will thwart the legislature's intent. There is no chance that correcting the decision in the future will implement the legislatively intended filtering. Once a case goes to trial, the opportunity is lost forever.

D. Any suggestion that full relief for appellants is possible after final judement ignores the General Assembly's findings and the observations of courts across the nation

The General Assembly enacted the asbestos reform statute after careful deliberation about how to fix Ohio's asbestos litigation crisis. The legislation that drives

11 this appeal emerged from months of testimony solicited from dozens of witnesses, including from two former members of this Court. Concluding that the system was

"unfair and inefficient," the legislators intended to remedy those shortcomings of asbestos litigation in Ohio. See R.C. 2307.91, uncodified law at § 3(A)(2).

The legislature identified several problems that contributed to the unfaimess and inefficiency in the then existing asbestos tort system. First, "the vast majority of... claims are filed by individuals... who do not suffer from an asbestos-related impairment." R.C. 2307.91, uncodified law at § 3(A)(5). This means that an estimated

65% of compensation paid to date had "gone to claimants who are not sick." R.C.

2307.91, uncodified law at § 3(A)(2). Second, "the extraordinary volume" of asbestos cases involving plaintiffs without malignant diseases "strain[s]" the court system. Id. at §

3(A)(3). Third, this strain leads to "tragic" under-compensation of plaintiffs, who receive "less than forty-three cents on every dollar awarded." Id. at § 3(A)(2). Fourth,

Ohio companies have "been forced into bankruptcy because of an unending flood of asbestos cases brought by claimants who are not sick." Id. at § 3(A)(4)(c). Fifth, the

"cost of compensating exposed individuals who are not sick jeopardizes the ability of defendants to compensate people with... serious asbestos-related diseases, now and in the future." Id. at § 3(A)(6). And sixth, the cost of compensating those not sick

"threatens savings, retirement benefits, and jobs ...[and] impairs Ohio's economy." Id.

The most visible cause of these problems is the staggering volume of cases.

When the General Assembly heard testimony, one witness estimated that there were over

39,000 cases in Cuyahoga County. Those cases alone would occupy the docket of every trial judge in the state for three years. R.C. 2307.91, uncodified law at § 3(A)(3Xd). This

12 estimate is conservative because asbestos cases are not simple: the "typical claimant in an asbestos lawsuit now names sixty to seventy defendants." Id. at § 3(A)(2).

The volume and complexity of asbestos cases in Ohio led the General Assembly to "recognize[] that reasonable medical criteria are a necessary response to the asbestos litigation crisis in this state" Id. at § 3(A)(5). Two goals of the new criteria are to

"expedite the resolution" of claims brought by the sick and to "ensure that resources are available" for the currently sick or those who might become sick. Id. The medical criteria achieve these goals by filtering asbestos cases before trial. This filtering puts aside cases where the plaintiff is not yet sick or where the plaintiff cannot show an injury related to asbestos exposure (e.g., when the injury arises from smoking or some other cause). While these cases are set aside, it causes no prejudice to the plaintiffs. The reform bill directs judges to administratively dismiss the screened cases. This dismissal is without prejudice, tolls the statute of limitations, and permits a plaintiff to reactivate his or her case by presenting medical evidence that satisfies the filtering criteria. R.C.

2307.94(A); 2307.93(C). With some cases set aside, plaintiffs' lawyers, defense counsel, and judges can focus on Ohioans who are currently sick.

Ohio hardly stands alone in recognizing the problems with asbestos litigation in the 215` century. Across the country, lawsuits are mass produced by companies that review the X-rays of thousands of potential plaintiffs - often with rates of positive diagnoses that defy "all rational medical explanation." In re: Silica Prod. Liab. Litig.

(S.D.Tex. 2005), 398 F. Supp. 2d 563, 620. One federal court, charged with the multi- district asbestos litigation docket, observed that "the filing of mass screening cases is tantamount to a race to the courthouse and has the effect of depleting funds, some already

13 stretched to the limit, which would otherwise be available for compensation to deserving plaintiffs." In re: Asbestos Prods. Liab. Litig. (No. VI) (E.D.Pa. 2002), No. MDL 875,

2002 WL 32151574, at * 1. Another court, faced with estimating future asbestos liabilities, noted that "[1]abor unions, attorneys, and other persons with suspect motives caused large numbers of people to undergo X-ray examinations (at no cost), thus triggering thousands of claims by persons who had never experienced adverse symptoms.

... Certain pro-plaintiff B-readers [X-ray readers] were so biased that their readings were simply unreliable." Owens Corning v. Credit Suisse First Boston (D.Del. 2005),

322 B.R. 719, 723. Yet another federal court observed that, "The resources available to persons injured by asbestos are steadily being depleted." In re: Collins (C.A.3, 2000),

233 F.3d 809, 812.

Perhaps the most extensive analysis of the problem is Judge Jack's decision in the multi-district litigation involving silica - litigation that shares all of the vexing problems of asbestos lawsuits. She explained that the improbable number of pending cases (and she had only 10,000) was "largely the result of misdiagnosis." In re: Silica, 398 F. Supp.

2d 563, 632 (internal quotations omitted). Judge Jack noted that the problem arose because the "diagnoses were about litigation rather than health care." Id. at 635. She explained that the diagnoses were "essentially manufactured on an assembly line" that was "an ingenious method of grossly inflating the number of positive diagnoses" because those diagnoses came from a "small cadre of non-treating physicians, financially beholden to lawyers." Id. at 633-34. Significantly, those physicians "managed to notice a disease missed by approximately 8,000 other physicians - most of whom had the significant advantage of speaking to, examining, and treating the Plaintiffs." Id. at 633.

14 Judge Jack's description of the motive for these assembly-line diagnoses could have been written about Ohio. She remarked that plaintiff lawyers dumped cases into the judicial system with the "clear motivation ... to overwhelm the Defendants and the judicial system ... in [the] hopes of extracting mass nuisance-value settlements because the Defendants and the judicial system are financially incapable of examining the merits of each individual claim." Id at 676.

Finally, Judge Jack highlighted why reform like that in H.B. 292 is needed.

Before reform, "the law firms, rather than any medical professionals, established the criteria [that led to a suit being filed]." Id. at 598. In some cases, these law firms "only paid" when the screening doctors rendered a positive diagnosis. Id. at 628. Without neutral medical criteria - like that in H.B. 292 - there is too strong an incentive to file suits on behalf of plaintiffs with no injury because "in the business of mass screenings, a diagnosis, whether accurate or not, is money in the bank." Id.

All of this underscores the need for some mechanism to allocate limited funds to the deserving. In 2002, the federal asbestos multi-district litigation court issued an order administratively dismissing almost all of the non-malignant cases on its docket. In re:

Asbestos Prods. Liab. Litig. (No. VI), at * 1. State legislatures have also addressed the asbestos litigation crisis by requiring medical evidence of asbestos disease. Outside of

Ohio, Florida and have that aim to reform asbestos litigation by filtering cases before trial. The laws in those states filter cases by requiring certain medical evidence.

Tex. Civ. Prac. & Rem. Code § 90.003(a)(1) and (a)(2)(E) ("A claimant asserting an asbestos-related injury must serve on each defendant the following information: (1) a report by a physician who is board certified ...[that] verifies that the physician has

15 concluded that the exposed person's medical findings and impairment were not more probably the result of causes other than asbestos exposure") (emphasis added); Fla.

Stat. Ann. § 774.204(2) ("A person may not file or maintain a civil action alleging a nonmalignant asbestos claim in the absence of a prima facie showing of physical impairment as a result of a medical condition to which exposure to asbestos was a substantial contributing factor.") (emphasis added).

Like the Ohio General Assembly, the Texas and Florida legislatures put their concerns about asbestos litigation in the text of the law. Tex. Civ. Prac. & Rem. Code

Ann. § 90.001, Findings,

(f) ... Many of the identified individuals.[who file asbestos suits] ... are not experiencing any symptoms of asbestos-related disease and are not suffering from any asbestos-relatedillness affecting their daily functions.

(h) ...[C]rowded dockets that result from the crush of asbestos cases filed by persons who are not functionally or physically impaired by any asbestos-related illness severely hampers the ability of seriously ill claimants to seek redress in the courts.

(n) It is the purpose of this Act to protect the right of people with impairing asbestos-related and silica-related injuries to pursue their claims for compensation in a fair and efficient manner through the Texas court system, while at the same time preventing scarce judicial and litigant resources from being misdirected by the claims of individuals who have been exposed to asbestos or silica but have no fanctional or physical impaitment . . . . (emphasis added)

The Florida legislature observed the same problems in its courts. Fla. Code. Ann.

§ 774.201:

asbestos personal injury litigation can be unfair and inefficient, imposing a severe burden on litigants and taxpayers alike, and

the vast majority of asbestos claims are filed by individuals who allege they have been exposed to asbestos and who may have some physical sign of exposure but who suffer no present asbestos-related impairment, and

16 the seriously ill too often find that the value of their recovery is substantially reduced due to defendant bankruptcies and the inefficiency of the litigation process, and

the Legislature finds that there is an overpowering public necessity to defer the claims of exposed individuals who are not sick in order to preserve, now and for the future, defendants' ability to compensate.people who develop cancer and other serious asbestos-related and silica-related injuries and to safeguard the jobs, benefits, and savings of workers in this state and the well-being of the economy of this state. (emphasis added)

Ohio took the lead in reforming asbestos litigation, but a growing number of jurisdictions are following suit because the old ways of processing asbestos cases simply

do not work.

Texas and Florida have also considered the appealability question that faces this

Court. In Texas, the legislature resolved the question by providing a direct appeal to the

Texas Supreme Court of any order enjoining application of the reform bill based on

constitutional concerns. The uncodified part of Tex. Civ. Prac. & Rem. Code § 90.001:

"There is a direct appeal to the supreme court from an order, however characterized, of

a trial court granting or denying a temporary or otherwise interlocutory injunction or a

permanent injunction on the grounds of the constitutionality or unconstitutionality, or

other validity or invalidity, under the state or federal constitution of all or any part of this

Act." (emphasis added).

In Florida, the judiciary decided that a trial court refusal to apply the reform

statute is appealable. Unlike the Eighth District, the Florida court accepted jurisdiction

and reversed the trial court. Also unlike the Eighth District, the Florida court did not

have an explicit statutory command supporting its appellate jurisdiction. Instead, the

Florida court took the extraordinary step of reviewing the trial court order under its

discretionary certiorari jurisdiction. Certiorari jurisdiction, in Florida, is a "discretionary

17 writ," that enables appeal when "no other method of appeal [i.e., statutes] is available."

De Groot v. Sheffield (Fla. 1957), 95 So.2d 912, 915-16. Generally, certiorari is "limited to those instances where the lower court ... departed from the essential requirements of law....[causing] a miscarriage of justice" Allstate Ins. Co. v. Kaklamanos (Fla. 2003),

843 So.2d 885, 889.

The Florida court, faced with a trial court order like that in Cuyahoga County, had to decide whether to exercise this extraordinary appellate jurisdiction to correct an order that exempted pending cases from Florida's asbestos-reform statute: "`those plaintiffs whose cases were filed prior to July 1, 2005, and who also had trial dates set as of July 1,

2005, are not required to file written reports and supporting test results constituting prima facie evidence of asbestos-related or silica-related impairment."' In re: Asbestos

Litigation (Fla.App. 3rd Dist. 2006), 933 So.2d 613, 615 (quoting the lower court's

order). The Florida court determined that the trial court order exempting 460 cases from the statute's prima-facie evidence requirements would "violate the clear purpose of the

statute, which is to give priority to plaintiffs who can demonstrate actual physical

impairment." Id. at 618. Further observing that the trial court "lack[ed] the authority to

waive the statutory requirement altogether[,]" the court concluded that the trial court

error was "sufficiently egregious and fundamental to result in a miscarriage of justice"

because it, 1) subjected defendants to trial in violation of the statute and 2) affected "460

plaintiffs and numerous defendants." Id. at 620.

While an order that impacts 460 plaintiffs is enough to merit appellate review, the

trial court order in this case impacts thousands of cases. In 2003, when the General

Assembly turned its attention to the problem, there were 39,000 cases pending in

18 Cuyahoga County. That fact alone was enough to alert the General Assembly that it needed to permit appellate review of trial court orders deciding whether the medical filtering procedures would govern thousands of pending cases. Because the order of

Judges Hanna and Spellacy and Justice Sweeney undermines the "clear purpose of the statute," by permitting thousands of cases to go to trial that the General Assembly mandated be filtered first, there is no meaningful appellate review unless that review is now.

H. Any suggestion that the January 6 Order was an advisory opinion ignores the Cuyahoga County Judges' efforts to manage the crush of asbestos litigation on their dockets

The fact Judges Hanna and Spellacy and Justice Sweeney used a common docket number does not make their opinion advisory. The visiting judges in Cuyahoga County have used this common docket number for years to enter orders that apply to all cases.

This is a matter of convenience that saves the judges, litigants, and court personnel from the dradgery of entering the same verbatim order on tens of thousands of dockets. This convenience is also common in federal multi-district litigation. See, e.g., In re: Guidant

Defrbrillalors Prods. Liab. Litig. (D.Minn. 2006), No. MDL 05-1706 DWFAJB, 2006

WL 692292 ("This Document Relates to All Actions"); In re: Sunrise Sec. Litig (E.D.Pa.

1991), 138 F.R.D. 60 ("This Document Relates to: All Actions.").

This Court, in 2003, considered an appeal from an order entered under the same trial court docket number as the present appeal. See In re: All Kelley & Ferraro Asbestos v. Amchem Prods., Inc., 8a' Dist. No. 82424, 2003-Ohio-7239 ("Civil Appeal from

Common Pleas Case No. SD-073958"), rev'd, 105 Ohio St.3d 287, 2005-Ohio-1650, 825

19 N.E.2d 156. As in that case, the caption here does not disguise the Judges' intent - to rule for all 39,000 cases on their docket.

A. A Florida appellate court recently rejected this exact argument

This summer, a Florida appellate court addressed the contention that orders entered under a general docket number are merely advisory. As in Cuyahoga County,

"[d]ue to the large volume of asbestos personal injury cases in Miami-Dade County, a system was devised whereby these cases would be managed pursuant to omnibus orders."

In re: Asbestos, 933 So.2d 613, 619. The court rejected the idea that a general order governing all Miami-Dade asbestos cases was advisory because styled "In re: Asbestos."

Sensibly, the court concluded that the orders were "filed that way pursuant to the

Omnibus Order, and are meant to be applicable to all asbestos cases and are binding rulings." Id. (emphasis in original).

Like the order in Miami-Dade Circuit Court, there is a standing order in

Cuyahoga County Common Pleas Court that governs all asbestos personal injury cases in that court. That order is styled "In re: Special Docket 73958." The order before this

Courtis the same. It is titled "In re: Special Docket" because the judges intended it to govern all pending cases in the county. Calling this maneuver advisory, and theiefore unappealable, would demean these jurists' foresight in issuing a single order to help tame their inefficient docket.

B. The January 6 Order decided a live issue - whether pending asbestos cases in Cuvahog a County would proceed under H.B. 292 or not

This Court's advisory opinion jurisprudence is geared to avoid rendering decisions that will not impact actual cases. The January 6 Order binds litigants in tens of thousands of cases. This Court's decision will determine how asbestos cases proceed in

20 Ohio's most populous county. A decision from this Court will also settle the meaning of the General Assembly's amendment to the final order statute - a ruling that will have statewide impact. The trial court order bears no resemblance to cases where tlris Court has declined to rule on an issue because that ruling might be advisory. -

This Court's advisory opinion cases focus on two problems that the trial court order below does not suffer - moot issues and issues not raised in the lower court. 1 The decision below is not moot. Thousands of asbestos cases are now govemed by the law as it stood prior to H.B. 292, despite the legislature's clear intention that they proceed and be govemed by H.B. 292.

Nor does the trial court order fail to address the issue the parties presented below

- whether pending cases should proceed under H.B. 292 or not. Unlike cases where this

Court has dismissed appeals for raising hypothetical questions, this case poses the pressing question of whether the Eighth District was right to disregard the General

Assembly's command that appeals courts review R.C. 2307.93(A)(3) findings. The matter is not abstract; if this Court blesses the Eighth District's decision, all pending

' See, e.g., State ex ret. White v. Kilbane, 96 Ohio St.3d 395, 2002-Ohio-4848, 775 N.E.2d 508, ¶ 18 (dismissing appeal on advisory-opinion rationale because it was "moot"); Tschantz v. Ferguson (1991), 57 Ohio St.3d 131, 566 N.E.2d 655 (moot question not "worthy of an advisory opinion from this court"); Egan v. Nat'1 Distillers & Chemical Corp. (1986), 25 Ohio St.3d 176, 177,495 N.E.2d 904 ("The trial court simply did not reach or rule on the setoff issue as the question of damages was not before it.... Any opinion this court might express ... would be purely advisory . . . ."); Cascioli v. Cent. Mut. Ins. Co. (1983), 4 Ohio St.3d 179, 183, 448 N.E.2d 126 (underlying facts did not support apparent authority in agency law; "anything this court might say with respect to the scope of an insurance agent's apparent authority would be largely advisory"); State ex rel. Park Investment Co. v. Bd of Tax Appeals, 31 Ohio St.2d 183, 185, 285 N.E.2d 356 (an appeal presents a live controversy when a constitutional ruling "determines a case before it") (int.ernal quotations omitted).

21 asbestos cases in Cuyahoga County will go on as if the General Assembly never passed

H.B. 292.

City ofN. Canton v. Hutchinson (1996), 75 Ohio St.3d 112, 661 N.E.2d 1000, is instructive. There, the Court equated the final order inquiry with an advisory opinion inquiry: "the issue being appealed to us does not emanate from an order which is final and appealable .... Accordingly, any opinion we would render ... would be, at best, advisory in nature." Id. at 1002. A final, appealable order presents a live controversy; if this Court decides that the final order statute makes R.C. 2307.93(A)(3) findings appealable, the opinion will not be advisory.

III. The Eighth District's decision reads the 2004 amendments to R.C. 2505.02 out of the statute

The General Assembly's purpose in passing H.B. 292 was to correct an unfair and inefficient asbestos litigation system. R.C. 2307.91, uncodified law at § 3(A)(2). Full appellate review of the application of the medical criteria in that law is of obvious importance to the statute's success. The General Assembly did not leave that up for debate; they amended the fmal order statute to cover R.C. 2307.93(A)(3) findings. R.C.

2505.02(A)(3) ("`Provisional remedy' means a proceeding ancillary to an action, including,... a finding made pursuant to division (A)(3) of section 2307.93 of the

Revised Code.") The jurisdictional question is settled; the General Assembly included direct references to the statutes Judges Hanna and Spellacy and Justice Sweeney followed in reaching their decision.

Any reading of the January 6 Order as unappealable ignores the amendment to

R.C. 2505.02. For sixty years, this Court has recognized that the judiciary is not free to disregard language the General Assembly inserts in a statute. "[I]t is well settled that

22 none of the language employed therein should be disregarded . ...[A] statute may not be

restricted, constricted, qualified, narrowed, enlarged or abridged; significance and effect

should, if possible, be accorded to every word, phrase, sentence and part of an act."

Sarmiento v. Grange Mut. Cas. Co., 106 Ohio St.3d 403, 2005-Ohio-5410, 835 N.E.2d

692, ¶ 25 (intemal citations and quotation marks omitted) (emphasis added); see also,

Wachendorf v. Shaver (1948), 149 Ohio St. 231, 237, 78 N.E.2d 370, 374; Carter v. Div.

of Water (1946), 146 Ohio St. 203, 207, 65 N.E.2d 63.

The amendments adding language to R.C. 2505.02 must have some meaning.

"When confronted with amendments to a statute, an interpreting court must presume that

the amendments were made to change the effect and operation of the law." Lynch v.

Gallia County. Bd. of Comm'rs (1997), 79 Ohio St.3d 251, 254, 680 N.E.2d 1222. In this 1 case, the statute is plain and the General Assembly's intent obvious - a key element of the asbestos reform statute is a provisional remedy subject to immediate appellate review.

The Eighth District chose to ignore the General Assembly's intent - chose to ignore the

language the General Assembly added to the final order statute. That choice was error.

This Court should reverse.

CONCLUSION

The General Assembly explained why this appeal matters to all Ohioans. H.B.

292 aims to serve the interests of litigants and citizens by,

deferring of claims of exposed individuals who are not sick in order to preserve, now and for the future, defendants' ability to compensate people who develop cancer and other serious asbestos-related injuries and to safeguard the jobs, benefits, and savings of the state's employees and the well being of the Ohio economy.

23 R.C. 2307.91, uncodified law at § 3(A)(7). Making sure the limited resources of Ohio's courts and Ohio's defendants go to deserving plaintiffs means that those who are not sick, those who are not sick from asbestos exposure, and those who do not have medical evidence of asbestos - caused injury must step aside - temporarily - so courts and defendants can focus on plaintiffs most in need. Without appellate review, the General

Assembly's plan collapses if trial courts decline to apply the new medical criteria. The trial judges in the Ohio county with the lion's share of asbestos cases have done just that.

But the General Assembly anticipated the problem, amended the law, and directed appeals courts to review those trial court decisions. The Eighth District abdicated a responsibility the General Assembly assigned it.. Ohio cannot afford for this Court to do the same.

Respectfully submitted, g0. sJ,4,e,^ Richard D. Schuster (0022813) (Counsel of Record) Nina I. Webb-Lawton (0066132) VORYS, SATER, SEYMOUR AND PEASE LLP 52 East Gay Street, P.O. Box 1008 Columbus, Ohio 43216-1008 (614) 464-6400 (614) 719-4955 (facsimile) rdschusterC^a.vssp.com

COUNSEL FOR APPELLANTS GOODRICH CORPORATION, THE GOODYEAR TIRE & RUBBER COMPANY, CERTAINTEED CORPORATION, 3M COMPANY, ITT INDUSTRIES, INC., ALLIED CHEMICAL CORPORATION, UNION CARBIDE CORPORATION, AMCHEM PRODUCTS, INC., AND AMERICAN STANDARD, INC., AS ALLEGED SUCCESSOR TO WESTINGHOUSE AIR BRAKE COMPANY

24 GI.. /1 ^Z ^-4k /2,,. ti•/4. Wide A. Mitchell d030647) usan Sq re B ( 9988) Nichol M. Schoenfeld (0066631) ROETZEL & ANDRESS BAKER & HOSTETLER LLP 222 South Main Street 3200 National City Center Akron, Ohio 44308 1900 East Ninth Street (330) 376-2700 Cleveland, OH 44114-3485 (330) 376-4577 (facsimile) (216) 621-0200 [email protected] (216) 696-0740 (facsimile) COUNSEL FOR APPELLANTS [email protected] C.P. HALL COMPANY, COUNSEL FOR APPELLANT EXXONMOBIL CORPORATION, ERICSSON, INC. FORD MOTOR COMPANY, AND GENERAL MOTORS CORPORATION 7 ^ ,.^ i, r. f /^ ,. ..,4. Thomas L. Brunn Sr. 23397) Laura Kingsl6 Hon003^447) THE BRUNN LAW FIRM CO., L.P.A. SQUIRE, SANDERS & DEMPSEY L.L.P. Counsels for Appellants 4900 Key Tower 700 West St. Clair Avenue 127 Public Square Suite 208, Hoyt Block Building Cleveland, OH 44114-1027 Cleveland, Ohio 44113 (216) 479-8554 (216) 623-7300 (216) 479-8780 (facsimile) (216) 623-7330 (facsimile) Ihong&ssd.com brunnna,core.com COUNSEL FOR APPELLANTS COUNSEL FOR APPELLANT AJAX MANUFACTURING CO., ALLIANCE MACHINE COMPANY ALBANY INTERNATIONAL CORP., ALCOA, INC., APPLIED INDUSTRIAL TECHNOLOGIES, INC., DURAMETALLIC CORPORATION, ECODYNE MRM, INC., GARDNER DENVER, INC., ILLINOIS TOOL WORKS, INC., IMPROPERLY SUED AS DEVCON CORP., THE KERITE COMPANY, NATIONAL MACHINERY CO., PARK OHIO INDUSTRIES, INC., ROBERTSON-CECO CORP. FKA H.H. ROBERTSON COMPANY, ROCKBESTOS-SURPRENANT CABLE CORP., SEEGOTT, INC., VIKING PUMP, INC., WARREN PUMPS, INC., WEIL- MCLAIN BOILERS, AND ZURN INDUSTRIES, INC.

25 ^ A, ' '! ^ .l.. a J . W. Bruni (00 5) . Quick (0031239 SWARTZ CAMPBELL, LLC. James L. McCrystal Jr. (0017492) 4750 U.S. Steel Tower, 600 Grant Street Daniel F. Petticord (0060009) Pittsburgh, PA 15219 BRZYTWA QUICK & McCRYSTAL LLC (412) 232-9800 900 Skylight Office Tower (412) 232-0351 (facsimile) 1660 West Second Street [email protected] Cleveland, OH 44113-1411 COUNSEL FOR APPELLANTS (216) 664-6900 LEXINGTON PRECISION (216) 664-6901 (facsimile) CORPORATION, ALLIED GLOVE COUNSEL FOR APPELLANTS EATON CORPORATION, COOPER CORPORATION, SUED AS SUCCESSOR INDUSTRIES, INC., AND IN INTEREST TO CUTLER-HAMMER, HINCHCLIFFE & KEENER, INC. INC. N/K/A EATON ELECTRICAL, INC. AND EATON CORPORATION

4 3 //. / .. &^/k ruce P. Mandel (0027026) kevin C. Alexanderse (0037312) Kurt S. Sigfried (0063563) Colleen A. Mountcastle (0069588) ULMER & BERNE LLP Holly M. Olarczuk-Smith (0073257) 1660 West Second Street, Suite 1100 GALLAGHER,SHARP Cleveland, OH 44113-1448 Sixth Floor - Bulkley Building (216) 583-7000 1501 Euclid Avenue (216) 583-7001 (facsimile) Cleveland, Ohio 44115 [email protected] (216) 241-5310 [email protected] (216) 241-1608 (facsimile) COUNSEL FOR APPELLANTS kalexandersenaaalla,ehersharg.com BORG WARNER CORPORATION, cmountcastleCUcgallaghershary.com CEECORP, INC. DBA THE holarczuk-smitha.gallaghersharp.com CLEVELAND GYPSUM CO., FKA THE COUNSEL FOR APPELLANTS- CLEVELAND BUILDERS SUPPLY NORFOLK SOUTHERN RAILWAY COMPANY, DOSSERT CORPORATION, COMPANY, DURABLA MANUFACTURING CONSOLIDATED RAIL COMPANY, DURO DYNE CORPORATION, AMERICAN CORPORATION, THE EDWARD R. PREMIER UNDERWRITERS, INC., CSX HART COMPANY, ESSEX GROUP, TRANSPORTATION, INC., GRAND INC., KENTILE FLOORS, INC., THE TRUNK WESTERN RAILROAD MINSTER MACHINE COMPANY, OHIO CORPORATION, BEAZER EAST, INC., VALLEY INSULATING COMPANY, TASCO INSULATION, INC., ALLEN INC., AND STANDARD GLOVE AND REFRACTORIES, INC.; OSBORNE, INC., SAFETY EQUIPMENT COMPANY INGERSOLL RAND COMPANY, INGERSOLL-DRESSER PUMP COMPANY, GOULDS PUMPS, INC., THIEM CORPORATION AND ITS

26 UNIVERSAL REFRACTORIES i , t.,A. DIVISION, CARLISLE COMPANIES, Susan S. enderson 004 5333) INC., MOTION CONTROLS Law Office of Susan S. Henderson INDUSTRIES, SAFETY FIRST 7940 Sherman Road INDUSTRIES, INC., O'CONNOR STEEL Chesterland, Ohio 44026 & SUPPLY CO., ALLIS CHALMERS (440) 729-7374 PRODUCT LIABILITY TRUST, CYPRUS (440) 729-7483 (facsimile) INDUSTRIES MINERALS COMPANY, shendersonna, henderlaw.com BRYAN STEAM CORP., BURNHAM COUNSEL FOR APPELLANTS CORP., AMERICAN BILTRITE, INC., SB DECKING, INC., PHELPS DODGE INDUSTRIES, INC., F/K/A SELBY, BATTERSBY & C.D. CENTER CORPORATION, COMPANY SHERWIN WILLIAMS COMPANY, G.W. BERHHEIMER CO., INC., FULTON IRON AND MANUFACTURING, INC., AND SUR SEAL GASKET PACKING CO., INC.

^I.J,/ /J• .< 1"r 4 311. Matthew C. O'ConnellV 29043) MiohaelD. Eag$4(0 8659) Victoria D. Barto (0071554) DINSMORE-& SHOHL, LLP SUTTER O'CONNELL & FARCHIONE 1900 Chemed Center 3600 Erieview Tower 255 East Fifth Street 1301 East 90' Street Cincinnati, Ohio 45202 Cleveland, Ohio 44114 (513) 977-8578 (216) 928-2200 (513) 977-8141 (facsimile) (216) 928-3630 (facsimile) michael.eaeen()dinslaw.com [email protected] COUNSEL FOR APPELLANTS COUNSEL FOR APPELLANTS NORTON COMPANY N/K/A SAINT GARLOCK SEALING TECHNOLOGIES, GOBAIN ABRASIVES, INC., KAISER LLC, DAIMLERCHRYSLER GYPSUM COMPANY, INC., AURORA CORPORATION, PUMP DIVISION OF SIGNAL CORP., SEPCO CORPORATION, GREENE, DEZURIK, INC., LINDBERG MPH, AND TWEED & COMPANY, FMC NEW YORK AIR BRAKE CORPORATION, D. B. RILEY, INC., VOLKSWAGEN OF AMERICA, INC., AND ACF INDUSTRIES, INC.

27 Y^--y tf 4..// N • .d^.^ /^//^^« 41/A. Dennis P. Zapka (0 2609) Steph H. Daniels (06(9198) David H. Boehm (0072610) MCMAHON DEGULIS LLP MCLAUGHLIN & MCCAFFREY, LLP 812 Huron Road, E., Suite 650 1111 Superior Avenue, Suite 1350 Cleveland, Ohio 44115-1126 Cleveland, Ohio 44114 (216) 621-1312 216-623-0900 (216) 621-0577 (facsimile) 216-623-0935 (facsimile) sdanielsna,mdlln.net [email protected] COUNSEL FOR APPELLANTS dhb(o),paladin-law.com ADVANCE AUTO PARTS, INC., JOHN COUNSEL FOR APPELLANT CRANE INC., TUTHILL CORP., AND R.E. KRAMIG & CO., INC. SEARS, ROEBUCK & CO. A .^ //. bavid L. Gray 0 665) JeHnifer A. Riester e0070889) BUNDA STUTZ & DeWITT, PLL WESTON HURD L.L.P. One SeaGate, Suite 650 1301 East 9`h Street, Suite 1900 Toledo, Ohio 43604 Cleveland, Ohio 44114 (419) 241-2777 (216) 241-6602 (419) 241-4697 (facsimile) (216) 6210-8369 (facsimile) dlgravna,bsd-law.com JRiesterna westonhurd.com COUNSEL FOR APPELLANT COUNSEL FOR APPELLANTS FOR OWENS-ILLINOIS, INC. ENGELHARD CORPORATION, FIDELITY BUILDERS SUPPLY, STEVENS PAINTON CORPORATION, GRAYBAR ELECTRIC CO., INC., MORTON INTERNATIONAL, INC., A ROHM & HAAS COMPANY, AND AKRON GASKET & PACKING- ENTERPRISE, INC.

/4 4V • InE C. Richard McDonald (001^7537) John L. Reyes (00235485 r k Jennifer Sardina (0072608) Michael J. Matasich (0078333) DAVIS & YOUNG BUCKINGHAM DOOLITTLE & 1700 Midland Building BURROUGHSLLP 101 Prospect Avenue West 50 S. Main Street, lOth Floor Cleveland, Ohio 44115 Akron, Ohio 44308 (216) 348-1700 (330) 258-6469 (216) 621- 0602 (facsimile) (330) 252-5469 (facsimile) rmcdonalC@,davisyoung . com jrevesn bdlaw.com jsardinaf &-davisyoung.com COUNSEL FOR APPELLANT

28 COUNSEL FOR APPELLANTS NOCK HARWICK CHEMICAL CORP. REFRACTORIES COMPANY, JOHN HANCOCK LIFE INSURANCE COMPANY, HYSTER COMPANY AND HYSTER MID EAST

Z:,/ /er w W. U ,;,, .- //, Chris'fopher J. O 1/( 069676) Samuel R. Martillotta (00 6473) TUCKER ELLIS & WEST LLP Edward O. Patton (0042004) 1150 Huntington Bldg. MANSOUR, GAVIN, GERLACK 925 Euclid Ave & MANOS CO., L.P.A. Cleveland, Ohio 44115-1414 55 Public Square, Suite 2150 (216) 592-5000 Cleveland, Ohio 44113-1994 (216) 592-5009 (facsimile) (216) 523-1500 ccarvl(a)tuckerellis.com (216) 523-1705 (facsimile) COUNSEL FOR APPELLANTS THE smartillottaAmpamlQa.com; BOC GROUP, INC. FKA AIRCO, INC., epattonAmigmina.com THE ESAB GROUP, INC., HOBART COUNSEL FOR APPELLANT BROTHERS COMPANY, LINCOLN F.B. WRIGHT COMPANY ELECTRIC COMPANY, MCCORD CORPORATION; PNEUMO ABEX LLC; - AS SUCCESSOR-IN-INTEREST TO ABEX CORPORATION, AND A.W. CHESTERTON COMPANY

i ^ ^' ^ k uth A. Antinone, E4(0005727) Mark I. Wallach (001048 WILLMAN & ARNOLD, L.L.P. CALFEE, HALTER & GRISWOLD LLP 705 McKnight Park Drive 1400 McDonald Investment Center Pittsburgh, Pennsylvania 15237 800 Superior Avenue (412) 366-3333 Cleveland, Ohio 44114-2688 (412) 366-3462 (facsimile) (216) 622-8200 rantinonen.willmanlaw.com (216) 241-0816 (facsimile) COUNSEL FOR APPELLANTS mwallach(a,calfee.com HONEYWELL INTERNATIONAL, INC. cstevensa,calfee.com F/K/A ALLIEDSIGNAL, INC. F/KJA COUNSEL FOR APPELLANTS BENDIX CORPORATION BONDEX INTERNATIONAL, INC. AND AND PITTSBURGH METALS RPM, INC. PURIFYING COMPANY

29 ^ 'f. r t Robin E. Harvey 0'14( ) Ken Argentiera (60'67493) BAKER & HOSTETLER LLP KIRKPATRICK & LOCKHART 312 Walnut Street, Suite 3200 NICHOLSON GRAHAM LLP Cincinnati, Ohio 45202-4074 Henry W. Oliver Building (513) 929-3400 535 Smithfield Street (513) 929-0303 (facsimile) Pittsburgh, Pennsylvania 15222 rharvey^a,baker-hostetler.com (412) 355-6501 (412) 355-6505 (facsimile) and kargentiera(a)klng . com nvari,king.com Diane L. Feigi (0070286) COUNSEL FOR APPELLANT CRANE Edward D. Papp (0068574) CO. BAKER & HOSTETLER LLP 3200 National City Center 1900 East 9d' Street Cleveland, OH 44114-3485 (216) 621-0200 (216) 696-0740 (facsimile) [email protected] COUNSEL FOR APPELLANT GEORGIA-PACIFIC CORPORATION 0 /^ ./^^ F,,: /, Thomas I. Michals (9040822) William D. Bonezzi (0 860) Matthew M. Mendoza (0068231) Kevin O. Kadlec (0037783) Dineen LaMonica (0073500) James E. Stephenson (0074403) CALFEE, HALTER & GRISWOLD LLP Joseph T. Ostrowski (0068806) 1400 McDonald Investment Center BONEZZI SWITZER MURPHY & I 800 Superior Avenue POLITO CO. Cleveland, OH 44114-2688 1400 Leader Building (216) 622-8200 526 Superior Avenue (216) 241-0816 (facsimile) Cleveland, OH 44114 tmichalsncalfee.com (216) 875-2767 mmendoza(@.calfee.com (216) 875-1570 (facsimile) dlamonica(a^calfee.com asbestos@,bsmplaw.com COUNSEL FOR APPELLANTS COUNSEL FOR APPELLANTS THE CLEVELAND ELECTRIC F.B. WRIGHT COMPANY OF ILLUMINATING COMPANY, THE CINCINNATI, A.O. SMITH TOLEDO EDISON COMPANY AND CORPORATION, MAHONING VALLEY OHIO EDISON COMPANY SUPPLY COMPANY, HERSH PACKING AND RUBBER COMPANY, HOLLOW CENTER PACKING COMPANY, DONALD MCKAY SMITH, AND BRANDON DRYING FABRICS

30 CERTIFICATE OF SERVICE

I certify that a copy of this brief was sent by ordinary U.S. mail to the following counsel for appellees and the Ohio Attorney General on December 19+{,2006.

