Opposition Brief — Weldon v. Norfolk Southern Railway Co. (No. 07-1152)

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No. 07-1152

IN THE

Supreme Court of the United States

CHARLES ODELL WELDON, ND ERIC A. WILES,

INDIVIDUALLY, AND IN HIS CAPACITY AS EXECUTOR

OF THE ESTATE OF LARRY ARNOLD WILES,

Petitioners,

Vv.

NORFOLK SOUTHERN RAILWAY COMPANY,

Respondent.

On Petition for a Writ of Certiorari

to the Supreme Court of Ohio

RESPONDENT'S BRIEF IN OPPOSITION TO

PETITION OF WRIT OF CERTIORARI

TIMOTHY J. FITZGERALD*

KEVIN C. ALEXANDERSEN

COLLEEN A. MOUNTCASTLE

HOLLY OLARCZUK-SMITH

GALLAGHER SHARP

Bulkley Building

Sixth Floor

1501 Euclid Avenue

Cleveland,OH 44115-2108

(216) 241-5810

Counsel for Respondent

May 12, 2008 * Counsel of Record

SE eee

Wi.son-Eres Paarra Co., inc. — (207) 768-0088 -— Wasson, D.C. 20002

. m OF OR Fie ee ag ee a Sy reed eS Oe eee Bak eke Wea OR paring es) ~ ee. ae ae FE

| QUESTION PRESENTED

{ Whether Ohio may require plaintiffs bringing

’ asbestos-related claims under the Federal Employer's

Liability Act and the Locomotive Inspection Act to

meet minimal medical requirements, as a means of

managing the dockets of Ohio’s overburdened courts,

without offending the Supremacy Clause, Art. VI, Cl.

2 of the United States Constitution.

CORPORATE DISCLOSURE STATEMENT

PURSUANT TO SUPREME COURT

RULES 29.6 AND 14.1(d)

Respondent, Norfolk Southern Railway Company,

is a wholly owned subsidiary of its parent

corporation, Norfolk Southern Corporation, a publicly

traded company. No publicly held company owns

10% or more of Norfolk Southern Corporation’s stock.

TABLE OF CONTENTS

QUESTION PRESENTED ....000000..... eee eseeeeeeeees

CORPORATE DISCLOSURE STATEMENT

PURSUANT TO SUPREME COURT RULES

SE BD sitdiviricsiccssssvonscneccrsserecoossneseseses

TABLE OF AUTHORITIES .................. cee cceeeeeeeees

ih iatsdi sid ietaswidevcoenscosecevecesersossves

A. The Purpose Of H.B. 292....................00....

B.Ohio Revised Code Sections 2307.91

I oi in cccadscsseconecocevedesecsons

STATEMENT OF THE CASE..................ceeseeeeeeee

A. Petitioner's Claim That The Statute

Conflicts With FELA Causation Rules Is

Not Preserved For This Court’s Review...

B. The Ohio Supreme Court’s Ruling That

The Statute Does Not Burden Federal

Rights Is Correct And Does Not Conflict

With Any Other Decision..........................

1. Petitioners Misstate The Legislative

I OE I cies sncentscsccindeccoscocne

2. The Decision Below Does Not Con-

flict With Decisions Of This Court.......

3. The Supreme Court Of Ohio Did Not

Err In Relying On This Court’s

Analysis In Bombolis And Mayfield ....

(111)

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oO oo

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ee ee ee es ee ee ees eae Sy OE ee Cee ee ae ee ee!

TABLE OF CONTENTS -— continued

Page

4. Petitioners’ FELA/LBIA Asbestos

Actions Would Be Subject To A

Process Of Prioritizing And Admin-

istrative Dismissal In Federal Court...

5. The Ohio Supreme Court’s Decision

Does Not Conflict With Or Demon-

strate Confusion Among State High

CONCLUSION

TABLE OF AUTHORITIES

CASES Page

Adair v. Northern Pac. Ry. Co., 392 P.2d

fA ERS a MN ere eae 28

Alabama Great S. R.R. v. Jackson, 587 So.

A I iinithicihh ss dicsieciicisblasednccosne 30

Alabama v. Shelton, 553 U.S. 654 (2004)..... 27

Allen v. National R.R. Passenger Corp., 934

So. 2d 1006 (Miss. 2006) ......................00000- 29

Amchem Prods. v. Windsor, 521 U.S. 591

Ce ialhichibadhnatinsisincidiibinisissidiansianawedvetixinennness 3

In re Asbestos Prod. Liab. Litig., 771

F.Supp. 415 (J.P.M.L. 1991)..................... 23, 25

In re Asbestos Prods. Liab. Litig., No. MDL

875, 2002 WL 32151574 (E.D. Pa. Jan.

