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OHIO H.B. 380:ASBESTOS TRANSPARENCY BILL
Rick SchusterVorys, Sater, Seymour and Pease LLP
614.464.5475 | [email protected]
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Need for H.B. 380› History of failure to provide defendants
with trust claims and materials› Late production of trust claims and
materials› Numerous motions filed to compel
production of trust claims and materials › Delayed filing of trust claims› Juries denied information needed for
apportionment› National trend not unique to Ohio
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Purpose of H.B. 380
› Transparency between tort system and trusts
› Apportionment of liability
› Section 4 of HB 380 contains the findings and intent of the General Assembly
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Certification by Plaintiff’s Counsel
› R.C. § 2307.952› 30 days after commencement of discovery› Sworn statement by claimant• identify trust claims made• identify all materials submitted to trust• state date claim made• state whether a request for a deferral was
made› Continuing requirement to update
certification as new materials or claims filed› Failure to comply is a ground to continue trial
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Defendant’s Motion to Stay Trial to Require Trust Claim Filing
› R.C. § 2307.953› 75 days prior to trial date› Must include:• Identity of trusts where Plaintiff has not
made a claim but could• Information that supports Defendant’s
motion must be included• Information must be sufficient to meet the
asbestos trust requirements
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Plaintiffs’ Production of New Evidence of Exposure that Supports a Claim
› R.C. § 2307.953(B)› Defendant may file a motion to stay
within 7 days of receipt
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Plaintiffs’ Options› R.C. § 2307.953(C)› 14 days after motion to stay filed› File the trust claim and submit materials
to court and parties› File opposition on grounds evidence is
insufficient to support the trust claim› File opposition on grounds that cost of
filing exceeds likely recovery› None of these filings constitute a waiver
of attorney-client or work product privilege
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Court Must Decide
› R.C. § 2307.953(D)› Has Defendant shown by a preponderance of evidence
that a successful asbestos trust claim could be submitted
› Burden shifts to Plaintiff to show by a preponderance of the evidence that the Defendant’s request should be modified or is insufficient
› Plaintiff has burden to show costs of submitting claim would exceed recovery
› If court determines cost will exceed recovery, then court shall require claimant to file with the court a verified statement of exposure to asbestos products from the trust
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Court Shall Stay Proceedings
› R.C. § 2307.953(E)
› If court decides a good faith basis for filing claim with trust, must stay
› Stay in effect until Plaintiff files with trust, and
› Stay in effect until Plaintiff provides filed materials to Defendants
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Multiple Diseases
› R.C. § 2307.954(A)
› Ohio is a multiple disease state and each disease is a separate claim
› Plaintiff required to turn over all claims made to asbestos trusts, regardless of disease
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Presumptions Created
› R.C. § 2307.954(B)› Trust claim materials presumed:• authentic• relevant• discoverable• not privileged
› Trust claim materials may be introduced at trial, UNLESS exclusion required by rules of evidence
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Additional Disclosure
› R.C. § 2307.954(C)
› Defendant may seek additional disclosures
› Defendant may seek information directly from trusts
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Sanctions
› R.C. § 2307.954(D)(E)(F)
› Any sanctions allowed in Ohio are available
› Includes vacating a judgment
› One year to vacate judgment
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Effective Date
› March 27, 2013
› Applies to any case pending on March 27, 2013 that has not started trial
› Applies to any case filed on or after March 27
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Impact of H.B. 380
› RC § 2307.953 motions resulted in settlements
› 84 motions for RC § 2307.952 compliance filed
› Several plaintiff firms provided certification along with required trust materials
› Two plaintiff firms filed constitutional challenges
› Several plaintiff firms requested extra time to respond