John A. Sivinski, Esq. Christopher J. Hickey, Esq. Kelley & Ferraro, LLP Brent Coon & Associates 1901 Penton Media Building Suite 303 1300 East Ninth Street 1220 West Sixth Street Cleveland, OH 44114 Cleveland, OH 44113

Mark C. Meyer, Esq. Theresa Nelson Ruck, Esq. Goldberg, Persky & White, P.C. Baron & Budd Third Floor Plaza South Two, Suite 200 1030 Fifth Avenue 7261 Engle Road Pittsburgh, PA 15219 Cleveland, OH 44130

Thomas W. Bevan, Esq. Richard E. Reverman, Esq. Bevan & Associates Young, Reverman & Mazzei Co., 10360 Northfield Road L.P.A. Northfield, OH 44067 The Kroger Building, Suite 2400 1014 Vine Street Cincinnati, OH 45202

John I. Kittel, Esq. Robert E. Sweeney, Esq. Mazur & Kittel, PLLC Robert E. Sweeney Co., L.P.A. Suite 175 1500 Illuminating Building 30665 Northwestem Highway 55 Public Square Farmington Hills, MI 48334 Cleveland, OH 44113

John Peca, Esq. Holly J. Hunt Climaco, Lefkowitz, Peca, Wilcox Assistant Attorney General & Garofoli, L.P.A. Constitutional Offices Section Tenth Floor, Suite 1000 State of Ohio 1220 Huron Road 30 East Broad St. Cleveland, OH 44115 17th Floor Columbus, OH 43215-3428 1?t,e" Q. .54,2^z Richard D. Schuster (0022813) COUNSEL FOR APPELLANTS

31

12/1512008 - Columbus - 10053440.5 IN THE SUPREME COURT OF OHIO

IN RE: SPECIAL DOCKET NO. 73958 ;t Case No. 06-12'79 On Appeal from the Cuyahoga County Court of Appeals, Eight Appellate District,

Court of Appeals Case Nos. CA-87777; CA-87816

NOTICE OF APPEAL OF DEFENDANTS-APPELLANTS

Richard Schuster (Counsel of Record) John A. Sivinski, Esq. Nina Webb-Lawton (0066132) KELLEY & FERRARO, LLP VORYS, SATER, SEYMOUR AND PEASE 1901 Penton Media Building LLP 1300 East Ninth Street 52 East Gay Street Cleveland, OH 44114 Columbus, Ohio 43215 Phone: (614) 464-5475 Christopher J. Hickey, Esq. Fax: (614) 719-4955 BRENT COON & ASSOCIATES COUNSEL FOR APPELLANTS DANA Suite 303 CORPORATION, GOODRICH 1220 West Sixth Street CORPORATION, THE GOODYEAR TIRE & Cleveland, OH 44113 RUBBER COMPANY, CERTAINTEED CORPORATION, 3M COMPANY, ITT Mark C. Meyer, Esq. INDUSTRIES, INC., ALLIED CHEMICAL GOLDBERG, PERSKY & WHITE, P.C. CORPORATION, UNION CARBIDE Third Floor CORPORATION, AMCHEM PRODUCTS, 1030 Fifth Avenue INC., AND AMERICAN STANDARD, INC., Pittsburgh, PA 15219 AS ALLEGED SUCCESSOR TO WESTINGHOUSE AIR BRAKE COMPANY Theresa Nelson Ruck BARON & BUDD COUNSEL FOR APPELLANTS LOCKHEED Plaza South Two, Sufte 200 MARTIN CORPORATION 7261 Engle Road Cleveland, OH 441

001 Thomas W. Bevan, Esq. Susan S. Henderson, Esq. (0015333) BEVAN & ASSOCIATES Attotney at Law 10360 Northfield Road LAW OFFICE OF SUSAN S. HENDERSON Northfield, OH 44067 7940 Sherman Road Chesterland, Ohio 44026 Richard E. Reverman, Esq. Phone: (440) 729-7374 YOUNG, REVERMAN & MAZZEI CO., Fax: (440) 729-7483 L.P.A. COUNSEL FOR APPELLANTS SB The Kroger Building, Suite 2400 DECKING, INC., F/K/A SELBY, 1014 Vine Street BATTERSBY & COMPANY Cincinnati, OH 45202

Stephen H. Daniels, Esq. (#0019198) John I. Kittel, Esq. MCMAHON DEGULIS LLP MAZUR & KITTEL, PLLC 812 Huron Road, Suite 650 Suite 175 Cleveland, Ohio 44115-1168 30665 Northwestern Highway Phone: (216)-621-1312 Ext. 105 Farmington Hills, MI 48334 Fax: (216)-621-0577 COUNSEL FOR APPELLANTS ADVANCE Robert E. Sweeney, Esq. AUTO PARTS, INC., JOHN CRANE INC., ROBERT E. SWEENEY CO., L.P.A. TUTHILL CORP., AND SEARS, ROEBUCK 1500 Illuminating Building & CO. 55 Public Square Cleveland, OH 44113 Matt O'Connell (0029043) SUTTER, O'CONNELL & FARCHIONE John Peca, Esq. 3600 Erieview Tower CLIMACO, LEFKOWITZ, PECA, WILCOX 1301 East 9th Street & GAROFOLI, L.P.A. Cleveland, OH 44114 Tenth Floor, Suite 1000 Phone: (216) 928-4513 1220 Huron Road Fax: (216) 928-3613 Cleveland, OH 44115 COUNSEL FOR APPELLANTS GARLOCK SEALING TECHNOLOGIES, ALL COUNSEL FOR APPELLEES DAIMLERCHRYSLER CORPORATION, SEPCO CORPORATION, GREENE, TWEED & COMPANY, FMC CORPORATION, D. B. RILEY, INC., VOLKSWAGEN OF AMERICA, INC., ACF INDUSTRIES, INC.

002 C. Richard McDonald (0017537) Jennifer Sardina (0072608) DAVIS & YOUNG 1700 Midland Building 101 Prospect Avenue West Cleveland, Ohio 44115 Phone: (216) 348-1700 Fax: (216) 621- 0602 COUNSEL FOR APPELLANTS NOCK REFRACTORIES COMPANY, JOHN HANCOCK LIFE INSURANCE COMPANY, HYSTER COMPANY AND HYSTER MID EAST

Jennifer A. Riester (0070889) WESTON HURD L.L.P. 1301 East 9`h Street, Suite 1900 Cleveland, OH 44114 Phone: (216) 241-6602 Fax: (216) 621-8369 COUNSEL FOR APPELLANTS AKRON GASKET & PACKING ENTERPRISE, INC.; ENGELHARD CORPORATION; FIDELITY BUILDERS SUPPLY; GRAYBAR ELECTRIC CO., INC.; MORTON INTERNATIONAL, INC., A ROHM & HAAS COMPANY; AND STEVENS PAINTON CORPORATION

Kevin Alexandersen (0037312) Colleen A. Mountcastle (0069588) Holly M. Olarczuk-Smith (0073257) GALLAGHER, SHARP Sixth Floor - Bulkley Building 1501 Euclid Avenue Cleveland, Ohio 44115 Phone: (216) 241-5310 Fax: (216) 241-1608 COUNSEL FOR APPELLANTS NORFOLK SOUTHERN RAILWAY COMPANY, CONSOLIDATED RAIL CORPORATION, AMERICAN PREMIER UNDERWRITERS, INC., CSX TRANSPORTATION, INC., GRAND TRUNK WESTERN RAILROAD CORPORATION, BEAZER EAST, INC.;

003 TASCO INSULATION, INC.; ALLEN REFRACTORIES, INC.; OSBORNE, INC.; INGERSOLL RAND COMPANY; INGERSOLL-DRESSER PUMP COMPANY; GOULDS PUMPS, INC.; THIEM CORPORATION AND ITS UNIVERSAL REFRACTORIES DIVISION; CARLISLE COMPANIES, INC.; MOTION CONTROLS INDUSTRIES; SAFETY FIRST INDUSTRIES, INC.; O'CONNOR STEEL & SUPPLY CO.; ALLIS CHALMERS PRODUCT LIABILITY TRUST; CYPRUS INDUSTRIES MINERALS COMPANY; BRYAN STEAM CORP.; BURNHAM CORP.; AMERICAN BILTRITE, INC.; PHELPS DODGE INDUSTRIES, INC.; C.D. CENTER CORPORATION; SHERWIN WILLIAMS COMPANY; G.W. BERHHEIMER CO., INC.; FULTON IRON AND MANUFACTURING, INC.; SUR SEAL GASKET PACKING CO., INC.

Joseph T. Ostrowski (0068806) BONEZZI SWITZER MURPHY & POLITO CO. 1400 Leader Building 526 Superior Avenue Cleveland, OH 44114 Phone: (216) 875-2767 Fax: (216) 875-1570 COUNSEL FOR APPELLANTS F.B. WRIGHT COMPANY OF CINCINNATI, A.O. SMITH CORPORATION, MAHONING VALLEY SUPPLY COMPANY, HERSH PACKING AND RUBBER COMPANY, HOLLOW CENTER PACKING COMPANY, DONALD MCKAY SMITH, AND BRANDON DRYING FABRICS

004 Ken Argentiera (0067493) KIRKPATRICK & LOCKHART NICHOLSON GRAHAM LLP Henry W. Oliver Building 535 Smithfield Street Pittsburgh, Pennsylvania 15222 Phone: (412) 355-6500 COUNSEL FOR APPELLANT CRANE CO.

John E. Sullivan, Esq. (0025782) Nichol M. Schoenfeld (0066631) BAKER & HOSTETLER LLP I 3200 National City Center 1900 East Ninth Street Cleveland, OH 44114-3485 Phone: (216) 621-0200 Fax: (216) 696-0740 COUNSEL FOR APPELLANT ERICSSON, INC.

Susan Squire Box (#0029988) ROETZEL & ANDRESS 222 South Main Street Akron, Ohio 44308 Phone: (330) 376-2700 COUNSEL FOR APPELLANTS C.P. HALL COMPANY EXXONMOBIL CORPORATION FORD MOTOR COMPANY GENERAL MOTORS CORPORATION

Thomas L. Brunn Sr. (#0023397) THE BRUNN LAW FIRM CO., L.P.A. 700 West St. Clair Avenue Suite 208, Hoyt Block Building Cleveland, Ohio 44113 COUNSEL FOR APPELLANT ALLIANCE MACHINE COMPANY

Laura Kingsley Hong (0033147) SQUIRE, SANDERS & DEMPSEY L.L.P. 4900 Key Tower 127 Public Square Cleveland, OH 44114-1027 Phone: (216) 479-8554 Fax: (216) 479-8780

005 COUNSEL FOR APPELLANTS AJAX MANUFACTURING CO., ALBANY INTERNATIONAL CORP., ALCOA, rNC., APPLIED INDUSTRIAL TECHNOLOGIES, INC., DURAMETALLIC CORPORATION, ECODYNE MRM, INC., GARDNER DENVER, INC., ILLINOIS TOOL WORKS, INC., IMPROPERLY SUED AS DEVCON CORP., THE KERITE COMPANY, NATIONAL MACHINERY CO., PARK OHIO INDUSTRIES, INC., ROBERTSON- CECO CORP. FKA H.H. ROBERTSON COMPANY,ROCKBESTOS-SURPRENANT CABLE CORP., SEEGOTT, INC., VIKING PUMP, INC., WARREN PUMPS, INC., WEIL-MCLAIN BOILERS, ZURN INDUSTRIES, INC.

John W. Bruni (0047355) SWARTZ CAMPBELL, LLC. 4750 U.S. Steel Tower, 600 Grant Street Pittsburgh, PA 15219 Phone: (412) 232-9800 COUNSEL FOR APPELLANTS LEXINGTON PRECISION CORPORATION, ALLIED GLOVE CORPORATION, COOPER INDUSTRIES, INC., AND HINCHCLIFFE & KEENER, INC.

Hany T. Quick (0031239) James L. McCrystal Jr. (0017492) Daniel F. Petticord (0060009) BRZYTWA QUICK & MCCRYSTAL LLC 900 Skylight Office Tower 1660 West Second Street Cleveland, OH 44113-1411 Phone: (216) 664-6900 Fax: (216) 664-6901 COUNSEL FOR APPELLANTS EATON CORPORATION, SUED AS SUCCESSOR IN INTEREST TO CUTLER-HAMMER, INC. N/K/A EATON ELECTRICAL, INC. AND EATON CORPORATION

006 Bruce P. Mandel (0022026) Kurt S. Sigfried (0063563) ULMER & BERNE LLP 1660 West Second Street, Suite 1100 Cleveland, OH 44113-1448 Phone: (216) 583-7000 Fax: (216) 583-7001 COUNSEL FOR APPELLANTS BORG WARNER CORPORATION, CEECORP, INC. DBA THE CLEVELAND GYPSUM CO., FKA THE CLEVELAND BUILDERS SUPPLY COMPANY, DOSSERT CORPORATION, DURABLA MANUFACTURING COMPANY, DURO DYNE CORPORATION, THE EDWARD R. HART COMPANY, ESSEX GROUP, INC., KENTILE FLOORS, INC., THE MINSTER MACHINE COMPANY, OHIO VALLEY INSULATING COMPANY, INC., AND STANDARD GLOVE AND SAFETY EQUIPMENT COMPANY

Michael D. Eagen (0018659) DINSMORE & SHOHL, LLP 1900 Chemed Center 255 East Fifth Street Cincinnati, OH 45202 Direct: (513) 977-8578 Fax: (513) 977-8141 COUNSEL FOR APPELLANTS NORTON COMPANY N/KJA SAINT GOBAIN ABRASIVES, INC., KAISER GYPSUM COMPANY, INC., AURORA PUMP DIVISION OF SIGNAL CORP., DEZURIK, INC., LINDBERG MPH, AND NEW YORK AIR BRAKE

David L. Gray (0021665) BUNDA STUTZ & DEWITT, PLL One SeaGate, Suite 650 Toledo, OH 43604 (419) 241-2777 (419) 241-4697 (facsimile) COUNSEL FOR APPELLANT OWENS- ILLINOIS, INC.

007 John L. Reyes #0023508 Michael J. Matasich #0078333 BUCKINGHAM DOOLITTLE & BURROUGHS LLP 50 S. Main Street, 10th Floor Akron, OH 44308 (330) 258-6469 (telephone) (330) 252-5469 (facsimile COUNSEL FOR APPELLANT HARWICK CHEMICAL CORP.

Dennis P. Zapka (0012609) David H. Boehm (0072610) MCLAUGHLIN & MCCAFFREY, LLP 1111 Superior Avenue, Suite 1350 Cleveland, Ohio 44114 216-623-0900 - telephone 216-623-0935 - facsimile COUNSEL FOR APPELLANT R.E. KRAMIG & CO., INC.

Debra Csikos (0063236) TUCKER ELLIS & WEST LLP 1150 Huntington Bldg. 925 Euclid Ave Cleveland, OH 44115-1414 Phone: (216) 592-5000 Fax: (216) 592-5009 COUNSEL FOR SEPARATE APPELLANTS THE BOC GROUP, INC. FKA AIRCO, INC.; THE ESAB GROUP, INC.; HOBART BROTHERS COMPANY; LINCOLN ELECTRIC COMPANY; MCCORD CORPORATION; PNEUMO ABEX LLC, AS SUCCESSOR-IN-INTEREST TO ABEX CORPORATION; AND A.W. CHESTERTON COMPANY

008 Samuel R. Martillotta (0006473) Edward O. Patton (0042004) MANSOUR, GAVIN, GERLACK & Manos Co., L.P.A. 55 Public Square, Suite 2150 Cleveland, Ohio 44113-1994 (216) 523-1500 COUNSEL FOR APPELLANT F.B. WRIGHT COMPANY

Ruth A. Antinone, Esq. (Ohio I.D. # 0005727) WILLMAN & ARNOLD, L.L.P. 705 McKnight Park Drive Pittsburgh, PA 15237 (412) 366-3333 (412) 366-3462 (facsimile) COUNSEL FOR APPELLANTS HONEYWELL INTERNATIONAL, INC. F/K/A ALLIEDSIGNAL, INC. F/K/A BENDIX CORPORATION AND PITTSBURGH METALS PURIFYING COMPANY

Mark I. Wallach (0010948) CALFEE, HALTER & GRISWOLD LLP 1400 McDonald Investment Center 800 Superior Avenue Cleveland, OH 441 1 4-2 688 (216) 622-8200 (216) 241-0816 (facsimile) COUNSEL FOR APPELLANTS BONDEX INTERNATIONAL, INC. AND RPM, INC.

009 Thomas I. Michals (0040822) Matthew M. Mendoza (0068231) Dineen LaMonica (0073500) CALFEE, HALTER & GRISWOLD LLP 1400 McDonald Investment Center 800 Superior Avenue Cleveland, OH 44114-2688 (216) 622-8200 (216) 241-0816 (facsimile) COUNSEL FOR APPELLANTS THE CLEVELAND ELECTRIC ILLUMINATING COMPANY, THE TOLEDO EDISON COMPANY AND OHIO EDISON COMPANY

Robin E. Harvey (0014183) BAKER & HOSTETLER LLP 312 Walnut Street, Suite 3200 Cincinnati, Ohio 45202-4074 (513) 929-3400 (Office) (513) 929-0303 (Facsimile) and

Diane L. Feigi (0070286) Edward D. Papp (0068574) BAKER & HOSTETLER LLP 3200 National City Center 1900 East 9'h Street Cleveland, OH 44 1 1 4-3485 (216) 621-0200 (Office) (216) 696-0740 (Facsimile) COUNSEL FOR APPELLANT GEORGIA-PACIFIC CORPORATION

010 Notice of Appeal of Aupellants

Appellants hereby give notice of their appeal to the Supreme Court of Ohio from the judgment of the Cuyahoga County Court of Appeals, Eighth Appellate District, Case Nos. CA-

87777; CA-87816, dated May 8, 2006, and journalized May 18, 2006.

The case raises a substantial constitutional question and is one of public or great general

interest.

Respectfully submitted,

Richard Schuster (Counsel of Record) Nina Webb-Lawton (0066132) VORYS, SATER, SEYMOUR AND PEASE LLP 52 East Gay Street Columbus, Ohio 43215 Phone: (614) 464-5475 Fax: (614) 719-4955 Counsel For Appellants Dana Corporation, Goodrich Corporation, The Goodyear Tire & Rubber Company, Certainteed Corporation, 3M Company, ITT Industries, Inc., Allied Chemical Corporation, Union Carbide Corporation, Amchem Products, Inc., and American Standard, Inc., as alleged successor to Westinghouse Air Brake Company

John E. Sullivan, Esq. (00257$2) Susan Squire Box (#0029988) Nichol M. Schoenfeld (0066631) ROETZEL & ANDRESS BAKER & HOSTETLER LLP 222 South Main Street 3200 National City Center Akron, Ohio 44308 1900 East Ninth Street (330) 376-2700 Cleveland, OH 44114-3485 Counsel for Appellants (216) 621-0200 C.P. Hall Company (216) 696-0740 (facsimile) ExxonMobil Corporation i sullivan(a)bakerlaw.com Ford Motor Company Counsel for Appellant General Motors Corporation Ericsson, Inc.

011 LX_1111^ K- //1, Thomas L. Brunn Sr. (#0023397) 1?1^11_4' Laura Kingsley Hong (0032I THE BRUNN LAW FIRM CO., L.P.A. SQUIRE, SANDERS & DEMPSEY I Counsels for Appellant L.L.P. 700 West St. Clair Avenue 4900 Key Tower Suite 208, Hoyt Block Building 127 Public Square Cleveland, Ohio 44113 Cleveland, OH 44 1 1 4-1 027 Counsel for Appellant (216) 479-8554 Alliance Machine Company (216) 479-8780 (facsimile) Ihon .ssd.com Counsel for Appellants Ajax Manufacturing Co., Albany Intemational Corp., Alcoa, Inc., Applied Industrial Technologies, Inc., Durametallic Corporation, Ecodyne MRM, Inc., Gardner Denver, Inc., Illinois Tool Works, Inc., Improperly Sued as Devcon Corp., The Kerite Company, National Machinery Co., Park Ohio Industries, Inc., Robertson- Ceco Corp. fka H.H. Robertson Company, Rockbestos-Surprenant Cable Corp., Seegott, Inc., Viking Pump, hic., Warren Pumps, Inc., Weil-McLain Boilers, Zurn Industries, Inc.

J 4,.r John W. Bruni (0047355) Han•y T. Q ick (0031239) SWARTZ CAMPBELL, LLC. James L. McCrystal Jr. (0017492) 4750 U.S. Steel Tower, 600 Grant Street Daniel F. Petticord (0060009) Pittsburgh, PA 15219 BRZYTWA QUICK & McCRYSTAL (412) 232-9800 LLC Counsel for Appellants 900 Skylight Office Tower Lexington Precision Corporation, Allied 1660 West Second Street Glove Corporation, Cooper Industries, Inc., Cleveland, OH 44113-1411 and Hinchcliffe & Keener, hic. (216) 664-6900 (216) 664-6901 (facsimile) Counsel for Appellants Eaton Corporation, sued as successor in interest to Cutler- Hammer, Inc. n/k/a Eaton Electrical, Inc. and Eaton Corporation

012 /^'^'^- (^• !" tl^^ /^^'^^^' Bruce P. Mandel (0022026) Kevin C. Alexandersen (0037312) Kurt S. Sigfried (0063563) Colleen A. Mountcastle (0069588) ULMER & BERNE LLP Holly M. Olarczuk-Smith (0073257) 1660 West Second Street, Suite 1100 GALLAGHER, SHARP Cleveland, OH 44113-1448 Sixth Floor - Bulkley Building (216) 583-7000 1501 Euclid Avenue (216) 583-7001 (facsimile) Cleveland, Ohio 44115 bmandel u ulmer.com (216) 241-53 10 (Phone) ksieafriedQulmer.com (216) 241-1608 (Facsimile) Counsel for Appellants Counsel for Appellants-Appellants Borg Warner Corporation, Ceecorp, Inc. Norfolk Southem Railway Company, dba The Cleveland Gypsum Co., fka The Consolidated Rail Corporation, American Cleveland Builders Supply Company, Premier Underwriters, Inc., CSX Dossert Corporation, Durabla Transportation, Inc.,Grand Trunk Western Manufacturing Company, Duro Dyne Railroad Corporation, Beazer East, Inc.; Corporation, The Edward R. Hart Tasco Insulation, Inc.; Allen Refractories, Company, Essex Group, Inc., Kentile Inc.; Osborne, Inc.; Ingersoll Rand Floors, Inc., the Minster Machine Company, Company; Ingersoll-Dresser Pump Ohio Valley Insulating Company, Inc., and Company; Goulds Pumps, Inc.; Thiem Standard Glove and Safety Equipment Corporation and its Universal Refractories Company Division; Carlisle Companies, Inc.; Motion Controls Industries; Safety First Industries, Inc.; O'Connor Steel & Supply Co.; Allis Chalmers Product Liability Trust; Cyprus Industries Minerals Company; Bryan Steam Corp.; Burnham Corp.; American Biltrite, Inc.; Phelps Dodge Industries, Inc.;C.D. Center Corporation; Sherwin Williams Company; G.W. Berhheimer Co., Inc.; Fulton Iron and Manufacturing, Inc.; and Sur Seal Gasket Packing Co., Inc.

013 ^ 1".01A 6-ekl^ Matthew C. O'Connell (002 043) Michael D. Eagen (00K659) " SUTTER O'CONNELL & FARCHIONE DINSMORE & SHOHL, LLP 3600 Erieview Tower 1900 Chemed Center 1301 East 9`h Street 255 East Fifth Street Cleveland, Ohio 44114 Cincinnati, OH 45202 Office: (216) 928-2200 Direct: (513) 977-8578 Fax: (216) 928-3630 Fax: (513) 977-8141 moconnell a,sutter-1aw.com Counsel for Appellants Counsel for Appellants Garlock Sealing Norton Company n/k/a Saint Gobain Technologies, DaimlerChrysler Abrasives, Inc., Kaiser Gypsum Company, Corporation, Inc., Aurora Pump Division of Signal Sepco Corporation, Greene, Tweed & Corp., Dezurik, Inc., Lindberg MPH, and Company, FMC Corporation, D. B. Riley, New York Air Brake Inc., Volkswagen of America, Inc., ACF Industries, hzc.

G - ei^ar/ ^^ D111* eM" ,{^L e ^^s^ C. Richard McDonald (0017537) Stelihen H. Daniels (#00191 q8) Jennifer Sardina (0072608) MCMAHON DEGULIS LLP DAVIS & YOUNG 812 Huron Road, E., Suite 650 1700 Midland Building Cleveland, Ohio 44115-1126 101 Prospect Avenue West (216) 621-1312, Ext. 105 and 108 Cleveland, Ohio 44115 (216) 621-0577 - Fax (216) 348-1700 sdaniels a,nzdllp.net (216) 621- 0602 - Fax Counsel for Appellants [email protected] Advance Auto Parts, Inc., John Crane Inc., [email protected] Tuthill Corp., and Scars, Roebuck & Co. Counsel for Appellants Nock Refractories Company, John Hancock Life Insurance Company, Hyster Company and Hyster Mid East

014 David L. Gray (002 1 66f) ^ Jennifer M. Riester (0070889 BUNDA STUTZ & DeWITT, PLL WESTON HURD L.L.P. One SeaGate, Suite 650 1301 East 9`h Street, Suite 1900 Toledo, OH 43604 Cleveland, OH 44114 (419) 241-2777 [email protected] (419) 241-4697 (facsimile) (216) 241-6602 dlerav u bsd-law.coin (216) 6210-8369 (facsimile) Counsel for Appellant Counsel for Appellants Engelhard Owens-Illinois, Inc. Corporation, Fidelity Builders Supply, Stevens Painton Corporation, Graybar Electric Co., Inc., Morton International, hic., A Rohm & Haas Company, and Akron Gasket & Packing Enterprise, Inc

5A.stt 7 I1T^-^^c. d/'^ ^ ^v,^ ^l ^^ ^ ^^L 3^'z. ^ ^c ^G^^ Susan S. Henderson (0015333) John L. Reyes #0 LAW OFFICE OF SUSAN S. Michael J. Matasich #0078333 HENDERSON BUCKINGHAM DOOLITTLE & 7940 Sherman Road BURROUGHS LLP Chesterland, Ohio 44026 50 S. Main Street, 10th Floor Phone: (440) 729-7374 Akron, OH 44308 Fax: (440) 729-7483 (330) 258-6469 (telephone) shenderson(a) henderlaw.com (330) 252-5469 (facsimile Counsel for Appellant Counsel for Appellant SB Decking, Inc., Harwick Chemical Corp. f/k/a Selby, Battersby & Company

Dennis P. Zapka (0012609) David H. Boehm (0072610) MCLAUGHLIN & MCCAFFREY, LLP 1111 Superior Avenue, Suite 1350 Cleveland, Ohio 44114 216-623-0900 - telephone 216-623-0935 - facsimile dpzacpaladin-law.com [email protected] Counsel for Appellant R.E. Kramig & Co., Inc.

015 &!lI[L Ll!/Gr-f X7 ^ Debra Csikos (0063236) Samuel R. Martillotta (0006473) Tucker Ellis & West LLP Edward O. Patton (0042004) 1150 Huntington Bldg. MANSOUR, GAVIN, GERLACK 925 Euclid Ave & MANOS CO., L.P.A. Cleveland, OH 44115-1414 55 Public Square, Suite 2150 Telephone: 216.592.5000 Cleveland, Ohio 44113-1994 Telefax: 216.592.5009 (216) 523-1500 ([email protected]) smartil lotta(a^magmlpa.com; Counsel for Separate Appellants The BOC enattonCa,mQmnlpa.com Group, Inc. fka Airco, Inc.; The Esab Group, Counsel for Appellant Inc.; Hobart Brothers Company; Lincoln F.B. Wright Company Electric Company; McCord Corporation; Pneumo Abex LLC, as Successor-in-Interest to Abex Corporation; and A.W. Chesterton Company

^11 ^I 4' d Ruth A. Antinone, Esq. (Ohid I.D. Mark I. Wallach (0010948 0005727) CALFEE, HALTER & GRISWOLD LLP WILLMAN & ARNOLD, L.L.P. 1400 McDonald Investment Center 705 McKnight Park Drive 800 Superior Avenue Pittsburgh, PA 15237 Cleveland, OH 44114-2688 (412) 366-3333 (216) 622-8200 (412) 366-3462 (facsimile) (216) 241-0816 (facsimile) [email protected] mwallach(n^calfee.com Counsel for Appellants cstevens@cal fee. coni Honeywell International, Inc, f/k/a Counsel for Appellants AlliedSignal, Inc. f/k/a Bendix Corporation Bondex hitemational, Inc. and RPM, hic. And Pittsburgh Metals Purifying Company

t-orl ^/^Jx-.^^s^ William D. Bonezzi (001 3) Ge^ Thomas I. Michals (0040822) Kevin O. Kadlec (0037783) Matthew M. Mendoza (0068231) Timothy G. Sweeney (0017512) Dineen LaMonica (0073500) Joseph T. Ostrowski (0068806) CALFEE, HALTER & GRISWOLD LLP BONEZZI SWITZER MURPHY & 1400 McDonald Investment Center POLITO CO. 800 Superior Avenue 1400 Leader Building Cleveland, OH 44114-2688 526 Superior Avenue (216) 622-8200 Cleveland, OH 44114 (216) 241-0816 (facsimile) (216) 875-2767 tmichalsa,calfee.com (216) 875-1570 (facsimile) [email protected]

016 asbestos(a)bsmplaw.com dlamonica((bcalfee.com Counsel for Appellants Counsel for Appellants F.B. Wright Company of Cincinnati, A.O. The Cleveland Electric Illuminating Smith Corporation, Mahoning Valley Supply Company, The Toledo Edison Company Company, Hersh Packing and Rubber and Ohio Edison Company Company, Hollow Center Packing Company, Donald McKay Smith, and Brandon Drying Fabrics ,C^^ A„4 « Robin E. Harvey (0014 Ken Argentier 0067493) BAKER & HOSTETLER LLP KIRKPATRICK & LOCKHART 312 Walnut Street, Suite 3200 NICHOLSON GRAHAM LLP Cincinnati, Ohio 45202-4074 Henry W. Oliver Building (513) 929-3400 (Office) 535 Smithfield Street (513) 929-0303 (Facsimile) Pittsburgh, PA 15222 (412) 355-6500 and E-mail Address: [email protected] OL-ef_^ /_ . F^ Ll Coupsel for Appellant Crane Co. Diane L. Feigi (007028 Edward D. Papp (0068574) BAKER & HOSTETLER LLP 3200 National City Center 1900 East 9`h Street Cleveland, OH 44114-3485 (216) 621-0200 (Office) (216) 696-0740 (Facsimile) Counsel for Appellant Georgia-Pacific Corporation

017 Certificate of Service

I certify that a copy of this Notice of Appeal was sent by ordinary U.S. mail on July 2006, to the following counsel for appellees and the Ohio Attorney General:

John A. Sivinski, Esq. Christopher J. Hickey, Esq. Kelley & Ferraro, LLP Brent Coon & Associates 1901 Penton Media Building Suite 303 1300 East Ninth Street 1220 West Sixth Street Cleveland, OH 44114 Cleveland, OH 44113

Mark C. Meyer, Esq. Theresa Nelson Ruck, Esq. Goldberg, Persky & White, P.C. Baron & Budd Third Floor Plaza South Two, Suite 200 1030 Fifth Avenue 7261 Engle Road Pittsburgh, PA 15219 Cleveland, OH 44130

Thomas W. Bevan, Esq. Richard E. Revennan, Esq. Bevan & Associates Young, Reverman & Mazzei Co., L.P.A. 10360 Northfield Road The Kroger Building, Suite 2400 Northfield, OH 44067 1014 Vine Street Cincinnati, OH 45202

John I. Kittel, Esq. Robert E. Sweeney, Esq. Mazur & Kittel, PLLC Robert E. Sweeney Co., L.P.A. Suite 175 1500 Illuminating Building 30665 Northwestern Highway 55 Public Square Farmington Hills, MI 48334 Cleveland, OH 44113

John Peca, Esq. Holly J. Hunt Climaco, Lefkowitz, Peca, Wilcox Assistant Attomey General & Garofoli, L.P.A. Constitutional Offices Section Tenth Floor, Suite 1000 State of Ohio 1220 Huron Road 30 East Broad St., 17th Floor Cleveland, OH 44115 Columbus, OH 43215-3428

Richard D. Schuster COUNSEL FOR APPELLANTS

018 07102'2006 - 9023618 CnA.urt irf AV.pett1s nf @4in, Eig4t4 Diotrirt

County of Cuyahoga Gerald E. Fuerst, Clerk of Courts

IN RE: SPECIAL DOCKETNO. 73958

Appellee COA NO. LOWER COURT NO. 87777 CP SD-73958 87816 CP SD-73958

COMMON PLEAS COURT

.MOTION NO. 382952

Date 05/08/06

Journal Entry

MOTION BY APPELLEES TO DISMISS APPEAL PERR.C.2505.02 IS GRAN7ED. SUA SPONTE, THE

CROSS-APPEAL IS DISMISSED PER R.C. 2505.02. THE APPEALS AREPREMATURE.

RECEIVED FOR FILING

MAY 8 - 2006

GERRlD E. FOERST CLERKOFjN R O PPEALS BY -(((--- DEP.

JudOe FRANK D. CELEBREZZE,JR., Concurs diri CHRISTINE T. MCMONAGLE CA06087777 39302618 III'I"IIII'I^I^II^^II^IIII'III"IIIIII"II'lll"I ., CA06087816 J 39302619 I I^^I^^ 1111111111 6ill lull 1111111111 llfil ll^l aII WL16I2 WH8

1 019 MAY 18 2Q116 OTourf .of Ap.^rals .af 04Tu, B'tjo#rtrt

County of Cuyahoga Gerald E. Fuerst, Clerk of Courts

IN RE: SPECIAL DOCKET NO. 73958

Appellee COA NO. LOWER COURT NO. 87777 CP SD-73958 87816 CP SD-73958

COMMON PLEAS COURT

MOTION NO. 383934

Date 0510812006

Joumal Entry

SUA SPONTE, APPEAL IS DISMISSED PER ENTRY NO. 382952. ANNOUNC$C11Ehi OF DirCI9ION` !'BRAF'IREC^ I1V^D 261N

FILED AND JOURNALIZED PER APP. R.. 22(E) MAY 8 - 2006 GEIU4LD E. Fyff:RBT MAY 18 2006 9L011K Of Ti fiT bF PP ^^ OY B LD E. PUEHtiF C NE COUAT^Of PEALS 8Y DfiP.

Judge FRANK D. CELEBREZZE JR Concurs

N.B. This entry Is an announcement of the court's decision. See App.R. 22(6), 22(D) and 26(A); Loc.App.R. 22. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideratlon with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the clerk per App.R. 22(E). See, also S.Ct.Prac.R. II, Section 2(A)(1).

0@6I2 90962 020 1 2 IN THE COURT OF COMMON PLBAS CUYAHOGA COUNTY, OHIO

IN itE: Special Docket No. 73958

ENTRY AND OPINION

This Court is charged with determining whether the retrospecdve application of

Amended Substitute House Bill 292 unconstitutionally impairs the substandve rights of plaintiffs who filed their claims before the effective date of the statute. In order to determine the constitutiona(ity of the retrospective application of a statute, this Court must employ the two- pronged analysis set forth in Van Fassen v. Babcock & W/ilcnx Co. (1988), 36 Ohio St.3d 100. See

Vagel v. We!l.r (1991), 57 Ohio St.3d 91 at 98.

The first prong of the analysis asks whethei the General Assembly intended for the statute to apply retrospectively. Am. Sub. H.B. 292 specifically requires a plaintiff with an asbestos claim pending on the effective date of the statute to comply with the new prima-facie evidence filing requirements estabGshed by the act. See Ohio R.C. §§ 2307.93(A)(2) and (A)(3)(a)

(codifying those sections of Am. Sub. H.B. 292 that mandate retrospective application). Thus, it is dear on the bill's face that the legislature intended for the retrospective application of Am.

Sub. H.B. 292.

The second prong of the Van Fotfen analysis requires this Court to determine whether the statute is substantive in nature, rather than merely remedial. A statute is substantive in nature when it impairs or takes away vested rights, Van Fasaex, 36 Ohio St.3d at 107, and Ohio law has long recognized that a cause of action that has already arisen is a vested right. See Fa!!er v. Maas Bondirrg &Ins. Co. (Bth Dist. 1929), 168 N.E. 394. Am. Sub. H.B. 292 requires a plaintiff seeking compensation for injuries resulting from asbestos exposure to provide the court with

V0t34'79 P0092 f 021 3 specific medical records, from specifically qualified individuals, which must detail specific

medical observations. See Ohio R.C. § 2307.92. Ohio , developed long before

passage of H.B. 292, established a much different standard: a plaintiff seeking redress for

asbestos-related injuries had a compensable claim where he could show that asbestos had caused

an alteration of the lining of the lung, without any requirement that he meet certain medical

criteria before filing his claim. See In re Cuyahoga CoundyAsbettos Cases (8th Dist. 1998), 127 Ohio

App.3d 358, 364. Thus, by requiring a plaintiff who filed his suit prior to the effective date of

the statute to meet an evidendary threshold that extends above and beyond the common law

standard - the standard that existed at the time plaintiff filed his claim - Am. Sub. H.B. 292 can

retroactively eliminate the claims of those plaintiffs whose right to bring suit not only vested, but

also was exercised. It is then clear that the retrospective application of Am. Sub. H.B. 292 is

substanave rather than merely remedial in its effect and, insofar as it impairs the substantive

rights of plaintiffs who filed their claims before the effective date of the statute, violates Section

28, Article II of the Ohio Constitution.

The Ohio General Assembly anticipated a judicial finding that the retrospective

application of Am. Sub. H.B. 292 is unconstitutional and provided a mechanism for courts to protect the rights of plaintiffs while upholding the constitutionality of the act. Ohio R.C. §

2307.93(A)(3)(b) states that, in the event a court finds the retroacrive appfication of the act

unconstitutional, "the court shall detemune whether the plaintiff has failed to provide sufficient

evidence to support the plaindff's cause of action or the right to relief under the law that is in

effect ptior to the effective date of this section." Should a plai.ntiff fai] to meet the evidentiary

standard that existed prior to the act's passage, Secrion 2307.93(A)(3)(c) requires those claims to

be administradvely dismissed. Therefore, in accordance with Am. Sub. H.B. 292, this Court will

VO13479 P60922 2 022 adjudicate substandve issues in asbestos cases filed before Septembet 2, 2004 according to the law as it existed prior to the bill's enactment, and will administratively disnuss, without prejudice, any claim that fails to meet the requisite evidentiary threshold.