Bi iris suka ic haehis ihieiaddersanlechimsiabeediaesihinides 24

Brady v. Southern Ry. Co., 320 U.S. 476

SEI diiasedihiicihe cick st ants instigiiriiosinlaiasecbckadiosantihabaiion 12, 19

Brady v. Terminal R.R. Ass’n, 303 U.S. 10

PR sculelh sicatenlnsiasdnns cadchiashowsbnisbabbionteedinbdtiseias 13

Brown v. Western Ry. of Ala., 338 U.S. 294

| SERESTERT TS TESSMTS OE ane TO TORE IOS 13, 14, 20

Carter v. Atlantic & St. Andrews Bay Ry.,

Fe ets Se CID ieksinctccciaciccctdccnpeciccceces 13

Central Vt. Ry. v. White, 238 U.S. 507

atid cnibcctictn se nidincciaciasoascebepdediledeiadiipinsese 19

Citizens & S. Natl Bank v. Bougas, 434

SE I gh ici niles tavdich caneincicedataidininaees 28

Coray v. Southern Pac. Co., 335 U.S. 520

tila ideliath dislaidiabnedicintimdedctinhomithiblbiniinesadiibiins 12, 13

Daimler Chrysler Corp v. Ferrante, 637

S.E.2d 659 (Ga. 2006) .......................000..000. 27

Davis v. Kennedy, 266 U.S. 147 (1924)......... 12

Davis v. Wolfe, 263 U.S. 239 (1923).............. 12

Dice v. Akron, D.&Y.R. Co., 342 U.S. 359

a ccicianiethstetesnansaihdacabitianiosieniceladeaotbianioaibibcaniletbiide 19

Ss 4

TABLE OF AUTHORITIES -— continued

Page

Felder v. Casey, 487 U.S. 131 (1988) .... 14, 15, 18

Green v. Frazier, 253 U.S. 233 (1920)........... 9

Guaranty Trust Co. v. York, 326 U.S. 99

SG Rita octets al i eladiciins saath cideuekacimtesccoesoes 14

Haselden v. Atlantic Coast Line R.k. Co.,

53 S.E.2d 60 (S.C. 1949) ................ccccccccsees 28

Illinois v. Gates, 462 U.S. 213 (1983) ........... 8

Illinois v. Lidster, 540 U.S. 419 (2004)......... 28

Illinois v. Wardlow, 528 U.S. 119 (2000)...... 28

Johnson v. Fankell, 520 U.S. 911 (1997).... 10, 18,

22, 23

Kauzlarich v. Atchison, T. & S.F. Ry., 910

S.W.2d 254 (Mo. 1995) ..............ccccccccceeeeeeee 28

Kernan v. American Dredging Co., 355 U.S.

NE IEESRTEIIISSS SRE SEY TEP ee 12

Lang v. New York Cent. R.R., 255 U.S. 455

TEAS REECE ERE CTE Ey nO ee ORO a 12

Limbach v. Hoover & Allison, 466 U.S. 353

SERA ERGRE ET SS See nS ee 9

McMillan v. National R.R. Passenger

Corp., 648 A.2d 428 (D.C. 1994) .......c.ce.0.0- 28

Metro-North Commuter R.BR. v. Buckley,

Be I SI CPE D ch ccccssncciccnscnsecscoucsescesee 11, 16

Minneapolis & St. Louis R.R. Co. v.

Bombolis, 241 U.S. 211 (1960)................... 21

Minneapolis, St. Paul & Sault Ste. Marie

Ry. v. Goneau, 269 U.S. 406 (1926)........... 12

Missouri ex rel. S. Ry. Co. v. Mayfield, 340

EE ESE SE SRE ge ea TE 21

Montgomery v. CSX Transp., Inc., 656

NE, SII os cnacacssecoenansccascncceees 28

New Orleans & N.E.R.R. v. Harris, 247

cs ceidecinnhonts 19

New York Cent. R.R. v. Ambrose, 280 U.S.

i i i diptasnie 13

4 ~:

od fy + eh, das) de tt ee ot ht

;

vii

TABLE OF AUTHORITIES — continued

Pag

Norfolk & W. Ry. Co. v. Ayers, 538 U.S. 135

A SEA RN ear Re ety A aC 3

Norfolk S. Ry. Co. v. Bogle, 850 N.E.2d

1281 (Ohio App. 2006) ....................ceeeee eee 7

Norfolk S. R.R. v. Ferebee, 238 U.S. 269

TES a RRS ices Sek eee A ea 14

Norfolk S. Ry. Co. v. Sorrell, 127 S.Ct. 799

SII iin. ciksibincinpnisianbaciaieialidibcabeaseinaibetan 2, 12, 13

Northwestern Pac. R.R. v. Bobo, 290 U.S.

ae 12

O'Donnell v. Elgin, Joliet & E. Ry., 338

oF SEE RICE Serr ae neo 13

Powerex Corp. v. Reliant Energy Servs.,

FIRB, THe Cs EE Ce ei eniciecececcsccecicescese 27

Republic Natl Bank of Miami v. United

States, 506 U.S. 80 (1992).................. ee 27

In re R.O.C., 131 S.W.3d 131 (Tex. Ct. App.

