Owens-Illinois - Amicus Brief in Asbestos Litigation

• Client: Owens-Illinois, Inc.
• Date: December 18, 2006
• Location: Ohio Court of Appeals, Twelfth District

Summary:

In the first decision by an Ohio appellate court on the issue, the Ohio Court of Appeals, Twelfth District, held an Ohio tort reform statute constitutional, reversing the trial court's decision. Owens-Illinois filed an amicus brief prepared by Schiff Hardin, on which the Court of Appeals expressly relied, quoting and adopting significant portions verbatim.

Background

The need for asbestos litigation reform is a national issue. Most asbestos litigation today results from mass x-ray screenings of workers by plaintiff-sponsored screening outfits, whose purpose is to generate litigation and not to identify or treat illness. Doctors are hired to read the x-rays in bulk, usually concluding that they are "consistent with" asbestos exposure.

The result is thousands upon thousands of lawsuits by non-sick plaintiffs flooding the courts, delays for plaintiffs who really are sick, depletion of defendants' resources, numerous defendant bankruptcies with disruptions for local economies and havoc to their workers, and extra pressure on non-bankrupt companies.

Federal legislation to reform asbestos litigation was proposed but has not been passed. In the absence of federal reforms or judicial restraint of the abuses, several states have enacted reform statutes, creating threshold medical criteria for asbestos claims. These statutes are controversial, because plaintiffs in pending cases argue that they have a vested right to play by the old, lax rules. The Georgia Supreme Court recently held Georgia's statute unconstitutional. The Ohio Court of Appeals ruling, holding Ohio's reform statute constitutional, is therefore especially important.

Ohio's asbestos reform statute requires plaintiffs to make a prima facie showing that they satisfy certain medical criteria, or face "administrative dismissal" (suspension of the case, with statutes of limitation tolled). The Ohio Court of Appeals upheld these provisions as remedial clarifications of the law prompted by the asbestos litigation crisis. Its discussion mirrored the analysis of Owens-Illinois's amicus brief, including its statement, "We also agree with the following arguments presented by Owens-Illinois, Inc., in its amicus curiae brief," followed by a quotation of several pages of our brief verbatim.

Owens-Illinois, an Ohio-based glass company, manufactured a single asbestos-containing product for a short period ending almost 50 years ago. It is nevertheless still named in hundreds of thousands of asbestos lawsuits, many of which are in Ohio. The constitutionality of Ohio's reform statute is vitally important to Owens-Illinois.