IT IS SO ORDERED. January 6, 2006

RECEIVED FOR FILING dqN 2 6 2006

`TE"T^ A.:Tr r !r- a;ilU 3 n I. GERRiD _Cuyahoya Caunty yv SS. THE L- FUERSE: CLIiA:( Oi COtq11"OF COi?i;iUP? %-EAg f .^' !NiTyiN hfJD Poi Sq!D ;Ot1N t Y. = H[flFDY"EI'TIF^"-- ^1T•ir^,n^.• ^^,-3 ^ ',....iHFAA04Ei^biOp QkkC 4AL P lN ih1 F! SIESGOFSPIDr Ap 9,U F:flD S DtiYOF 1^ cF h. . ..^HIS U 8!i U ^FUl-Clerk

Dopuiy

WL`3479 PG0923 3 023 Wesflaw.

Not Reported in N.E.2d Page 1

Not Reported in N.E.2d, 2001 WL 1887701 (Ohio App 1 Dist.), 2001 -Ohio- 4019 (Cite as: Not Reported in N.E.2d)

sought legal advice about how she might expedite Felson v. GrudzinskOhio App. 1 Dist.,2001. her return to the residency program. CHECK OHIO SUPREME COURT RULES FOR REPORTING OF OPINIONS AND WEIGHT OF LEGAL AUTHORITY. FN1. See Grudzinski v. Medical College of Court of Appeals of Ohio,First District, Hamilton Ohio (Apr. 12, 2000), Lucas County App. County. No. L-00-1098, unreported. Stephen R. FELSON, Plaintiff-Appellant, V. Grudzinski contacted the plaintiff-appellant, Christina B. GRUDZINSKI, M.D., attorney Stephen R. Felson. Felson advised Defendant-Appellee. Grudzinski that the Sixth Appellate District had no No. C-010467. jurisdiction to entertain the appeal or to stay the preliminary injunction since there was no Decided Dec. 19, 2001. appealable order. He then offered to draft and to file on her behalf a writ of mandamus with the Ohio Supreme Court espousing this theory. Grudzinski *1 This appeal, considered on the accelerated agreed. But, in fact, the Revised Code had been calendar under App.R. 11.1(E) and Loc.R. 12, is amended in 1998 to expressly provide that a not controlling authority except as provided in prelintinary injunction was indeed an appealable S. Ct. R.Rep.Op. 2(G)(1). order and thus was subject to appellate review.FNZ

Defendant-appellee Christina B. Grudzinski, M.D., was "permanently suspended" from a residency FN2. See R.C. 2505.02(B)(4). program at the Medical College of Ohio ("MCO"). She successfully sued for reinstatement on the When Grudzinski discovered that Felson's advice ground that she had been denied due process of law. had been erroneous, she requested that he cease But the Sixth Appellate District stayed the trial working on her behalf. But Felson had completed court's preliminary injunction against Grudzinski's the work and sought payment of $1501.50. permanent suspension from the residency program Grudzinski refused to pay and Felson sued. pending MCO's appeal. Thus, until the court of appeals raled on the merits of MCO's appeal, or The trial court entered judgment for Grudzinski and until it lifted the stay, Grudzinski was prevented issued findings of fact and conclusions of law. The from participating in the residency program. court concluded that Grudzinski and Felson had formed a contract, but that there had been a failure Ultimately, the Sixth Appellate District accelerated of consideration because the proposed writ of its consideration of the merits of MCO's appeal and mandamus could not have obtained the result affirmed the judgment of the trial courtP41 But, Grudzinski desired. Felson now appeals from the prior to the expeditious appellate review, court's judgment and raises two assignments of Grudzinski was concertred that, despite her success error. He argues that his advice that Grudzinski on the merits in the trial court, the stay of that should seek a writ of mandamus from the Ohio court's judgment and the delay on appeal would Supreme Court was appropriate, and that he should adversely affect her completion of the residency have been entitled to charge Grudzinski for the program. So, even though Grudinski had retained assistance he had received from a Columbus counsel to represent her in MCO's appeal, she also attomey, even though that attomey had not billed

(D 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works.

024 Not Reported in N.E.2d Page 2

Not Reported in N,E.2d, 2001 WL 1887701 (Ohio App. 1 Dist.), 2001 -Ohio- 4019 (Cite as: Not Reported in N.E.2d) either Grudzinski or Felson.

Because Felson has not included a transcript of the trial court's proceedings, the parties agree that we must accept the court's fmdings of fact. Accepting these findings, we find no error in the court's conclusions of law and overrule botlt of Felson's assignments of error.

*2 Therefore, the judgment of the trial court is affnmed.

Further, a certified copy of this Judgment Entry shall constitute the mandate to be sent to the trial court under App.R. 27. Costs shall be taxed under App.R. 24.

GORMAN, P.J., HILDEBRANDT and PAINTER, JJ. Ohio App. 1 Dist.,2001. Felson v. Grudzinsk Not Reported in N.E.2d, 2001 WL 1887701 (Ohio App. 1 Dist.), 2001 -Ohio- 4019

END OF DOCUMENT

© 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works.

025 West?aw.

Not Reported in N.E.2d Page 1 Not Reported in N.E.2d, 2003 WL 23096024 (Ohio App. 8 Dist.), 2003 -Ohio- 7239 (Cite as: Not Reported in N.E.2d)

P Colleen Conway Cooney, J., concurred in part and Kelley & Ferraro Asbestos v. Amchem Products, dissented in part with opinion. Inc.Ohio App. 8 Dist.,2003. West Headnotes CHECK OHIO SUPREME COURT RULES FOR [1] Compromise and Settlement 89 0^21 REPORTING OF OPINIONS AND WEIGHT OF LEGAL AUTHORITY. 89 Compromise and Settlement Court of Appeals of Ohio,Eighth District, Cuyahoga 891 In General County. 89k21 k. Enforcement. Most Cited Cases In re All KELLEY & FERRARO ASBESTOS, Trial court could not order consortium of Plaintiff-Appellee asbestos-related companies to pay law firm, which V. represented claimants in asbestos litigation, AMCHEM PRODUCTS, INC., et al., damages plus interest pursuant to settlement Defendants-Appellants. agreement without identifying the claimants for No. 82424. whom it entered judgment, where payment was contingent on firm providing certain documentation Decided Dec. 31, 2003. concerning each claimant.

Background: Law firm, who represented several ]2] Compromise and Settlement 89 C^13 asbestos plaintiffs in action against asbestos manufacturers and distributors, sought to enforce 89 Compromise and Settlement settlement agreement entered into with a consortium 891 In General of asbestos-related companies. The Court of 89k10 Construction of Agreement Common Pleas, Cuyahoga County, No. SD-073958, 89k 13 k. Conditions. Most Cited Cases entered judgment for law firm. Consortium filed Court of Appeals would not micro-litigate two separate appeals. settlement agreement in asbestos litigation by detemilning whether conditions, upon which payment to claimants was contingent under Holdings: After the first opinion was rendered, 153 settlement agreement, were sufficiently met; Ohio App.3d 458, the Court of Appeals, Sean C. purpose of settlement to reduce litigation costs Gallagher, J., held that: would be lost, if Court addressed such issues.

(1) trial court could not order consortium to pay law firm damages plus interest pursuant to settlement Civil appeal from Common Pleas Court, Case No. agreement without identifying the claimants for SD-073958. whom it entered judgment, and Michael V. Kelley, Esq., Kelley & Ferraro, LLP, (2) Court of Appeals would not micro-litigate Cleveland, OH, for plaintiff-appellee, Kelley & whether settlement conditions were met. Ferraro cases. Eric H. Zagrans, Esq., The Zagrans Law Firm, Elyria, OH, Jeffrey M. Embleton, Esq., Eli Manos, Esq., Samuel R. Martillotta, Esq., Mansour, Gavin, Affumed in part, reversed in part, and remanded. Gerlack & Manos, Cleveland, OH, David P. Huitema, Esq., Michael K. Isenman, Esq., William F. Sheehan, Esq., Richard M. Wyner, Esq., Shea &

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026 Not Reported in N.E.2d Page 2

Not Reported in N.E.2d, 2003 WL 23096024 (Ohio App. 8 Dist.), 2003 -Ohio- 7239 (Cite as: Not Reported in N.E.2d)

Gardner, , DC, Ronald B. Rubin, Esq., {¶ 5} Amchem concedes that this appeal raises Rubin & Rubin, Chartered, Rockville, MD, for two issues in common with the previous appeal, " defendants-appellants, Amchem Products, Inc., et al. namely (a) whether the trial court erred in ignoring Lawrence H. Glanzer, Esq., Frank J. Santoro, Esq., the Settlement Agreement's explicit, unambiguous Marcus, Santoro & Kozak, P.C., Chesapeake, VA, command that 'each CCR member company shall for defendant-appellant, C.E. Thurston & Sons, Inc. be liable under this Settlement Agreement only for Michael A. Stodgill, Esq., Rubin & Rubin, its individual share o' the settlement, and (b) Rockville, MD, for defendant-appellant, Pfizer Inc. whether the trial court exceeded its jurisdiction by SEAN C. GALLAGHER, J. entering judgment for individuals with no case *1 {¶ 1} Amchem Products, Inc., et al. ("Amchem" pending in Cuyahoga County, or against companies ), appeals the decision of the Cuyahoga County in cases in which they were not sued and served." Court of Common Pleas ordering it and other members of a consortium of asbestos-related {¶ 6} In addition to those two issues already companies, known collectively as The Center for addressed in the previous opinion of this court, Claims Resolution ("CCR"), to pay to appellee Amchem raises a unique issue relating to the Kelley and Ferraro ("K & F") $9,750,181 plus qualification of claimants seeking to be interest as its regular installment under an compensated under the agreement. Amchem agreement between the parties. Finding error in the advances three assignments of error for our review. proceedings below, we affirm in part, reverse in part and remand. {¶ 7} "I. The trial court misconstrued the contract in holding the appellant companies jointly and {¶ 2} K & F represented 15,000 asbestos plaintiffs severally liable." who had sued various asbestos manufacturers and distributors in Cuyahoga County and other {¶ 8} This assigmnent of error represents one of jurisdictions. On behalf of these plaintiffs, K & F the two issues that Amchem concedes is identical to entered into an agreement with the CCR to settle that presented in the previous appeal. Id. In the these plaintiffs' claims against CCR's members. instant case, Amchem again argues that the trial court's finding of joint liability was error. (13) After the signing of that agreement, disputes arose between the parties regarding their (¶ 9) Amchem again raises questions regarding performance under the agreement. K & F filed the CCR's joint and several liability under the various motions to enforce the settlement agreement agreement; that issue, however, has been resolved when the CCR failed to make full payments as by this court and we are bound to follow that scheduled under the agreement. The CCR attributed decision. Id. the deficiencies to the failure of certain members to pay their share of the scheduled installment. The *2 {¶ 10} Following a detailed analysis of the trial court entered judgment in favor of the plaintiffs parties' agreement and appropriate case law, we as to each of those motions. The CCR then appealed overruled this identical assignment of error in our the trial court's decision on each of those motions. opinion in the previous case. Id. In that prior case, Those appeals were consolidated and resulted in a we held the following: recent opinion of this court, In re: All Kelley & "In our effort to harmonize and to give Ferraro Asbestos Cases, 153 Ohio App.3d 458, reasonable effect to all provisions in the parties' 2003-Ohio-3936. agreement, we have concluded the first sentence in Paragraph 13 of the Settlement Agreement, {¶ 4} This appeal relates to the December 2002 read in its entirety and in conjunction with other installment under that same agreement and involves settlement provisions, imposes joint and several the same parties. This appeal was filed prior to the liability on the CCR members. Instead of release of the opinion relating to the previous reading this sentence as defining the members' appeal. liability to the plaintiffs, as the CCR members

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027 Not Reported in N.E.2d Page 3 Not Reported in N.E.2d, 2003 WL 23096024 (Ohio App. 8 Dist), 2003 -Ohio- 7239 (Cite as: Not Reported in N.E.2d)

propose, we read this sentence as defining the memorandum in opposition claiming that no members' liability vis-a-vis each other. The CCR payment was due since no qualifying claimants members could have easily made themselves ' were presented to them by K & F. severally' bound to the plaintiffs by using that magic word, but they did not." Id. {¶ 16} The trial court held a hearing on January 6, 2003. At that hearing, K & F produced an affidavit {¶ 11) In accordance with that decision, we of one of its employees stating that 2,634 "claims overrule this assignnrent of error. were subniitted to the CCR for payment." The CCR immediately undertook a review of the status of [1] {¶ 12} "II. The trial court erred in failing to these 2,634 potential claimants. Two days after the identify the claimants for whom it entered hearing, the CCR submitted a supplemental judgment, and in sunnnarily resolving disputed fact memorandum informing the court that most, if not issues conceming the eligibility of claimants for all, of the 2,634 potential claimants had either (1) payment." been included in a prior installment group, (2) subnutted inadequate or defective documentation of {¶ 13} Amchem argues here that the trial court's their claims to the CCR, (3) not yet retumed a order that the CCR pay $9,750,181 plus interest properly executed release, or (4) failed to submit ignores the fact that very few of the 15,000 any documentation to the CCR at all. claimants covered by the parties' settlement agreement have been qualified in accordance with *3 {¶ 17) The day the CCR's supplemental the terms of the agreement. memorandum was filed, the trial court granted K & F's eighth motion to enforce the settlement {¶ 14} The parties' settlement agreement provides agreement and ordered the CCR to make its that no claimant may be paid until he or she December 2002 installment payment of $9,750,181 provides, and the CCR has reviewed and approved, plus interest. (1) medical evidence of injury and proof of exposure to asbestos-containing products, (2) proof {¶ 18} In a later motion for relief from judgment, that the claim is not barred by the applicable statute the CCR included a breakdown of the 2,634 of liniitations, and (3) a properly executed release claimants K & F alleged had qualified for payment of the plaintiffs claims. In the event that a potential under the terms of the settlement agreement.FNt claimant does not satisfy these requirements, "that That breakdown was as follows: Plaintiff will be removed from the settlement, and the total settlement figure will be reduced by the allocated amount set forth for that Plaintiff ***." FN1. The facts outlined in this opinion are Finally, the agreement requires potential claimants taken from pleadings submitted to the to submit this information to the CCR 120 days lower court by both parties and the before the date the installment is due. appellants' brief. Appellee, Kelley & Ferraro, did not submit a brief as part of {¶ 15} As earlier installments came due, the CCR this appeal; as such, we have no sent to K & F a list of the claimants who had documented response to the errors claimed. subntitted qualifying documentation and releases and thus were eligible for payment. K & F failed to " * * * 635 * * * were included in [previous submit documentation for any qualifying claimants installments] *** Another 23 * * * were not for the December 2002 installment. As a result, parties to the Settlement Agreement * * * 1,178 * Amchem and the CCR's other members did not * * have not yet satisfied the Settlement make the December 2002 installment payment. Agreement's requirements for submission of After not receiving the December 2002 instalhnent, medical and exposure documentation ***. 653 * K & F filed its eighth motion to enforce the * * have failed to return properly executed settlement agreement. Amchem and the CCR filed a releases. * * * The CCR has no file for 129 of the

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028 Not Reported in N.E.2d Page 4

Not Reported in N.E.2d, 2003 WL 23096024 (Ohio App. 8 Dist.), 2003 -Ohio- 7239 (Cite as: Not Reported in N.E.2d)

2,634 Claimants. * * * That leaves only 10 {¶ 24} K & F has an obligation to submit the Claimants who have provided satisfactory required documentation for each claimant prior to documentation of their claims and properly being entitled to payment of the scheduled executed releases, and thus are eligible for instalhnent. Amchem and the CCR have an payment. Only five of those Claimants filed suit obligation to pay the claim for each claimant upon in Cuyahoga County; the rest have lawsuits receiving the qualifying documents. Submission of pending in other jurisdictions." the qualification items from the settlement {¶ 19} Amchem argues that the correct payment agreement listed above creates a clear presumption for the five claimants who were eligible under the of eligibility for payment for that particular terms of the agreement was $27,000 and not the claimant. For example, "(1) medical evidence of $9,750,181 plus interest that the trial court ordered. injury and proof of exposure to asbestos-containing products" need only be the medical industry {¶ 20} Our standard of review of this case is de standard for such evidence. This general prohibition novo. We perform a de novo review because the on nucro-litigation extends to disputes over the interpretation of written contracts is a question of strength or value of submitted documentation under law. Sherman R. Smoot Co. of Ohio v. Ohio Dept. the agreement. The form of the evidence to support of Adm. Serv. (2000), 136 Ohio App.3d 166, 172, the qualification items is not restricted other than as 736 N.E.2d 69. specified in the agreement. Moreover, there is no requirement that the trial court hold a hearing to {¶ 21) It is clear from the terms of the settlement determine every dispute that may arise. This agreement that claimants must subnrit a nilnimum of assignment of error is, nevertheless, sustained. documentation to qualify for compensation. In addition, the amount the CCR is required to pay *4 {¶ 25} "III. The trial court exceeded its corresponds to the number of qualified claimants. jurisdiction." The agreement states that "[t]he CCR and [K & F] agree that if appropriate documentation is not {¶ 26} This assignment of enor represents the provided for any Plaintiff at the appropriate time, second of the two issues that Amchem concedes is then that Plaintiff will be removed from the identical to that presented in the previous appeal. In processing queue * * * and another Plaintiff * * * re: All Kelley & Ferraro Asbestos Cases, supra. will be substituted in place of the non-complying Following a detailed analysis of the parties' Plaintiff. If no Plaintiff is substituted, the amount agreement and appropriate case law, we overruled allocated to that Plaintiffs Payment Group shall be this identical assignment of error in the previous reduced by the amount which would then have been case. hi that prior decision we held: allocated to that Plaintiff * * *." "The record thus indicates the CCR members failed to challenge the court's jurisdiction at {¶ 22} Unless the proper documentation is their first appearance in this case; instead they submitted, the express documentation and advanced arguments addressing the merits of the qualification requirements of the settlement case in an effort to have the court adjudicate agreement would be rendered moot. their dispute with K & F in their favor. Given this state of record, we conclude the CCR [2] {¶ 23} However, it is neither the trial court's members' participation was sufficient to duty, nor the parties' right, to micro-litigate this constitute a voluntary appearance and settlement agreement. The settlement agreement accordingly a waiver of any jurisdictional claim. was entered into by both parties as a means of Having utilized the service of the court with a avoiding the perceived risks and costs of litigation. view to a resolution of the dispute, the CCR The settlement agreement is rendered useless if the members cannot now be heard to complain of result is merely endless filings and hearings the court's lack of jurisdiction." Id. regarding the enforcement of the various sections of the agreement. {¶ 27} In accordance with that decision, this

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029 Not Reported in N.E.2d Page 5

Not Reported in N.E.2d, 2003 WL 23096024 (Ohio App. 8 Dist.), 2003 -Ohio- 7239 (Cite as: Not Reported in N.E.2d) assignment of error is overruled. App.R. 22(E). See, also, S.Ct.Prac.R. II, Section 2(A)(1). {¶ 28} Judgment affirmed in part, reversed in part and remanded to the trial court for proceedings Ohio App. 8 Dist.,2003. consistent with this opinion. Kelley & Ferraro Asbestos v. Amchem Products, Inc. This cause is affnmed in part, reversed in part and Not Reported in N.E.2d, 2003 WL 23096024 (Ohio remanded to the lower court for further proceedings App. 8 Dist.), 2003 -Ohio- 7239 consistent with this opinion. END OF DOCUMENT It is ordered that appellants and appellee share the costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this court directing the Cuyahoga County Conunon Pleas Court to carry this judgment into execution.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.

ANNE L. KILBANE, P.J., concurs. COLLEEN CONWAY COONEY, J., concurring in part and dissenting in part.COLLEEN CONWAY COONEY, J., concurring in part and dissenting in part. {¶ 29} I respectfully dissent from the majority's treatment of the first assignment of error for the same reasons I set forth in my dissent in the prior appeal, In re: All Kelley & Ferraro Asbestos Cases, 153 Ohio App.3d 458, 2003-Ohio-3936.

{¶ 30} However, I agree that the instant case requires reversal for an evidentiary hearing.

N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 22. This decision will be joumalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the joumalization of this court's announcement of decision by the clerk per

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030 vuestlaw.

Not Reported in F.Supp.2d Page 1

Not Reported in F.Supp.2d, 2002 WL 32151574 (E.D.Pa.) (Cite as: Not Reported in F.Supp.2d)

H brought on behalf of individuals who are In re Asbestos ProductsE.D.Pa. 2002.Only the asymptomatic as to an asbestos-related illness and Westlaw citation is currently available. may not suffer any symptoms in the future. Filing United States District Court, E.D. Pennsylvania. fees are paid, service costs incurred, and defense In re: ASBESTOS PRODUCTS, Liability fifes are opened and processed. Substantial Litigation (No. VI) transaction costs are expended and therefore Civil Action No. MDL 875 (Including Mardoc, unavailable for compensation to truly ascertained Fela, and Tireworker Cases) asbestos victims.

January 16, 2002. The Court has the responsibility to administratively Verdict and Settlement manage these cases so as to protect the rights of all of the parties, yet preserve and maintain any funds Administrative Order No. 8 available for compensation to victinvs.

*1 THE COURT, has previously received the THE COURT FINDS that the filing of mass Motion For Case Management Order Conceming screening cases is tantamount to a race to the Mass Litigation Screenings, and has held a hearing courthouse and has the effect of depleting funds, thereon and reviewed the briefs and conunents from some already stretched to the limit, which would counsel regarding the issue. The Court notes that a otherwise be available for compensation to similar situation regarding the massive MARDOC deserving plaintiffs. filings was resolved by an adniinistrative order dismissing those cases without prejudice and tolling IT IS THEREFORE THE ORDER OF THIS the applicable statutes of limitations while retaining COURT: those actions in a special active status category. The 1. Allnon-malignant, asbestosreiated, Court feels that this adntinistrative process has personal-injurycasesassignedtoMDL 875 which worked well with the Court's continued supervision were initiated through a mass screening shall be as well as counsel monitoring the cases that become subject to administrative dismissal without ready for trial or disposition. prejudice and with the tolling of all applicable statutes of lintitations. A dismissal order may be Priority will be given to the malignancy and other prompted by motion of any party and, upon request, serious health cases over the asymptomatic claims. shall be subject to a hearing at which time the Court may receive evidence that such case does or does Furthermore, the position of the moving parties, that not qualify for adnilnistrative dismissal hereunder. the screening cases have been filed without a 2. Once a case is adniinistratively dismissed, the doctor-patient medical report setting forth an case will remain active for the Court to continue to asbestos related disease, has not been refuted. The entertain settlement motions and orders, motions for basis of each filing, according to the evidence of the amendments to the pleadings, substitutions, and moving parties, is a report to the attorney from the other routine matters not requiring a formal hearing. screening company which states that the potential *2 3. Any party may request reinstatement to active plaintiff has an x-ray reading 'consistent with' an status of a case by filing with the Court a request for asbestos related disease. Because this report may set reinstatement together with an affidavit setting forth in motion the running of any applicable statutes of the facts that qualify the case for active processing. limitations, a suit is then conrmenced without The motion for reinstatement shall be served by further verification. Oftentimes these suits are mail (known counsel of record for a particular

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031 Not Reported in F.Supp.2d Page 2

Not Reported in F.Supp.2d, 2002 WL 32151574 (E.D.Pa.) (Cite as: Not Reported in F.Supp.2d) defendant shall suffice) upon all parties (whether previously served or not) and any party may within ten (10) days request a hearing on the motion. The burden at any hearing to reinstate shall be upon the plaintiff to show some evidence of asbestos exposure and evidence of an asbestos-related disease. Exposure to specific products shall not be a requirement for reinstatement. 4. Following reinstatement, counsel shall have thirty (30) days to complete initial service of process and answers will be due twenty (20) days following service.

The Court encourages the parties to work informally upon discovery and settlement of these cases during any period of administrative disnussal and will entertain necessary discovery motions to facilitate the process. The Court will also be available to convene all the necessary parties and to facilitate the progress of the cases that are ready for early settlement decisions, setting of trial dates, and/or remand if desired. BY THE COURT -, charles R. Weiner, S.J.

Date: 1/14/02

E.D.Pa. 2002. In re: ASBESTOS PRODUCTS, Liability Litigation (No. VI) Not Reported in F.Supp.2d, 2002 WL 32151574 (E.D.Pa.)

END OF DOCUMENT

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032 Westlaw.

Not Reported in F.Supp.2d Page I Not Reported in F.Supp.2d, 2006 WL 692292 (D.Minn.) (Cite as: Not Reported in F.Supp.2d)

H to a "self-critical analysis privilege." Plaintiffs have Briefs and Other Related Documents further asserted that no such privilege is recognized In re Guidant Defibrillators Products Liability in the Eighth Circuit; nor is any such privilege LitigationD.Minn.,2006.Only the Westlaw citation applicable to the Independent Panel documents in is currently available. question. United States District Court,D. . In re: GUIDANT DEFIBRILLATORS Defendants acknowledge that they established the PRODUCTS LIABILITY LITIGATION hidependent Panel to recommend guidelines about No. MDL 05-1708 DWFAJB. the communication of information regarding life-sustaining implantable devices to physicians March 16, 2006. and patients. Presently, counsel for Defendants have identified approximately 70 documents, consisting of 2,853 pages, that Defendants provided to the MEMORANDUM, OPINION, AND PRETRIAL Independent Panel. These documents, according to ORDER NO. 7 the Defendants, consist of many of the same FRANK, J. documents that Defendants are producing as *1 This Document Relates to All Actions responsive to Plaintiffs' other document requests. In addition, Defendants assert that there are many other documents that they have provided to the 1. INTRODUCTION Independent Panel that have not been reviewed by counsel and are not ready to be produced. This matter is before the Court on Plaintiffs' Motion to Compel Defendants' Production of Documents Plaintiffs' Request No. 24 seeks: "Any and all Relating to the Independent Panel. The motion is documents and connnunications that refer, relate or opposed in substantial part by Defendants. pertain to the Independent Panel that was convened Plaintiffs' Lead Counsel Committee has submitted a to consider information relating to the Devices, memorandum in support of their motion. Counsel including, but not limited to, all documents for Defendants have submitted a memorandum in provided to the Independent Panel and any minutes opposition to Plaintiffs' motion. of meeting of the Independent Panel." In addition to the self-critical analysis privilege, Defendants assert that Plaintiffs' request is overly broad, unduly II.BACKGROUND burdensome, and that it seeks infomiation that is neither relevant nor calculated to lead to the Plaintiffs have requested that the Court order discovery of admissible evidence because it is not Defendants to produce documents they have limited to the recall of failed mechanisms and provided to the Independent Panel (the " relevant devices at issue in the litigation before the Independent Panel" or "Panel") of experts that Court. Guidant Corporation ("Guidant") established in June 2005 to review issues relating to what has been Plaintiffs assert that on June 22, 2005, shortly after described as the same problems giving rise to the Guidant's first recall of a Cardiac device, Guidant MDL Plaintiffs' claims, along with any related established an independent panel of experts "to documents or communications. Plaintiffs assert, in recommend guidelines for when to disseminate part, that Defendants' only objection to the inforniation to physicians and patients about production of these materials is that they are subject life-sustaining implantable devices. Plaintiffs

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033 Not Reported in F.Supp.2d Page 2 Not Reported in F.Supp.2d, 2006 WL 692292 (D.Minn.) (Cite as: Not Reported in F.Supp.2d) supplied a press release to the Court entitled in this case and the asserted purpose for the Guidant Requests Independent Panel to Independent Panel establishes that the purpose of Recommend Physician and Patient Communication the Panel was not evaluative for the Defendants. Guidelines (June 22, 2005), available at Rather, the Defendants' press release itself stated, " http://www.guid the industry and the public have the opportunity to ant.com/news/500/web release/nr000553.shtml. learn from the experience that Guidant and its Guidant asserts that it started the Panel to ensure patients have been through." Thus, even if the Court the industry and the public have the opportunity to were to conclude that there was some type of leam from the experience that Guidant and its self-critical analysis privilege alive and well in the patients have been through." According to the press Eighth Circuit or this District, it would decline to release, the Panel's mission was to assess the apply such a privilege to the facts and surveillance of device problems and circumstances of the case before the Court. Such a patient/physician education with the goal of privilege would be clearly inapplicable, for the establishing industry-wide guidelines and processes reasons stated. for patient notification systems.

*2 On October 7, 2005, Plaintiffs served document B. Defendants' Objection that Plaintiffs' Request is requests, on Defendants, including a request for " Overbroad any and all documents and communications that refer, relate or pertain to the Independent Panel that Defendants' primary objection here is that Plaintiffs was convened to consider information relating to seek information that is not relevant or calculated to the devices, including, but not limited to, all lead to the discovery of adniissible evidence, and documents provided to the Independent Panel and that it is not limited to the recalled failure any minutes of meetings of the Independent Panel." mechanisms and relevant devices at issue in the According to the Plaintiffs, Defendants responded litigation before the Court. The Court has reviewed to this request by stating that they would not the briefs of both parties, and the press releases of produce the requested documents on the ground of " June 22, 2005, July 27, 2005, and August 29, 2005. self-critical analysis privilege." The Court is not suggesting that there are not others, but these are the ones the Court has reviewed. A. Self-critical Analysis Privilege The press releases stress that the Independent Panel The Court does not have to reach the issue of will first review and analyze, and then provide the whether the Eighth Circuit or the District of specific reconmiendations, to Guidant regarding Minnesota have recognized, to date, any self-critical four core issues defined in the formal charter of the analysis privilege. There is clearly a disinclination Independent Panel as follows: of the courts toward such evidentiary privileges. In • Surveillance and interpretation of law-frequency re Baycol Products Litigation, No. MDL 1431 trends among life-sustaining implantable devices (MJD/JGL 203 WL 22023449 (D.Minn. Mar. 21, that may affect patient safety and physician 2003). decisions for device management. *3 • Reassessment of benefit and risk to patients in In the present case, the Court declines to extend the light of new information about marketed devices. self-critical analysis privilege to the discovery • Device component failure analysis and estimation sought. It must be observed by the Court that in the of its frequency. situations where the privilege has been narrowly • Development of more transparent, understandable recognized, it is only where there is a and clinically useful conununication processes to self-evaluation process involved that would be physicians and patients, including triggers for curtailed to the detriment of the public interest. Any communication, timing, and novel methods of fair scrutiny of the press release by the Defendants transferring information.

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034 Not Reported in F.Supp.2d Page 3 Not Reported in F.Supp.2d, 2006 WL 692292 (D.Minn.) (Cite as; Not Reported in F.Supp.2d)

Given the nature of the allegations in the MDL reasonable in approach, given the demands on before this Court and the purpose for which the Plaintiffs and the demands on Defendants in the Independent Panel was created, the Court concludes discovery context. In other words, the Court will that Plaintiffs' requests are not overbroad because first expect the parties to work out a reasonable time they are likely to lead to the discovery of admissible line for this discovery, since the Defendants have evidence. The fact that some of the materials asserted that many of the documents have not been submitted to the Independent Panel may not relate reviewed as of yet. The Court expects both parties to each of the specific devices is not detemunative to be reasonable, as the Federal Rules of Civil of the Court's decision because it is clearly the case Procedure and the ABA Civil Discovery Standards that the policy, approach, and attitude of the contemplate. In the absence of such an agreement, Defendants towards patients and physicians with the Court will set the schedule. respect to life-sustaining implantable devices are not only probative, but may well lead to the *4 Given the fact that these documents nray be discovery of adnussible evidence as to how the provided in conjunction with some other discovery Defendants approached patients and physicians and request, the parties will have to decide whether or the general public on all devices precisely as stated not they can resolve this issue so long as it is clear by the press release. Thus, at a minimum, the to the Plaintiffs what package of information was evidence is circumstantially relevant to the issues in presented to the Independent Panel. In other words, the case. For these reasons, the Court will overrule as noted above, Plaintiffs are entitled to review all the objections of âefendants as overbroad. of the documents that were presented to the Panel so that the context and substance of the information the Defendants gave to the Panel can be understood C. Unreasonably Cumulative or Duplicative by the Plaintiffs. If that can be done in some less burdensome fashion, then the parties should utilize The Court will expect the parties to create -a. their best efforts to reach an agreement. If not, the reasonable time line to produce this information. Court wilr make the decision on this issue with However, to the extent the Plaintiffs are clearly respect to timing and the form in which these entitled to see the substance of all of the documents will be provided to Plaintiffs. information and the contents of all documents that were being submitted to the Panel, given the purpose of the creation of the Panel, the information BI. CONCLUSION is clearly not cumulative, even if it is being provided in some other context. The Plaintiffs are Based upon the presentations and submissions of entitled to see what the breadth and scope of the the parties and the Court being duly advised in the information was, based upon individual documents premises, the Court hereby enters the following: submitted and what the package of information was that was being submitted to the Panel and the purpose of the Panel. The fact that the information ORDER may be provided elsewhere does not detract from the probative value of what the Defendants chose to 1. Plaintiffs' Motion to Compel Defendants' present to the Independent Panel, given the purpose Production of Documents Relating to the for the creation of the Independent Panel. Independent Panel is GRANTED, consistent with the opinion of this Court.

D. Unduly Burdensome D.Minn.,2006. In re Guidant Defibrillators Products Liability It is the Court's view that it may well be Litigation burdensome, but not unduly burdensome, as Not Reported in F.Supp.2d, 2006 WL 692292 contemplated by the rules, as long both parties are (D.Minn.)