ROTEL IS Rata PT et Fee Oe 10

Rogers v. Missouri Pac. R.R., 352 U.S. 500

i ssheeantnnnees 2

Rule v. Burlington N. & Santa Fe Ry., 106

P.3d 533 (hlomt. BOOS) .............cccccecceceeess..-. 29

In re Silica Prods. Liab. Litig., MDL 1553,

398 F.Supp.2d 563 (S.D. Tex. 2005).......... 4

Smith v. Gulf Oil Co., 995 F.2d 638 (6th

Re a i smeose 23

St. Louis, Iron Mountain & S. Ry. uv.

McWhirter, 229 U.S. 265 (1913) ................ 12

St. Louis Sw. Ry. Co. v. Dickerson, 470

RRR sree Na nena A Rm 21, 26

St. Louis-S.F. Ry. v. Mills, 271 U.S. 344

use 12

St. Martin Evangelical Lutheran Church v.

South Dakota, 451 U.S. 772 (1981)........... 28

vill

TABLE OF AUTHORITIES -— continued

Page

Swinson v. Chicago, St. Paul, Minneapolis

& Omaha Ry., 294 U.S. 529 (1935) ........... 13

Tiller v. Atlantic Coast Line R.R., 318 U.S.

he aes icttnicsdebitsthaiatbidiniibedeiiedpincaincn 13

Union Pac. R.R. Co. v. Williams, 85 S.W.3d

i oicerissuhnssnitidsennsnidimibihimedsacveioe 28

Urie v. Thompson, 337 U.S. 163 (1949)........ 13

CONSTITUTION AND STATUTES

U.S. Const. Article VI, Cl. 2....................00008 6, 17

150 Ohio Laws, Pt. III, 3970................000...... 1

150 Ohio Laws, Pt. ITI, 3995.............00....00.... 4

Ohio Rev. Code §2307.91....................c:cccceee 10, 25

Ohio Rev. Code §2307.92....................... 5, 6, 8, 10

Ohio Rev. Code §2307.93.......................... 5, 19, 20

QOARA, SB BSTEA GIR) oo cccccccccccccccccscccccccccsseseseseces 27

RULES

II SE I. TT... ascieecnaclasbetiainenaiiionetl 20

NN I nceccntncncavinestceeenitenibineiis 8

SS 2 CS, 30

OTHER AUTHORITIES

Restatement (Second) of Torts (1965) .......... 11

Roger Parloff, Diagnosing For Dollars,

Portes, Sue 33, BOOS .........ccccccccccccccccscnce 4

;

’

“4

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;

‘

;

INTRODUCTION

The Petition for Writ of Certiorari raises no issue

remotely worthy of review by this Court. Petitioners’

principal claim — that the Ohio Revised Code sections

enacted through Amended Substitute House Bill

Number 292 (“H.B. 292”), Section 3(A)(3)(b), 150 Ohio

Laws, Part III, 3970, are substantive state laws that

“alter the evidentiary rules that long have governed

claims brought under the [Federal Employers’

Liability Act]” and “impose stricter threshold medical

evidentiary requirements than asbestos plaintiffs

would need to satisfy as a matter of substantive law

to have a claim submitted to a jury or to recover

under the FELA if litigated in federal court,” Pet. 1 —

depends upon resulving questions of both state and

federal law that were neither presented to or decided

by the Ohio Supreme Court, and are thus foreclosed

from review by this Court. Indeed, as the state court

observed, the Petitioners did not “file[] a merit brief

in this case and, therefore, did not argue before this

court.” Pet. App. 7a.

Moreover, Petitioners’ claims are improperly

founded on a rejection of the Ohio Supreme Court’s

authoritative construction of Ohio law. The state

court construed the statute to require no more than a

preliminary evidentiary showing that the plaintiff

had a good-faith basis for the claims asserted; this

Court lacks power to adopt Petitioners’ contrary

construction of the state statute as imposing

substantive evidentiary requirements beyond what is

needed to prove the underlying claims at trial.

