Ohio SC swings back to being a 'balanced court'

Chris Rizo Oct. 27, 2008, 12:42pm

Mark Behrens

Kurt Tunnell

COLUMBUS, Ohio (Legal Newsline)-Over the last decade, the Ohio Supreme Court has turned from being one of the most respected courts in the nation to being a pro-plaintiff forum and back again to having a "solid reputation," said one of the nation's leading corporate defense attorneys.

"The Ohio Supreme Court has traditionally had a very solid reputation as a very good, very balanced court," said Mark Behrens, a Washington-based attorney in the law firm of Shook, Hardy & Bacon LLP.

But for a time in the 1990s, the majority of the justices were closely allied with the trial lawyers, and the court was "very hostile" to business and to legal reform and struck down many civil justice reform laws enacted in Ohio, he said.

A second shift to the high court came in the 2002 election, he said, when there was a change in the court's composition. The judges who were on the bench in the 1990s saw themselves as a "super-Legislature" there to second-guess lawmakers.

"The current court is more restrained and the current court is more balanced and deferential to sound policy choices by the Legislature," he said. "They see their job as interpreting the law, not making it."

Columbus attorney Kurt Tunnell, chair of the Bricker & Eckler LLP's manufacturing and logistics groups, said in the past the state's high court has had a reputation of being "activist" in its rulings.

"There was more a philosophy in the past of trying to do what the court thought was the right thing as opposed to following what the Legislature had set out as the statutory framework," Tunnell told Legal Newsline.

Tunnell, who serves as legal and legislative counsel for the Ohio Alliance for Civil Justice, said that the election of Justices Maureen O'Connor and Evelyn Lundberg Stratton in 2002 shifted the court ideologically.

Both justices, who are up for reelection next week, have "more of a traditional view of a justice and certainly are very concerned about legislating from the bench."

Behrens said evidence of the high court's renewed sense of fairness can be found in two of its recent rulings dealing with asbestos cases.

In a ruling earlier this month, the high court upheld restrictions on asbestos cases unless plaintiffs can show evidence of health problems caused by asbestos.

The ruling does not eliminate a person's right to sue, but only delays their rights until they can prove health problems from the exposure. The ruling resulted in about 30,000 pending asbestos-related claims to be tossed out of county courts.

More recently, the Supreme Court ruled that a woman could not sue a company that insulated the pipes at her husband's workplace.

Genevieve DiCenzo claimed the company was responsible for the 1993 death of her husband, Joseph DiCenzo, who was a longtime employee of Wheeling-Pittsburgh Steel Co.

She sought damages from more than 80 defendants, including George V. Hamilton Inc., which supplied Wheeling-Pitt with asbestos-containing pipe coverings during the 1950s.

"Imposing such a potential financial burden on these nonmanufacturing suppliers years after the fact for an obligation that was not foreseeable at the time would result in a great inequity," said Justice Evelyn Lundberg Stratton, who wrote the court's majority opinion.

The two rulings will have "a significant impact" on asbestos litigation in the state by clearing out court dockets of what he called "junk cases," said Behrens who filed amicus briefs in the cases on behalf of national business organizations, including the American Insurance Association and the National Association of Wholesaler-Distributors.

Over the past three decades of asbestos litigation, the numbers of cases that have been filed have been in the hundreds of thousands, and forced 85 companies into bankruptcies, he said.

"The plaintiffs bar has responded to these bankruptcies by suing more companies. If you can't get as much out of one then you get a little bit out of a lot more is the approach they've taken," Behrens said.

Twenty-five years ago there were roughly 300 defendants that had been named in asbestos lawsuits. Today, there are more than 8,500 companies named in asbestos-related complaints, he said.

In Ohio and other places, trial lawyers are reaching out for peripheral asbestos lawsuits, where, for instance, a hardware store is sued for selling an asbestos-containing product that was later found to be hazardous.

"It really shows you how the litigation has moved from targeting the companies that made asbestos to targeting companies that never made asbestos, but had asbestos on their premises," Behrens said.

From Legal Newsline: Reach reporter Chris Rizo at chrisrizo@legalnewsline.com.

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