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035 Not Reported in F.Supp.2d Page 4 Not Reported in F.Supp.2d, 2006 WL 692292 (D.Minn.) (Cite as: Not Reported in F.Supp.2d)

Briefs and Other Related Documents (Back to top) of Bethlehem, Pennsylvania, & Tamela Ivens) (Jun. 26, 2006) Original Image of this Document (PDF) • 2006 WL 3325658 (Trial Motion, Memorandum • 2006 WL 1336835 (Trial Motion, Memorandum and Affidavit) Reply Memorandum of Law in and Affidavit) Memorandum of Law in Support of Support of Defendants' Motion for Summary Defendants' Motion for Summary Judgment on Judgment on Plaintiffs' Claims Related to the Plaintiffs' Claims Related to the Ventak Prizm 2 Dr Ventak Prizm 2 Dr Model 1861 Based on Federal Model 1861 Based on Federal Preemption (May 8, Preemption (Nov. 3, 2006) Original Image of this 2006) Document (PDF) • 2006 WL 1336833 (Trial Pleading) Plaintiffs' • 2006 WL 3327031 (Trial Motion, Memorandum Master Complaint for Personal Injury, Economic and Affidavit) Third Party Payor Plaintiffs' Loss, Third Party Payor and Medicare Secondary Memorandum in Opposition to Defendants' Motion Payor Act Claims, Including Class Actions (Apr. to Dismiss Third Party Payor Claims in the Master 24,2006) Complaint (Sep. 8, 2006) Original Image of this • 2006 WL 3327027 (Trial Pleading) Plaintiffs' Document (PDF) Master Complaint for Personal Injury, Economic • 2006 WL 3327033 (Trial Motion, Memorandum Loss, Third Party Payor and Medicare Secondary and Affidavit) Plaintiffs' Memorandum in Payor Act Claims, Including Class Actions Jury Opposition to Defendants' Motion to Dismiss the Demand (Apr. 24, 2006) Master Complaint Claims of Device Recipient • 2006 WL 1083530 (Trial Pleading) Complaint Plaintiffs (Sep. 8, 2006) Original Image of this and Jury Demand (Mar. 14, 2006) Document (PDF) • 2006 WL 845933 (Trial Motion, Memorandum • 2006 WL 3327030 (Trial Motion, Memorandum and Affidavit) Defendants' Opposition to Plaintiffs and Affidavit) Memorandum in Support of Motion for Remand (Mar. 7, 2006) Plaintiffs' Motion to Compel Production of Material • 2006 WL 845937 (Trial Motion, Memorandum from Defendants' Backup Tapes (Aug. 28, 2006) and Affidavit) Plaintiffs Brief in Support of Motion Original Image of this Document (PDF) for Remand (Mar. 7, 2006) • 2006 WL 2427367 (Trial Pleading) Amended • 2006 WL 845930 (Trial Motion, Memorandum Complaint by Adoption (Device Recipient Plaintiff) and Affidavit) Defendants' Amended Opposition to (Jul. 31, 2006) Original Image of this Document Plaintiffs Motion to Remand Case and Plaintiffs (PDF) Motion for Sanctions (Mar. 6, 2006) • 2006 WL 2579477 (Trial Pleading) Complaint by • 2006 WL 845934 (Trial Motion, Memorandum Adoption (Device Recipient Plaintiff) (Jun. 30, and Affidavit) Defendants' Opposition to Plaintiffs 2006) Original Image of this Document (PDF) Motion to Remand Case and Plaintiffs Motion for • 2006 WL 2579478 (Trial Pleading) Complaint by Sanctions (Mar. 6, 2006) Adoption (Device Recipient Plaintiff) (Jun. 30, • 2006 WL 845939 (Trial Motion, Memorandum 2006) Original Image of this Document with and Affidavit) Plaintiffs' Memorandum of Law in Appendix (PDF) Opposition to Defendants' Motion for Amended • 2006 WL 1905106 (Trial Motion, Memorandum Preservation Order (Mar. 6, 2006) and Affidavit) Memorandum of Defendant Guidant • 2006 WL 1167899 (Trial Motion, Memorandum in Support of its Motion to Dismiss the Third-Pary and Affidavit) Plaintiffs Reply to Defendants' Payer & Medicare Secondary Payer Claims in the Opposition to Plaintiffs Motion to Remand Case Master Complaint (Pennsylvania Local 1776, City (28 U.S.C. I 1442(a))(1)), Request for Sanctions (28 of Bethlehem, Pennsylvania, & Tamela Ivens) (Jun. U.S.C. I 1447(c)) (Mar. 3, 2006) 26, 2006) • 2006 WL 3327038 (Trial Deposition and • 2006 WL 3327029 (Trial Motion, Memorandum Discovery) Wright Affidavit 2 in Support of Motion and Affidavit) Memorandum of Defendant Guidant for Temporary Restraining Order, Temporary in Support of its Motion to Dismiss the Third-Pary Injunction, Permanent Injunction, and the Award of Payer & Medicare Secondary Payer Claims in the Restitution, Disgorgement and Unjust Enrichment Master Complaint (Pennsylvania Local 1776, City and for Summary Judgment (Mar. 2006) Original

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036 Not Reported in F.Supp.2d Page 5

Not Reported in F.Supp.2d, 2006 WL 692292 (D.Minn.) (Cite as: Not Reported in F.Supp.2d) hnage of this Document (PDF) Motion to Compel (2005) Original Image of this • 2006 WL 845931 (Trial Motion, Memorandum Document (PDF) and Affidavit) Defendants' Memorandum in • 2005 WL 4904033 (Verdict, Agreement and Support of their Motion for Amended Preservation Settlement) Stipulation of Dismissal with Prejudice Order (Mar. 1, 2006) (2005) Original Image of this Document (PDF) • 2006 WL 845932 (Trial Motion, Memorandum and Affidavit) Defendants' Memorandum in END OF DOCUMENT Support of their Motion for A Protective Order (Mar. 1, 2006) • 2006 WL 845942 (Trial Motion, Memorandum and Affidavit) Plaintiffs Reply Brief in Support of Remand (Feb. 27, 2006) • 2006 WL 3327034 (Trial Motion, Memorandum and Affidavit) Plaintiffs' Memorandum In Support of Motion to Compel Defendants' Production of Documents Relating to the Independent Panel (Feb. 17, 2006) Original Image of this Document (PDF) • 2006 WL 845938 (Trial Motion, Memorandum and Affidavit) Plaintiffs' Memorandum in Support of Motion to Compel Defendants' Production of Documents Relating to the Independent Panel (Feb. 17, 2006) • 2006 WL 690830 (Trial Motion, Memorandum and Affidavit) Plaintiffs Lead Counsel Committee Plan for Representative Trials under PTO 5 (Feb. 10, 2006) • 2006 WL 470326 (Trial Motion, Memorandum and Affidavit) Defendants' Reply to Plaintiffs' Memorandum of Law in Opposition to Defendants' Motion to Quash Plaintiffs' Notice of Rule 30(b)(6) Deposition: Guidant Cardiac Device Medical Advisories and Recalls (Jan. 31, 2006) • 2006 WL 211706 (Trial Motion, Memorandum and Affidavit) Defendants' Memorandum of Law in Support of their Motion to Strike Deposition Topics Set Forth in Plaintiffs' Notices of Rule 30(b)(6) Depositions (Jan. 11, 2006) • 0:05md01708 (Docket) (Nov. 08, 2005) • 2005 WL 4903277 O Affidavit of Robert L. Sheridan (2005) Original Image of this Document (PDF) • 2005 WL 4904021 (Trial Motion, Memorandum and Affidavit) Memorandum of Law in Support of Defendants' Motion for Summary Judgment on Plaintiffs' Claims Related to the Ventak Prizm 2 Dr Model 1861 Based on Federal Preemption (2005) Original Image of this Document (PDF) • 2005 WL 4904028 (Verdict, Agreement and Settlement) Stipulation Regarding Defendants'

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037 VVestlaw.

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H the following reasons, we reverse. Mahaffey v. BlackwellOhio App. 10 Dist.,2006. CHECK OHIO SUPREME COURT RULES FOR {¶ 2} In March 2006, the General Assembly REPORTING OF OPINIONS AND WEIGHT OF passed, and the Governor signed, S.B. 7, which LEGAL AUTHORITY. made changes to workers' compensation laws in Court of Appeals of Ohio,Tenth District, Franklin Ohio. On June 29, 2006, one day before the County. effective date of S.B. 7, appellees filed a Lloyd C. MAHAFFEY, et al., Plaintiffs-Appellees, referendum petition with the office of the Secretary, V. seeking to place a referendum against the enactment J. Kenneth BLACKWELL, , of a portion of S.B. 7 before Ohio voters on the et al., Defendants-Appellants. November 7, 2006 ballot. No. 06AP-963. {¶ 3} The Secretary forwarded the part-petitions Decided Oct. 11, 2006. of the referendum petition to the county boards of elections to verify that the signatures contained in the part-petitions were valid. The reports of the Appeal from the Franklin County Court of Common boards indicated that some of the signatures Pleas. submitted were not valid.

McTigue Law Group, Donald J. McTigue, and {¶ 4} Appellees filed protest actions against the Mark A. McGinnis, for appellees. boards' actions in 11 counties. Before those protest Chester, Willcox & Saxbe, LLP, Donald C. Brey, actions were resolved, on August 25, 2006, Elizabeth J. Watters, and Deborah A. Scott, for appellant Lobb, on behalf of the Secretary, issued to appellants. appellees a letter certifying "that petitioners Bricker & Eckler, LLP, Anne Marie Sferra, and submitted 120,778 valid signatures on behalf of the Maria J. Armstrong, for amici curiae Ohio proposed referendum and valid signatures from 20 Manufacturers Association, National Federation of of the 88 counties have met or exceeded 3% of the Independent Business/Ohio, Ohio Chamber of total number of votes cast for governor in the Commerce, Ohio Farm Bureau, Ohio Retail respective counties at the last gubematorial election. Merchants Association, Ohio Business Roundtable, " The letter listed the number of valid signatures for and Council of Smaller Enterprises. each of the remaining 68 counties and the number Squire, Sanders & Dempsey L.L.P., Steven M. of signatures by which the part-petitions were Loewengart, and Greta M. Keams, for amicus deficient in each of those counties. The letter then curiae Council of Smaller Enterprises. concluded: "[Appellees] will need to submit an FRENCH, J. additional 72,962 valid signatures and meet the 3% *1 {¶ 1} Defendants-appellants, Ohio Secretary of requirement in an additional 24 counties. Therefore, State J. Kenneth Blackwell (the "Secretary") and in accordance with R.C. 3519.16, your comnvttee Ohio Assistant Secretary of State Monty Lobb shall have ten additional days from the receipt of (collectively referred to as "appellants"), appeal this notification to file additional signatures with from the judgment of the Franklin County Court of this office." Common Pleas, which granted the motion for preliminary injunction filed by plaintiffs-appellees, {¶ 5} On August 29, 2006, appellees filed a Lloyd C. Mahaffey, James W. Harris, Sarah complaint and motion for temporary restraining Ogdahl, and Stephen E. Mindzak ("appellees"). For order ("TRO") and preliminary injunction in the

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trial court. In essence, appellees argued that {¶ 9} R.C. 2505.02 defines the types of orders that appellants should not have issued the August 25, may be reviewed on appeal. R.C. 2505.02(B) states, 2006 notice-of-insufficiency letter until after all the in pertinent part: protests had been resolved. They further argued An order is a fmal order that may be reviewed, that, since appellants issued the affmned, modif'ied, or reversed, with or without notice-of-insufficiency letter prematurely, the letter retrial, when it is one of the following: was invalid, and the ten-day period in which the w** conunittee could submit additional signatures and (4) An order that grants or denies a provisional correct the inefficiency had not yet begun to nm. remedy and to which both of the following apply: The court denied the motion for TRO and held a (a) The order in effect deterxnines the action with prelinilnary injunction hearing on September 14, respect to the provisional remedy and prevents a 2006. judgment in the action in favor of the appealing party with respect to the provisional remedy. (¶ 6) On September 15, 2006, before the trial (b) The appealing party would not be afforded a court had issued a decision on the motion for meaningful or effective remedy by an appeal preliminary injunction, appellees filed supplemental following fmal judgment as to all proceedings, signatures. On September 18, 2006, appellants issues, claims, and parties in the action. notified the court of appellees' supplemental filing. Later that same day, the court issued its decision, which granted appellees' motion for preliminary {¶ 10} We agree with appellants that the trial injunction. On September 26, 2006, the court issued court's preliminary injunction order meets the a preliminary injunction order. The order provided requirements of R.C. 2505.02(B)(4). As we detail that the August 25, 2006 notice-of-insufficiency below, the court's order stayed the August 25, 2006 letter "is hereby stayed pursuant to Civ.R. 65(B) letter, which declared that the petition at issue in pending fmal detertnination of this action or until this case did not contain a sufficient number of further order of the Court." The order also stated: signatures; and enjoined appellants from taking *2 * * * This Order shall not prevent [appellants] action on the letter "until further order of the Court." from certifying a sufficient number of signatures for The court issued its decision on September 18, the referendum question to be placed on the 2006, and its order on September 26, 2006. November 7, 2006 general election ballot in the event that such is deterrtiined by [appellants] from {¶ 11) The Ohio Constitution provides that the the supplemental signatures filed by the petition petition and signatures shall be presumed to be conunittee on September 15, 2006. * * * sufficient unless proven otherwise not later than 40 days before the election. See Section lg, Article II, Ohio Constitution. The 40th day before the I {¶ 7} Appellants filed a timely appeal and raise a November 7, 2006 election was September 28, single assignment of error: 2006. In the absence of appellants' letter declaring The trial court erred in issuing its September 18, the petition insufficient or other action by the 2006 "Decision and Entry Sustaining Plaintiffs' Secretary, then, appellees' petition and the Motion for Preliminary Injunction Hearing, Filed signatures contained within it were presumed valid August 29, 2006" and its September 26, 2006 after that date. Preliminary Injunction Order." {¶ 12} Ohio law further provides that a vote rejecting a law subniltted to voters pursuant to a {¶ 8} As an initial matter, we consider appellants' referendum petition may not thereafter be assertion that the trial court's September 26, 2006 invalidated "on account of the insufficiency of the preliminary injunction order is fmal and appealable. petitions by which such submission of the same was Appellees do not argue otherwise, and we agree that procured[.]" Section lg, Article B, Ohio the order is final and appealable. Constitution. Thus, if the voters reject those

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Slip Copy, 2006 WL 2885029 (Ohio App. 10 Dist.), 2006 -Ohio- 5319 (Cite as: Slip Copy) portions of S.B. 7 on the November 7, 2006 ballot {¶ 16} With some exceptions not relevant here, before appellants have fully litigated the sufficiency the Ohio Constitution reserves for the people of the of the underlying petition, the November 7, 2006 state of Ohio the power to adopt or reject, by vote at vote will stand, even if appellants are ultimately a general election, any law or section of law successful. proposed by the General Assembly. Sections 1, 1 c, Article II, Ohio Constitution. The constitution sets *3 {¶ 13} Given these circumstances, we conclude out specific requirements for approving or rejecting that, if appellants were denied an immediate appeal a law by referendum. These requirements, the from the trial court's order, appellants would be constitution provides, "shall be self-executing, denied meaningful relief altogether. Therefore, the except as herein otherwise provided. Laws may be requirements of R.C. 2505.02(B) are met, and we passed to facilitate their operation, but in no way consider appellants' assignment of error. limiting or restricting either such provisions [that is, provisions for initiative and referendum] or the {¶ 14} The standards by which a trial court must powers herein reserved." Section lg, Article II. judge a motion for preliminary injunction are well-established. A moving party is entitled to {¶ 17} The referendum petition process begins injunctive relief if that party establishes: (1) a when a comntittee of three to five people submits a substantial likelihood of prevailing on the merits; written petition signed by 1,000 electors to the (2) irreparable injury in the absence of injunctive secretary of state with the full text and summary of relief; (3) no unjustifiable harm to third parties; and the law to be referred to the voters. Once the (4) that the injunction would serve the public secretary verifies the signatures and the attorney interest. Vanguard Transp. Sys., Inc. v. Edwards general verifies the accuracy of the summary, the Transfer & Storage Co., Gen. Commodities Div. committee drafts and circulates the petition or (1996), 109 Ohio App.3d 786, 790, citing Valco part-petitions for signature. Cincinnati, Inc. v. N & D Machining Service, Inc. (1986), 24 Ohio St.3d 41. *4 {¶ 18} The constitution provides that, in order to be subntitted to the voters, the total number of {¶ 15} The standard of review on appeal from the signatures on the referendum petition or granting of injunctive relief is whether the trial part-petitions must equal at least six percent of the court abused its discretion. Prairie Twp. Bd. oJ total votes cast for the office of governor at the last Trustees v. Ross, Franklin App. No. 03AP-509, gubematorial election. In addition, the signatures 2004-Ohio-838, at ¶ 11, citing Perkins v. Village must be obtained from at least 44 of the 88 counties of Quaker City (1956), 165 Ohio St. 120, 125. " in Ohio and, from each of these 44 counties, there Injunction is an extraordinary remedy equitable in must be signatures equal to at least three percent of nature, and its issuance may not be demanded as a the total gubematorial votes cast in that county. As matter of strict right; the allowance of an injunction applied here, appellees were required to submit a rests in the sound discretion of the court and petition or part-petitions containing a total number depends on the facts and circumstances surrounding of at least 193,740 valid signatures, which the particular case[.]" Perkins, at syllabus. The term represents six percent of the total votes cast in the "abuse of discretion" connotes more than an error 2002 gubematorial election, and those signatures of law or judgment; it implies that the court's must have been obtained from at least 44 counties attitude is unreasonable, arbitrary or and, for each of those counties, must have unconscionable. Blakemore v. Blakemore (1983), 5 represented three percent of the total gubernatorial Ohio St.3d 217, 219. "Absent such a showing, this vote cast. court cannot reverse." Prairie Twp. at ¶ 11. With this standard in mind, we tum now to the {¶ 19} As for the time for filing a referendum constitutional and legislative scheme for the filing petition, the committee must file a petition with the and processing of a referendum petition. secretary of state within 90 days after the govemor has filed with the secretary the law or section of law

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to be referred. Here, appellees filed the petition or and all those part-petitions that are adjudged not part-petitions on June 29, 2006, one day prior to the properly verified shall not be included. 90-day deadline. The properly verified part-petitions, together with the report of the board, shall be returtted to the {¶ 20) Pursuant to R.C. 3519.15, once a secretary of state not less than fifty days before the referendum petition is filed with the secretary, "he election ***. The secretary of state shall notify the shall forthwith separate the pail-petitions by chairperson of the committee in charge of the counties and transmit such part-petitions to the circulation as to the sufficiency or insufficiency of boards of elections in the respective counties. The the petition and the extent of the insufficiency. several boards shall proceed at once to ascertain" If the petition is found insufficient because of an whether the signatures on the part-petitions are insufficient number of valid signatures, the valid. The boards must submit a report to the committee shall be allowed ten additional days after secretary indicating the sufficiency or insufficiency the notification by the secretary of state for the of the signatures and whether the part-petition has filing of additional signatures to the petition. been verified. Here, the Secretary transmitted the part-petitions to the boards of elections, the boards made their determinations as to the validity of the {¶ 23) The Ohio Constitution does not explicitly signatures, and the boards submitted their reports to provide for a protest process. It does, however, the Secretary. state: "The petition and signatures upon such petitions shall be presumed to be in all respects {¶ 21) Appellants' August 25, 2006 sufficient, unless not later than forty days before the notice-of-insufficiency letter reflects the results of election, it shall be otherwise proved and in such the boards' reports. As noted, appellees subnritted event ten additional days shall be allowed for the 120,778 valid signatures, and valid signatures from filing of additional signatures to such petition." 20 counties met or exceeded the three percent Section lg, Article H. requirement. Thus, based on the boards' reports, appellees' part-petitions were deficient by 72,962 (1124) Here, appellees filed protests in 11 counties total votes and short by 24 counties having and, pursuant to R.C. 3519.16, the 11 boards of signatures representing three percent of the last elections filed actions in their respective common gubernatorial vote. pleas courts. As noted, after appellees filed the protests, but before those protests were resolved, (122) As permitted by statute, appellees protested appellants issued the August 25, 2006 some of the boards' fmdings. R.C. 3519.16 provides notice-of-insufficiency letter, which advised that a circulator, the committee or an elector may appellees of the petition's deficiencies. Appellees protest a board's fmding. The protest must be in argued below, and the trial court found, however, writing and must state the reasons for the protest. " that appellants issued the notice letter prematurely. Once a protest is filed, the board shall proceed to R.C. 3519.16, the court found, requires the establish the sufficiency or insufficiency of the secretary to wait until all protest actions are signatures and of the verification of those signatures resolved before issuing the notice-of-insufficiency " in an action in the conunon pleas court in the letter and triggering the ten-day deadline for county. R.C. 3519.16 also provides, in pertinent submitting supplemental signatures. part: *5 * * * The action shall be brought within three {¶ 25) Before this court, appellants argue that the days after the protest is filed, and it shall be heard secretary need not delay issuance of a ten-day letter forthwith by a judge of that court, whose decision until after all protest actions have been resolved. In shall be certified to the board. The signatures that support, appellants direct us to the Supreme Court's are adjudged sufficient or the part-petitions that are recent opinion in State ex rel. Evans v. Blackwell, adjudged properly verified shall be included with --- Ohio St.3d ----, 2006-Ohio-4334. In Evans, the others by the board, and those found insufficient members of a committee responsible for a state

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Slip Copy, 2006 WL 2885029 (Ohio App. 10 Dist.), 2006 -Ohio- 5319 (Cite as; Slip Copy) initiative petition appealed from a judgment because the Secretary of State was required to wait denying writs of prohibition and mandamus. The for the completion of the conunon pleas court committee had filed with the secretary an initiative protest proceedings before he could transniit the petition containing over 167,000 signatures from all initiative petition to the General Assembly." Id. at ¶ 88 counties. The secretary transmitted part-petitions 26. The court reviewed the applicable to the respective boards of elections for review, and constitutional and statutory provisions, including the boards submitted their reports to the secretary, the language in Section 1g, Article II, providing that Beginning on December 21, 2005, protests were "[t]he petition and signatures upon such petitions filed challenging the sufficiency of the boards' shall be presumed to be in all respects sufficient, fmdings. Notably, in contrast to this case, the unless not later than forty days before the election, protests in Evans sought to prove that some of the it shall be otherwise proved and in such event ten signatures verified by the boards were not valid and, additional days shall be allowed for the filing of therefore, that the number of verified signatures was additional signatures to such petition." R.C. 3519.15 lower than that reported by the boards. On and 3519.16, the court noted, are laws passed to " December 28, 2005, before the pending protests facilitate the operation of Sections 1 b and lg, had been resolved, the secretary notified the Article II, of the Ohio Constitution." Evans at ¶ committee that the petition contained 117,026 valid 28. signatures and that this number was sufficient for the secretary to transmit the petition to the General {¶ 28} Tuming to its analysis of these provisions, Assembly. That same day, the secretary transmitted the court found that Evans' claim-that the secretary to the General Assembly the text and summary of lacked authority to transmit the petition to the the law proposed in the petition. general assembly before the protests were resolved-" lacks merit." Id. at ¶ 32. Instead, the court found: *6 {¶ 26} The protestor, Jacob Evans, filed a * * * Section lb, Article II of the Ohio Constitution complaint in this court for an emergency writ of does not expressly condition the Secretary's duty to prohibition or, in the altemative, for a writ of transmit the petition to the General Assembly upon mandamus against the secretary and the legislative receipt of reports after the completion of R.C. clerks. Evans argued that, by not waiting to transmit 3519.16 protest proceedings. After all, R.C. 3519.16 the proposed law to the General Assembly until sets no deadline by which an interested party must after the protests had been resolved and the boards file a protest against a statewide initiative or of elections made any necessary supplemental referendum petition. Therefore, making the reports, the secretary violated Section lb, Article II, Secretary wait for a second set of verification of the Ohio Constitution and/or usurped the role of reports from boards of elections that may never the common pleas courts in detemiining the validity arrive unreasonably fails to advance the of the signatures. Although a magistrate of this constitutional right of initiative. * * * hideed, even court detemdned that the secretary was not R.C. 3519.16, when read in pari materia with R.C. prohibited from transmitting the petition to the 3519.15, does not explicitly command the Secretary general assembly before the protests were resolved, to await the conclusion of all protest proceedings the court held that Evans was not entitled to a writ before transnritting the petition to the General of prohibition because neither the secretary nor the Assembly. * * * clerks were exercising quasi-judicial authoriry in transmitting or accepting the petition. Evans *7 Id. appealed to the Ohio Supreme Court. {¶ 291 "The Secretary of State's interpretation of {¶ 27} After disposing of Evans' claim in the pertinent constitutional and statutory mandamus and a claim in prohibition he had not provisions[,]" the court found, "is not unreasonable. raised below, the court tumed to Evans' "primary We must therefore defer to the Secretary's prohibition claim," in which he asserted that this reasonable interpretation." Id. at ¶ 34. court erred in denying a writ of prohibition "

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{¶ 30} As applied here, appellants argue, Evans electors of the state for their approval or rejection compels a fmding in this case that the Secretary's such law, section or item" once a petition, signed by interpretation of the pertinent constitutional and six percent of the electors of the state "and verified statutory provisions is not unreasonable. In other as herein provided" has been filed. As the court words, appellants' issuance of the August 25, 2006 found in Evans, Section lb of Article II siniilarly notice-of-insufficiency letter, without first waiting provides that the secretary "shall transmit" to the for the pending protests to be resolved, was general assembly a law proposed by initiative reasonable. petition once a petition, signed by three percent of the electors "and verified as herein provided" has {¶ 31) Appellees argue, however, that Evans is been filed. And, we note that Section 1 a of Article not controlling here. Evans, appellees note, dealt II also provides that the secretary "shall submit for with the power of the secretary of state to transniit a the approval or rejection of the electors" a proposed law proposed by initiative petition to the general constitutional amendment once a petition, signed by assembly under Section lb, Article II, of the Ohio ten percent of the electors of the state and "verified Constitution, not the power of the secretary to send as herein provided," is filed. Thus, Article II of the a letter of deficiency regarding a law proposed by Ohio Constitution expressly requires the secretary referendum petition under Section lg, Article II, of to act immediately-by submitting a proposed the Ohio Constitution. Section lb, requires the constitutional amendment to the voters under secretary to transmit an initiative petition to the Section la, transmitting an initiated law to the general assembly once it is "verified as herein General Assembly under Section 1 b or submitting a provided[.]" In contrast, appellees note, Section Ig, proposed approval or rejection of a law to the presumes a referendum petition and signatures upon voters under lc-upon the filing of a petition with the the petition "to be in all respects sufficient," unless " requisite number of signatures "verified as herein it shall be otherwise proved" not later than 40 days provided[.]" before the election. We fmd, however, that our beginning point is not Section lg of Article II, but *8 {¶ 34} In Cappelletti v. Celebrezze, Jr. (1979), Section 1 c of Article II. 58 Ohio St.2d 395, 396, the Supreme Court of Ohio recognized that the phrase "verified as herein (¶ 32) Section Ic, Article II, designates the provided" "is a phrase used throughout Article II of referendum power as the "second aforestated power the Constitution." That phrase, the court found, reserved by the people[.]" Section 1 c provides, in requires the secretary of state "as chief elections pertinent part: officer to first determine that the petition contains * * * When a petition, signed by six per centum of the purported signatures of [3 percent] of the the electors of the state and verified as herein electors of the state, for that requirement is provided, shall have been filed with the secretary of fundamental to the constitutional reservation of the state within ninety days after any law shall have right of initiative to the people." Id. The court then been filed by the govemor in the office of the expressly "reject[ed] relators' argument that the secretary of state, ordering that such law, section of presumption of sufficiency of the petition and its such law or any item in such law appropriating signatures, contained in Section Ig of Article II, money be submitted to the electors of the state for eliminates the further steps of determining whether their approval or rejection, the secretary of state the petition has been properly verified and shall submit to the electors of the state for their establishing the eligibility of the signers as electors." approval or rejection such law, section or item, in Id. at 396-397. Rather, "[v]erification and the the manner herein provided, at the next succeeding deternvnation of the status of the signers can best regular or general election * * *. be, and is by statute to be, performed by sending the petitions * * * to the county boards of election to be viewed together with the records there kept for the {¶ 33} In short, Section Ic of Article II provides purpose of assisting the Secretary of State in that the secretary of state "shall subntit to the arriving at his verification of the signatures and his

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043 Slip Copy Page 7 Slip Copy, 2006 WL 2885029 (Ohio App. 10 Dist.), 2006 -Ohio- 5319 (Cite as: Slip Copy) determination of the qualifications as elector of the *9 {¶ 381 We acknowledge, as appellees argue, individual resident signers." Id. at 397. that R.C. 3519.16 appears to provide a straightforward process for the filing of protests: a {¶ 35} In short, as used throughout Article II, the protestor files a protest with a board of elections; phrase "verified as herein provided" refers to the the board files an action in common pleas court secretary's initial verification, as well as the boards' within three days; the court hears the action " initial reports, whether used in Section la, lb or lc forthwith" and certifies its decision to the board; the of Article II. This language is not unique to Section board submits a new report to the secretary no later lb, and we reject appellees' attempt to distinguish than 50 days before the election; the secretary Section 1 c, and Evans, on that basis. notifies the committee as to the sufficiency or the extent of the insufficiency of the petition; and, if the {¶ 36) We turn now to Section lg of Article II, petition is insufficient, the conmrittee is allowed ten which applies to both initiative petitions under days to submit additional signatures. As we have Section lb and referendum petitions under Section often stated, an "`unambiguous statute is to be lc. As noted, Section lg provides, in pertinent part: applied, not interpreted.' " Northfield Park Assoc. "The petition and signatures upon such petitions v. Ohio State Racing Comm., Franklin App. No. shall be presumed to be in all respects sufficient, 05-749, 2006-Ohio-3446, at ¶ 18, quoting Sears v. unless not later than forty days before the election, Weimer (1944), 143 Ohio St. 312, paragraph five of it shall be otherwise proved and in such event ten the syllabus. additional days shall be allowed for the filing of additional signatures to such petition." According to (¶ 39) Nevertheless, we conclude that the appellees, this language, along with R.C. 3519.16, Supreme Court has interpreted R.C. 3519.16 and precludes the secretary from acting until the protest found that it does not command the secretary to actions, by which the boards may "otherwise prove" await the conclusion of all protest proceedings the insufficiency of the signatures, have been before transmitting a petition to the general resolved. assembly. For this court to find in this case that R.C. 3519.16 does command the secretary to await {¶ 37} We return to Cappelletti, wherein the the conclusion of all protest proceedings before Supreme Court considered the connection between notifying a petition conunittee of a deficiency the boards' verification process and the "presumed would be inconsistent with the Evans holding and suffrcient" language in Section lg of Article II. The reasoning. While Evans involved an initiative court found: "The fact that such inquiry [by the petition under Section ]b, and this case involves a boards of elections] is contemplated by the referendum petition under Section lc, the language of the constitutionally provided applicable constitutional and statutory language at presumption is implicit in its temts, for they provide issue is precisely the same. that the presumption is subject to disproof up until 40 days before an election." Cappelletti at 397. {¶ 40} Moreover, as the Cappelletti court found, And, most importantly for our purposes here, the the boards' review itself is a method of proving or court stated: "It is evident that such disproof ntight disproving the sufficiency of the signatures. While be accomplished in various ways, but it is the petition and signatures may have been presumed accomplished most effectively by the boards of sufficient at the time of their filing, the boards' elections, which have control of the election and reports disproved their sufficiency, thus triggering registration records and poll books of those whose notice from the Secretary of the ten-day timeframe addresses have been given in connection with the for filing additional signatures under Section lg of signing, comparing the purported signatures with Article II. those enrolled in these records." Id. Thus, the board reviews alone are sufficient to disprove the {¶ 41) Finally, we address appellees' argument sufficiency of a petition and signatures under that appellants' August 25, 2006 letter was invalid Section lg. because it did not indicate "the extent of the

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044 Slip Copy Page 8 Slip Copy, 2006 WL 2885029 (Ohio App. 10 Dist.), 2006 -Ohio- 5319 (Cite as: Slip Copy)

insufficiency," as R.C. 3519.16 requires. We fmd, {¶ 43} Having sustained appellants' assignment of however, that appellants' letter did indicate the error, we reverse the September 18, 2006 decision extent of the insufficiency, at least as detenruned by of the trial court, and we lift the stay imposed on the boards of elections. The extent of the appellants' August 25, 2006 letter by the trial court's insufficiency might have changed after August 25, September 26, 2006 order. 2006, depending on the outcome of the protests pending at that time, as well as any other protests Judgment reversed. that might have followed. The possibility of subsequent change, however, does not preclude the BROWN and SADLER, JJ., concur. secretary from issuing a notice-of-insufficiency Ohio App. 10 Dist.,2006. letter, nor does it invalidate such a letter. As the Mahaffey v. Blackwell court found in Evans, R.C. 3519.16 "sets no Slip Copy, 2006 WL 2885029 (Ohio App. 10 deadline by which an interested party must file a Dist.), 2006 -Ohio- 5319 protest against a statewide initiative or referendum petition. Therefore, making the Secretary wait for a END OF DOCUMENT second set of verification reports from boards of elections that may never arrive unreasonably fails to advance the constitutional right of initiative." Evans at ¶ 32. We likewise find that making the secretary wait for a second set of verification reports unreasonably fails to advance the constitutional right of referendum.

*10 (142) In the end, based on the plain language of Article II and the Supreme Court's interpretation of Article II in Cappelletti, we fmd that the reports of the boards of elections "otherwise proved" that the referendum petition at issue here was insufficient, thus triggering the secretary's letter, which gives notice of the ten-day timeframe for filing supplemental signatures under Section lg of Article H. In order to read R.C. 3519.16 in pari materia with Section lg, and consistent with the Supreme Court's interpretation of R.C. 3519.16 in Evans, we fmd that the secretary need not wait for protest actions filed under R.C. 3519.16 to be resolved before certifying the number of valid signatures contained on part-petitions, certifying that a referendum petition is insufficient for placement on the ballot, and notifying the petition committee that it may file supplemental signatures to correct the insufficiency within ten days. The trial court having come to a contrary conclusion in detennining that appellants were not likely to succeed on the merits of their appeal, we find that the trial court abused its discretion when it granted appellees' motion for preliminary injunction and issued its preliminary injunction order. Therefore, we sustain appellants' assignment of error.

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045 West1_aw.

Not Reported in N.E.2d Page 1 Not Reported in N.E.2d, 2005 WL 742502 (Ohio App 2 Dist.), 2005 -Ohio- 1592 (Cite as: Not Reported in N.E.2d)

N 410II(D) Confidential Relations and Mays v. DunawayOhio App. 2 Dist.,2005. Privileged Communications CHECK OHIO SUPREME COURT RULES FOR 410k197 Communications to or Advice by REPORTING OF OPINIONS AND WEIGHT OF Attomey or Counsel LEGAL AUTHORITY. 410k199 Relation of Attorney and Court of Appeals of Ohio, Second District, Client Montgomery County. 410k199(2) k. Parties and Interests Douglas M. MAYS Plaintiff-Appellant Represented by Attontey. Most Cited Cases v. Attorney hired by prospective purchaser of real Thelma M. DUNAWAY, et al. property to pursue rezoning of property, upon Defendants-Appellees which sale was contingent, also had attomey-client No. 20717. relationship with vendor, for purposes of vendor's ability to assert attomey-client privilege in April 1, 2005. subsequent breach of contract action between vendor and purchaser, even though vendor never Background: Prospective purchaser of real met attorney; vendor signed verified complaint property brought breach of contract action against prepared by attomey that instituted administrative vendor, arising out of vendor's agreement to sell the appeal of the denial of rezoning application by property to someone else. The Court of Common board of zoning appeals (BZA), attorney held Pleas, Montgomery County, No. 00CV3939, denied himself out to BZA and court as representing both purchaser's motion to quash subpoena for the vendor's and purchaser's interests, and vendor could deposition of attorney hired by purchaser to pursue reasonably expect attomey to advance their joint rezoning of the property. Purchaser appealed. interests. R.C. § 2317.02(A), .021.

[21 Witnesses 410 ^199(2) Holdings: The Court of Appeals, Grady, J., held that: 410 Witnesses 41011 Competency (1) attomey also had attomey-client relationship 410II(D) Confidential Relations and with vendor, and Privileged Connnunications 410k197 Conununications to or Advice by (2) attorney could testify as to communications, Attomey or Counsel advice, or other information exchanged with 410k199 Relation of Attomey and purchaser in the prosecution of the rezoning Client proceedings. 410k199(2) k. Parties and Interests Represented by Attomey. Most Cited Cases Attomey who represented prospective purchaser and vendor of real property in proceedings to Affumed. rezone the property could testify, in subsequent breach of contract action between vendor and [11 Witnesses 410 C^199(2) purchaser, as to conununications, advice, or other information exchanged with purchaser in the 410 Witnesses prosecution of the rezoning proceedings; 41011 Competency attorney-client privilege did not apply to matters of

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046 Not Reported in N.E.2d Page 2 Not Reported in N.E.2d, 2005 WL 742502 (Ohio App. 2 Dist.), 2005 -Ohio- 1592 (Cite as: Not Reported in N.E.2d) cotnmon interest between two clients of same court denied both, finding that Attorney Koverman's attomey. R.C. § 2317.02(A). dual representation of both Mays and Dunaway in the rezoning proceedings barred Mays from asserting the privilege to prevent Attorney (Civil Appeal from Common Pleas Court). Koverman's deposition by Dunaway in the breach of contract action. Gary J. Leppla, Dayton, Ohio, Atty. Reg. No. 0017172, for Plaintiff-Appellant. {¶ 6) Mays filed a timely notice of appeal from Gary W. Gottschlich, Dayton, Ohio, Atty. Reg. No. the trial court's order. 0003760, for Defendants-Appellees. {¶ 7} ASSIGNMENT OF ERROR OPINION GRADY, J. {¶ 8} "THE COURT BELOW ERRED WHEN IT *1 {¶ 1} Plaintiff, Douglas M. Mays, appeals from HELD THAT ATTORNEY-CLIENT PRIVILEGE an order denying a motion to quash a subpoena for DID NOT BAR THE DEFENDANT FROM deposition testimony served on his attomey in this OBTAINING TESTIMONY FROM action, John Koverman, by Defendant, Thelma M. APPELLANT'S LAWYER." Dunaway. {¶ 9} Generally, discovery orders are interlocutory {¶ 2} Mays agreed to purchase farm land from and therefore not fmal or appealable. State v. Port Dunaway. The written contract of sale was Clinton Fisheries (1984), 12 Ohio St.3d 114, 465 contingent on rezoning the land for development. N.E.2d 865. However, per R.C. 2505.02(A)(3), an Mays retained Attomey Kovemtan to prosecute the order which grants or denies discovery of privileged rezoning application before the Board of Zoning matter is a provisional remedy which is final and Appeals ("BZA"). appealable. R.C. 2505.02(B)(4).

{¶ 3} Because Dunaway owned the land, she {¶ 10) It is undisputed that an attomey-client needed to sign the consent for rezoning filed with relationship existed between Mays and Attorney the BZA. The application was denied. Mays then Koverman. The issue in this appeal is whether an directed Attorney Koverman to file an R.C. Chapter attorney-client relationship also existed between 2506 appeal to the court of common pleas. Mays Koverman and Dunaway. If so, the further issue is, presented a verified complaint Attorney Koverman when an attorney has represented two clients in the had prepared to Dunaway for her signature as owner same matter, whether communications between of the land concemed. The complaint, signed by either client and the attomey are protected by both Mays and Dunaway, was subsequently filed on attorney-client privilege from discovery by the other their behalf by Attomey Koverman. in a subsequent action between them.

{¶ 4} While the R.C. Chapter 2506 appeal was {¶ 11} R.C. 2317.02(A) states: "The following pending, Dunaway agreed to sell the land to other persons shall not testify in certain respects: An persons. Learning of this, Mays filed the underlying attorney, concerning a communication made to the breach of contract action against Dunaway. In the attomey by a client in that relation or the attorney's course of that proceeding, Dunaway caused a Civ.R. advice to the client." A client is defined for R.C. 45 subpoena to be served on Attorney Koverman, 2317.02 purposes, as "a person ... that, directly or seeking his deposition testimony pursuant to through any representative, consults an attorney for Civ.R.30(A). the purpose of retaining the attorney or securing legal advice from him in his professional capacity ... {¶ 5} Mays moved to quash the subpoena and for and who communicates, either directly or through a protective order, asserting the attomey-client an agent ... or other representative ... with such privilege. After a hearing on the motions, the trial attorney." R.C. 2317.021.