Moreover, Petitioners’ construction of the state

statutes are self-evidently wrong. The Ohio statutes

concern only issues of medical causation (i.e.,

whether the plaintiff has an _ asbestos-related

disease). Contary to Petitioners’ claims, Ohio Revised

Code Section 2307.92(B), for instance, has nothing to

do with legal causation (i.e., whether a particular

defendant can be held legally responsible for the

injury). Furthermore, even if (contrary to fact) the

statute did address legal causation, a “substantial

contributing factor” standard is no stricter than the

rule of proximate causation that this Court has

always enforced under FELA, and thus the state

statute alters no substantive rule of federal law.

Petitioners’ argument to the contrary is based on a

misreading of Rogers v. Missouri Pac. R.R., 352 U.S.

500 (1957) — as three Justices of this Court explained

in Norfolk S. Ry. Co. v. Sorrell, 127 S.Ct. 799 (2007).

The Sorrell majority declined to resolve the question

because the issue of the proper causation standard

for railroad negligence was not raised to or decided by

the state supreme court. Jd. at 804-05. This Court

should not chart a different course from Sorrell.

Petitioners’ failure to properly raise this issue in the

Ohio Supreme Court compels denial of the petition.

These unresolved or foreclosed issues make this an

improper vehicle to decide even the one issue that the

Ohio Supreme Court did resolve — whether H.B. 292,

if a procedural statute, nevertheless operates to

lessen or destroy federal rights. On that question,

Petitioners simply challenge the application of settled

law to Ohio’s statutes. There is no conflict on any

issue of federal law between the holding below and

any decision of this Court, a state supreme court, or a

federal court of appeals. Moreover, the Ohio

Supreme Court is incontrovertibly correct on the

merits. H.B. 292, as construed by that court, is

simply an administrative case _ prioritization

mechanism that does not discriminate against federal

claims, resolve any federal claim on the merits, or

affect or distort the adjudication of a federal claim on

the merits. This Court has upheld state procedural

rules that deprive a FELA plaintiff of a state forum

altogether; a fortiori, a state procedural rule that

neutrally delays adjudication of asbestos-exposed

plaintiffs so that more urgent cases of plaintiffs with

actual asbestos-related disease may be resolved first

does not lessen or destroy federal rights in violation

of the FELA. Indeed, as the Ohio Supreme Court

held, very similar procedures are used to rationalize

the administration of asbestos cases in federal court.

In sum, this Court should deny the petition.

LEGISLATIVE BACKGROUND

A. The Purpose Of H.B. 292

This Court has characterized asbestos litigation as

an “elephantine mass” of cases that “defies

customary judicial administration.” Norfolk & W.

Ry. Co. v. Ayers, 538 U.S. 135, 166 (2003). Ohio in

particular has been inundated with an overwhelming

number of asbestos filings, and is “one of the top five

state court venues for asbestos filings.” Pet. App.

70a.!

In 2003, at least 35,000 asbestos personal injury

cases were pending in Ohio’s state courts and there

appeared to be no end in sight because approximately

200 new asbestos cases were being filed every month.

See id. In eighty-nine percent of the cases no claim

for cancer was alleged and “[s]ixty-six to ninety per

cent of these non-cancer claimants are not sick.” Pet.

App. 72a-73a.?

' All citations to H.B. 292 will be to the version of H.B. 292

reproduced in Petitioner’s Appendix.

2Cf. Amchem Prods. v. Windsor, 521 U.S. 591, 631 (1997)

(Breyer, J., dissenting), (“up to half of asbestos claims are now

Faced with overburdened dockets and an unending

number of newly filed asbestos actions, Ohio’s courts

needed a mechanism to manage a large volume of

asbestos cases on their dockets in a manner that

ensures that sick claimants receive priority in the

resolution and compensation of their claims and to

weed out fraudulent claims generated by “screening”

doctors hired solely to render a diagnosis for

litigation.’

Finding that “[t]he current asbestos personal injury

litigation system is unfair and inefficient, imposing a

severe burden on litigants and taxpayers alike,”

Ohio’s General Assembly enacted H.B. 292. Pet. App.

2a.

H.B. 292 went into effect on September 2, 2004.

H.B. 292, 150 Ohio Laws, Part III, 3995. It enacted

Ohio Revised Code Sections 2307.91 through 2307.98

to serve four primary purposes: (1) to give priority to

claimants who can demonstrate actual physical harm

caused by asbestos, (2) to preserve the rights of those

who were exposed for future action, (3) to enhance

the state’s system of supervision and control over

asbestos-related litigation, and (4) to conserve scarce

resources to allow compensation for cancer victims

while also securing a right to similar compensation

being filed by people who have little or no _ physical

impairment”).

