Schiff Hardin Prevails in Landmark Ohio Asbestos Case

• Client: Owens-Illinois, Inc.
• Date: October 2008
• Location: Ohio Supreme Court

Summary:

Arguing on behalf of our client, Owens-Illinois, Inc., Schiff Hardin attorneys prevailed before the Ohio Supreme Court in a landmark case - Ackison v. Anchor Packing Co. - dealing with Ohio's 2004 asbestos tort reform statute.

The court held it constitutional to apply Ohio's 2004 asbestos tort reform statute to cases that were pending when the statute became effective. This decision is the culmination of four years of effort by Schiff Hardin and local counsel defending Owens-Illinois, Inc. in dozens of proceedings throughout the state that challenged the application and constitutionality of the statute in diverse contexts.

The 2004 statute defined criteria to be used in evaluating asbestos injury claims. In the absence of such express criteria, huge numbers of asbestos lawsuits had been filed by plaintiffs who were not sick, but had been told they had symptomless bodily changes that may have been caused by asbestos exposure; or who were sick, but could not genuinely show that their illness was caused by asbestos. The statute provided that the criteria applied to pending cases unless retroactive application would be unconstitutional.

Ackison, brought against Owens-Illinois and numerous other defendants, was one of dozens of cases that challenged this retroactive application. The lower Ohio courts were split on this question.  The plaintiff argued that application of the statute impaired her vested right to assert a claim under pre-statute common law. The Ohio Supreme Court ruled that retroactive application of the statute is constitutional, and closely followed our arguments in rejecting the plaintiff's challenges to particular terms of the statute.  Notably, the court held that the plaintiff had no vested right in part because asymptomatic bodily change caused by asbestos is not a compensable tort injury under Ohio common law.

This decision has broad significance. Not only will it affect tens of thousands of pending asbestos claims in Ohio, but it may also be persuasive in other states that have modeled proposed or actual legislation on Ohio's medical-criteria statute.

Ackison v. Anchor Packing Co., 120 Ohio St. 3d 228, 897 N.E.2d 1118 (Ohio 2008)