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047 Not Reported in N.E.2d Page 3 Not Reported in N.E.2d, 2005 WL 742502 (Ohio App. 2 Dist.), 2005 -Ohio- 1592 (Cite as: Not Reported in N.E.2d)

*2 [1] {¶ 12} Mays argues that Attorney owned a casualty insurance policy issued by Koverman had no independent attomey-client Nationwide. Netzley was involved in an accident, relationship with Dunaway pursuant to the R.C. and Nationwide promised to provide counsel to 2317.021 test. Mays argues that Dunaway's act of represent his as well as its own interests up to the merely signing the complaint does not constitute $20,000 lintit of his policy. The opposing party either "consulting" Attomey Koverrnan to retain made a settlement offer of $25,000 and Nationwide him as Dunaway's attonrey or securing legal advice made a counter-offer of $7,500, neither of which from him. Mays contends that Dunaway and were accepted or communicated by Nationwide's Attomey Koverman never met or communicated, attomey to Netzley. A jury subsequently returned a and that Dunaway was only nominally added to the verdict of $75,000 against Netzley. In a subsequent zoning application and R.C. Chapter 2506 action for indemnification, Netzley sought a copy of complaint to preclude any challenge to Mays' a letter that had been drafled by counsel for Netzley standing in the action commenced in the court of and Nationwide in the negligence action. Two common pleas. motions for production of the letter were denied.

{¶ 13} R.C. 2317.021 further states that "this {¶ 16} We found that both Netzley and section shall be construed as in addition to, not in Nationwide were clients of the same attorrrey. We lintitation of, other laws affording protection to held that "it can [not] be effectively argued that trial conununications under the attorney-client privilege." counsel for Nationwide was only incidentally legal Allowing for that, an attomey-client relationship counsel for the insured. Even though Nationwide may be created by implication based upon the may have only been specifically interested in the conduct of the parties and the reasonable law suit to the extent of its liability ... the legal expectations of the person seeking representation. counsel retained by Nationwide was, or should have Cuyahoga Cty. Bar Assn. v. Hardiman, (2003), 100 been, interested in the handling of the trial of the Ohio St.3d 260, 262, 798 N.E.2d 369, cause in its totality." Id. at 79, 296 N.E.2d 550. 2003-Ohio-5596. *3 {¶ 17} The facts in Netzley differ from those in {¶ 14} Hardiman, an attomey met with a the present case in important respects. Netzley was prospective client but told him that Hardiman told that Nationwide's attomey would represent his wouldn't represent him as a defendant in a forcible interests in the litigation if he elected to not retain detainer action without being paid a retainer. his own counsel. Netzley had several conferences However, Hardiman subsequently acted without a with Nationwide's attomey, attended a deposition retainer and helped the prospective client respond to with him, and reviewed the scene of the accident interrogatories, and he sent and received mail from with him. All of those demonstrate actual the opposing party on the prospective client's comrnunication and a promise of legal behalf. When neither Hardinian nor the prospective representation. In the present case there was neither client appeared for trial, the court entered judgment direct communication nor a promise of against the prospective client. The Supreme Court representation. Nevertheless, on this record, we found that Hardiman's conduct supported a believe that an attorney-client relationship existed reasonable belief on the part of both the prospective between Attortrey Koverman and Dunaway. client and the opposing party that Hardiman was the prospective client's attorttey, and held that {¶ 18} "The determination of whether an Hardiman's conduct created an attomey-client attorttey-client relationship was created turns largely relationship by implication. Id. on the reasonable belief of the prospective client." Hardiman, 100 Ohio St.3d at 262, 798 N.E.2d 369. {¶ 15} Although it pre-dates Hardiman by more Here, the trial court found that Dunaway was "more than 20 years, the rationale of Netzley v. Nationwide than along for the ride." Even though Mays initially Mut. Ins. Co. (1971), 34 Ohio App.2d 65, 296 retained Attomey Koverman, and he was N.E.2d 550 supports the same conclusion. Netzley specifically interested in representing Mays'

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048 I Not Reported in N.E.2d Page 4 Not Reported in N.E.2d, 2005 WL 742502 (Ohio App. 2 Dist.), 2005 -Ohio- 1592 (Cite as: Not Reported in N.E.2d) interests, Attomey Koverman represented WOLFF, J. and FAIN, J., concur. Dunaway's interest in selling the property as well. Ohio App. 2 Dist.,2005. Her ability to complete the sale to Mays turned Mays v. Dunaway upon Mays' ability to rezone the property. She Not Reported in N.E.2d, 2005 WL 742502 (Ohio reasonably could expect Attomey Kovemtan to App. 2 Dist.), 2005 -Ohio- 1592 advance their joint interests before both the BZA and the court of common pleas. END OF DOCUMENT

{¶ 19} Furthermore, Dunaway signed the consent for re-zoning and the verified complaint that identified Attomey Kovemtan as her attomey. Although she never spoke with him, it is difficult to find that an attomey-client relationship could not exist when Attomey Koverman held himself out to the BZA and the court as the attorney representing both Dunaway's and Mays' interest in the action. Hardiman, supra.

(1201 We fmd that Attomey Koverman's acts in representing himself as acting in Dunaway's interests, as well as acting through Mays to have Dunaway sign the consent for re-zoning and verified complaint, had the capacity to create a reasonable belief in Dunaway's mind that he was her attomey, resulting in an attorney-client relationship between the two by implication.

[2] {¶ 21} Where there is a degree of common interest between joint clients in any conununicarion, infomration, or other legal advice, the communication is not privileged in a future action between the two clients. Netzley. That common interest exception to the attorney-client privilege is linrited to aid or advice pertaining to matters wherein both clients have a conunon interest. Therefore, the common interest exception to the attorney-client privilege applies to only those communications, advice or other infomtation exchanged between Mays and Attomey Koverman in the prosecution of the rezoning proceedings before the BZA and the subsequent R.C. Chapter 2506 appeal. Attomey Kovemian may be required to testify, but conceming only those matters.

{¶ 22} The assignment of error is overruled.

*4 {¶ 23} The judgment of the trial court will be affumed.

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049 Westlaw.

Slip Copy Page 1 Slip Copy, 2006 WL 2045811 (Ohio App. 7 Dist.), 180 L.R.R.M. (BNA) 2263, 2006 -Ohio- 3782 (Cite as: Slip Copy)

{¶ 2} Ormet Mill is located on State Route 7 and Ormet Aluminum Products Corp. v. United is engaged in the operation of rolling and selling Steelworkers of Am.Ohio App. 7 Dist.,2006. aluminum. Local 5760 represents the classified CHECK OHIO SUPREME COURT RULES FOR production and maintenance employees at Ormet REPORTING OF OPINIONS AND WEIGHT OF Mill. LEGAL AUTHORITY. Court of Appeals of Ohio,Seventh District, Monroe {¶ 3} Ormet Primary is also located on State County. Route 7, approximately one to two miles from ORMET ALUMINUM MILL PRODUCTS Ormet Mill, and is engaged in the production and CORPORATION, a Corporation, and Ormet selling of primary alunnnum. Local 5724 represents Primary Aluniinum Corporation, a Corporation, the production and maintenance employees at Plaintiffs-Appellees, Ormet Primary. V. UNITED STEELWORKERS OF AMERICA, {¶ 4} On November 22, 2004, Ormet Mill and AFL-CIO, Loca15760, et al., and United Ormet Primary (collectively "Ormet") filed Steelworkers of America, AFL-CIO, Local 5724, et complaints against Local 5760 and Local 5734 al., Defendants-Appellants. (collectively "the union"); They alleged the No. 05-MO-1, 05-MO-2, 05-MO-10, 05-MO-11. following. Ormet Mill entered into a collective bargaining agreement with Local 5760 in April Decided July 20, 2006. 2001 that was to run until August 31, 2004. Ormet Primary entered into a collective bargaining agreement with Local 5724 in May 2000 that was to Civil Appeal from Common Pleas Court, Case run until July 31, 2004. However, pursuant to No.2004-264, 2004-265, Affnrned. bankruptcy proceedings, Ormet submitted proposals to modify the terms of the collective bargaining Attomey Thomas A. Smock, Attomey Michael D. agreements. Since November 22, 2004, members of Glass, Polito and Smock L.C., Pittsburgh, PA, the union have been on strike and have been ( Attorney Richard A. Yoss, Woodsfield, for engaging in unlawful mass picketing at both Ormet Plaintiffs-Appellees. plants, including having more than 100 picketers, i Attorney Timothy F. Cogan, Cassidy, Myers, Cogan blocking and impeding traffic to and from the & Voegelin, L.C., The First State Capitol, plants, and trespassing. The picketers have Wheeling, WV, Attomey Melvin P. Stein, United disrupted OrmeYs operations and dismpted public Steelworkers of America, Pittsburgh, PA, for order. Therefore, Ormet requested temporary Defendants-Appellants. restraining orders and preliminary injunctions DONOFRIO, J. restraining the picketers from engaging in numerous *1 {¶ 1} Defendants-appellants, the United activities outside of Ormet plants. Steelworkers of America Local 5760 and Local 5724, appeal from four Monroe County Common {¶ 5} The trial court issued temporary restraining Pleas Court judgments ruling on modifications to orders (TROs) prohibiting various activities and preliminary injunctions requested by regulating the picketing. plaintiffs-appellees, Ormet Alunilnum Mill Products Corporation (Ormet Mill) and Ormet Primary {¶ 6} On December 2, 2004, the court issued Aluminum Corporation (Ormet Primary). identical preliminary injunctions in both cases. They prohibited the union from doing the

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050 Slip Copy Page 2 Slip Copy, 2006 WL 2045811 (Ohio App. 7 Dist.), 180 L.R.R.M. (BNA) 2263, 2006 -Ohio- 3782 (Cite as: Slip Copy) following: (1) threatening, coercing, intimidating, be immediately dismantled and removed. assaulting, or inflicting physical harm on any persons perfomiing their duties at, or traveling to {¶ 9} The union filed timely notices of appeal and from the Ormet plants; (2) blocking or from the trial court's December 23 orders on impeding any entrance to the Ormet plants; (3) January 3, 2005. This court consolidated these two causing, condoning, instructing, or allowing more cases for purposes of this appeal. than ten pickets at any time at or near any entrance to the plants; (4) picketing at any entrance in such a {¶ 101 Several months after the union filed its manner as to leave less than sufficient space for notices of appeal, Ormet again filed motions in both ingress to and egress from the plants; (5) cases to modify the preliminary injunctions. It again trespassing onto Ormet's property at any time or for requested that the court reduce the number of any act prohibited by the order, except that the picketers pemiitted and make other modifications union is pertnitted to erect and maintain one shelter necessary to preserve the peace. Ormet requested on the side of State Route 7 opposite from the main nine specific modifications. It alleged that the entrances; (6) blocking or obstructing the public or violations of the existing preliminary injunctions private access roads to the plants or any other and the violence associated with the strike had Ormet facility, however a burn barrel placed off the increasingly escalated, which necessitated these paved portions of the access road is permitted at modifications. each entrance; (7) damaging any vehicle or other property of Ormet, its employees, or persons doing {¶ 11) The trial court held a hearing on Ormet's business with Ormet; (8) throwing rocks or other motions. It granted some of the requested objects at persons, vehicles, or equipment; (9) modifications and denied others in identical interfering with the repair or maintenance of light judgment entries as follows: fixtures and security cameras; (10) discharging any explosive devices at or near any entrance to the {¶ 12) (1) It denied Ormet's request to reduce the null, the roadways leading to the plants, or any number of picketers petnvtted at each entrance to other Onnet facilities; (11) engaging in any other no more than four. unlawful act to interfere with Ormet in the conduct of its business. {¶ 13) (2) It refused to rule on Ormet's request regarding the structures on State Route 7, other than *2 1171 Next, Ormet filed motions in both cases stating that structures on the west side of Route 7 to modify the preliminary injunctions. hi its shall remain the same, because that issue is pending motions, and supporting affidavits, Ormet alleged with this court. that violence had increased around the plants and picketers had been engaging in activities such as {¶ 14) (3) It granted Ormet's request that the throwing objects at employees' vehicles, using sling possession by picketers of various explosives, shots to shoot objects at employees and guards, projectiles, and items that could be used as weapons shining laser lights in the eyes of guards, and shall be prohibited within 1,000 yards of Ormet's otherwise damaging vehicles. Ormet asked for property. several modifications to the preliminary injunctions in order to reduce the above listed activities, {¶ 151 (4) It granted Ormet's request prohibiting including ordering the removal of any plant-side the possession or use of alcohol by picketers or shelters along State Route 7. anyone acting on their behalf within 1,000 yards of Ormet's property and added the condition that this (¶ 8) On December 23, 2004, the court denied prohibition applied to Ormet employees too. Ormet's motions to modify. However, it added another order in each case-any structures that were (¶ 16) (5) It granted in part Ormet's request that erected on the plant-side of State Route 7, including there shall be no picket activity along Route 7 any structures erected as "windbreakers," were to between the two plant entrances. It ordered that on

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051 Slip Copy Page 3 Slip Copy, 2006 WL 2045811 (Ohio App. 7 Dist.), 180 L.R.R.M. (BNA) 2263, 2006 -Ohio- 3782 (Cite as: Slip Copy) the west side of Route 7, picketers shall be provisional remedy and to which both of the permitted to traverse 150 feet to the north and 150 following apply: feet to the south of each shanty located at the plant entrances. And on the east side of Route 7, at Ormet {¶ 24} "(a) The order in effect deterniines the Primary, picketers shall be permitted to traverse action with respect to the provisional remedy and north as far as the horseshoe pit and no more than prevents a judgment in the action in favor of the 60 feet south of the plant entrance. At Ormet Mill, appealing party with respect to the provisional on the east side of Route 7, picketers shall be remedy. permitted to traverse 60 feet to the north and 60 feet to the south of the plant entrance. {¶ 25) "(b) The appealing party would not be afforded a meaningful or effective remedy by an *3 {¶ 17} (6) It denied Ormet's request that the appeal following fmal judgment as to all union's shanties should be regularly inspected by proceedings, issues, claims, and parties in the action. law enforcement for the possession of prohibited " R.C. 2505.02(B)(4). items. {¶ 26) A preliminary injunction is a provisional {¶ 18} (7) It granted Ormet's request that picketers remedy. R.C. 2505.02(A)(3). Therefore, an order are not petmitted on or across the railroad tracks denying or granting a preliminary injunction is a near the plant entrances. It also added the condition final appealable order if it satisfies the two prongs that IMAC Security personnel also are not of R.C. 2505.02(B)(4). permitted on or across the railroad tracks near the plant entrances. {¶ 27} Here, the first prong has been established. The trial court issued orders granting a preliminary {¶ 19} (8) It denied Ormet's request that shift injunction. Those orders determine the action with changes for picketers shall be either one hour prior respect to the provisional remedy and prevent to or one hour after Ormet's shift change times. judgment in favor of the union with regard to that However, it added the condition that arriving provisional remedy. See Deyerle v. City oj picketers shall not come on line earlier than 15 Perrysburg, 6th Dist. No. WD-03-063, minutes prior to the shift change and departing 2004-Ohio-4273. picketers shall leave no later than 15 minutes after the shift change. 11281 The second prong is also met. The purpose of these particular preliminary injunctions is to set {¶ 20} (9) It denied Ormefs request that there the guidelines for both picketers and Ormet shall be no walking back and forth on any paved employees to obey during the strike. These entrance to its property (impeding traffic) from 30 individuals need the picketing rules set. They would minutes before to 30 nunutes after the shift changes. not be afforded meaningful review after a fmal judgment because the rules set in place now by the {¶ 21) The union subsequently filed timely notices court affect how the picketers are able to get their of appeal on July 7, 2005. This court also message out to the public and to other employees consolidated these two cases for purposes of appeal. who choose to go to work at Ormet. By the time a permanent injunction is issued in this case, if it ever {¶ 22} Initially, we must address whether the is, the picketers' ability to get their message out may modification of a preliminary injunction in this case have already been compromised by the restrictions is a final, appealable order. In the appeals from the placed on them by the preliminary injunctions. December 23, 2004 judgment, Otmet filed motions to dismiss for lack of a fmal order. An order is final *4 {¶ 29) Thus, in this case, the issuance and when it is: modification of the preliminary injunctions is a fmal, appealable order. {¶ 23) "(4) An order that grants or denies a

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052 Slip Copy Page 4

Slip Copy, 2006 WL 2045811 (Ohio App. 7 Dist.), 180 L.R.R.M. (BNA) 2263, 2006 -Ohio- 3782 (Cite as: Slip Copy)

{¶ 30) When reviewing the grant of an injunction stands, the union only filed these notices of appeal by a trial court, this court's standard of review is from the court's December 23 judgments adding the abuse of discretion. Collins v. Moran, 7th Dist. No. condition to the already-existing preliminary 02 CA 218, 2004-Ohio-1381, at ¶ 17. Abuse of injunctions that the windbreaker on the plant side of discretion connotes more than an error of law or State Route 7 must be removed. Our review will be judgment; it implies that the trial court's attitude is limited to that narrow issue. unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 11351 Second, the union asserts that the picketers' 219, 450 N.E.2d 1140. A court has discretion in actions are protected by the First Amendment of the framing an injunction and as long as picketing is not United States Constitution, Article 1, Section 11 of forbidden entirely, the court's discretion will usually the Ohio Constitution, and 29 U.S.C. § 158(c). be upheld. Makro, Inc. v. United Food & Commercial Workers Union Local 880 (1989), 64 {¶ 36) In this case, by ordering the removal of the Ohio App.3d 439, 445, 581 N.E.2d 1143, citing plant-side windbreaker, the trial court did not limit Superior Savings Assn. v. Cleveland Council oj picketing at all. The picketers can still have a Unemployed Workers (1986), 27 Ohio App.3d 344, windbreaker across the street from the plant. And 501 N.E.2d 91. more importantly, these orders in no way restricted them from picketing, passing out handbills, {¶ 31} In its first set of appeals, the union raises displaying signs, or otherwise getting their message one assignment of error which it breaks down into out to the public or Ormet employees. The union ten issues. It states: can point to no evidence that demonstrates that the court's orders somehow restrict their right to free {¶ 32) "THE COMMON PLEAS COURT, IN speech or even restrict the right to picket at all. ORDERING THE EMPLOYEES TO REMOVE A 'WINDBREAK' PROTECTING PICKETERS IN *5 {¶ 37) Next, the union alleges that the court A LABOR DISPUTE IN THE DEAD OF should have stated its reasons for ordering the WINTER IN A VERY RURAL SETTING DID removal of the windbreaker. NOT CONSIDER ALL THE RELEVANT FACTORS AND THUS ITS DECISION TO (138) The trial court was not required to do so. REQUIRE REMOVAL AMOUNTED TO A Civ.R. 52 provides in part, "[fJindings of fact and MISAPPLICATION OF THE RELEVANT conclusions of law required by this rule and by Rule LEGAL PRINCIPLES." 41(B)(2) are unnecessary upon all other motions including those pursuant to Rule 12, Rule 55 and {¶ 33} First, the union argues that the trial court Rule 56." (Emphasis added.) A motion to modify an failed to make necessary fmdings regarding injunction falls into the category of "all other irreparable harm, inability of law enforcement to motions." Thus, the trial court was not required to protect against illegal conduct, and preemption by make such findings. Clroate v. Tranet, Inc., 12th San Diego Bldg. Trades Council, Millmen's Union, Dist. No. CA2003-11-112, 2004-Ohio-3537, at ¶ Local 2020 v. Garmon (1959), 359 U.S. 236, 79 50. Furthermore, the union never requested that the S.Ct. 773, 3 L.Ed.2d 775. trial court issue findings of fact and conclusions of law. When a party fails to request findings of fact {¶ 34} The union should have raised this argument and conclusions of law, we must presume the in an appeal from the original grant of the regularity of the trial court proceedings. Technical preliminary injunctions. The trial court issued the Constr. Specialties v. Shenigo Constr., 6th Dist. No. preliminary injunctions on December 2, 2004. E-03-004, 2004-Ohio-1044, at118. Neither party filed a notice of appeal from these orders. This would have been the time for the union {¶ 39) The union's remaining arguments all to raise arguments regarding the propriety of concem findings or factors that it alleges the trial ordering a preliminary injunction in general. As it court failed to consider, or raise evidentiary

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053 Slip Copy Page 5

Slip Copy, 2006 WL 2045811 (Ohio App. 7 Dist.), 180 L.R.R.M. (BNA) 2263, 2006 -Ohio- 3782 (Cite as: Slip Copy) questions. But the union did not file a transcript, or LEAVING THE PLANT TO STOP AT A STOP an appropriate substitute, of the hearing on the SIGN, AND OBEY A BLINKING RED LIGHT, motion. WHICH IS RED FACING THE EXIT FROM ORMET ONTO STATE ROUTE 7, AND {¶ 40} It is the appellant's duty to transmit the YELLOW FACING TRAFFIC GOING NORTH record on appeal, including the transcript necessary AND SOUTH ON STATE ROUTE 7, WHERE for the detem-iination of the appeal. App.R. 10(A). " THE SHERIFF STATED IN COURT THAT, The duty to provide a transcript for appellate review BECAUSE THE TRAFFIC CONTROL DEVICES falls upon the appellant. This is necessarily so WERE ESSENTIALLY ON PRIVATE because an appellant bears the burden of showing PROPERTY, HE HAD NO RIGFIT TO REQUIRE error by reference to matters in the record. * * * THEM TO STOP." When portions of the transcript necessary for resolution of assigned errors are omitted from the {¶ 45} The union argues that the trial court erred record, the reviewing court has nothing to pass upon in failing to order that vehicles leaving the plants and thus, as to those assigned errors, the court has must stop at a stop sign and obey a flashing red no choice but to presume the validity of the lower light at the exits of the plants before turning onto court's proceedings, and affum." Knapp v. Edwards Route 7 and in failing to order law enforcement to Laboratories (1980), 61 Ohio St.2d 197, 199, 400 enforce such an order. N.E.2d 384. If no transcript is available, then it is appellant's duty to present this court with one of the {¶ 46} First, it should be noted that the union transcript substitutes as provided for in App.R. 9(C). never filed a motion requesting this modification of the preliminary injunction. At the hearing, the union {¶ 41} Since the union failed to provide this court brought the issue up. It then asked the court to order with a transcript or transcript substitute, we have no that traffic must stop at the stop sign, which is means by which to review its fact-based and located on Ormet's property. evidence-based arguments. In its judgment entry, the trial court stated that it held an in-chamber {¶ 471 The trial court noted that it had already conference on Otmet's motions to modify the ordered that all traffic was subject to a very slow preliminary injunctions. It further stated that it frve-nilles-per-hour speed limit. (Tr. 63-64). And it considered the statements made by counsel. The noted that it was not going to order the sheriff to court then stated that it was adding the condition enforce a stop sign located on private property. (Tr. that any plant-side structures, including 64). windbreakers, were to be removed. Because we have no transcript to review, we have no choice but {¶ 48} The trial court did not abuse its discretion to presume the validity of the trial court's judgment. in denying the union's requested modification. The union did not file a motion to modify. It only {¶ 42} Based on the foregoing, we cannot brought the stop sign issue up after the court ruled conclude that the trial court abused its discretion in on Ormet's motions. Furthermore, as the trial court modifying the preliminary injunctions to add the noted, it had already ordered that all traffic entering condition that any shelters on the plant side of State and leaving the plants was to proceed at no more Route 7 must be removed. Accordingly, the union's than five miles per hour. Thus, it was reasonable for assignment of error is without merit. the court to conclude that another order requiring traffic to come to a complete stop at a stop sign on *6 (143) In its second set of appeals, the union Ormet's property was unnecessary. Accordingly, the raises four assignments of error, the first of which union's first assignment of error is without merit. states: {¶ 49) The union's second assignment of error {¶ 44) "THE COMMON PLEAS COURT states: ERRED IN FAILING TO ORDER VEHICLES

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Slip Copy, 2006 WL 2045811 (Ohio App, 7 Dist.), 180 L.R.R.M. (BNA) 2263, 2006 -Ohio- 3782 (Cite as: Slip Copy)

{¶ 50} "THE COURT ERRED IN SETTING UP court asked the unions counsel what he thought of LIMITED ZONES, OUTSIDE OF WHICH allowing 300 feet on each side. (Tr. 40). Counsel PERSONS COULD NOT PICKET." responded, "Well, it's better than a hundred and fifty feet, Your Honor. We can live with that, Your {¶ 51) Here the union contends that the court Honor." (Tr. 40). should not have restricted the areas where picketers could picket. First, it argues that Ormet never {¶ 54} Thirdly, it is not necessarily an requested this modification in its motion, so the infringement on free speech for a court to restrict court should not have ordered it. Second, the union the area in which people may picket. As the Eighth argues that picketing involves walking back and District pointed out: forth, so the court should not restrict the picketers to just one area at each plant. It contends that this {¶ 55} "First Amendment protection is not restriction violates the picketers' right to free speech unlimited, however. since they were walking back and forth along a public street-State Route 7. {¶ 56} °'*** The rights of free speech and assembly, while fundamental in our democratic {¶ 52} Firstly, it seems that the union raised an society, still do not mean that everyone with issue with the restriction limiting the area in which opinions or beliefs to express may address a group the picketers could picket not because of free at any public place and at any time. The speech issues, but instead because the picketers constitutional guarantee of liberty implies the grew bored when restricted to a certain area. At the existence of an organized society maintaining hearing, the court asked the union's counsel why the public order, without which liberty itself would be picketers needed to walk in the 1.7 mile area lost in the excesses of anarchy." ' Superior Savings between the two plants. (Tr. 22). Counsel Assn., 27 Ohio App.3d at 345-46, quoting Cox v. responded, "Boredom, Your Honor, would be one (1965), 379 U.S. 536, 554, 85 S.Ct. 453, purpose, but we'll also put on evidence as to other 464, 13 L.Ed.2d 471. purposes." (Tr. 22-23). Later in the hearing, the court asked a union representative why the picketers {¶ 57} Although no evidence was presented at the needed to go farther down Route 7 than 40 yards hearing, we can glean from the comments by both away from the plant entrances. (Tr. 42-43). The sides' counsel and the court that the Ormet strike union representative reiterated what counsel had has been ongoing, heated, and at times, even stated earlier, "the boredom factor." (Tr. 43). He violent. The court, in its closing comments, then went on to explain that the picketers had a observed, "all we're trying to do here is keep peace." horseshoe pit set up north of the Ormet Primary (Tr. 65). Given the situation, the court did not plant where they liked to pass the time. (Tr. 43). abuse its discretion in placing restrictions on the The court found that it was reasonable for the picketing area. Accordingly, the union's second picketers to go as far north as the horseshoe pit so assignment of error is without merit. that they could play horseshoes and made its order to reflect this. (Tr. 44). Thus, when presented with a {¶ 58} The union's third assignment of error states: reasonable explanation of why the picketers wished to picket further north on Route 7, the court {¶ 59} "THE COURT ERRED IN expanded its picket zones to include the requested INCORPORATING BY REFERENCE AND/OR area. SUB SILENTIO ITS PREVIOUS ORDERS, RESTRICTING ANY 'WINDBREAK' ON THE *7 (¶ 53) Secondly, at the hearing, the union PLANT SIDE OF STATE ROUTE 7, AS conceded to restrictions on where picketing could INDICATED IN PREVIOUS APPEALS TO THIS take place. It did not argue that the court should not COURT." place any restrictions on the picketing area. When discussing the parameters of the picketing area, the {¶ 60} The union argues that the court should not

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055 Slip Copy Page 7 Slip Copy, 2006 WL 2045811 (Ohio App. 7 Dist.), 180 L.R.R.M. (BNA) 2263, 2006 -Ohio- 3782 (Cite as: Slip Copy) have incorporated its orders restricting the use of windbreakers set out in its prior judgment entries into its subsequent entries. The union states that it incorporates its briefs in its other appeals by reference.

{¶ 61} We have sufficiently addressed the windbreaker issue above, as it was the subject of the first appeal. Thus, as concluded above, the union's third assignment of error is also without merit.

{¶ 62} The union's fourth assignment of error states:

{¶ 63} "THE COURT ERRED IN GRANTING THE PRELIMINARY INJUNCTION."

(¶ 64) Here the union argues that the trial court should not have granted the preliminary injunction in the first place.

{¶ 65} Ormet contends that because the union failed to appeal from the court's original grant of the preliminary injunction, it has waived this argument on appeal. Ormet is correct. The gist of the union's argument here is that the court should not have granted the prelinilnary injunction. The court first ordered the injunction on December 2, 2004. Neither party filed an appeal from that order. The first appeal was filed by the union from the court's December 23, 2004 modification dealing with the windbreakers. Thus, by failing to appeal from the court's December 2 order, the union has waived any argument that the court should not have granted the prelirnhtary injunction. Accordingly, the union's fourth assignment of error is considered waived.

*8 {¶ 66} For the reasons stated above, all of the trial court's judgments are hereby affumed.

VUKOVICH, J., DEGENARO, J., concurs. Ohio App. 7 Dist.,2006. Ormet Aluminum Products Corp. v. United Steelworkers of Am. Slip Copy, 2006 WL 2045811 (Ohio App. 7 Dist.), 180 L.R.R.M. (BNA) 2263, 2006 -Ohio- 3782

END OF DOCUMENT

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056 vuesdaw.

Not Reported in N.E.2d Page 1

Not Reported in N.E.2d, 2002 WL 398342 (Ohio App. 6 Dist.), 2002 -Ohio- 1191 (Cite as: Not Reported in N.E.2d)

P order; if the plaintiff could not appeal the trial Overhead, Inc. v. Standen ContractingOhio App. 6 court's order, then after the case was resolved in the Dist.,2002.Only the Westlaw citation is currently court, the plaintiff would have no available. forum to tum to which could review the original CHECK OHIO SUPREME COURT RULES FOR decision enforcing the forum selection clause. R.C. REPORTING OF OPINIONS AND WEIGHT OF §2505.2(A)(3). LEGAL AUTHORITY. Court of Appeals of Ohio, Sixth District, Lucas County. Douglas J. Ritson, for appellant. OVERHEAD, INC., Appellant, Michael D. Tarullo and Kristopher M. Huelsman, v. for appellee. STANDEN CONTRACTING, Appellee. No. L-O1-1397. DECISION AND JUDGMENT ENTRY

March 11, 2002. *1 Defendant-appellee, Standen Contracting Co., Inc. ("Standen"), has filed a motion to disnuss the Plaintiff brought breach of contract, money due on appeal of Overhead, Inc. alleging that the order account, and unjust enrichment claims against from which the appeal is taken is not a final defendant. The trial court entered an order which appealable order. Overhead, Inc. responded with a stayed the breach of contract and unjust enrichment memorandum in opposition to the motion. case for sixty days to allow plaintiff to file in Massachusetts in accordance with a forum selection In January 2001, Overhead, Inc. filed a complaint clause. Plaintiff appealed, and the defendant filed a against Standen alleging breach of contract, money motion to dismiss the appeal. The Court of Appeals, due on account, and unjust enrichment. Standen Lucas County, held that trial court's order was a filed a motion to stay the action or in the altenrative fmal, appealable order. to dismiss the complaint for improper venue pursuant to a forum selection clause in the parties' Denied. contract. Overhead, Inc. opposed the motion. On West Headnotes August 24, 2001, the trial court ruled on Standen's Appeal and Error 30 C^78(1) motion in a judgment entry which holds that the forum selection clause in the contract is valid and, 30 Appeal and Error therefore, the parties' contract dispute should be 30111 Decisions Reviewable litigated in Massacttusetts. The judgment entry 30III(D) Finality of Determination states: 30k75 Final Judgments or Decrees "Applying Civ.R. 3(D) FNI to the instant case, this 30k78 Nature and Scope of Decision Court has determined that no proper forum FNZ for 30k78(1) k. In General. Most Cited trial lies within the State of Ohio and there exists a Cases proper forum for trial in another jurisdiction outside Trial court's order which stayed the breach of this state, specifically the State of Massachusetts. contract and unjust enrichment case for sixty days The Court further notes that the defendant consents to allow plaintiff to file in Massachusetts in to jurisdiction and venue in the State of accordance with a forum selection clause in a Massachusetts, waives venue and agrees that the contract, but which did not transfer the case from date of the commencement of the action in Ohio Ohio to Massachusetts, was a fmal, appealable shall be the date of commencement for the

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057 Not Reported in N.E.2d Page 2 Not Reported in N.E.2d, 2002 WL 398342 (Ohio App. 6 Dist.), 2002 -Ohio- 1191 (Cite as: Not Reported in N.E.2d) application of the statute of limitations to the action action, but it is not a stay mandated by in the State of Massachusetts. Civ.R. 3(D).

FN2. Plaintiffs complaint in the instant case states that plaintiff is an Ohio FN1. We note that Civ.R. 3(D) is not corporation with its principal place of applicable to cases like this one where the business in Toledo, Olilo and that the issue is whether a forum selection clause is contract in question was for the sale of valid and the case should therefore be goods to be used in "the construction and heard in a different state. completion of improvements to or for the "[Civ.R. 3(D) ] only applies when venue in several projects including the city of Ohio is not proper under any of the options Cleveland." Thus, either of two counties in of subsection (B). * * * Civ.R. 3(D) * * * Ohio, Lucas and Cuyahoga, can be a can only be applied in the extremely rare proper Civ.R. 3(B) forum for this case. pure transitory action where both plaintiff The issue before the trial court was not and defendant are non-Ohio residents and whether there was a proper forum in Ohio, the cause of action arose outside this state, it was whether the parties' agreement that but the defendant is `caught' and served all disputes under the contract would be while momentarily in Ohio." Chambers v. litigated in Massachusetts is enforceable. Merrell Dow Pharmaceuticals, Inc. Venue can be proper in several places. (1988), 35 Ohio St.3d 123 at 132, 519 N.E.2d 370, jurisdictional motion "Based on the foregoing, the Court `shall stay' the overruled (1991), 57 Ohio St.3d 720. action for sixty days in order that the plaintiff may We are aware of, but do not agree witli, reconunence the action in Massachusetts where a two appellate districts, the second and the proper forum exists. * * * The court further holds in eighth, which have held that where a forum abeyance the Defendant's motion to dismiss selection clause is found to be valid, and Plaintiffs complaint for a period of sixty (60) days there is a proper Civ.R. 3(B) venue in *** Ohio, Civ.R. 3(D) does apply and the case "It is therefore ORDERED, ADJUDGED and should be stayed for sixty days to allow the DECREED that defendant Standen Contracting plaintiff to refile the case in the state Company, Inc.'s motion to stay the case for named in the contract. See, from the improper venue is granted. Eighth District, Barrett v. Picker "It is further ORDERED, ADJUDGED and Internatl., Inc. (1990), 68 Ohio App.3d DECREED that the case is stayed for sixty days for 820, 589 N.E.2d 1372; Alpert v. Kodee plaintiff Overhead, Inc. to recommence the action in Technologies (1997), 117 Ohio App.3d the State of Massachusetts. 796, 691 N.E.2d 732; and Four Seasons "It is further ORDERED, ADJUDGED and Ent. v. Tommel Financial Serv., Inc. (Nov. DECREED that defendant Standen Contracting 9, 2000), Cuyahoga App. No. 77248, Company Inc.'s motion to disniiss Overhead, Inc.'s unreported; and from the Second District, complaint is held in abeyance for a period of sixty Gallimore v. Arcadia Natl. Life Ins. Co. (60) days from the date of the Opinion and (May 12, 1986), Miami App. No. 85CA25, Judgment Entry." (Footnote ommitted.) unreported; and Krygsman v. Gerken (July 3, 1997), Montgomery App. No. 16062, In its motion to dismiss this appeal, Standen states unreported, discretionary appeal not that "a grant or denial of a motion to transfer venue allowed (1997), 80 Ohio St.3d 1436. is not a final, appealable order." We first note that We do not believe that a stay is improper the trial court's order in this case did not transfer in a forum selection clause case, in fact, we the case to Massachusetts, it stayed the case in Ohio believe that it is the most prudent course of to allow the plaintiff to file in Massachusetts. "It

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058 Not Reported in N.E.2d Page 3

Not Reported in N.E.2d, 2002 WL 398342 (Ohio App. 6 Dist.), 2002 -Ohio- 1191 (Cite as: Not Reported in N.E.2d) must be remembered that transfer of an action Ohio transfer cases, the parties will not be deprived within the Ohio judicial system involves of their right to appellate review of the transfer considerations wholly separate from a conditional order in an Ohio court of appeals. The same cannot dismissal and refiling outside Ohio." Chambers v. be said for the forum selection clause cases, since Merrell-Dow Pharmaceuticals, Inc. (1988), 35 they will be litigated in another state. Ohio St.3d 123 at 131-132, 519 N.E.2d 370. Therefore, we must decide whether the trial court's Standen also cites Mansfeld Family Restaurant v. order which stayed the case for sixty days can be CGS Worldwide, Inc. (Dec. 28, 2000), Richland appealed now or must appellant wait until the case App. No. 00-CA-3, unreported in support of its is actually dismissed before an appeal can be filed? argument that the order in the instant case is not In Zeeb, Inc. v. Southern Steel Co. (Mar. 17, 1986), fmal and appealable. In Mansfield Family Clark App. No. CA-2132, unreported, the court Restaurant, the trial court held that a forum held that the stay order is, "[b]y its own terms * * * selection clause in a contract between the parties devoid of the finality necessary to confer appellate did not apply to their dispute since the transaction jurisdiction (R.C. 2505.02)." However, in 1998, the in question was not subject to the terms of the Second Appellate District reversed its position and contract. On appeal, the court held that the order held that an order enforcing a forum selection denying the enforcement of the forum selection clause was appealable after the trial court granted a clause is not a final appealable order because it does sixty day stay. Vintage Travel Services, Inc, v. not fit any of the R.C. 2505.02 categories of "final White Heron Travel of Cincinnati, Inc. (May 22, order." Specifically, the Richland County Court of 1998), Montgomery App. No. 16433, unreported. Appeals found that the only category which could The Fifth Appellate District reached the same possibly cover the order is R.C. 2505.02(B)(4), conclusion years earlier in Clark v. Consol. Foods which states: Corp. (Dec. 13, 1978), Stark App. No. CA-4906, "(B) An order is a final order that may be reviewed, unreported, where the court stated:*2 "At the affirmed, modified, or reversed, with or without outset, this court determines that the judgment of retrial, when it is one of the following: the trial court is a fmal appealable order. The "(4) An order that grants or denies a provisional judgment entry requires plaintiffs to proceed in a remedy and to which both of the following apply: forum outside the State of Ohio or in the altemative "(a) The order in effect determines the action with the action is to be dismissed without prejudice. The respect to the provisional remedy and prevents a practical effect of this judgment is to preclude judgment in the action in favor of the appealing plaintiffs, residents of Ohio, from pursuing a legal party with respect to the provisional remedy. remedy in the courts of Ohio; consequently, a "(b) The appealing party would not be afforded a substantial right of the appellants is adversely meaningful or effective remedy by an appeai affected." following final judgment as to all proceedings, issues, claims, and parties in the action." Standen cites Duryee v. Rogers (Dec. 16, 1999), Cuyahoga App. No. 74963, unreported; State ex rel. "Provisional Remedy" is defmed in R.C. Allied Chem. Co. v. Aurelius (1984), 16 Ohio 2505.02(A)(3) as:"[A] proceeding ancillary to an App.3d 69, 474 N.E.2d 618; and Timson v. Young action, including, but not limited to, a proceeding (1980), 70 Ohio App.2d 239, 436 N.E.2d 538 in for a prelinnnary injunction, attachment, discovery support of its contention that the order in this case is of privileged matter, or suppression of evidence." not final and appealable. These three cases are not on point because they address situations where the "'3 In Mansfield, the court states:"The basic purpose requested venue transfer was from one Ohio county of R.C. 2505.02(A)(3) in categorizing certain types to another pursuant to Civ.R. 3(C); they did not of preliminary decisions of a trial court as final, involve a forum selection clause where the action appealable orders is the protection of one party would eventually be dismissed in Ohio so that it against irreparable harm by another party during the could be litigated in another state. In the Ohio to pendency of the litigation. Id. [Duryee v. Rogers

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059 Not Reported in N.E.2d Page 4 Not Reported in N.E.2d, 2002 WL 398342 (Ohio App. 6 Dist.), 2002 -Ohio- 1191 (Cite as: Not Reported in N.E.2d)

(Dec. 16, 1999), Cuyahoga App. No. 74963, jurisdiction to review an Ohio court's decision and it unreported] We find that a decision by a trial court would be too late to file an appeal in the Ohio to deny a request for change of venue does not appellate court since the case in Ohio was not involve the same degree of risk of irreparable harm merely transferred to Massachusetts, but was to a party as the decisions made in the types of actually dismissed. actions listed under 2505.02(A)(3). The types of provisional remedies listed under 2505.02(A)(3) Therefore, we find that under R.C. 2505.02(B)(4) include decisions that, made prelinilnarily, could the trial court's order is fmal and appealable. The decide all or part of an action or make an ultimate proceeding in the trial court determining whether decision on the merits meaningless or cause other the case should be litigated in Ohio or in irreparable harm. For instance, a prelinilnary Massachusetts is ancillary to the action and thus is a injunction could be issued against a high school provisional remedy pursuant to R.C. 2505.02(A)(3). football player preventing him from playing football Since the order granting the "provisional remedy," his senior year based on recruiting violations. The i.e., enforcing the forum selection clause, makes a trial court could grant the attachment of property for full deterxtilnation of the issue and prevents a which the owner has a ready buyer. Discovery of judgment in favor of appellant on this issue it privileged material could force a person to divulge fulfills R.C. 2505.02(B)(4)(a). Finally, R.C. highly personal and sensitive information. If 2505.02(B)(4)(b) is fulfilled because appellant evidence critical to the prosecution of a criminal would have no remedy through an appeal after the case is suppressed, the state could lose any case has been heard in Massachusetts since there meaningful chance at successful prosecution of a would be no appellate court with jurisdiction to criminal. The decision to deny a change of venue decide the issue. does not result in any of the types of irreparable harm just listed. There is an adequate legal remedy *4 Appellee's motion to dismiss is denied. from a decision denying a change of venue, after Appellant shall file its brief within fifteen days of fmal judgment. In other words, it may be expensive the date of this decision. to get the cat back in the bag, if a trial court errs when it denies a change of venue, but it can be JAMES R. SHERCK and RICHARD W. KNEPPER done. Whereas, when the types of decisions listed in , JJ., MARK L. PIETRYKOWSKI, P.J., concur. 2505.02(A)(3) are made, the cat is let out of the bag Ohio App. 6 Dist.,2002. and can never be put back in." (Emphasis added.) Overhead, Inc. v. Standen Contracting Not Reported in N.E.2d, 2002 WL 398342 (Ohio The adequate, although expensive, remedy App. 6 Dist.), 2002 -Ohio- 1191 envisioned in Mansfield Family Restaurant is that after fmal resolution of the case, an Ohio appellate END OF DOCUMENT court could review the trial court's decision not to enforce the forum selection clause, fmd that it was error and reverse, thereby allowing the parties to litigate their dispute again in another state.