3 The fraudulent practices of mass screening companies and

physicians hired to diagnose claimants for the purpose of

litigation was highlighted in In re Silica Prods. Liab. Litig.,

MDL 1553, 398 F.Supp.2d 563 (S.D. Tex. 2005). In re Silica also

sheds light on the possible fraud “afflicting asbestos litigation

for almost 20 years, resulting in billions of dollars of payments

to claimants who weren't sick and to the attorneys who

represented them.” See, Roger Parloff, Diagnosing For Dollars,

Fortune, June 13, 2005 at 98.

for those who suffer harm in the future. Pet. App.

74a.

The General Assembly enacted H.B. 292 as a

procedural mechanism to enhance the ability of

courts to manage and organize their dockets by

prioritizing those asbestos claimants who can

demonstrate impairment. See, id. At the same time,

H.B. 292 fully preserves the rights of the unimpaired

claimants to pursue their asbestos claims. See, id.

B. Ohio Revised Code Sections 2307.91

Through 2307.98

Ohio Revised Code §2307.92(B), enacted by H.B.

292, sets forth certain minimal medical criteria for

non-malignant asbestos cases. It requires evidence

that a competent medical authority took detailed

occupational, asbestos-exposure, medical and

smoking histories of the plaintiff, and diagnosed an

asbestos-related, non-malignant condition based on

those histories, as well as a medical examination and

a pulmonary function test. See, §2307.92(B)(1)-(3).

For complaints filed before the enactment of H.B.

292, like those at issue herein, these criteria were

required to be filed within 120 days from the effective

date of the _ statute. See, §2307.92(B) and

§2307.93(A)(2).

If a plaintiff cannot meet the medical criteria, the

case is administratively dismissed without prejudice.

Ohio Rev. Code §2307.93(C). Under this procedure,

the trial court retains jurisdiction over the case. The

claim is preserved for purposes of the statute of

limitations, and the dismissal does not count against

the plaintiff. The case can be reinstated when the

plaintiff complies with §2307.92(B).

H.B. 292 expedites the resolution of claims brought

by truly sick claimants. Pet. 73a. All asbestos

ey ee ae ae ee ee Pee

claimants, including FELA and Locomotive Boiler

Inspection Act (“LBIA”) claimants, must meet these

procedural medical requirements at the early stage of

litigation in order to prioritize the cases on the trial

court docket.

STATEMENT OF THE CASE

In September 1999, Petitioners, Charles Odell

Weldon, and Eric A. Wiles, individually and in his

capacity as executor of the Estate of Larry Arnold

Wiles (“Petitioners”), filed complaints under the

FELA and the LBIA against Respondent, Norfolk

Southern Railway Company (“Respondent” or

“Norfolk Southern”) in the Cuyahoga County Court of

Common Pleas alleging injuries caused by

occupational exposure to asbestos during their

employment with the railroad. Petitioners, who were

residents of Salisbury, North Carolina at the time of

filing their asbestos-related actions and did not work

for the respondent in Ohio, had no connection with

Ohio.

Petitioners failed to file the written medical reports

and supporting test results required by Ohio Revised

Code §2307.92(B). Due to Petitioners’ failure to

comply with these requirements, Norfolk Southern

brought an action seeking a judgment declaring that:

(1) the medical criteria and the administrative

dismissal process contained in H.B. 292 applies to

Petitioners’ asbestos-related FELA/LBIA claims, and

that (2) H.B. 292 does not infringe upon the

Supremacy Clause of the United States Constitution,

U.S. Const. Art. VI, Cl. 2.

The trial court denied Norfolk Southern’s request

for declaratory relief. The trial court determined that

the application of H.B. 292 to the instant cases was

preempted by the FELA and the LBIA. Pet. App.

32a-33a. The Eighth District Court of Appeals

affirmed. Norfolk S. Ry. Co. v. Bogle, 850 N.E.2d 1281

(Ohio App. 2006). Pet. App. 31a.

The Supreme Court of Ohio reversed and remanded

the trial and appellate courts’ decisions. Pet. App.

15a. The court held that the prima-facie require-

ments contained in §2307.92 and the administrative

dismissal mechanism contained in §2307.93, are

procedural in nature and can be applied to claims

brought in state court under the FELA and the LBIA,

and that since no new substantive burdens are placed

on asbestos claimants, these procedural statutes are

not preempted by federal law. “[T]he impact of these

statutes is to establish a procedural prioritization of

the asbestos-related cases on the court's docket.

Nothing more.” Pet. App. 7a. The court further

acknowledged that Ohio Revised Code Sections

2307.92 and 2307.93 “apply to all asbestos claims

filed in Ohio regardless of the theory or statutory

basis giving rise to relief, and serve to make efficient

use of judicial resources.” Pet. App.15a.

REASONS WHY THE PETITION

SHO*):.D BE DENIED

A. Petitioner’s Claim That The Statute

Conflicts With FELA Causation Rules Is

Not Preserved For This Court’s Review.

