OHIO H.B. 380: ASBESTOS TRANSPARENCY BILL

1. OHIO H.B. 380:ASBESTOS TRANSPARENCY BILL Rick Schuster Vorys, Sater, Seymour and Pease LLP 614.464.5475 | rdschuster@vorys.com

2. 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

3. 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

4. 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

5. 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

6. 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

7. 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

8. 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

9. 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

10. 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

11. 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

12. Additional Disclosure • R.C. § 2307.954(C) • Defendant may seek additional disclosures • Defendant may seek information directly from trusts

13. Sanctions • R.C. § 2307.954(D)(E)(F) • Any sanctions allowed in Ohio are available • Includes vacating a judgment • One year to vacate judgment

14. 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

15. 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