The difference between Mansfield Family Restaurant and the case presently before us is that if Overhead, Inc. cannot appeal now from the trial court's decision that the dispute must be litigated in Massachusetts, then after the case is resolved in the Massachusetts court, Overhead, Inc. will have no forum to turn to which can review the original decision enforcing the forum selection clause. A Massachusetts appellate court would not have

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060 W2StlilW.

Not Reported in N.E.2d Page 1

Not Reported in N.E.2d, 2004 WL 1048207 (Ohio App 8 Dist.), 2004 -Ohio- 2351 (Cite as: Not Reported in N.E.2d)

H Affirmed. Smalley v. Friedman, Donriano & Smith Co. West Headnotes L.P.A.Ohio App. 8 Dist.,2004. (I] Appeal and Error 30 C^78(1) CHECK OHIO SUPREME COURT RULES FOR REPORTING OF OPINIONS AND WEIGHT OF 30 Appeal and Error LEGAL AUTHORITY. 30111 Decisions Reviewable Court of Appeals of Ohio,Eighth District, Cuyahoga 30111(D) Finality of Determination County. 30k75 Final Judgments or Decrees Timothy Ray SMALLEY, Plaintiff-appellant 30k78 Nature and Scope of Decision V. 30k78(1) k. In General. Most Cited FRIEDMAN, DOMIANO & SMITH CO. L.P.A., Cases Defendant-appellee. Order denying client's motion for protective order No. 83636. and compelling discovery in legal malpractice action was a final appealable order, where order Decided May 6, 2004. granted provisional remedy of discovery of privileged matter, and order determined action with Background: Client brought legal malpractice respect to provisional remedy and prevented action against law firm and lawyers, and brought judgment to client with respect to that remedy. motion for protective order as to records of his other attomeys and as to connnunications made 121 Witnesses 410 C^219(3) with doctors in connection with underlying Federal Employers' Liability Act (FELA) action. The Court 410 Witnesses of Connnon Pleas, Cuyahoga County, No. 41011 Competency CV-473498, denied the motion. Client appealed. 410II(D) Confidential Relations and Privileged Communications 410k219 Waiver of Privilege Holdings: The Court of Appeals, Ann Dyke, P.J., 410k219(3) k. Communications to or held that: Advice by Attorney or Counsel. Most Cited Cases Client's records with other attomeys were not (1) order was final appealable order; protected by attomey-client privilege and were discoverable in client's legal malpractice action (2) records with other attomeys were not protected against lawyers and law firm, where client put by attomey-client privilege and were discoverable; privileged information directly at issue by alleging that other attorneys had found that lawyers who (3) communications regarding client's injuries were were subject of malpractice claim had nilsadvised relevant under zone of danger test; and client, and client in response to interrogatories indicated that his attorneys had personal knowledge (4) communications which were related causally or of the matters in the complaint and that his entire historically to physical or mental injuries that were case file would be used as an exhibit at trial. R.C. § relevant to issues in underlying action were not 2317.02(A). privileged. [3] Pretrial Procedure 307A C^36.1

307A Pretrial Procedure

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061 Not Reported in N.E.2d Page 2

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307AII Depositions and Discovery Civil appeal from the Court of Common Pleas, Case 307AII(A) Discovery in General No. CV-473498. 307Ak36 Particular Subjects of Disclosure 307Ak36.1 k. In General. Most Cited Eric Thompson, Esq., William J. Novak, Esq., Cases Thomas D. Robenalt, Esq., Denise J. Salemo, Esq., Communications regarding client's injuries in Novak, Robenalt, Pavlik & Scharf, L.L P., underlying Federal Employers' Liability Act Cleveland, OH, for plaintiff-appellant. (FELA) action were relevant under zone of danger Daniel R. Haude, Esq., Reminger & Reniinger Co., test to FELA action and thus were discoverable in Adam H. Gimbel, Esq., Timothy D. Johnson, Esq., client's legal malpractice action against lawyers and Weston, Hurd, Fallon, Paisley & Howley, law firm which had represented client in FELA Cleveland, OH, for defendant-appellee. action, even though client had dismissed all his ANN DYKE, P.J. bodily injury claims in the FELA action. 45 *1 {¶ 1} This interlocutory appeal arises from U.S.C.A. § 51; Rules Civ.Proc., Rule 26. plaintiff Timothy Ray Smalley's action against defendants Friedman, Dontiano, & Smith L.P.A., [4] Witnesses 410 C^208(1) Jeffrey H. Friedman, Perry R. Silverman Co., L.P.A., Perry R. Silverman, and two John Doe 410 Witnesses defendants (collectively referred to as "defendants") 410II Competency for legal malpractice. Plaintiff challenges the order 410II(D) Confidential Relations and of the trial court which denied his motion for a Privileged Communications protective order, ordered him to comply with all 410k207 Communications to or outstanding discovery requests filed by defendants, Information Acquired by Physician or Surgeon and ordered him to produce the files of his former 410k208 In General attomeys. For the reasons set forth below, we affirm. 410k208(l) k. In General. Most Cited Cases {¶ 2} In 1996, plaintiff, a former carman for the Norfolk and Western Railway Company ("N & W" Witnesses 410 C^212 ), filed a complaint against N & W in the Franklin County Court of Common Pleas under the Federal 410 Witnesses Employers' Liability Act ("FELA"), 45 U.S.C. Sec. 410H Competency 51, alleging that he was injured in the course of his 410II(D) Confidential Relations and employment when a chemical solvent splashed on Privileged Communications him, and that he was regularly and continuously 410k207 Communications to or exposed to a variety of toxic chemicals. Information Acquired by Physician or Surgeon 410k212 k. Mode or Form of {¶ 3} In the course of that litigation, plaintiff and Communications or Acquisition of Information. N & W stipulated as follows: Most Cited Cases Clienfs conununications to his physicians, including {¶ 4} "Plaintiff contends that he sustained a medical records, which were related causally or psychological injury as a result of his alleged historically to physical or mental injuries that were exposure to Safety-Kleen during the course of his relevant to issues in underlying Federal Employers' employment at Norfolk & Westem Railway Liability Act (FELA) action were not privileged in Company. All claims asserting that Plaintiff legal malpractice action against lawyers and law sustained actual physical injury as a result of firm which had initially represented client in exposure to Safety-Kleen or other chemicals during underlying action. 45 U.S.C.A. § 51; R.C. § the course of his employment at Norfolk & Western 2317.02(B). Railway Company are hereby withdrawn."

(15) N & W moved for summary judgment and

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argued that it was not liable to plaintiff because he N.E.2d 827. could not demonstrate he was placed within the " zone of danger" as required for FELA claims for {¶ 8} Defendants denied liability. Thereafter, on negligent infliction of emotional distress. The trial August 14, 2003, defendants filed a subpoena court granted N & W's motion, but the Franklin seeking Cole & Lewis's "records of your firms's County Court of Appeals reversed and remanded representation of Timothy R. Smalley." Defendants the matter concluding that plaintiff had raised a also sought plaintiffs medical records and planned genuine issue of material fact as to whether or not to depose plaintiffs treating physicians. Plaintiff he was within the zone of danger. See Smalley v. filed a motion for a protective order and asserted Norfolk & Western Ry. (Sep. 2, 1999) Franklin App. that Cole & Lewis's records were protected by the No. 99AP-147. attomey-client privilege, and filed a separate motion for a protective order to bar discovery of all (¶ 6) Thereafter, on June 19, 2002, plaintiff filed witnesses and documents pertaining to the the instant action for legal malpractice against underlying FELA case. In response, defendants defendants and alleged that "a law firm, Cole & filed a motion to compel discovery. On October 9, Lewis, was asked by the plaintiff to take over 2003, the trial court denied plaintiffs motions for representation in that suit and found defendants, protective orders, ordered plaintiff to comply with Jeffrey H. Friedman, and defendant, Friedman, all outstanding discovery requests filed by Domiano & Smith Co., L.P.A., and * * * advised defendants, granted defendants' motion to compel plaintiff on or about November 13, 2000 they discovery, and ordered plaintiff to produce would review the facts and they would take the case discovery of any and all witnesses and documents granted they were provided more time by the trial associated with the underlying FELA case. Plaintiff judge in Case No. 96 CVC 096750, which was then now appeals and assigns two errors for our review. set for trial on or about January 23, 2001. * * * Defendant contends that we are without jurisdiction [D]efendants jointly, independently and over this matter because the trial court's order was concurrently provided the plaintiff with a dismissal not final and appealable. entry advising the plaintiff that plaintiff should disnvss the above-captioned case * * *, without {¶ 9} R.C. 2505.02, defines fmal appealable prejudice, * * * and that plaintiff would have a right orders in pertinent part as follows: to refile that claim within one year, that is, by January 5, 2002, and thereafter, on or about June {¶ 10} "An order that affects a substantial right in 21, 2001, defendants Jeffrey H. Friedman and an action which in effect detemnines the action and Friedntatt Doniiano & Sniith Co., L.P.A, stated that prevents a judgment, an order that affects a on their behalf and on behalf of defendant Perry R. substantial right made in a special proceeding or Silverman, that they were unwilling to refile or upon a summary application in an action after pursue the case * * *." judgment * * * is a final order that may be reviewed, affirmed, modified, or reversed, with or *2 {¶ 7} Plaintiff further alleged that, after the without retrial." FELA limitations period expired, he learned that such actions are not subject to the savings statute, FNt {¶ 11} In State v. Muncie, 91 Ohio St.3d 440, 446, and that due to the negligence of defendants, 200I-Ohio-93, 746 N.E.2d 1092, the Supreme he lost his right to seek redress for his FELA claim. Court set forth the following test for determining when an order is fmal:

FN1. See Burnett v. New York Central (¶ 12) " * * * an order is a 'final order' if it Railway Company (1965), 380 U.S. 424, satisfies each part of a three-part test: (1) the order 85 S.Ct. 1050, 13 L.Ed.2d 941; see, also, must either grant or deny relief sought in a certain Cerney v. Norfolk & Western Ry. Co. (May type of proceeding-a proceeding that the General 25, 1995), 104 Ohio App.3d 482, 662 Assembly calls a 'provisional remedy,' (2) the

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063 Not Reported in N.E.2d Page 4 Not Reported in N.E.2d, 2004 WL 1048207 (Ohio App. 8 Dist.), 2004 -Ohio- 2351 (Cite as: Not Reported in N.E.2d) order must both detennine the action with respect to fmal and appealable order); Abbuhl v. Orange the provisional remedy and prevent a judgment in Village, Cuyahoga App. No. 82203, favor of the appealing party with respect to the 2003-Ohio-4662 (the trial court's order requiring provisional remedy, and (3) the reviewing court plaintiff to produce for defendants all of his " must decide that the party appealing from the order individualized billings" was a final appealable would not be afforded a meaningful or effecrive order.); Nester v. Lima Memorial Hosp., 139 Ohio remedy by an appeal following futal judgment as to App.3d 883, 885-886, 2000-Ohio-1916, 745 all proceedings, issues, claims, and parties in the N.E.2d 1153 (trial court's order granting defendant's action. See, also, R.C. 2505.02(A)(3) (defining motion to compel and ordering disclosure of provisional remedy')." plaintiffs complete medical history was a fmal appealable order.). {¶ 13} A provisional remedy is a remedy other than a claim for relief. State ex rel. Butler County {¶ 18} Plaintiffs first assignment of error states: Children Servs. Bd. v. Sage, 95 Ohio St.3d 23, 2002-Ohio-1494, 764 N.E.2d 1027. As used in R.C. [2] (¶ 19) "The trial court erred by denying 2505.02, a "provisional remedy" is defined as "a Plaintiffs Appellant's (sic) Motion for a Protective proceeding ancillary to an action, including, but not Order and ordering that Plaintiff Appellant produce limited to, a proceeding for a preliminary all outstanding discovery requests with regard to the injunction, attachment, discovery of privileged files kept by Mr. Smalley's former Attomey, matter, or suppression of evidence." Richard Lewis."

*3 [1] {¶ 14} In this instance, the challenged order {¶ 20) Within this assignment of error, plaintiff grants a provisional remedy, as the discovery of insists that the records of his previous counsel privileged matter is expressly listed as a provisional should not be disclosed because they are protected remedy under R.C. 2505.02. by the attomey-client privilege.

{¶ 15} In addition, the order determined the action {¶ 21} We note that this court reviews an order with respect to the provisional remedy and granting or denying a motion for a protective order prevented a judgment with respect to plaintiff as to for an abuse of discretion, and such order will not that remedy. Moreover, we hold that if plaintiff be reversed absent an abuse of that discretion Ruwe were required to wait until there is a fmal judgment v. Bd. of Springfield Twp. Trustees (1987), 29 Ohio as to all proceedings, issues, claims and parties St.3d 59, 61, 441, 505 N.E.2d 957; Cargotec, Inc. before obtaining review of the order, he would be v. Westchester Fire Ins. Co., 155 Ohio App,3d 653, denied a meaningful or effective remedy. As stated 2003-Ohio-7257, 802 N.E.2d 732. in Schottenstein, Zox & Dunn v. McKibben, Franklin App. No. 01AP-1384, 2002-Ohio-5075: {¶ 22} Pretrial discovery orders pertaining to the issue of privilege are likewise reviewed for an abuse {¶ 16) "Once the client file is revealed, the bell of discretion. Abbuhl v. Orange Village, supra, will have mng, and, if in fact the file contains citing Radovanic v. Cossler (2000), 140 Ohio sensitive material, McKibben would have no App.3d 208, 213, 746 N.E.2d 1184. Accord adequate remedy on appeal." Lightbody v. Rust (2000), 137 Ohio App.3d 658, 739 N.E.2d 840,(attomey-client privilege). {¶ 17) We therefore hold that the trial court's order which denied the protective orders and *4 (¶ 23) "The term `abuse of discretion' compelled discovery does in fact constitute a fmal connotes more than an error of law or judgment; it appealable order. Accord State ex re1. Butler implies that the court's attitude is unreasonable, County Children Servs. Bd. v. Sage, supra (entry arbitrary or unconscionable." Blakemore v. that granted the provisional remedy ordering the Blakemore ( 1983), 5 Ohio St.3d 217, 219, 450 discovery of the allegedly privileged record was N.E.2d 1140; Nakoff v. Fairview General Hospital

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064 Not Reported in N.E.2d Page 5 Not Reported in N.E.2d, 2004 WL 1048207 (Ohio App. 8 Dist.), 2004 -Ohio- 2351 (Cite as: Not Reported in N.E.2d)

(1996), 75 Ohio St.3d 254, 662 N.E.2d 1. privilege belongs to the client, and the only materials protected are those which involve (1124) R.C. 2317.02(A) states: communications with the client's attomey. Frank W. Schaefer, supra at 329, 612 N.E.2d 442. As such, {¶ 251 "The following persons shall not testify in only the client can waive the attomey-client certain respects: privilege. State v. Today's Bookstore, Inc. (1993), 86 Ohio App.3d 810, 818, 621 N.E.2d 1283. {¶ 26) "(A) An attomey, concerning a communication made to him by his client in that {¶ 29} Moreover, it is axiomatic only the client relation or his advice to his client, except that the can waive the attomey-client privilege. See State v. attomey may testify by express consent of the client Today's Bookstore, Inc. (1993), 86 Ohio App.3d or, if the client is deceased, by the express consent 810, 818, 621 N.E.2d 1283, cause denied ( 1993), of the surviving spouse or the executor or 66 Ohio St.3d 1522, 614 N.E.2d 1051; H & D Steel administrator of the estate of the deceased client Service, Inc. v. Weston, Hurd, Fallon, Paisley & and except that, if the client voluntarily testifies or Howley, supra. Absent express consent, it is not is deemed by section 2151.421 of the Revised Code within the power of the client's attorney to waive to have waived any testimonial privilege under this that privilege. See Maust v. Palmer ( 1994), 94 Ohio division, the attomey n ay be compelled to testify App.3d 764, 768, 641 N.E.2d 818; State v. Shipley on the same subject * * *." (1994), 94 Ohio App.3d 771, 775, 641 N.E.2d 822.

{¶ 27} In H & D Steel Serv. v. Weston, Hurd, *5 {¶ 301 In H & D Steel Serv. v. Weston, Hurd, Fallon, Paisley & Howley (July 23, 1998), Fallon, Paisley & Howley, supra, this court adopted Cuyahoga App. No. 72758, this court stated: the test set forth in Hearn v. Rhay (E.D.Wash.1975), 68 F.R.D. 574, and detemtined {¶ 28} "Privilege is the comerstone upon which that a privilege is impliedly waived if: the attorney-client relationship is founded." The purpose of the attomey-client privilege "is to {¶ 31) " * * * (1) assertion of the privilege was a encourage full and frank communication between result of some affumative act, such as filing suit, by attorneys and their clients and thereby promote the asserting party; (2) through this affn-mative act, broader public interest in the observance of law and the asserting party put the protected information at administration of justice." Upjohn Co. v. United issue by making it relevant to the case; and (3) States (1981), 449 U.S. 383, 389, 101 S.Ct. 677, 66 application of the privilege would have denied the L.Ed.2d 584. It bestows upon a client the privilege opposing party access to information vital to his to refuse to disclose, and to prevent others from defense. * * * " disclosing, confidential connrtunications made between the attomey and client in the course of {¶ 32) Applying the foregoing to this matter, we seeking or rendering legal advice. Frank W. are unable to conclude that the trial court abused its Schaefer, Inc. v. C. Garfield Mitchell Agency, Inc. discretion in denying plaintiffs motion for a (1992), 82 Ohio App.3d 322, 329, 612 N.E.2d 442. protective order, and we are unable to conclude that While this privilege is not absolute, it is to remain the court abused its discretion in determining that inviolate unless it is clearly waived. the records were not protected by the attorney-client Comnnmications made by a client to his attorney, privilege. In filing this action for legal malpractice with a view to professional advice or assistance, are in which he alleged that "a law fnm Cole & Lewis privileged; and courts will not require nor permit was asked by the plaintiff to take over them to be divulged by the attomey, without the representation in that suit and found defendants, consent of his client, whose privilege it is." King v. Jeffrey H. Friedman, and defendant, Friedman, Barrett (1860), 11 Ohio St. 261, paragraph one of Doniiano & Smith Co., L.P.A.," plaintiff impliedly the syllabus; see, also, State v. Shipley (1994), 94 waived his attomey-client privilege with Cole & Ohio App.3d 771, 775, 641 N.E.2d 822. The Lewis by putting the privileged information directly

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065 Not Reported in N.E.2d Page 6

Not Reported in N.E.2d, 2004 WL 1048207 (Ohio App. 8 Dist.), 2004 -Ohio- 2351 (Cite as; Not Reported in N.E.2d) in issue. Moreover, in his response to defendant's information which will not reasonably lead to interrogatories, plaintiff indicated that his attorneys discovery of admissible evidence is deemed had personal knowledge of the matters set forth in irrelevant. Tschantz v. Ferguson (1994), 97 Ohio his complaint, and that his entire case file would be App.3d 693, 647 N.E.2d 507. used as an exltibit at trial. Accordingly, we conclude that plaintiff put the otherwise privileged {¶ 39} Plaintiff insists that by application of the information directly at issue in this case, and law of the case, these records are not relevant since without access to the file, defendants will be denied he dismissed his claims for physical injuries in the infomnation which is vital to their defense of this underlying FELA case. allegation. {¶ 40) As an initial matter, we note, with regard to {¶ 33} Plaintiffs first assignment of error is the issue of relevancy as applied to this matter, that without merit. the elements of a claim for attorney malpractice are: (1) the attorttey owed a duty; (2) there was a breach {¶ 34) Plaintiffs second assignment of error states: of that duty and the attomey failed to conform to the standard of care required by law; and (3) there was [3] {¶ 35) "The trial court erred to the prejudice a causal connection between the conduct of Plaintiff-Appellant when it overruled Plaintiffs complained of and the resulting damage. Vahila v. Motion for a Protective Order filed September 17, Hall, 77 Ohio St.3d 421, 1997-Ohio-259, 674 2003 and ordered Plaintiff to produce discovery of N.E.2d 1164. The court explained: any and all witnesses and documents associated with the underlying FELA case involving plaintiff." {¶ 41) "We are aware that the requirement of causation often dictates that the merits of the (¶ 36) After defendants sought to obtain discovery malpractice action depend upon the merits of the in connection with plaintiffs injuries in the initial underlying case. Naturally, a plaintiff in a legal FELA matter and sought to depose plaintiffs malpractice action may be required, depending on treating physicians, plaintiff moved for a protective the situation, to provide some evidence of the merits order, asserting that he had dismissed all claims for of the underlying claim." physical injuries, and the FELA matter was ultimately remanded solely as to plaintiffs {¶ 42) In this matter, plaintiff filed a civil action emotional injuries. against defendants for failing to pursue his claim for psychological injury as a result to chemical {¶ 37) As noted previously, the discovery order at exposure. In order to show the merits of the issue determined the action with respect to a underlying action, plaintiff was required to show provisional remedy and prevented a judgment with that he sustained physical impact or was placed in respect to plaintiff as to that remedy. Moreover, if the immediate risk of physical harm. See Smalley v. plaintiff were required to wait until there is a fmal Norfolk & Western Ry., supra. The Smalley court judgment as to all proceedings, issues, claims and further stated: parties before obtaining review of the order, he would be denied a meaningful or effective remedy. {¶ 43) "The fact that appellant withdrew his Therefore, this ruling is a final appealable order. bodily injury claims does not mean that in his claim for negligent infliction of emotional distress, *6 (¶ 38) Civ.R. 26(B)(1) provides that parties " appellant may not present evidence of physical may obtain discovery regarding any matter, not injury. All of the facts surrounding appellant's privileged, which is relevant to the subject matter alleged emotional injuries, including any physical involved in the pending action, whether it relates to contact with Safety-Kleen or other chemicals, may the claim or defense of any other party." The test be relevant to appellant's remaining claim for for relevancy under Civ.R. 26 is much broader than negligent infliction of emotional distress. Certainly the test utilized for admissibility at trial. Only such evidence is relevant under the zone of danger

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066 Not Reported in N.E.2d Page 7 Not Reported in N.E.2d, 2004 WL 1048207 (Ohio App. 8 Dist.), 2004 -Ohio- 2351 (Cite as: Not Reported in N.E.2d) test." Id., at 11. information that is relevant to the defense of plaintiffs action for attomey malpractice and are {¶ 44} In accordance with the foregoing, the therefore discoverable. communications are relevant and the law of the case does not alter this detemiination, as the Smalley {¶ 491 The second assignment of error is court specifically stated that evidence of plaintiffs overmled. physical injury is relevant under the zone of danger test. (150) The judgment is affumed.

[4] {¶ 45} With regard to the issue of privilege, it Judgment affirmed. is well-settled that as a general rule, a physician or dentist may not testify about any conununication the FRANK D. CELEBREZZE, JR., and ANTHONY patient made to the physician or dentist or any 0. CALABRESE, JR., JJ., concur. advice that person gave to the patient. R.C. It is ordered that appellee recover of appellant its 2317.02(B)(1). A conmtunication includes "any costs herein taxed. medical or dental, office, or hospital communication such as a record, chart, letter, The Court fmds there were reasonable grounds for memorandum, laboratory test and results, x-ray, this appeal. photograph, financial statement, diagnosis, or prognosis." R.C. 2317.02(B)(5)(a). It is ordered that a special mandate issue out of this Court directing the Common Pleas Court to carry *7 {¶ 46) The testimonial privilege does not this judgment into execution. apply, however, when the patient files a medical claim, dental claim, chiropractic claim, or A certified copy of this entry shall constitute the optometric claim, action for wrongful death, other mandate pursuant to Rule 27 of the Rules of civil action, or claim under Chapter 4123. of the Appellate Procedure. Revised Code. R.C. 2317.02(B)(1)(a)(iii). In this instance, "a physician or dentist may be compelled N.B. This entry is an announcement of the court's * * * to submit to discovery under the Rules of Civil decision. See App.R.22(B), 22(D) and 26(A); Procedure only as to a communication * * * that Loc.App.R.22. This decision will be joumalized related causally or historically to physical or mental and will become the judgment and order of the injuries that are relevant to issues in the * * * civil court pursuant to App. R. 22(E) unless a motion for action * * *." R.C. 2317.02(B)(3)(a). See, reconsideration with supporting brief, per App.R. generally, Patterson v. Zdanski, Belmont App. No. 26(A), is filed within ten (10) days of the 03 BE 1, 2003-Ohio-5464. announcement of the court's decision. The time period for review by the Supreme Court of Ohio {¶ 47) In accordance with the foregoing, plaintiffs shall begin to run upon the journalization of this communications to his physicians, including court's announcement of decision by the clerk per medical records, which are related causally or App.R. 22(E). See, also S.Ct.Prac.R. II, Section historically to physical or mental injuries that are 2(A)(1). relevant to issues in his civil action are not privileged. Ohio App. 8 Dist.,2004. Smalley v. Friedman, Domiano & Smith Co. L.P.A. {¶ 48} Therefore, we conclude that the trial court Not Reported in N.E.2d, 2004 WL 1048207 (Ohio did not abuse its discretion in denying plaintiffs App. 8 Dist.), 2004 -Ohio- 2351 motion for a protective order as communications which are causally or historically related to the END OF DOCUMENT injuries he sustained in the accident are not privileged. Moreover, the records contain

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067 rayc I ot ti

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Page 1 West's F.S.A. § 774.201

Effective: July 01, 2005

West's Florida Statutes Annotated Currentness Title XLV. Torts (Chapters 766-774) (Refs & Annos) 'w Chapter 774. Asbestos-Related and Silica-Related Claims ^w Part 11. Asbestos and Silica Compensation Fairness Act

^774.201. Short title

This act may be cited as the "Asbestos and Silica Compensation Fairness Act".

CREDIT(S)

Laws 2005, c. 2005-274, § 1, eff. July 1, 2005.

HISTORICAL AND STATUTORY NOTES

Amendment Notes:

Laws 2005, c. 2005-274, § 10, provides:

"This act shall take effect July 1, 2005. Because the act expressly preserves the right of all injured persons to recover full compensatory damages for their loss, it does not impair vested rights. In addition, because it enhances the ability of the most seriously ill to receive a prompt recovery, it is remedial in nature. Therefore, the act shall apply to any civil action asserting an asbestos claim in which trial has not commenced as of the effective date of this act [July 1, 2005]."

Preamble (Laws 2005, c. 2005-274):

"WHEREAS, asbestos is a mineral that was widely used before the mid 1970's for insulation, fireproofing, and other purposes, and

"WHEREAS, millions of American workers and others were exposed to asbestos, especially during and after World War II and before the advent of regulation by the Occupational Safety and Health Administration in the early 1970's, and

"WHEREAS, long-term exposure to asbestos has been associated with various types of cancer, including mesothelioma and lung cancer, as well as such nonmalignant conditions as asbestosis, pleural plaques, and diffuse pleural thickening, and

"WHEREAS, the diseases caused by asbestos often have long latency periods, and

"WHEREAS, although the use of asbestos has dramatically declined since the 1970's and workplace exposures have been regulated since 1971 by the Occupational Safety and Health Administration, past exposures will continue to result in significant claims of death and disability as a result of such exposure, and

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"WHEREAS, exposure to asbestos has created a flood of litigation in state and federal courts that the United States Supreme Court in Ortiz v. Fibreboard Corporation, 119 S. Ct. 2295, 2302 (1999), has characterized as an 'elephantine mass' of cases that'defies customary judicial administration; and

"WHEREAS, asbestos personal injury litigation can be unfair and inefficient, imposing a severe burden on litigants and taxpayers alike, and

"WHEREAS, the inefficiencies and societal costs of asbestos litigation have been well documented in reports such as the RAND Institutes study on Asbestos Litigation Costs and Compensation, the study of Joseph E. Stiglitz on The Impact of Asbestos Liabilities on Workers in Bankrupt Firms, Dr. Joseph Gitlin's report from Johns Hopkins Medical School on Comparison of B Readers' Interpretations of Chest Radiographs for Asbestos Related Changes, and the Report to the House of Delegates from the American Bar Association Commission on Asbestos Litigation, and

"WHEREAS, the extraordinary volume of nonmalignant asbestos cases continues to strain state courts, and

"WHEREAS, the vast majority of asbestos claims are filed by individuals who allege they have been exposed to asbestos and who may have some physical sign of exposure but who suffer no present asbestos-related impairment, and

"WHEREAS, the cost of compensating exposed individuals who are not sick jeopardizes the ability of defendants to compensate people with cancer and other serious asbestos-related diseases, now and in the future, and

"WHEREAS, the cost of compensating exposed individuals who are not sick threatens the savings, retirement benefits, and jobs of defendants' current and retired employees and adversely affects the communities in which these defendants operate, and

"WHEREAS, the crush of asbestos litigation has been costly to employers, employees, litigants, and the court system, and

"WHEREAS, in 1982, the Johns-Manville Corporation, the nation's largest single supplier of insulation products containing asbestos, declared bankruptcy due to the burden of the asbestos litigation, and

"WHEREAS, since 1982, more than 70 other companies have declared bankruptcy due to the burden of asbestos litigation, and

"WHEREAS, estimates show that between 60,000 and 128,000 American workers already have lost their jobs as a result of asbestos-related bankruptcies and that the total number of jobs that will be lost due to asbestos-related bankruptcies will eventually reach 432,000, and

"WHEREAS, each worker who loses his or her job due to an asbestos-related bankruptcy loses between $25,000 and $50,000 in wages over his or her career and loses 25 percent or more of the value of his or her retirement plan, and

"WHEREAS, asbestos litigation is estimated to have cost over $54 billion, with well over half of this expense going to attorney's fees and other litigation costs, and

"WHEREAS, the seriously ill too often find that the value of their recovery is substantially reduced due to defendant bankruptcies and the inefficiency of the litigation process, and

"WHEREAS, silica is a naturally occurring mineral, and

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Page 3 West's F.S.A. § 774.201

"WHEREAS, the Earth's crust is over 90 percent silica, and crystalline silica dust is the primary component of sand, quartz, and granite, and

"WHEREAS, silica-related illness, including silicosis, can occur when tiny silica particles are inhaled, and

"WHEREAS, silicosis was recognized as an occupational disease many years ago, and

"WHEREAS, the American Foundrymen's Society has distributed literature for more than 100 years to its members waming of the dangers of silica exposure, and

"WHEREAS, the number of new lawsuits alleging silica-related disease being filed each year began to rise precipitously in recent years, and

"WHEREAS, silica claims, like asbestos claims, often arise when an individual is identified as having markings on his or her lungs that are possibly consistent with silica exposure but the individual has no functional or physical impairment from any silica-related disease, and

"WHEREAS, the Legislature finds that an overpowering public necessity requires it to act to prevent a silica-based litigation crisis, and

"WHEREAS, concems about statutes of limitations may prompt claimants who have been exposed to asbestos or silica but who do not have any current injury to bring premature lawsuits in order to protect against losing their rights to future compensation should they become impaired, and

"WHEREAS, consolidations, joinders, and similar procedures to which some courts have resorted in order to deal with the mass of asbestos and silica cases can undermine the appropriate functioning of the judicial process and further encourage the filing of thousands of cases by exposed individuals who are not sick and who may never become sick, and

"WHEREAS, punitive damage awards unfairly divert the resources of defendants from compensating genuinely impaired claimants and, given the lengthy history of asbestos and silica litigation and the regulatory and other restrictions on the use of asbestos and silica-containing products in the workplace, the legal justification for such awards, punishment, and deten•ence is either inapplicable or inappropriate, and

"WHEREAS, the Legislature finds that there is an overpowering public necessity to defer the claims of exposed individuals who are not sick in order to preserve, now and for the future, defendants' ability to compensate people who develop cancer and other serious asbestos-related and silica-related injuries and to safeguard the jobs, benefits, and savings of workers in this state and the well-being of the economy of this state, NOW, THEREFORE,"

West's F. S. A. § 774.201, FL ST § 774.201

Current through Chapter 316 and S.J.R. No. 2788 (End) of the 2006 Second Regular Session of the Nineteenth Legislature

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West's F.S.A. § 774.204

Effective: July 04, 2006

WEST'S FLORIDA STATUTES ANNOTATED TITLE XLV. TORTS (CHAPTERS 766-774) CHAPTER 774. ASBESTOS-RELATED AND SILICA-RELATED CLAIMS PART II. ASBESTOS AND SILICA COMPENSATION FAIRNESS ACT r774.204. Physical impairment

(1) Physical impairment of the exposed person, to which asbestos or silica exposure was a substantial contributing factor, is an essential element of an asbestos or silica claim.