Petitioner's principal contention is that H.B. 292

imposes a higher standard of legal causation at the

early stages of litigation (“substantial contributing

factor”) than a FELA plaintiff needs to satisfy in

adjudicating its claim on the merits against the

railroad. Pet. 1, 14-18. Petitioners’ position is

erroneous as a matter of both state and federal law,

but more fundamentally it is not preserved for this

Court’s review. This Court does not sit to decide

questions of state law, nor does it sit to review

questions that were not decided by or presented to

the Ohio Supreme Court below. Illinois v. Gates, 462

U.S. 213, 218 (1983).

Petitioners disregard their obligations under Sup.

Ct. Rule 14(g)G). In seeking review of the Supreme

Court of Ohio’s decision, they fail to specify in the

statement of the case:

the stage in the proceedings, both in the court of

first instance and in the appellate courts, when

the federal questions sought to be reviewed were

raised; the method or manner of raising them

and the way in which they were passed on by

those courts; and pertinent quotations of specific

portions of the record or summary thereof, with

specific reference to the places in the record

where the matter appears ***, so as to show that

the federal question was timely and properly

raised and that this Court has jurisdiction to

review the judgment on a writ of certiorari.

The reason for Petitioners’ default is clear: the

questions Petitioners now raise were not properly

presented below. Petitioners did not ask the Ohio

Supreme Court to render a construction of the term

“substantial contributing factor” defined in Ohio Rev.

Code §2307.92(B), nor did they argue to the court

that the statute conflicted with any substantive

FELA causation rule.4 Norfolk Southern’s position

that H.B. 292 is procedural and therefore consistent

with Rogers was uncontested before the Ohio

4 As noted above, Petitioners did not timely file a brief in the

Ohio Supreme Court. Pet. App. 7a. While Petitioners did

briefly raise the substantive-conflict argument to the court of

appeals, they failed to properly renew that argument in the Ohio

Supreme Court.

Supreme Court because of Petitioners’ failure to

diligently participate in the proceedings before the

state supreme court.

It is not this Court’s province to decide threshold

and potentially dispositive issues of state law. See,

Limbach v. Hoover & Allison, 466 U.S. 353 (1984);

Green v. Frazier, 253 U.S. 233 (1920). The Ohio

Supreme Court authoritatively construed the state

statute as placing “no new substantive burdens” on

any claimant, regardless of the applicable law. Pet.

App. 8a. Indeed, it construed the medical

certification requirements of Ohio Revised Code

§2307.92(B) to demand in substance no more than the

existing procedural rule that “requires a party to

certify, by signing a complaint, that there are ‘good

grounds to support it.” Pet. App. 8a.

Remarkably, Petitioners dispute the Ohio Supreme

Court’s interpretation of state law. Arguing only

from the text of the state statute, Petitioners argue

(1) that the “substantial contributing factor”

provision in §2307.92(B) defines an independent

substantive standard of Ohio law (i.e., that it does not

merely require medical certification of facts necessary

to support a claim under the applicable substantive

law, as the Ohio Supreme Court held), and (2)

requires a certain quantum of evidence of legal

causation that is higher than FELA requires for the

plaintiff to prevail on the merits. But a state

supreme court’s construction of a state statute is

authoritative and “[nJjeither this Court nor any other

5 The Ohio court of appeals likewise did not construe H.B. 292

as imposing substantive evidentiary burdens in conflict with

Rogers; it simply found the delay entailed in the statutory

procedures to “gnaw” at the roots of the federal right. Pet. App.

29a.

federal tribunal has any authority to place a

construction on a state statute different from the one

rendered by the highest court of the State.” Johnson

v. Fankell, 520 U.S. 911, 916 (1997). Additionally,

the term “substantial contributing factor” is expressly

defined in the state statute, Ohio Rev. Code

§2307.91(FF), and it is unknown what gloss the state

supreme court would place on those terms; absent an

authoritative construction of that _ statutory

definition, this Court cannot feasibly compare the

state and federal laws. If Petitioners quarrel with

the Ohio Supreme Court’s construction of state law,

they have only themselves to blame; they forfeited

the opportunity to argue the construction of the state

statute by failing to file a timely brief. Because

Petitioners’ federal claims derive from a construction

of the state statute that was neither presented to nor

adopted by the Ohio Supreme Court, and indeed

requires a construction of state law contrary to the

one adopted below, this Court cannot entertain them.

Moreover, Petitioners are simply wrong in claiming

that Ohio Revised Code §2307.92(B)(2) states a rule

of legal causation, much less one in conflict with any

FELA rule. H.B. 292 addresses medical causation:

whether any asbestos exposure was a substantial

contributing factor to the claimed disease. Many

symptoms alleged in asbestos litigation can be caused

by numerous other agents or health conditions. See,

In re R.O.C., 131 S.W.3d 131, 137 (Tex. Ct. App.

