The Pew Charitable Trusts

Ohio's first-in-the-nation attempt to curb the tens of thousands of asbestos injury lawsuits filed in the state became law this month. But the battle over the controversial tort reform measure has just begun.

Opponents of the new law, which is intended to drastically reduce the more than 41,000 lawsuits filed by mill workers, contractors and other laborers exposed to asbestos, filed a court challenge last week arguing that retroactive provisions of the measure are unconstitutional.

The measure, passed with heavy Republican support in the GOP-controlled Ohio Legislature and signed by Gov. Bob Taft (R) in June, requires that all asbestos injury claimants prove they are actually sick by meeting specific medical criteria established by the American Bar Association. People who don't meet the new medical standards by Dec. 31, 2004, will have their cases dismissed, although they will be allowed to re-file if they develop more serious symptoms later.

Opponents of the Ohio measure say the Legislature does not have the right to tell judges which cases to hear and which to dismiss and can't change the rules in cases that already have gone to trial.

"We're essentially singling out a group of working-class plaintiffs who have a disease that was directly caused by somebody else's actions, perhaps intentionally, and to me that doesn't make a lot of sense," said state Sen. Marc Dann, a Democrat who opposed the legislation, which went into effect Sept. 2.

The new law is the most far-reaching effort by a state to curb the crush of asbestos litigation flooding courts nationwide. More than 700,000 claims have been filed against more than 6,000 defendants to date.

State and federal courts have been struggling for more than 30 years to handle asbestos lawsuits. The numbers began rising dramatically in the 1990s when plaintiff law firms began generating thousands of asbestos claims based on mass screenings of workers who may have been exposed to asbestos.

Federal courts acted to rein in asbestos suits in the 1990s by consolidating all federal cases before one judge in Pennsylvania, who worked out several mass settlements closing more than 70,000 cases.

As a result, lawyers began filing cases in state courts, targeting favorable jurisdictions in states such as Mississippi, Texas, Florida and Ohio. In the past six years, the number of asbestos cases filed at the state level has ballooned to more than 80 percent of the 200,000 cases pending nationwide.

In Cuyahoga County, Ohio, for example, one law firm has filed 37,000 asbestos claims on one court docket, naming about 100 "John Doe" corporations - mostly auto, rubber and steel manufacturers that may have used or manufactured asbestos products.

Efforts by states to consolidate cases and speed them through the courts only have encouraged plaintiff law firms to file lawsuits in greater numbers, said Mark Behrens, an attorney with the Coalition for Legal Justice in Washington, D.C., a tort-reform advocacy group representing insurance companies.

"State courts are at a crossroads," Behrens said. "Everything that judges have done in the past to consolidate cases and speed litigation along has only backfired."

Asbestos, a fibrous mineral commonly used until the mid-1970s for insulation and fireproofing, can cause cancer and other ailments when inhaled. At least 100 million American workers have been exposed to asbestos, which kills 2,000 to 5,000 people a year from mesothelioma and other lung cancers. Tens of thousands of others suffer from asbestosis, a scarring of the lungs.

However, an estimated 60 to 70 percent of claims are filed on behalf of people who do not have cancer or other illnesses, according to a study by the RAND Institute for Civil Justice.

More than 70 companies across the country already have been bankrupted by asbestos damage awards -- half of them in the past three years -- and some asbestos victims say the flood of lawsuits by individuals with no illnesses must be controlled or there will be nothing left to pay people who get sick in coming years.

Supporters say Ohio's new law ensures that the truly sick have their cases heard first and preserves the legal rights of those claiming exposure to asbestos if they become sick later. The law also will unclog the state court system, which has been overwhelmed by claims brought on behalf of tens of thousands of people who are not sick, said Ohio Rep. Jean Schmidt, a Republican who co-sponsored the legislation.

"The legislation we passed is fair and will allow those who are truly harmed to seek the redress they need," Schmidt said.

Ohio's law is based on court procedures that have been adopted by judges in about a dozen municipal court systems, including courts in Baltimore, Boston, Chicago, Madison County, Ill., New York, Syracuse, N.Y., Seattle, Portland, Ore., and Virginia Beach, Va.

Judges in these cities have placed asbestos claims by those not yet sick into a backlog called an "inactive docket." Suits filed by cancer patients and the seriously ill are given priority.

Asbestos defendants in Texas have sued to force judges to establish inactive dockets, but a state appeals court ruled last week that judges cannot be compelled to take such action. Texas lawmakers have indicated they will introduce legislation similar to Ohio's in 2005.

Supporters of Ohio's new measure estimate that 60 to 80 percent of existing cases will fail to meet the new medical standards.

Attorneys seeking to overturn Ohio's new law filed arguments in the 8th Ohio District Court of Appeals last week. Hearings are scheduled for October and a decision is expected before the end of the year. However, attorneys from both sides said they expect the case to end up before Ohio's Supreme Court.