(2) A person may not file or maintain a civil action alleging a nonmalignant asbestos claim in the absence of a prima facie showing of physical impairment as a result of a medical condition to which exposure to asbestos was a substantial contributing factor. The prima facie showing must include all of the following requirements:

(a) Evidence verifying that a qualified physician, or someone working under the direct supervision and control of a qualified physician, has taken a detailed occupational and exposure history of the exposed person or, if the person is deceased, from a person who is knowledgeable about the exposures that form the basis of the nonmalignant asbestos claim, including:

1. Identification of all of the exposed person's principal places of employment and exposures to airborne contaminants; and

2. Whether each place of employment involved exposures to airbome contaminants, including but not limited to asbestos fibers or other disease-causing dusts, that can cause pulmonary impairment and the nature, duration, and level of any such exposure.

(b) Evidence verifying that a qualified physician, or someone working under the direct supervision and control of a qualified physician, has taken a detailed medical and smoking history, including a thorough review of the exposed person's past and present medical problems and their most probable cause.

(c) Evidence sufficient to demonstrate that at least 10 years have elapsed between the date of first exposure to asbestos and the date the diagnosis is made.

(d) A determination by a qualified physician, on the basis of a medical examination and pulmonary function testing, that the exposed person has a permanent respiratory impairment rating of at least Class 2 as defined by and evaluated pursuant to the AMA Guides to the Evaluation of Permanent Impairment.

(e) A diagnosis by a qualified physician of asbestosis or diffuse pleural thickening, based at a minimum on radiological or pathological evidence of asbestosis or radiological evidence of diffuse pleural thickening.

(f) A determination by a qualified physician that asbestosis or diffuse pleural thickening, rather than chronic obstructive pulmonary disease, is a substantial contributing factor to the exposed person's physical impairment, based at a minimum on a determination that the exposed person has:

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West's F.S.A. § 774.204

1. Total lung capacity, by plethysmography or timed gas dilution, below the predicted lower limit of normal;

2. Forced vital capacity below the lower limit of normal and a ratio of FEV1 to FVC that is equal to or greater than the predicted lower limit of normal; or

3. A chest X ray showing small, irregular opacities (s, t, u) graded by a certified B-reader as at least 2/I on the ILO scale.

(g) If the exposed person meets the requirements of paragraphs (a), (b), and (c), and if a qualified physician determines that the exposed person has a physical impairment, as demonstrated by meeting the criteria set forth in paragraph (d) and subparagraph (f)1. or subparagraph (f)2., but the exposed person's chest X ray does not demonstrate radiological evidence of asbestosis, the exposed person may meet the criteria of paragraph (e) if his or her chest X ray is graded by a certified B-reader as at least 1/0 and a qualified physician, relying on high-resolution computed tomography, detemtines to a reasonable degree of medical certainty that the exposed person has asbestosis and forms the conclusion set forth in paragraph (h).

(h) A conclusion by a qualified physician that the exposed person's medical findings and impairment were not more probably the result of causes other than the asbestos exposure revealed by the exposed person's employment and medical history. A diagnosis that states that the medical findings and impairment are "consistent with" or "compatible with" exposure to asbestos does not meet the requirements of this subsection.

(i) If a plaintiff files a civil action alleging a nonmalignant asbestos claim, and that plaintiff alleges that his or her exposure to asbestos was the result of extended contact with another exposed person who, if the civil action had been filed by the other exposed person, would have met the requirements of paragraph (a), and the plaintiff alleges that he or she had extended contact with the exposed person during the time period in which that exposed person met the requirements of paragraph (a), the plaintiff has satisfied the requirements of paragraph (a). The plaintiff in such a civil action must individually satisfy the requirements of paragraphs (b), (c), (d), (e), (f), (g), and (h).

(3) A person who is a smoker may not file or maintain a civil action alleging an asbestos claim which is based upon cancer of the lung, larynx, pharynx, or esophagus in the absence of a prima facie showing that includes all of the following requirements:

(a) A diagnosis by a qualified physician who is board certified in pathology, pulmonary medicine, or oncology, as appropriate for the type of cancer claimed, of a primary cancer of the lung, larynx, pharynx, or esophagus, and that exposure to asbestos was a substantial contributing factor to the condition.

(b) Evidence sufficient to demonstrate that at least 10 years have elapsed between the date of first exposure to asbestos and the date of diagnosis of the cancer.

(c) Radiological or pathological evidence of asbestosis or diffuse pleural thickening or a qualified physician's diagnosis of asbestosis based on a chest X ray graded by a certified B-reader as at least 1/0 on the ILO scale and high-resolution computed tomography supporting the diagnosis of asbestosis to a reasonable degree of medical certainty.

(d) Evidence of the exposed person's substantial occupational exposure to asbestos. If a plaintiff files a civil action alleging an asbestos-related claim based on cancer of the lung, larynx, pharynx, or esophagus, and that plaintiff alleges that his or her exposure to asbestos was the result of extended contact with another exposed person who, if the civil action had been filed by the other exposed person, would have met the substantial occupational exposure requirement of this subsection, and the plaintiff alleges that he or she had extended contact with the exposed person during the time period in which that exposed person met the substantial occupational exposure requirement of this subsection, the plaintiff has satisfied the requirements of this paragraph. The plaintiff in such a civil action must

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Page 3 West's F.S.A. § 774.204

individually satisfy the requirements of this subsection.

(e) If the exposed person is deceased, the qualified physician, or someone working under the direct supervision and control of a qualified physician, may obtain the evidence required in paragraphs (b) and (d) from the person most knowledgeable about the alleged exposures that fonn the basis of the asbestos claim.

(f) A conclusion by a qualified physician that the exposed person's medical findings and impairment were not more probably the result of causes other than the asbestos exposure revealed by the exposed person's employment and medical history. A conclusion that the medical findings and impairment are "consistent with" or "compatible with" exposure to asbestos does not meet the requirements of this subsection.

(4) In a civil action alleging an asbestos claim by a nonsmoker based on cancer of the lung, larynx, pharynx, or esophagus, a prima facie showing of an impairment due to asbestos exposure is not required.

(5) A person may not file or maintain a civil action alleging an asbestos claim which is based on cancer of the colon, rectum, or stomach in the absence of a prima facie showing that includes all of the following requirements:

(a) A diagnosis by a qualified physician who is board certified in pathology, pulmonary medicine, or oncology, as appropriate for the type of cancer claimed, of cancer of the colon, rectum, or stomach, and that exposure to asbestos was a substantial contributing factor to the condition.

(b) Evidence sufficient to demonstrate that at least 10 years have elapsed between the date of first exposure to asbestos and the date of diagnosis of the cancer.

(c) 1. a. Radiological or pathological evidence of asbestosis or diffuse pleural thickening or a qualified physician's diagnosis of asbestosis based on a chest X ray graded by a certified B-reader as at least 1/0 on the ILO scale and high-resolution computed tomography supporting the diagnosis of asbestosis to a reasonable degree of medical certainty; or

b. Evidence of the exposed person's substantial occupational exposure to asbestos. If a plaintiff files a civil action alleging an asbestos-related claim based on cancer of the colon, rectum, or stomach, and that plaintiff alleges that his or her exposure to asbestos was the result of extended contact with another exposed person who, if the civil action had been filed by the other exposed person, would have met the substantial occupational exposure requirement of this subsection, and the plaintiff alleges that he or she had extended contact with the exposed person during the time period in which that exposed person met the substantial occupational exposure requirement of this subsection, the plaintiff has satisfied the requirements of this sub-subparagraph. The plaintiff in such a civil action must individually satisfy the requirements of this subsection.

2. In the case of an exposed person who is a smoker, the criteria in sub-subparagraph l.a. and b. must be met.

3. If the exposed person is deceased, the qualified physician, or someone working under the direct supervision and control of a qualified physician, may obtain the evidence required in sub-subparagraph 1.b. and paragraph (b) from the person most knowledgeable about the alleged exposures that form the basis of the asbestos claim.

(d) A conclusion by a qualified physician that the exposed person's medical findings and impairment were not more probably the result of causes other than the asbestos exposure revealed by the exposed person's employment and medical history. A conclusion that the medical findings and impairment are "consistent with" or "compatible with" exposure to asbestos does not meet the requirements of this subsection.

(6) In a civil action alleging an asbestos claim based upon mesothelioma a prima facie showing of an impairment due to asbestos exposure is not required.

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Page 4 West's F.S.A. § 774.204

(7) A person may not file or maintain a civil action alleging a silicosis claim in the absence of a prima facie showing of physical impairment as a result of a medical condition to which exposure to silica was a substantial contributing factor. The prima facie showing must include all of the following requirements:

(a) Evidence verifying that a qualified physician, or someone working under the direct supervision and control of a qualified physician, has taken a detailed occupational and exposure history of the exposed person or, if the person is deceased, from a person who is knowledgeable about the exposures that form the basis of the nonmalignant silica claim, including:

1. All of the exposed person's principal places of employment and exposures to airbome contaminants; and

2. Whether each place of employment involved exposures to airbome contaminants, including, but not limited to, silica particles or other disease-causing dusts, that can cause pulmonary impaimient and the nature, duration, and level of any such exposure.

(b) Evidence verifying that a qualified physician, or someone working under the direct supervision and control of a qualified physician, has taken detailed medical and smoking history, including a thorough review of the exposed person's past and present medical problems and their most probable cause, and verifying a sufficient latency period for the applicable stage of silicosis.

(c) A determination by a qualified physician, on the basis of a medical examination and pulmonary function testing, that the exposed person has a petmanent respiratory impairment rating of at least Class 2 as defined by and evaluated pursuant to the AMA Guides to the Evaluation of Permanent Impairment.

(d) A determination by a qualified physician that the exposed person has:

1. A quality I chest X ray under the ILO System of classification and that the X ray has been read by a certified B-reader as showing, according to the ILO System of classification, bilateral nodular opacities (p, q, or r) occurring primarily in the upper lung fields, graded 1/1 or higher; or

2. Pathological demonstration of classic silicotic nodules exceeding one centimeter in diameter as published in 112 Archive of Pathology and Laboratory Medicine 7 (July 1988).

In a death case where no pathology is available, the necessary radiologic findings may be made with a quality 2 film if a quality 1 film is not available.

(e) A conclusion by a qualified physician that the exposed person's medical findings and impairment were not more probably the result of causes other than silica exposure revealed by the exposed person's employment and medical history. A conclusion that the medical findings and impairment are "consistent with" or "compatible with" exposure to silica does not meet the requirements of this subsection.

(8) A person may not file or maintain a civil action alleging a silica claim other than as provided in subsection (7), in the absence of a prima facie showing that includes all of the following requirements:

(a) A report by a qualified physician who is:

1. Board certified in pulmonary medicine, intemal medicine, oncology, or pathology stating a diagnosis of the exposed person of silica-related lung cancer and stating that, to a reasonable degree of medical probability, exposure to silica was a substantial contributing factor to the diagnosed lung cancer; or

2. Board certified in pulmonary medicine, internal medicine, or pathology stating a diagnosis of the exposed person

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Page 5 West's F.S.A. § 774.204

of silica-related progressive massive fibrosis or acute silicoproteinosis, or silicosis complicated by documented tuberculosis.

(b) Evidence verifying that a qualified physician, or someone working under the direct supervision and control of a qualified physician, has taken a detailed occupational and exposure history of the exposed person or, if the person is deceased, from a person who is knowledgeable about the exposures that form the basis of the nonmalignant silica claim, including:

1. All ofthe exposed person's principal places of employment and exposures to airbome contaminants; and

2. Whether each place of employment involved exposures to airbotne contaminants, including, but not limited to, silica particles or other disease-causing dusts, that can cause pulmonary impairment and the nature, duration, and level of any such exposure.

(c) Evidence verifying that a qualified physician, or someone working under the direct supervision and control of a qualified physician, has taken a detailed medical and smoking history, including a thorough review of the exposed person's past and present medical problems and their most probable cause;

(d) A determination by a qualified physician that the exposed person has:

1. A quality 1 chest X ray under the ILO System of classification and that the X ray has been read by a certified B-reader as showing, according to the ILO System of classification, bilateral nodular opacities (p, q, or r) occurring primarily in the upper lung fields, graded 1/1 or higher; or

2. Pathological demonstration of classic silicotic nodules exceeding one centimeter in diameter as published in 112 Archive of Pathology and Laboratory Medicine 7 (July 1988).

In a death case where no pathology is available, the necessary radiologic findings may be made with a quality 2 film if a quality I film is not available.

(e) A conclusion by a qualified physician that the exposed person's medical findings and impairment were not more probably the result of causes other than silica exposure revealed by the exposed person's employment and medical history. A conclusion that the medical findings and impairment are "consistent with" or "compatible with" exposure to silica does not meet the requirements of this subsection.

(9) Evidence relating to physical impairment under this section, including pulmonary function testing and diffusing studies, must:

(a) Comply with the technical recommendations for examinations, testing procedures, quality assurance, quality control, and equipment of the AMA Guides to the Evaluation of Permanent Impairment, as set forth in 20 C.F.R. part 404, Subpart P. App. 1. Part A, s. 3.00 E. and F., and the interpretive standards, set forth in the official statement of the American Thoracic Society entitled "lung function testing: selection of reference values and interpretive strategies" as published in American Review of Respiratory Disease. 1991: 144:1202-1218;

(b) Not be obtained through testing or examinations that violate any applicable law, regulation, licensing requirement, or medical code of practice; and

(c) Not be obtained under the condition that the exposed person retain legal services in exchange for the examination, test, or screening.

(10) Presentation of prima facie evidence meeting the requirements of subsection (2), subsection (3), subsection

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(5), or subsection (6) of this section may not:

(a) Result in any presumption at trial that the exposed person is impaired by an asbestos-related or silica-related condition;

(b) Be conclusive as to the liability of any defendant; and

(c) Be admissible at trial.

Current through Chapter 316 and S.J.R. No. 2788 (End) of the 2006 Second Regular Session of the Nineteenth Legislature

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Page I Const. Art. IV, § 3

Baldwin's Annotated Currentness Constitution of the State of Ohio (Refs & Annos) 'm Article IV. Judicial (Refs & Annos)

-r0 Const IV Sec. 3 Organization and jurisdiction of courts of appeals

(A) The state shall be divided by law into compact appellate districts in each of which there shall be a court of appeals consisting of three judges. Laws may be passed increasing the number of judges in any district wherein the volume of business may require such additional judge or judges. In districts having additional judges, three judges shall participate in the hearing and disposition of each case. The court shall hold sessions in each county of the district as the necessity arises. The county commissioners of each county shall provide a proper and convenient place for the court of appeals to hold court.

(B) (1) The courts of appeals shall have original jurisdiction in the following:

(a) Quo warranto;

(b) Mandamus;

(c) Habeas corpus;

(d) Prohibition;

(e) Procedendo;

(f) In any cause on review as may be necessary to its complete determination.

(2) Courts of appeals shall have such jurisdiction as may be provided by law to review and affirm, modify, or reverse judgments or final orders of the courts of record inferior to the court of appeals within the district, except that courts of appeals shall not have jurisdiction to review on direct appeal a judgment that imposes a sentence of death. Courts of appeals shall have such appellate jurisdiction as may be provided by law to review and affirm, modify, or reverse final orders or actions of administrative officers or agencies.

(3) A majority of the judges hearing the cause shall be necessary to render a judgment. Judgments of the courts of appeals are final except as provided in section 2 (B) (2) of this article. No judgment resulting from a trial by jury shall be reversed on the weight of the evidence except by the concurrence of all three judges hearing the cause.

(4) Whenever the judges of a court of appeals find that a judgment upon which they have agreed is in conflict with a judgment pronounced upon the same question by any other court of appeals of the state, the judges shall certify the record of the case to the supreme court for review and final determination.

(C) Laws may be passed providing for the reporting of cases in the courts of appeals.

(1994 HJR 15, am. eff. 1-1-95; 132 v HJR 42, adopted eff. 5-7-68)

HISTORICAL AND STATUTORY NOTES

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Page 2 Const. Art. IV, § 3

Ed. Note: Former Art IV, § 3 repealed by 132 v HJR 42, eff. 5-7-68; 1912 constitutional convention, am, eff. 1-1-13; 1851 constitutional convention, adopted eff. 9-1-1851.

Ed. Note: Effective date and repeal date for revision of 0 Const Art IV by 132 v HJR 42 is May 7, 1968. See Euclid v Heaton, 15 OS(2d) 65, 238 NE(2d) 790 ( 1968).

EDITOR'S COMMENT

1994:

The amendment to this section and §2, Article IV, adopted November 8, 1994, eliminates the jurisdiction of the courts of appeals to hear appeals of cases in which the death penalty has been imposed, and provides instead for a direct appeal from the trial court to the Supreme Court "as a matter of right." The Schedule to the amendment provides that it is effective only as to capital crimes committed on or after January 1, 1995. Cases involving capital offenses committed before that date are subject to the appellate process as it existed before the amendment; i.e., intermediate appeals to the courts of appeals are retained as to such cases. For a more complete discussion of this amendment and its effect, see the 1994 Commentary to §2, Article IV.

EDITOR'S COMMENT

1990:

Intermediate appellate courts were not introduced into Ohio's judicial system until 1851, and did not become the courts of appeals of today until 1912. Most of the provisions of this section were originally contained in §6, Article IV, and were transferred to this section by the Modem Courts Amendment in 1968.

Under the Constitution of 1802, although the common pleas courts were empowered to hear appeals from justices of the peace, the Supreme Court was the only court to which appeals could be taken in most cases. But the Supreme Court was also an undermanned trial court, and was compelled to ride circuit much of the year. Consequently, by mid-century the Supreme Court was buried under a mountainous caseload. See Commentary to § 2, Article IV. The 1851 Constitution sought to relieve the problem by limiting the Supreme Court's original jurisdiction and introducing intermediate appeals courts and, as originally adopted, §6, Article IV of the 1851 Constitution created nine district courts to serve as courts of appeal. The judges of each district court were a Supreme Court judge plus all of the common pleas judges in the district, any three of whom constituted a quorum. Unfortunately, the new courts functioned poorly. The Supreme Court judges were not explicitly required to sit on the district courts, and usually skipped the duty in favor of tending to the Supreme Court's own docket. The common pleas judges also had their own dockets to handle, and in any event seemed reluctant to reverse their own decisions. The upshot was that the district courts came to be held in low esteem, cases seldom terminated there, and the Supreme Court's docket still creaked under an impossible overload. Carrington T. Marshall, I A History oj the Courts and Lawyers of Ohio 125, 201-04 (The American Historical Society, Inc 1934). Attempts to reform the district courts by constitutional amendment or legislation failed in 1874 and 1877, and it was not until 1883 that the district courts were replaced with circuit courts, with judges specifically elected as circuit judges. In 1912, the circuit courts were replaced in tum by the courts of appeals, with at least three judges to serve each appellate district.

Until 1912, the practice was to leave to the legislature the task of providing the details of jurisdiction of the appellate courts. The Constitution gave the district courts created in 1851 the same original jurisdiction as the Supreme Court, plus appellate jurisdiction as provided by law, and this formula was continued when the district courts were replaced by the circuit courts in 1883. The 1912 amendments discarded this practice, so that the jurisdiction of the courts of appeals was spelled out in some detail--in substance, much the same as present §3, Article IV.

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Courts of appeals are organized under RC Ch 2501. Twelve appellate districts are created under RC 2501.01, with the three smallest (in area) consisting of only one county each (Hamilton, Franklin, and Cuyahoga), and the largest containing seventeen counties. Only two districts have the minimum of three judges, while other districts are authorized from one to six additional judges. RC 2501.011 to 2501.013.

Const. Art. IV, § 3, OH CONST Art. IV, § 3

Current through 2006 File 145 of the 126th GA (2005-2006), apv. by 12/7/06, and filed with the Secretary of State by 12/7/2006.

Copr. © 2006 Thomson/West.

END OF DOCUMENT

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R.C. § 2307.91

Baldwin's Ohio Revised Code Annotated Currentness Title XXIII. Courts--Common Pleas Wi Chapter 2307. Civil Actions (Refs & Annos) rm Asbestos Claims

^2307.91 Definitions

As used in sections 2307.91 to 2307.96 of the Revised Code:

(A) "AMA guides to the evaluation of permanent impairment" means the American medical association's guides to the evaluation of permanent impairment (fifth edition 2000) as may be modified by the American medical association.

(B) "Asbestos" means chrysotile, amosite, crocidolite, tremolite asbestos, anthophyllite asbestos, actinolite asbestos, and any of these minerals that have been chemically treated or altered.

(C) "Asbestos claim" means any claim for damages, losses, indemnification, contribution, or other relief arising out of, based on, or in any way related to asbestos. "Asbestos claim" includes a claim made by or on behalf of any person who has been exposed to asbestos, or any representative, spouse, parent, child, or other relative of that person, for injury, including mental or emotional injury, death, or loss to person, risk of disease or other injury, costs of medical monitoring or surveillance, or any other effects on the person's health that are caused by the person's exposure to asbestos.

(D) "Asbestosis" means bilateral diffuse interstitial fibrosis of the lungs caused by inhalation of asbestos fibers.

(E) "Board-certified internist" means a medical doctor who is currently certified by the American board of internal medicine.

(F) "Board-certified occupational medicine specialist" means a medical doctor who is currently certified by the American board of preventive medicine in the specialty of occupational medicine,

(G) "Board-certified oncologist" means a medical doctor who is currently certified by the American board of internal medicine in the subspecialty of medical oncology.

(H) "Board-certified pathologist" means a medical doctor who is currently certified by the American board of pathology.

(I) "Board-certified pulmonary specialist" means a medical doctor who is currently certified by the American board of intemal medicine in the subspecialty of pulmonary medicine.

(J) "Certified B-reader" means an individual qualified as a "final" or "B-reader" as defined in 42 C.F.R. section 37.51(b), as amended.

(K) "Certified industrial hygienist" means an industrial hygienist who has attained the status of diplomate of the American academy of industrial hygiene subject to compliance with requirements established by the American board of industrial hygiene.

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(L) "Certified safety professional" means a safety professional who has met and continues to meet all requirements established by the board of certified safety professionals and is authorized by that board to use the certified safety professional title or the CSP designation.

(M) "Civil action" means all suits or claims of a civil nature in a state or federal court, whether cognizable as cases at law or in equity or admiralty. "Civil action" does not include any of the following:

(1) A civil action relating to any workers' compensation law;

(2) A civil action alleging any claim or demand made against a trust established pursuant to 11 U.S.C. section 524(g);

(3) A civil action alleging any claim or demand made against a trust established pursuant to a plan of reorganization confirmed under Chapter 11 of the United States Bankruptcy Code, 11 U.S.C. Chapter 11.

(N) "Exposed person" means any person whose exposure to asbestos or to asbestos-containing products is the basis for an asbestos claim under section 2307.92 of the Revised Code.

(0) "FEVI" means forced expiratory volume in the first second, which is the maximal volume of air expelled in one second during performance of simple spirometric tests.

(P) "FVC" means forced vital capacity that is maximal volume of air expired with maximum effort from a position of full inspiration.

(Q) "ILO scale" means the system for the classification of chest x-rays set forth in the international labour office's guidelines for the use of ILO intemational classification of radiographs of pneumoconioses (2000), as amended.

(R) "Lung cancer" means a malignant tumor in which the primary site of origin of the cancer is inside the lungs, but that term does not include mesothelioma.

(S) "Mesothelioma" means a malignant tumor with a primary site of origin in the pleura or the peritoneum, which has been diagnosed by a board-certified pathologist, using standardized and accepted criteria of microscopic morphology and appropriate staining techniques.

(T) "Nonmalignant condition" means a condition that is caused or may be caused by asbestos other than a diagnosed cancer.

(U) "Pathological evidence of asbestosis" means a statement by a board-certified pathologist that more than one representative section of lung tissue uninvolved with any other disease process demonstrates a pattern of peribronchiolar or parenchymal scarring in the presence of characteristic asbestos bodies and that there is no other more likely explanation for the presence of the fibrosis.

(V) "Physical impairment" means a nonmalignant condition that meets the minimum requirements specified in division (B) of section 2307.92 of the Revised Code, lung cancer of an exposed person who is a smoker that meets the minimum requirements specified in division (C) of section 2307.92 of the Revised Code, or a condition of a deceased exposed person that meets the minimum requirements specified in division (D) of section 2307.92 of the Revised Code.

(W) "Plethysmography" means a test for determining lung volume, also known as "body plethysmography," in which the subject of the test is enclosed in a chamber that is equipped to measure pressure, flow, or volume changes.

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(X) "Predicted lower limit of normal" means the fifth percentile of healthy populations based on age, height, and gender, as referenced in the AMA guides to the evaluation of permanent impairment.

(Y) "Premises owner" means a person who owns, in whole or in part, leases, rents, maintains, or controls privately owned lands, ways, or waters, or any buildings and structures on those lands, ways, or waters, and all privately owned and state-owned lands, ways, or waters leased to a private person, firm, or organization, including any buildings and structures on those lands, ways, or waters.

(Z) "Competent medical authority" means a medical doctor who is providing a diagnosis for purposes of constituting prima-facie evidence of an exposed person's physical impairment that meets the requirements specified in section 2307.92 of the Revised Code and who meets the following requirements:

(1) The medical doctor is a board-certified internist, pulmonary specialist, oncologist, pathologist, or occupational medicine specialist.

(2) The medical doctor is actually treating or has treated the exposed person and has or had a doctor-patient relationship with the person.

(3) As the basis for the diagnosis, the medical doctor has not relied, in whole or in part, on any of the following:

(a) 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 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;

(b) The reports or opinions of any doctor, clinic, laboratory, or testing company that perforrned an examination, test, or screening of the claimant's medical condition that was conducted without clearly establishing a doctor-patient relationship with the claimant or medical personnel involved in the examination, test, or screening process;

(c) 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 that required the claimant to agree to retain the legal services of the law firm sponsoring the examination, test, or screening.

(4) The medical doctor spends not more than twenty-five per cent of the medical doctor's 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 eams not more than twenty per cent of its revenues from providing those services.

(AA) "Radiological evidence of asbestosis" means a chest x-ray showing small, irregular opacities (s, t) graded by a certified B-reader as at least 1/1 on the ILO scale.

(BB) "Radiological evidence of diffuse pleural thickening" means a chest x-ray showing bilateral pleural thickening graded by a certified B-reader as at least B2 on the ILO scale and blunting of at least one costophrenic angle.

(CC) "Regular basis" means on a frequent or recurring basis.

(DD) "Smoker" means a person who has smoked the equivalent of one-pack year, as specified in the written report of a competent medical authority pursuant to sections 2307.92 and 2307.93 of the Revised Code, during the last fifteen years.

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(EE) "Spirometry" means the measurement of volume of air inhaled or exhaled by the lung.

(FF) "Substantial contributing factor" means both of the following:

(1) Exposure to asbestos is the predominate cause of the physical impairment alleged in the asbestos claim.

(2) A competent medical authority has determined with a reasonable degree of medical certainty that without the asbestos exposures the physical impairment of the exposed person would not have occurred.

(GG) "Substantial occupational exposure to asbestos" means employment for a cumulative period of at least five years in an industry and an occupation in which, for a substantial portion of a normal work year for that occupation, the exposed person did any of the following:

(1) Handled raw asbestos fibers;

(2) Fabricated asbestos-containing products so that the person was exposed to raw asbestos fibers in the fabrication process;

(3) Altered, repaired, or otherwise worked with an asbestos-containing product in a manner that exposed the person on a regular basis to asbestos fibers;

(4) Worked in close proximity to other workers engaged in any of the activities described in division (GG)(1), (2), or (3) of this section in a manner that exposed the person on a regular basis to asbestos fibers.

(HH) "Timed gas dilution" means a method for measuring total lung capacity in which the subject breathes into a spirometer containing a known concentration of an inert and insoluble gas for a specific time, and the concentration of the inert and insoluble gas in the lung is then compared to the concentration of that type of gas in the spirometer.

(II) "Tort action" means a civil action for damages for injury, death, or loss to person. "Tort action" includes a product liability claim that is subject to sections 2307.71 to 2307.80 of the Revised Code. "Tort action" does not include a civil action for damages for a breach of contract or another agreement between persons.

(JJ) "Total lung capacity" means the volume of air contained in the lungs at the end of a maximal inspiration.

(KK) "Veterans' benefit program" means any program for benefits in connection with military service administered by the veterans' administration under title 38 of the United States Code.

(LL) "Workers' compensation law" means Chapters 4121., 4123., 4127., and 4131. of the Revised Code.

(2004 H 292, eff. 9-2-04)

UNCODIFIED LAW

2004 H 292, § 3 and § 4, eff. 9-2-04, read:

SECTION 3. (A) The General Assembly makes the following statement of findings and intent:

(1) Asbestos claims have created an increased amount of litigation in state and federal courts that the United States Supreme Court has characterized as "an elephant mass" of cases.

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(2) The current asbestos personal injury litigation system is unfair and inefficient, imposing a severe burden on litigants and taxpayers alike. A recent RAND study estimates that a total of fifty-four billion dollars have already been spent on asbestos litigation and the costs continue to mount. Compensation for asbestos claims has risen sharply since 1993. The typical claimant in an asbestos lawsuit now names sixty to seventy defendants, compared with an average of twenty named defendants two decades ago. The RAND Report also suggests that at best, only one-half of all claimants have come forward and at worst, only one-fifth have filed claims to date. Estimates of the total cost of all claims range from two hundred to two hundred sixty-five billion dollars. Tragically, plaintiffs are receiving less than forty-three cents on every dollar awarded, and sixty-five per cent of the compensation paid, thus far, has gone to claimants who are not sick.

(3) The extraordinary volume of nonmalignant asbestos cases continue to strain federal and state courts.

(a) Today, it is estimated that there are more than two hundred thousand active asbestos cases in courts nationwide. According to a recent RAND study, over six hundred thousand people have filed asbestos claims for asbestos-related personal injuries through the end of 2000.

(b) Before 1998, five states, , New York, West , Texas, and Ohio, accounted for nine per cent of the cases filed. However, between 1998 and 2000, these same five states handled sixty-six per cent of all filings. Today, Ohio has become a haven for asbestos claims and, as a result, is one of the top five state court venues for asbestos filings.

(c) According to testimony by Laura Hong, a partner at the law firm of Squire, Sanders & Dempsey who has been defending companies in asbestos personal injury litigation since 1985, there are at least thirty-five thousand asbestos personal injury cases pending in Ohio state courts today.

(d) If the two hundred thirty-three Ohio state court general jurisdictional judges started trying these asbestos cases today, Ms. Hong noted, each would have to try over one hundred fifty cases before retiring the current docket. That figure conservatively computes to at least one hundred fifty trial weeks or more than three years per judge to retire the current docket.

(e) The current docket, however, continues to increase at an exponential rate. According to Judge Leo Spellacy, one of two Cuyahoga County Common Pleas Court judges appointed by the Ohio Supreme Court to manage the Cuyahoga County case management order for asbestos cases, in 1999 there were approximately twelve thousand eight hundred pending asbestos cases in Cuyahoga County. However, by the end of October 2003, there were over thirty-nine thousand pending asbestos cases. Approximately two hundred new asbestos cases are filed in Cuyahoga County every month.

(4) Nationally, asbestos personal injury litigation has already contributed to the bankruptcy of more than seventy companies, including nearly all manufacturers of asbestos textile and insulation products, and the ratio of asbestos-driven bankruptcies ia. accelerating.

(a) As stated by Linda Woggon, Vice President of Governmental Affairs of the Ohio Chamber of Commerce, a recent RAND study found that during the first ten months of 2002, fifteen companies facing significant asbestos-related liabilities filed for bankruptcy and more than sixty thousand jobs have been lost because of these bankruptcies. The RAND study estimates that the eventual cost of asbestos litigation could reach as high as four hundred twenty-three thousand jobs.

(b) Joseph Stiglitz, Nobel award-winning economist, in "The Impact of Asbestos Liabilities on Workers in Bankrupt Firms," calculated that bankruptcies caused by asbestos have already resulted in the loss of up to sixty ® 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works.

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thousand jobs and that each displaced worker in the bankrupt companies will lose, on average, an estimated twenty-five thousand to fifty thousand dollars in wages over the worker's career, and at least a quarter of the accumulated pension benefits.

(c) 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.

(d) Owens Coming, a Toledo company, has been sued four hundred thousand times by plaintiffs alleging asbestos-related injury and as a result was forced to file bankruptcy. The type of job and pension loss many Toledoans have faced because of the Owens Coming bankruptcy also can be seen in nearby Licking County where, in 2000, Owens Coming laid off two hundred seventy-five workers from its Granville plant. According to a study conducted by NERA Economic Consulting in 2000, the ripple effect of those losses is predicted to result in a total loss of five hundred jobs and a fifteen-million to twenty-million dollar annual reduction in regional income.

(e) According to testimony presented by Robert Bunda, a partner at the firm of Bunda, Stutz & DeWitt in Toledo, Ohio who has been involved with the defense of asbestos cases on behalf of Owens-Illinois for twenty-four years, at least five Ohio-based companies have gone bankrupt because of the cost of paying people who are not sick. Wage losses, pension losses, and job losses have significantly affected workers for the bankrupt companies like Owens Corning, Babcox & Wilcox, North American Refractories, and A-Best Corp.

(5) The General Assembly recognizes 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. Eighty-nine per cent of asbestos claims come from people who do not have cancer. Sixty-six to ninety per cent of these non-cancer claimants are not sick. According to a Tillinghast-Towers Perrin study, ninety-four per cent of the fitfty-two thousand nine hundred asbestos claims filed in 2000 concerned claimants who are not sick. As a result, the General Assembly recognizes that reasonable medical criteria are a necessary response to the asbestos litigation crisis in this state. Medical criteria will expedite the resolution of claims brought by those sick claimants and will ensure that resources are available for those who are currently suffering from asbestos-related illnesses and for those who may become sick in the future. As stated by Dr. James Allen, a pulmonologist, Professor and Vice-Chairman of the Department of Intemal Medicine at The Ohio State University, the medical criteria included in this act are reasonable criteria and are the first step toward ensuring that impaired plaintiffs are compensated. In fact, Dr. Allen noted that these criteria are minimum medical criteria. In his clinical practice, Dr. Allen stated that he always performs additional tests before assigning a diagnosis of asbestosis and would never rely solely on these medical criteria.

(6) The cost of compensating exposed individuals who are not sick jeopardizes the ability of defendants to compensate people with cancer and other serious asbestos-related diseases, now and in the fumre; threatens savings, retirement benefits, and jobs of the state's current and retired employees; adversely affects the communities in which these defendants operate; and impairs Ohio's economy.

(7) The public interest requires the deferring of claims of exposed individuals who are not sick in order to preserve, now and for the future, defendants' ability to compensate people who develop cancer and other serious asbestos-related injuries and to safeguard the jobs, benefits, and savings of the state's employees and the well being of the Ohio economy.

(B) In enacting sections 2307.91 to 2307.98 of the Revised Code, it is the intent of the General Assembly to: (1) give priority to those asbestos claimants who can demonstrate actual physical harm or illness caused by exposure to asbestos; (2) fully preserve the rights of claimants who were exposed to asbestos to pursue compensation should those claimants become impaired in the future as a result of such exposure; (3) enhance the ability of the state's judicial systems and federal judicial systems to supervise and control litigation and asbestos-related bankruptcy

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proceedings; and (4) conserve the scarce resources of the defendants to allow compensation of cancer victims and others who are physically impaired by exposure to asbestos while securing the right to similar compensation for those who may suffer physical impairment in the future.

SECTION 4. (A) As used in this section, "asbestos;" " asbestos claim," "exposed person," and " substantial contributing factor" have the same meanings as in section 2307.91 of the Revised Code.

(B) The General Assembly acknowledges the Supreme Court's authority in prescribing rules governing practice and procedure in the courts of this state, as provided by Section 5 of Article IV of the Ohio Constitution.

(C) The General Assembly hereby requests the Supreme Court to adopt rules to specify procedures for venue and consolidation of asbestos claims brought pursuant to sections 2307.91 to 2307.95 of the Revised Code.

(D) With respect to procedures for venue in regard to asbestos claims, the General Assembly hereby requests the Supreme Court to adopt a rule that requires that an asbestos claim meet specific nexus requirements, including the requirement that the plaintiff be domiciled in Ohio or that Ohio is the state in which the plaintiffs exposure to asbestos is a substantial contributing factor.

(E) With respect to procedures for consolidation of asbestos claims, the General Assembly hereby requests the Supreme Court to adopt a rule that permits consolidation of asbestos claims only with the consent of all parties, and in absence of that consent, permits a court to consolidate for trial only those asbestos claims that relate to the same exposed person and members of the exposed person's household.

2004 H 292, § 6 and § 7, eff. 9-2-04, read:

SECTION 6. If any item of law that constitutes the whole or part of a section of law contained in this act, or if any application of any item of law that constitutes the whole or part of a section of law contained in this act, is held invalid, the invalidity does not affect other items of law or applications of items of law that can be given effect without the invalid item of law or application. To this end, the items of law of which the sections contained in this act are composed, and their applications, are independent and severable.

SECTION 7. If any item of law that constitutes the whole or part of a section of law contained in this act, or if any application of any item of law contained in this act, is held to be preempted by federal law, the preemption of the item of law or its application does not affect other items of law or applications that can be given affect. The items of law of which the sections of this act are composed, and their applications, are independent and severable.

R.C. § 2307.91, OH ST § 2307.91

Current through 2006 File 145 of the 126th GA (2005-2006), apv. by 12/7/06, and filed with the Secretary of State by 12/7/2006.

Copr. ® 2006 Thomson/West.

END OF DOCUMENT

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Page 1 R.C. § 2307.92

P BALDWIN'S OHIO REVISED CODE ANNOTATED TITLE XXIII. COURTS--COMMON PLEAS CHAPTER 2307. CIVIL ACTIONS ASBESTOS CLAIMS -r2307.92 Requirements for prima-facie showing of physical impairment for certain tort ae6ons involving asbestos exposure

(A) For purposes of section 2305.10 and sections 2307.92 to 2307.95 of the Revised Code, "bodily injury caused by exposure to asbestos" means physical impairment of the exposed person, to which the person's exposure to asbestos is a substantial contributing factor.