2004). The object of H.B. 292 is simply to require a

prima-facie showing that “a competent medical

authority” has determined that the plaintiff has a

true asbestos-related disease. Ohio Rev. Code

§2307.92(B). The Ohio Supreme Court did not

construe the state statute to require anything more

than is necessary for a medical diagnosis that the

injury was attributable to asbestos as opposed to

other factors. There is certainly no conflict with the

FELA if §2307.92(B) is properly construed, as the

Ohio Supreme Court did, as requiring a threshold

prima-facie showing of asbestos-related disease. This

Court has expressly held that a FELA plaintiff may

only recover against a railroad that negligently

exposed him to asbestos if he developed an asbestos-

related disease. Metro-North Commuter R.R. v.

Buckley, 521 U.S. 424, 427 (1997).

The medical-causation requirement of §2307.92(B),

which goes to the nature of the injury (is it asbestos-

related disease or not), has nothing to do with legal

causation, which is the question of whether a specific

defendant can be held legally responsible for the

injury in question. See, Restatement (Second) of

Torts § 435 (1965). §2307.92(B) is wholly silent on

that question. Even if arguendo Rogers stated a

reduced legal-causation standard for railroad

negligence, it would be completely compatible with

§2307.92(B). The complaint would be placed on the

active docket if it were shown that the plaintiff had

an asbestos-related disease (i.e., that asbestos

exposure was a substantial contributing factor to the

disease); the railroad (under a Rogers standard)

would be liable if its negligent acts exposing the

defendant to asbestos played any part, even the

slightest, in causing the asbestos-related disease,

even if other defendants were responsible for a much

greater amount of the plaintiffs asbestos exposure.®

In a footnote, Pet. 15 n.6, Petitioners argue that there is no

possible FELA standard of legal causation as stringent as

“substantial contributing factor.” That is incorrect. Even if

arguendo Ohio Revised Code §2307.92(B)(2) addressed legal

causation, it would not be materially different from the

“substantial factor” standard of Section 435 of the Restatement.

This points to a second fundamental flaw in the

petition. Not only did Petitioners fail to properly

present their state law construction of §2307.92(B) to

the Ohio Supreme Court, but they never raised the

federal law argument that Rogers abolished the

federal rule of proximate cause in FELA actions in

the courts below. Just last term, this Court refused

to address this question when it had not been passed

on by or presented to the Missouri Supreme Court.

Sorrell, 127 S.Ct. at 804-05. There is no reason for a

different result here; indeed, declination of review is

even more necessary here because that important

issue should be resolved in the context of an actual

adjudication where causation is in dispute between

the parties.

Moreover, Petitioners’ claim that the FELA

abrogated the doctrine of proximate cause in favor of

a “slightest cause” standard (Pet. 14-15) is false.

While Rogers rejected a particular state common-law

conception of “proximate cause” that required a

showing that the railroad’s wrongful act was the

“sole, efficient, producing cause of injury,” 352 U.S. at

506, it has always been the rule in this Court’s FELA

precedents (before and after Rogers) that the plaintiff

must prove that the railroad’s negligence was either

“the sole or a contributory proximate cause.” Coray v.

Southern Pac. Co., 335 U.S. 520, 523 (1949); Brady v.

Southern Ry. Co., 320 U.S. 476, 483 (1943); Kernan v.

American Dredging Co., 355 U.S. 426, 434 (1958).’

7 See, e.g., Lang v. New York Cent. R.R., 255 U.S. 455, 461

(1921) (reversing for lack of evidence of proximate cause); St.

Louis-S.F. Ry. v. Mills, 271 U.S. 344, 347 (1926) (same);

Northwestern Pac. R.R. v. Bobo, 290 U.S. 499, 503 (1934) (same);

see also, e.g., St. Louis, Iron Mountain & S. Ry. v. McWhirter,

229 U.S. 265, 280 (1913); Davis v. Wolfe, 263 U.S. 239, 243

(1923); Davis v. Kennedy, 266 U.S. 147, 148 (1924); Minneapolis,

As three justices explained in Sorrell, Rogers did not

overrule the host of precedents applying proximate

cause as the standard on which the jury must be

instructed; it simply defined the standard for a jury

question in cases involving multiple possible

proximate causes. Sorrell, 127 S.Ct. at 809 (Souter,

J. concurring.)

This Court cannot resolve the petition without

deciding that (1) Ohio Revised Code Section

2307.92(B) requires a threshold prima-facie showing

that is stricter than the federal legal causation

standard under the FELA, and (2) that Rogers

imposed a “slightest cause” standard that requires

less proof than a “substantial contributing factor.”

