Ohio

The legislature recently enacted Ohio H.B. 380 (originally drafted by ALEC), which shifts control of key elements of the plaintiff’s case to defendants while simultaneously shifting significant burdens to the plaintiff. This new Ohio law requires plaintiffs to identify all trust claims and material pertaining to those claims, and update those identifications when new claims are made. Defendants can delay trial and force plaintiffs to make claims against other trusts. Then, trust claims are presumed to be relevant and discoverable and can be introduced to prove causation and allocate responsibility.

By forcing plaintiffs to make all trust claims and turn over that information, then making it presumptively admissible and relevant, the new Ohio law shifts the burden for a defendant seeking to claim that another party is liable from that defendant to the plaintiff. While not all judges will admit the trust claim information, when one does allow a jury to see the claims (which may or may not provide proof of exposure) the jury may well assign fault to the insolvent defendants. Responsibility for liability between joint tortfeasors in Ohio is limited; unless a tortfeasor is more than 50% liable it will not have to pay the several share of other entities which were allocated responsibility. Under the circumstances created by the new Ohio law, it is less likely that a guilty tortfeasor – already found liable of causing the injury and maybe death of the plaintiff – will have to bear the risk of its co-defendants’ insolvency; instead, an innocent asbestos victim will not be able to recover fair compensation.

So, in addition to delay – which is always helpful to defendants – a defendant can force the plaintiff to file trust claims, even with limited information. The defendant can use those filed claims as evidence that the plaintiff was exposed to other sources of asbestos – even if the trusts deny the claims – and potentially reduce the defendant’s share of liability. And, as Ohio has a hybrid system of liability, even if each trust claim reduces a defendant’s liability incrementally, the defendant can limit the plaintiff’s recovery by at least those amounts and, if its liability falls below 50%, significantly.

Whether a solvent defendant found liable for a victim’s injuries is liable for the shares of other tortfeasors is a question of public policy. So if a state’s legislature wants to have open debate and change a fundamental rule of public policy, it can, of course, do so. Trust “transparency” subverts that process. Rather than making an informed decision, the Ohio legislature has changed public policy under the guise of so-called transparency, on the basis of largely anecdotal and unproven allegations only for asbestos plaintiffs. It is an effort to facilitate the defense against asbestos claims by forcing plaintiffs to assist in the defendant’s efforts to shift responsibility to other entities.

Sources:

Amended Substitute H.B. 380 § 1 (amending § 2307.952(A)(1)(a)).

Id. (amending § 2307.953(A)).

Id. (amending § 2307.954(B)).

Ohio Rev. Code Ann. § 2307.22(A)(1) (West 2013).

Amended Substitute H.B. No. 380 § 4(I).

 
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