(B) No person shall bring or maintain a tort action alleging an asbestos claim based on a nonmalignant condition in the absence of a prima-facie showing, in the manner described in division (A) of section 2307. 93 of the Revised Code, that the exposed person has a physical impairment, that the physical impaimtent is a result of a medical condition, and that the person's exposure to asbestos is a substantial contributing factor to the medical condition. That prima-facie showing shall include all of the following minimum requirements:

(1) Evidence verifying that a competent medical authority has taken a detailed occupational and exposure history of the exposed person from the exposed person or, if that person is deceased, from the person who is most knowledgeable about the exposures that fomr the basis of the asbestos claim for a nonmalignant condition, including all of the following:

(a) All of the exposed person's principal places of employment and exposures to airbome contaminants;

(b) Whether each principal place of employment involved exposures to airborne contaminants, including, but not limited to, asbestos fibers or other disease causing dusts, that can cause pulmonary impairment and, if that type of exposure is involved, the general nature, duration, and general level of the exposure.

(2) Evidence verifying that a competent medical authority has taken a detailed medical and smoking history of the exposed person, including a thorough review of the exposed person's past and present medical problems and the most probable causes of those medical problems;

(3) A diagnosis by a competent medical authority, based on a medical examination and pulmonary function testing of the exposed person, that all of the following apply to the exposed person:

(a) The exposed person has a permanent respiratory impairment rating of at least class 2 as defined by and evaluated pursuant to the AMA guides to the evaluation of permanent impairment.

(b) Either of the following:

(i) The exposed person has asbestosis or diffuse pleural thickening, based at a minimum on radiological or pathological evidence of asbestosis or radiological evidence of diffuse pleural thickening. The asbestosis or diffuse pleural thickening described in this division, rather than solely chronic obstructive pulmonary disease, is a substantial contributing factor to the exposed person's physical impairment, based at a minimum on a determination that the exposed person has any of the following:

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Page 2 R.C. § 2307.92

(I) A forced vital capacity below the predicted lower limit of normal and a ratio of FEV I to FVC that is equal to or greater than the predicted lower limit of normal;

(II) A total lung capacity, by plethysmography or timed gas dilution, below the predicted lower limit of normal;

(III) A chest x-ray showing small, irregular opacities (s, t) graded by a certified B-reader at least 2/1 on the ILO scale.

(ii) If the exposed person has a chest x-ray showing small, irregular opacities (s, t) graded by a certified B-reader as only a 1/0 on the ILO scale, then in order to establish that the exposed person has asbestosis, rather than solely chronic obstructive pulmonary disease, that is a substantial contributing factor to the exposed person's physical impairment the plaintiff must establish that the exposed person has both of the following:

(I) A forced vital capacity below the predicted lower limit of normal and a ratio of FEV 1 to FVC that is equal to or greater than the predicted lower limit of normal;

(II) A total lung capacity, by plethysmography or timed gas dilution, below the predicted lower limit of normal.

(C)(1) No person shall bring or maintain a tort action alleging an asbestos claim based upon lung cancer of an exposed person who is a smoker, in the absence of a prima-facie showing, in the manner described in division (A) of section 2307.93 of the Revised Code, that the exposed person has a physical impairment, that the physical impairment is a result of a medical condition, and that the person's exposure to asbestos is a substantial contributing factor to the medical condition. That prima-facie showing shall include all of the following minimum requirements:

(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;

(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. The ten-year latency period described in this division is a rebuttable presumption, and the plaintiff has the burden of proof to rebut the presumption.

(c) Either of the following:

(i) Evidence of the exposed person's substantial occupational exposure to asbestos;

(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 by a scientifically valid retrospective exposure reconstruction conducted by a certified industrial hygienist or certified safety professional based upon all reasonably available quantitative air monitoring data and all other reasonably available information about the exposed person's occupational history and history of exposure to asbestos.

(2) If a plaintiff files a tort action that alleges an asbestos claim based upon lung cancer of an exposed person who is a smoker, alleges that the plaintiffs exposure to asbestos was the result of living with another person who, if the tort action had been filed by the other person, would have met the requirements specified in division (C)(1)(c) of this section, and alleges that the plaintiff lived with the other person for the period of time specified in division (GG) of section 2307.91 of the Revised Code, the plaintiff is considered as having satisfied the requirements specified in division (C)(1)(c) of this section.

(D)(1) No person shall bring or maintain a tort action alleging an asbestos claim that is based upon a wrongful

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death, as described in section 2125.01 of the Revised Code of an exposed person in the absence of a prima-facie showing, in the manner described in division (A) of section 2307. 93 of the Revised Code, that the death of the exposed person was the result of a physical impairment, that the death and physical impairment were a result of a medical condition, and that the deceased person's exposure to asbestos was a substantial contributing factor to the medical condition. That prima-facie showing shall include all of the following minimum requirements:

(a) A diagnosis by a competent medical authority that exposure to asbestos was a substantial contributing factor to the death of the exposed person;

(b) Evidence that is sufficient to demonstrate that at least ten years have elapsed from the date of the deceased exposed person's first exposure to asbestos until the date of diagnosis or death of the deceased exposed person. The ten-year latency period described in this division is a rebuttable presumption, and the plaintiff has the burden of proof to rebut the presumption.

(c) Either of the following:

(i) Evidence of the deceased exposed person's substantial occupational exposure to asbestos;

(ii) Evidence of the deceased exposed person's exposure to asbestos at least equal to 25 fiber per cc years as determined to a reasonable degree of scientific probability by a scientifically valid retrospective exposure reconstruction conducted by a certified industrial hygienist or certified safety professional based upon all reasonably available quantitative air monitoring data and all other reasonably available information about the deceased exposed person's occupational history and history of exposure to asbestos.

(2) If a person files a tort action that alleges an asbestos claim based on a wrongful death, as described in section 2125.01 of the Revised Code, of an exposed person, alleges that the death of the exposed person was the result of living with another person who, if the tort action had been filed by the other person, would have met the requirements specified in division (D)(1)(c) of this section, and alleges that the exposed person lived with the other person for the period of time specified in division (GG) of section 2307.91 of the Revised Code in order to qualify as a substantial occupational exposure to asbestos, the exposed person is considered as having satisfied the requirements specified in division (D)(I)(c) of this section.

(3) No court shall require or permit the exhumation of a decedent for the purpose of obtaining evidence to make, or to oppose, a prima-facie showing required under division (D)(1) or (2) of this section regarding a tort action of the type described in that division.

(E) No prima-facie showing is required in a tort action alleging an asbestos claim based upon mesothelioma.

(F) Evidence relating to physical impairment under this section, including pulmonary function testing and diffusing studies, shall comply with the technical recommendations for examinations, testing procedures, quality assurance, quality control, and equipment incorporated in the AMA guides to the evaluation of perntanent impairment and reported as set forth in 20 C.F.R. Pt. 404, Subpt. P, App. 1, Part A, Sec. 3.00 E. and F., and the interpretive standards set forth in the official statement of the American thoracic society entitled "lung function testing: selection of reference values and interpretive strategies" as published in American review of respiratory disease, 1991:144:1202-1218.

(G) All of the following apply to the court's decision on the prima-facie showing that meets the requirements of division (B), (C), or (D) of this section:

(1) The court's decision does not result in any presumption at trial that the exposed person has a physical impairment that is caused by an asbestos-related condition. i © 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works.

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(2) The court's decision is not conclusive as to the liability of any defendant in the case.

(3) The courPs findings and decisions are not admissible at trial.

(4) If the trier of fact is a jury, the court shall not instruct the jury with respect to the court's decision on the prima-facie showing, and neither counsel for any party nor a witness shall inform the jury or potential jurors of that showing.

Current through 2006 File 145 of the 126th GA (2005-2006), apv. by 12/7/06, and filed with the Secretary of State by 12/7/2006.

Copr. 0 2006 Thonrson/West.

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P BALDWIN'S OHIO REVISED CODE ANNOTATED TITLE XXIII. COURTS--COMMON PLEAS CHAPTER 2307. CI VIL ACTIONS ASBESTOS CLAIMS ^2307.93 Filing of report and test results supporting physical impairment claim; defendant's challenge of evidence; dismissal

(A)(1) The plaintiff in any tort action who alleges an asbestos claim shall file, within thirty days after filing the complaint or other initial pleading, a written report and supporting test results constituting prima-facie evidence of the exposed person's physical impairment that meets the minimum requirements specified in division (B), (C), or (D) of section 2307.92 of the Revised Code, whichever is applicable. The defendant in the case shall be afforded a reasonable opportunity, upon the defendant's motion, to challenge the adequacy of the proffered prima-facie evidence of the physical impairment for failure to comply with the minimum requirements specified in division (B), (C), or (D) of section 2307.92 of the Revised Code. The defendant has one hundred twenty days from the date the specified type of prima-facie evidence is proffered to challenge the adequacy of that prima-facie evidence. If the defendant makes that challenge and uses a physician to do so, the physician must meet the requirements specified in divisions (Z)(1), (3), and (4) of section 2307.91 of the Revised Code.

(2) With respect to any asbestos claim that is pending on the effective date of this section, the plaintiff shall file the written report and supporting test results described in division (A)(1) of this section within one hundred twenty days following the effective date of this section. Upon motion and for good cause shown, the court may extend the one hundred twenty-day period described in this division.

(3)(a) For any cause of action that arises before the effective date of this section, the provisions set forth in divisions (B), (C), and (D) of section 2307.92 of the Revised Code are to be applied unless the court that has jurisdiction over the case finds both of the following:

(i) A substantive right of a party to the case has been impaired.

(ii) That impairment is otherwise in violation of Section 28 of Article II, Ohio Constitution.

(b) If a finding under division (A)(3)(a) of this section is made by the court that has jurisdiction over the case, then the court shall determine whether the plaintiff has failed to provide sufficient evidence to support the plaintiffs cause of action or the right to relief under the law that is in effect prior to the effective date of this section.

(c) If the court that has jurisdiction of the case finds that the plaintiff has failed to provide sufficient evidence to support the plaintiffs cause of action or right to relief under division (A)(3)(b) of this section, the court shall administratively dismiss the plaintiffs claim without prejudice. The court shall maintain its jurisdiction over any case that is administratively dismissed under this division. Any plaintiff whose case has been administratively dismissed under this division may move to reinstate the plaintiffs case if the plaintiff provides sufficient evidence to support the plaintiffs cause of action or the right to relief under the law that was in effect when the plaintiffs cause of action arose.

(B) If the defendant in an action challenges the adequacy of the prima-facie evidence of the exposed person's physical impairment as provided in division (A)(1) of this section, the court shall determine from all of the

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evidence submitted whether the proffered prin a-facie evidence meets the minimum requirements speci5ed in division (B), (C), or (D) of section 2307.92 of the Revised Code. The court shall resolve the issue of whether the plaintiff has made the prima-facie showing required by division (B), (C), or (D) of section 2307.92 of the Revised Code by applying the standard for resolving a motion for summary judgment.

(C) The court shall administratively dismiss the plaintiffs claim without prejudice upon a finding of failure to make the prima-facie showing required by division (B), (C), or (D) of section 2307.92 of the Revised Code. The court shall maintain its jurisdiction over any case that is administratively dismissed under this division. Any plaintiff whose case has been administratively dismissed under this division may move to reinstate the plaintiffs case if the plaintiff makes a prima-facie showing that meets the minimum requirements specified in division (B), (C), or (D) of section 2307.92 of the Revised Code.

Current through 2006 File 145 of the 126th GA (2005-2006), apv. by 12/7/06, and filed with the Secretary of State by 12/7/2006.

Copr. ® 2006 Thomson/West.

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R.C. § 2307.94

P BALDWIN'S OHIO REVISED CODE ANNOTATED TITLE XXIII. COURTS--COMMON PLEAS CHAPTER 2307. C1VIL ACTIONS ASBESTOS CLAIMS "2307.94 Statute of limitations for asbestos claim arising out of nonmalignant condition as distinct cause of action; damages; settlemcnt; release

(A) Notwithstanding any other provision of the Revised Code, with respect to any asbestos claim based upon a nonmalignant condition that is not barred as of the effective date of this section, the period of limitations shall not begin to run until the exposed person has a cause of action for bodily injury pursuant to section 2305.10 of the Revised Code. An asbestos claim based upon a nonmalignant condition that is filed before the cause of action for bodily injury pursuant to that section arises is preserved for purposes of the period of limitations.

(B) An asbestos claim that arises out of a nonmalignant condition shall be a distinct cause of action from an asbestos claim relating to the same exposed person that arises out of asbestos-related cancer. No damages shall be awarded for fear or risk of cancer in any tort action asserting only an asbestos claim for a nonmalignant condition.

(C) No settlement of an asbestos claim for a nonmalignant condition that is concluded after the effective date of this section shall require, as a condition of settlement, the release of any future claim for asbestos-related cancer.

Current through 2006 File 145 of the 126th GA (2005-2006), apv. by 12/7/06, and filed with the Secretary of State by 12/7/2006.

Copr. © 2006 Thomson/West.

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R.C. § 2505.02

P BALDWIN'S OHIO REVISED CODE ANNOTATED TITLE XXV. COURTS--APPELLATE CHAPTER 2505. PROCEDURE ON APPEAL FINAL ORDER -r2505.02 Final order

(A) As used in this section:

(1) "Substantial right" means a right that the United States Constitution, the Ohio Constitution, a statute, the common law, or a rule of procedure entitles a person to enforce or protect.

(2) "Special proceeding" means an action or proceeding that is specially created by statute and that prior to 1853 was not denoted as an action at law or a suit in equity.

(3) "Provisional remedy" means a proceeding ancillary to an action, including, but not limited to, a proceeding for a preliminary injunction, attachment, discovery of privileged matter, suppression of evidence, a prima-facie showing pursuant to section 2307.85 or 2307.86 of the Revised Code, a prima-facie showing pursuant to section 2307.92 of the Revised Code, or a finding made pursuant to division (A)(3) of section 2307.93 of the Revised Code

(B) An order is a final order that may be reviewed, affirmed, modified, or reversed, with or without retrial, when it is one of the following:

(I) An order that affects a substantial right in an action that in effect determines the action and prevents a judgment;

(2) An order that affects a substantial right made in a special proceeding or upon a summary application in an action afterjudgment;

(3) An order that vacates or sets aside ajudgment or grants a new trial;

(4) An order that grants or denies a provisional remedy and to which both of the following apply:

(a) The order in effect determines the action with respect to the provisional remedy and prevents a judgment in the action in favor of the appealing party with respect to the provisional remedy.

(b) The appealing party would not be afforded a meaningful or effective remedy by an appeal following final judgment as to all proceedings, issues, claims, and parties in the action.

(5) An order that determines that an action may or may not be maintained as a class action;

(6) An order determining the constitutionality of any changes to the Revised Code made by Am. Sub. S.B. 281 of the 124th general assembly, including the amendment of sections 1751.67, 2117.06, 2305.11, 2305.15, 2305. 234, 2317.02, 2317.54, 2323.56, 2711.21, 2711.22, 2711.23, 2711.24, 2743.02, 2743.43, 2919.16, 3923.63, 3923.64, 4705.15, and 5111.018, and the enactment of sections 2305.113, 2323.41, 2323.43, and 2323.55 of the Revised Code or any changes made by Sub. S.B. 80 of the 125th general assembly, including the amendment of sections

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2125.02, 2305.10, 2305.131, 2315.18, 2315.19, and 2315.21 ofthe Revised Code.

(C) When a court issues an order that vacates or sets aside a judgment or grants a new trial, the court, upon the request of either party, shall state in the order the grounds upon which the new trial is granted or the judgment vacated or set aside.

(D) This section applies to and governs any action, including an appeal, that is pending in any court on July 22, 1998, and all claims filed or actions commenced on or after July 22, 1998, notwithstanding any provision of any prior statute or rule of law of this state.

Current through 2006 File 145 of the 126th GA (2005-2006), apv. by 12/7106, and filed with the Secretary of State by 12/7/2006.

Copr. ® 2006 Thomson/West.

END OF DOCUMENT

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R.C. § 2505.03

C BALDWINS OHIO REVISED CODE ANNOTATED TITLE XXV. COURTS--APPELLATE CHAPTER 2505. PROCEDURE ON APPEAL F1NAL ORDER ^2505.03 Final order may be appealed; determination of which procedural rules will govern appeal

(A) Every final order, judgment, or decree of a court and, when provided by law, the final order of any administrative officer, agency, board, department, tribunal, commission, or other instrumentality may be reviewed on appeal by a court of common pleas, a court of appeals, or the supreme court, whichever has jurisdiction.

(B) Unless, in the case of an administrative-related appeal, Chapter 119. or other sections of the Revised Code apply, such an appeal is govemed by this chapter and, to the extent this chapter does not contain a relevant provision, the Rules of Appellate Procedure. When an administrative-related appeal is so governed, if it is necessary in applying the Rules of Appellate Procedure to such an appeal, the administrative officer, agency, board, department, tribunal, commission, or other instrumentality shall be treated as if it were a trial court whose final order, judgment, or decree is the subject of an appeal to a court of appeals or as if it were a clerk of such a trial court.

(C) An appeal of a final order, judgment, or decree of a court shall be govemed by the Rules of Appellate Procedure or by the Rules of Practice of the Supreme Court, whichever are applicable, and, to the extent not in conflict with those rules, this chapter.

Current through 2006 File 145 of the 126th GA (2005-2006), apv. by 12/7/06, and filed with the Secretary of State by 12/7/2006.

Copr. © 2006 Thomson/West.

END OF DOCUMENT

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V.T.C.A., Civil Practice & Remedies Code § 90.001

Effective: September 01, 2005

Vernon's Texas Statutes and Codes Annotated Currentness Civil Practice and Remedies Code (Refs & Annos) Title 4. Liability in Tort 5® Chapter 90. Claims Involving Asbestos and Silica

-.§ 90.001. Definitions

In this chapter:

(1) "Asbestos" means chrysotile, amosite, crocidolite, tremolite asbestos, anthophyllite asbestos, actinolite asbestos, and any of these minerals that have been chemically treated or altered.

(2) "Asbestos-related injury" means personal injury or death allegedly caused, in whole or in part, by inhalation or ingestion of asbestos.

(3) "Asbestosis" means bilateral diffuse interstitial fibrosis of the lungs caused by inhalation of asbestos fibers.

(4) "Certified B-reader" means a person who has successfully completed the x-ray interpretation course sponsored by the National Institute for Occupational Safety and Health (NIOSH) and passed the B-reader certification examination for x-ray interpretation and whose NIOSH certification is current at the time of any readings required by this chapter.

(5) "Chest x-ray" means chest films that are taken in accordance with all applicable state and federal regulatory standards and in the posterior-anterior view.

(6) "Claimant" means an exposed person and any person who is seeking recovery of damages for or arising from the injury or death of an exposed person.

(7) "Defendant" means a person against whom a claim arising from an asbestos-related injury or a silica-related injury is made.

(8) "Exposed person" means a person who is alleged to have suffered an asbestos-related injury or a silica-related injury.

(9) "FEVI" means forced expiratory volume in the first second, which is the maximal volume of air expelled in one second during performance of simple spirometric tests.

(10) "FVC" means forced vital capacity, which is the maximal volume of air expired with maximum effort from a position of full inspiration.

(11) "ILO system of classification" means the radiological rating system of the International Labor Office in "Guidelines for the Use of ILO Intemational Classification of Radiographs of Pneumoconioses" (2000), as amended.

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V.T.C.A., Civil Practice & Remedies Code § 90.001

(12) "MDL pretrial court" means the district court to which related cases are transferred for consolidated or coordinated pretrial proceedings under Rule 13, Texas Rules of Judicial Administration.

(13) "MDL rules" means the rules adopted by the supreme court under Subchapter H, Chapter 74, Government Code.

(14) "Mesothelioma" means a rare form of cancer allegedly caused in some instances by exposure to asbestos in which the cancer invades cells in the membrane lining:

(A) the lungs and chest cavity (the pleural region);

(B) the abdominal cavity (the peritoneal region); or

(C) the heart (the pericardial region).

(15) "Nonmalignant asbestos-related injury" means an asbestos-related injury other than mesothelioma or other cancer.

( 16) "Nonmalignant silica-related injury" means a silica-related injury other than cancer.

(17) "Physician board certified in intemal medicine" means a physician who is certified by the American Board of Internal Medicine or the American Osteopathic Board of Ihternal Medicine.

(18) "Physician board certified in occupational medicine" means a physician who is certified in the subspecialty of occupational medicine by the American Board of Preventive Medicine or the American Osteopathic Board of Preventive Medicine.

(19) "Physician board certified in oncology" means a physician who is certified in the subspecialty of medical oncology by the American Board of Intemal Medicine or the American Osteopathic Board of Internal Medicine.

(20) "Physician board certified in pathology" means a physician who holds primary certification in anatomic pathology or clinical pathology from the American Board of Pathology or the American Osteopathic Board of Internal Medicine and whose professional practice:

(A) is principally in the field of pathology; and

(B) involves regular evaluation of pathology materials obtained from surgical or postmortem specimens.

(21) "Physician board certified in pulmonary medicine" means a physician who is certified in the subspecialty of pulmonary medicine by the American Board of Internal Medicine or the American Osteopathic Board of Internal Medicine.

(22) "Plethysmography" means the test for determining lung volume, also known as "body plethysmography," in which the subject of the test is enclosed in a chamber that is equipped to measure pressure, flow, or volume change.

(23) "Pulmonary function testing" means spirometry, lung volume, and diffusion capacity testing performed in accordance with Section 90.002 using equipment, methods of calibration, and techniques that meet:

(A) the criteria incorporated in the American Medical Association Guides to the Evaluation of Permanent Impairment and reported in 20 C.F.R. Part 404, Subpart P, Appendix 1, Part (A), Sections 3.00(E) and ® 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works.

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(F)(2003); and

(B) the interpretative standards in the Official Statement of the American Thoracic Society entitled "Lung Function Testing: Selection of Reference Values and Interpretative Strategies," as published in 144 American Review of Respiratory Disease 1202-1218 (1991).

(24) "Report" means a report required by Section 90.003, 90.004, or 90.010(f)(1).

(25) "Respirable," with respect to silica, means particles that are less than 10 microns in diameter.

(26) "Serve" means to serve notice on a party in compliance with Rule 21 a, Texas Rules of Civil Procedure.

(27) "Silica" means a respirable form of crystalline silicon dioxide, including alpha quartz, cristobalite, and tridymite.

(28) "Silica-related injury" means personal injury or death allegedly caused, in whole or in part, by inhalation of silica.

(29) "Silicosis" means interstitial fibrosis of the lungs caused by inhalation of silica, including:

(A) acute silicosis, which may occur after exposure to very high levels of silica within a period of months to five years after the initial exposure;

(B) accelerated silicosis; and

(C) chronic silicosis.

CREDIT(S)

Added by Acts 2005, 79th Leg., ch. 97, § 2, eff. Sept. 1, 2005.

HISTORICAL AND STATUTORY NOTES

2006 Electronic Pocket Part Update

2005 Legislation

Section 1 of Acts 2005, 79th Leg., ch. 97 provides:

"Findings; Purpose. (a) The Legislature of the State of Texas makes findings as stated in this section.

"(b) Asbestos is a mineral that was used extensively in industrial applications, especially between the 1940s and the 1970s. It is estimated that as many as 27 million American workers were exposed to asbestos between 1940 and 1979. Exposure to asbestos, particularly through inhalation of asbestos fibers, has allegedly been linked to certain malignant and nonmalignant diseases, including mesothelioma and asbestosis. These diseases have latency periods of up to 40 years.

"(c) Over the last three decades, hundreds of thousands of lawsuits alleging asbestos-related disease have been filed throughout the United States. In the early 1990s, between 15,000 and 20,000 new lawsuits alleging asbestos-related disease were filed each year, By the late 1990s, the number of new lawsuits alleging asbestos-related disease filed each year was more than double the number of yearly filings seen in the early 1990s.

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By one estimate, the number of asbestos lawsuits pending in state and federal courts in the United States doubled in the 1990s, from approximately 100,000 to more than 200,000 claims.

"(d) In 1991, the Judicial Conference Ad Hoc Committee on Asbestos Litigation, appointed by United States Supreme Court Chief Justice William Rehnquist, found that "the situation has reached critical dimensions and is getting worse." In 1997, the United States Supreme Court acknowledged that the country was in the midst of an "asbestos-litigation crisis," AmChem Products, Inc. v. Windsor, 521 U.S. 591, 597 (1997).

"(e) Texas has not been spared this crisis. In the period from 1988 to 2000, more lawsuits alleging asbestos-related disease were filed in Texas than in any other state. Thousands of asbestos lawsuits are pending in Texas courts today.

"(f) This asbestos litigation crisis is due, in part, to screening of persons with possible occupational exposure to asbestos and to the existence of statutes of limitations that begin to run based merely on knowledge of a possible asbestos-related disease or symptom. The screening process identifies individuals with radiographically detectable markings on their lungs that are consistent with asbestos-related disease regardless of whether the individuals have any physical impairment. The identified individuals then file lawsuits, in part to avoid the running of limitations triggered by the discovery that they may have an asbestos-related injury. Many of the identified individuals (at least one estimate puts the figure as high as 90 percent of identified individuals) are not experiencing any symptoms of asbestos-related disease and are not suffering from any asbestos-related illness affecting their daily functions.

"(g) The crush of asbestos litigation has been costly to employers, employees, litigants, and the court system. In 2003, the American Bar Association Commission on Asbestos Litigation noted that in 1982, the nation's single largest supplier of asbestos-containing insulation products, the Johns-Manville Corporation, "declared bankruptcy due to the burden of the asbestos litigation." Since then, more than 70 other companies have declared bankruptcy due to the burden of asbestos litigation. It is estimated that between 60,000 and 128,000 American workers already have lost their jobs as a result of asbestos-related bankruptcies and that eventually 423,000 jobs will be lost due to asbestos-related bankruptcies. Each worker who loses a job due to an asbestos-related bankruptcy loses between $25,000 and $50,000 in wages over the worker's career. These workers also have seen the value of their 401(k) retirement plans drop by 25 percent or more due to these bankruptcies.

"(h) Additionally, it is estimated that asbestos litigation has already cost over $54 billion, with well over half of this expense going to attorney's fees and other litigation costs. The crowded dockets that result from the crush of asbestos cases filed by persons who are not functionally or physically impaired by any asbestos-related illness severely hampers the ability of seriously ill claimants to seek redress in the courts. Those claimants who have had their day in court often find that the value of their recovery is seriously reduced when the company against whom the judgment was rendered files bankruptcy due to the weight of asbestos litigation brought by unimpaired claimants.

"(i) Silica is a naturally occurring mineral and is the second most common constituent of the earth's crust. Crystalline silica in the form of quartz is present in sand, gravel, soil, and rocks.

"(j) Silica sand is the primary raw material for the production of glass, including container glass (bottles and jars), flat glass (windows), and other forms of glass. Silica sand is used to make foundry molds and cores. Industrial minerals that contain silica are the essential raw materials for the manufacture of ceramics, which include industrial ceramics, sanitary ware (bathrooms), and tableware (plates and cups). Crushed stone and sand and gravel (aggregates), most of which contain crystalline silica, are the primary raw materials in concrete and asphalt; these materials are used in the construction of roads, sidewalks, building foundations, and many other things. Sandstone and granite, both of which contain silica, are used as building materials.

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"(k) The primary adverse health effect associated with silica is silicosis. Silicosis is a lung disease characterized by fibrosis, or scarring, and is caused by prolonged overexposure to respirable silica through inhalation. Additionally, silica inhaled from occupational sources was classified as a lung carcinogen in 1996.

"(1) Silicosis has been recognized as an occupational disease for over 100 years. By the 1930s, the federal goverttment had launched a silica-awareness campaign, which led to greater protection for workers exposed to silica dust. By the early 1970s, the United States Occupational Safety and Health Administration had begun to regulate occupational exposure to respirable silica. In 1999, the United States Centers for Disease Control and Prevention/National Institute for Occupational Safety and Health called the reduction in occupational lung diseases, including silicosis, one of the ten great public health achievements of the 20th century. The United States Centers for Disease Control and Prevention/National Institute for Occupational Safety and Health data disclose a substantial decrease in silicosis since 1968 (the first year the data were collected). As a result, the number of silica lawsuits filed each year was relatively predictable through 2001. This trend has changed. The number of new lawsuits alleging silica-related disease being filed each year has risen precipitously in recent years. For example, one of America's largest suppliers of industrial sand had more than 15,000 new claims filed in the first six months of 2003, which is three times the number of claims it had in all of 2002 and more than 10 times the number of claims it had in all of 2001.

"(m) Silica claims, like asbestos claims, often arise when an individual is identified as having markings on the individual's lungs that are possibly consistent with silica exposure, but the individual has no functional or physical impairment from any silica-related disease. The identified individuals, like those alleging asbestos-related injury, file lawsuits under the theory that they must do so to avoid having their claims barred by limitations even though they have no current impairment and may never have impairment. It is, therefore, necessary to address silica-related litigation.

"(n) It is the purpose of this Act to protect the right of people with impairing asbestos-related and silica-related injuries to pursue their claims for compensation in a fair and efficient manner through the Texas court system, while at the same time preventing scarce judicial and litigant resources from being misdirected by the claims of individuals who have been exposed to asbestos or silica but have no functional or physical impairment from asbestos-related or silica-related disease. To that end, this Act:

"(1) adopts medically accepted standards for differentiating between individuals with nonmalignant asbestos-related or silica-related disease causing functional impairment and individuals with no functional impairment;

"(2) provides a method to obtain the dismissal of lawsuits in which the exposed person has no functional impairment, while at the same time protecting a person's right to bring suit on discovering an impairing asbestos-related or silica-related injury; and

"(3) creates an extended period before limitations begin to run in which to bring claims for injuries caused by the inhalation or ingestion of asbestos or by the inhalation of silica to preserve the right of those who have been exposed to asbestos or silica but are not yet impaired to bring a claim later in the event that they develop an impairing asbestos-related or silica-related disease or injury."

Section 10 of Acts 2005, 79th Leg., ch. 97 provides:

"There is a direct appeal to the supreme court from an order, however characterized, of a trial court granting or denying a temporary or otherwise interlocutory injunction or a permanent injunction on the grounds of the constitutionality or unconstitutionality, or other validity or invalidity, under the state or federal constitution of all or any part of this Act. The direct appeal is an accelerated appeal."

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Page 6 V.T.C.A., Civil Practice & Remedies Code § 90.001

V. T. C. A., Civil Practice & Remedies Code § 90.001, TX CIV PRAC & REM § 90.001

Current through the end of the 2006 3rd Called Session of the 79th Legislature.

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V.T.C.A., Civil Practice & Remedies Code § 90.003

Effective: September 01, 2005

VERNON'S TEXAS STATUTES AND CODES ANNOTATED CIVIL PRACTICE AND REMEDIES CODE TITLE 4. LIABILITY IN TORT CHAPTER 90. CLAIMS INVOLVING ASBESTOS AND SILICA ^§ 90.003. Reports Required for Claims Involving Asbestos-Related Injury

(a) A claimant asserting an asbestos-related injury must serve on each defendant the following information:

(1) a report by a physician who is board certified in pulmonary medicine, occupational medicine, intemal medicine, oncology, or pathology and whose license and certification were not on inactive status at the time the report was made stating that:

(A) the exposed person has been diagnosed with malignant mesothelioma or other malignant asbestos-related cancer; and

(B) to a reasonable degree of medical probability, exposure to asbestos was a cause of the diagnosed mesothelioma or other cancer in the exposed person; or

(2) a report by a physician who is board certified in pulmonary medicine, intemal medicine, or occupational medicine and whose license and certification were not on inactive status at the time the report was made that:

(A) verifies that the physician or a medical professional employed by and under the direct supervision and control of the physician:

(i) performed a physical examination of the exposed person, or if the exposed person is deceased, reviewed available records relating to the exposed person's medical condition;

(ii) took a detailed occupational and exposure history from the exposed person or, if the exposed person is deceased, from a person knowledgeable about the alleged exposure or exposures that form the basis of the action; and

(iii) took a detailed medical and smoking history that includes a thorough review of the exposed person's past and present medical problems and their most probable cause;

(B) sets out the details of the exposed person's occupational, exposure, medical, and smoking history and verifies that at least 10 years have elapsed between the exposed person's first exposure to asbestos and the date of diagnosis;

(C) verifies that the exposed person has:

(i) a quality 1 or 2 chest x-ray that has been read by a certified B-reader according to the ILO system of classification as showing:

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(a) bilateral small irregular opacities (s, t, or u) with a profusion grading of 1/1 or higher, for an action filed on or after May 1, 2005;

(b) bilateral small irregular opacities (s, t, or u) with a profusion grading of 1/0 or higher, for an action filed before May 1, 2005; or

(c) bilateral diffuse pleural thickening graded b2 or higher including blunting of the costophrenic angle; or

(ii) pathological asbestosis graded 1(13) or higher under the criteria published in "Asbestos-Associated Diseases," 106 Archives of Pathology and Laboratory Medicine 11, Appendix 3 (October 8, 1982);

(D) verifies that the exposed person has asbestos-related pulmonary impairment as demonstrated by pulmonary function testing showing:

(i) forced vital capacity below the lower limit of normal or below 80 percent of predicted and FEV1/FVC ratio (using actual values) at or above the lower limit of normal or at or above 65 percent; or

(ii) total lung capacity, by plethysmography or timed gas dilution, below the lower limit of normal or below 80 percent of predicted;

(E) verifies that the physician has concluded that the exposed person's medical findings and impairment were not more probably the result of causes other than asbestos exposure revealed by the exposed person's occupational, exposure, medical, and smoking history; and

(F) is accompanied by copies of all ILO classifications, pulmonary function tests, including printouts of all data, flow volume loops, and other information demonstrating compliance with the equipment, quality, interpretation, and reporting standards set out in this chapter, lung-volume tests, diagnostic imaging of the chest, pathology reports, or other testing reviewed by the physician in reaching the physician's conclusions.

(b) The detailed occupational and exposure history required by Subsection (a)(2)(A)(ii) must describe:

(1) the exposed person's principal employments and state whether the exposed person was exposed to airbome contaminants, including asbestos fibers and other dusts that can cause pulmonary impairment; and

(2) the nature, duration, and frequency of the exposed person's exposure to airbome contaminants, including asbestos fibers and other dusts that can cause pulmonary impairment.

(c) If a claimant's pulmonary function test results do not meet the requirements of Subsection (a)(2)(D)(i) or (ii), the ciaimant may serve on each defendant a report by a physician who is board certified in pulmonary medicine, intemal medicine, or occupational medicine and whose license and certification were not on inactive status at the time the report was made that:

(1) verifies that the physician has a physician-patient relationship with the exposed person;

(2) verifies that the exposed person has a quality 1 or 2 chest x-ray that has been read by a certified B-reader according to the ILO system of classification as showing bilateral small irregular opacities (s, t, or u) with a profusion grading of 2/1 or higher;

(3) verifies that the exposed person has restrictive impairment from asbestosis and includes the specific pulmonary function test findings on which the physician relies to establish that the exposed person has restrictive impairment;

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V.T.C.A., Civil Practice & Remedies Code § 90.003

(4) verifies that the physician has concluded that the exposed person's medical findings and impairment were not more probably the result bf causes other than asbestos exposure revealed by the exposed person's occupational, exposure, medical, and smoking history; and

(5) is accompanied by copies of all ILO classifications, pulmonary function tests, including printouts of all data, flow volume loops, and other information demonstrating compliance with the equipment, quality, interpretation, and reporting standards set out in this chapter, lung volume tests, diagnostic imaging of the chest, pathology reports, or other testing reviewed by the physician in reaching the physician's conclusions.

(d) lf a claimant's radiologic findings do not meet the requirements of Subsection (a)(2)(C)(i), the claimant may serve on each defendant a report by a physician who is board certified in pulmonary medicine, internal medicine, or occupational medicine and whose license and certification were not on inactive status at the time the report was made that:

(1) verifies that the physician has a physician-patient relationship with the exposed person;

(2) verifies that the exposed person has asbestos-related pulmonary impairment as demonstrated by pulmonary function testing showing:

(A) either:

(i) forced vital capacity below the lower limit of normal or below 80 percent of predicted and total lung capacity, by plethysmography, below the lower limit of normal or below 80 percent of predicted; or

(ii) forced vital capacity below the lower limit of normal or below 80 percent of predicted and FEVI/FVC ratio (using actual values) at or above the lower limit of normal or at or above 65 percent; and

(B) diffusing capacity of carbon monoxide below the lower limit of normal or below 80 percent of predicted;

(3) verifies that the exposed person has a computed tomography scan or high-resolution computed tomography scan showing either bilateral pleural disease or bilateral parenchymal disease consistent with asbestos exposure;

(4) verifies that the physician has concluded that the exposed person's medical findings and impairment were not more probably the result of causes other than asbestos exposure as revealed by the exposed person's occupational, exposure, medical, and smoking history; and

(5) is accompanied by copies of all computed tomography scans, ILO classifications, pulmonary function tests, including printouts of all data, flow volume loops, and other information demonstrating compliance with the equipment, quality, interpretation, and reporting standards set out in this chapter, lung volume tests, diagnostic imaging of the chest, pathology reports, or other testing reviewed by the physician in reaching the physician's conclusions.

Current through the end of the 2006 3rd Called Session of the 79th Legislature.

® 2006 Thomson/West

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