2006 Ohio Revised Code - 2307.96. Plaintiff\'s burden of establishing claim against particular defendant.

§ 2307.96. Plaintiff's burden of establishing claim against particular defendant.
 

(A)  If a plaintiff in a tort action alleges any injury or loss to person resulting from exposure to asbestos as a result of the tortious act of one or more defendants, in order to maintain a cause of action against any of those defendants based on that injury or loss, the plaintiff must prove that the conduct of that particular defendant was a substantial factor in causing the injury or loss on which the cause of action is based. 

(B)  A plaintiff in a tort action who alleges any injury or loss to person resulting from exposure to asbestos has the burden of proving that the plaintiff was exposed to asbestos that was manufactured, supplied, installed, or used by the defendant in the action and that the plaintiff's exposure to the defendant's asbestos was a substantial factor in causing the plaintiff's injury or loss. In determining whether exposure to a particular defendant's asbestos was a substantial factor in causing the plaintiff's injury or loss, the trier of fact in the action shall consider, without limitation, all of the following: 

(1) The manner in which the plaintiff was exposed to the defendant's asbestos; 

(2) The proximity of the defendant's asbestos to the plaintiff when the exposure to the defendant's asbestos occurred; 

(3) The frequency and length of the plaintiff's exposure to the defendant's asbestos; 

(4) Any factors that mitigated or enhanced the plaintiff's exposure to asbestos. 

(C)  This section applies only to tort actions that allege any injury or loss to person resulting from exposure to asbestos and that are brought on or after the effective date of this section. 
 

HISTORY: 150 v H 292, § 1, eff. 9-2-04.
 

See provisions, § 3, H.B. 292 (150 v  - ), following RC § 2307.91. 

The provisions of § 5, H.B. 292 (150 v  - ), read as follows: 

SECTION 5. It is the intent of the General Assembly in enacting section 2307.96 of the Revised Code in this act to establish specific factors to be considered when determining whether a particular plaintiff's exposure to a particular defendant's asbestos was a substantial factor in causing the plaintiff's injury or loss. The consideration of these factors involving the plaintiff's proximity to the asbestos exposure, frequency of the exposure, or regularity of the exposure in tort actions involving exposure to asbestos is consistent with the factors listed by the court in Lohrmann v. Pittsburgh Corning Cor. (4th Cir. 1986), 782 F.2d 1156. The General Assembly by its enactment of those factors intends to clarify and define for judges and juries that evidence which is relevant to the common law requirement that plaintiff must prove proximate causation. It recognizes this section's language is contrary to the language contained in paragraph 2 of the Syllabus of the Ohio Supreme Court in Horton v. Harwick Chemical Corp. (1995), 73 Ohio St.3d 679. However, the General Assembly also recognizes that the courts of Ohio prior to the Horton decision generally followed the rationale of the Lohrmann decision in determining whether plaintiff had submitted any evidence that a particular defendant's product was a substantial cause of the plaintiff's injury in tort actions involving exposure to certain hazardous or toxic substances, and that the Lohrmann factors were of great assistance to the trial courts in the consideration of summary judgment motions and to juries when deciding issues of proximate causation. The General Assembly further recognizes that a large number of states have adopted this standard. It has also held hearings where medical evidence has been submitted indicating such a standard is medically appropriate and is scientifically sound public policy. The Lohrmann standard provides litigants, juries, and the courts of Ohio an objective and easily applied standard for determining whether a plaintiff has submitted evidence sufficient to sustain plaintiff's burden of proof as to proximate causation. Where specific evidence of frequency of exposure, proximity and length of exposure to a particular defendant's asbestos is lacking, summary judgment is appropriate in tort actions involving asbestos because such a plaintiff lacks any evidence of an essential element necessary to prevail. To submit a legal concept such as a "substantial factor" to a jury in these complex cases without such scientifically valid defining factors would be to invite speculation on the part of juries, something that the General Assembly has determined not to be in the best interests of Ohio and its courts.