Asbestos defendants will get appeal, Ohio SC says

John O'Brien Oct. 11, 2007, 2:50pm


COLUMBUS, Ohio - An appellate court was wrong not to hear the case of asbestos defendants who want the cases against them tossed out of a special asbestos court, the Ohio Supreme Court ruled Wednesday.

In a unanimous decision, the justices say a decision in the Cuyahoga County Court of Common Pleas is an appealable decision that should be heard by the Eighth District Court of Appeals. The Cuyahoga Court ruled a tort reform law enacted in 2004 could not be applied to asbestos lawsuits filed before then.

"If the appellants in this matter are unable to challenge the trial court's finding in an interlocutory appeal, they will be unable to obtain the remedy set forth in the legislation upon an appeal from a final judgment," Justice Terrence O'Donnell wrote.

"it would be meaningless at that point either to require a claimant to present prima facie evidence, or to administratively dismiss a claimant's case for failure to present prima facie evidence, after the case has proceeded to a final judgment on the merits."

With the goal of avoiding frivolous asbestos claims, the legislation required all asbestos plaintiffs to make a preliminary filing of medical evidence that showed he or she suffered from lung cancer or a non-malignant physical impairment linked to asbestos exposure.

After it took effect, defendants in the thousands of cases that once clogged Cuyahoga Common Pleas Court sought to apply the law retroactively to plaintifffs who would have been in violation of the law. A trial court found that would violate the plaintiffs' rights and the state's constitution. The defendants wished to appeal.

The cases were all put in a special docket in 1997, and three full-time judges oversee them.

O'Donnell and the other justices put the Eighth District's decision to a three-part test to determine if the Cuyahoga ruling was appealable. The first asked if the order either granted or denied relief sought in a certain type of proceeding.

The second asked if the order determined the action with respect to the provisional remedy and prevented a judgment in favor of the appealing party, and the third asked if the party appealing the order would not be afforded an effective remedy by an appeal following final judgment.

Justice Paul Pfeifer concurred in judgment only.

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