Petitioners’ interpretations of both state and federal

law are flatly wrong and contrary to this Court’s

precedent, but more importantly they are not

preserved for this Court’s review because they were

not properly before the court below. Moreover, the

Ohio Supreme Court authoritatively construed the

state statute not to require greater threshold

evidentiary showings on any substantive element —

whether injury or causation — than would be required

to prove a FELA claim on the merits, and Petitioners

cannot contest that construction in this Court.

Certiorari should be denied.

St. Paul & Sault Ste. Marie Ry. v. Goneau, 269 U.S. 406, 409-10

(1926); New York Cent. R.R. v. Ambrose, 280 U.S. 486, 489

(1930); Swinson v. Chicago, St. Paul, Minneapolis & Omaha Ry.,

294 U.S. 529, 531 (1935); Brady v. Terminal R.R. Ass'n, 303 U.S.

10, 15 (1938); Tiller v. Atlantic Coast Line R.R., 318 U.S. 54, 67

(1943); Coray, 335 U.S. at 523 (1949); Urie v. Thompson, 337

U.S. 163, 195 (1949); O'Donnell v. Elgin, Joliet & E. Ry., 338

U.S. 384, 390 (1949); Carter v. Atlantic & St. Andrews Bay Ry.,

338 U.S. 430, 434-35 (1949); Brown v. Western Ry. of Ala., 338

U.S. 294, 297-98 (1949).

B. The Ohio Supreme Court’s Ruling That

The Statute Does Not Burden Federal

Rights Is Correct And Does Not Conflict

With Any Other Decision.

Yet another flaw in the petition is its confusion

regarding this Court’s “reverse-Erie” pre-emption

precedents. The petition suggests that there are two

distinct lines of federal preemption precedent: it

claims that the Ohio Supreme Court’s determination

that §2307.92(B) is procedural runs afoul of Felder v.

Casey, 487 U.S. 131 (1988), Pet. 14-28, and, in the

alternative, even if §2307.92(B) is procedural, the

decision below offends Brown v. Western Ry. of Ala.,

338 U.S. 294 (1949), Norfolk Southern R.R. v.

Ferebee, 238 U.S. 269 (1915), and other FELA

precedents of this Court holding that substantive

federal rights “cannot be lessened or destroyed by a

rule of practice,” Jd. at 273. Pet. 18-25.

Petitioners’ analysis is unsound. The preemption

standard is substantively the same in Felder, Brown,

and Ferebee even though the Court at times uses

different verbal formulations. Indeed, Felder

specifically and repeatedly invoked Brown as the

preemption rule that resolved the case, Felder, 487

U.S. at 138, 150, 152, and specifically held that

Brown applied in substance the same “outcome-

determinative” test established in Guaranty Trust

Co. v. York, 326 U.S. 99, 109 (1945) for classic Erie

issues. Felder held that a state

may not alter the outcome of federal claims it

chooses to entertain in its courts by demanding

compliance with outcome-determinative rules

that are inapplicable when such claims are

brought in federal court, for “[w]hatever spring

the State may set for those who are endeavoring

to assert rights that the State confers, the

assertion of federal rights, when plainly and

reasonably made, is not to be defeated under the

name of local practice.” Brown v. Western R. Co.

of Alabama, supra, 338 U.S., at 298-299, 70

S.Ct., at 108 (quoting Davis v. Wechsler, 263 U.S.

22, 24, 44 S.Ct. 13, 14, 68 L.Ed. 143 (1923)).

Felder, 487 U.S. at 152.

Accordingly, Petitioners’ complaint that the Ohio

Supreme Court cited an Ohio case for the definition of

when a case is procedural or substantive, Pet. 12 &

n.4, is of no moment. As the Ohio Supreme Court

correctly ruled, the characterization of a law as

procedural “does not end the analysis, because

procedural rules apply to federal claims only so long

as they do not operate to impair a claimant’s ability

to enforce a federal right or cause of action.” Pet.

App. 8a (citing Davis and Brown). There is thus no

conflict with Felder or any other precedent of this

Court on the preemption standard to be applied. At

the end of the day, Petitioners assert only error in the

application of settled law to the issue at hand, which

does not warrant this Court’s review.

Nor does the Ohio Supreme Court's application of

the preemption rule create any conflict with any

decision of this Court or any other. As an initial

matter, the same vehicle problems that foreclose

review of part I.A of the petition also foreclose review

of part I.B. Petitioners’ claim in part I.B that Ohio

Revised Code Section 2307.92(B) lessens and destroys

federal rights in violation of Brown and Ferrebee by

“impos[ing] preliminary evidentiary burdens that

exceed the showings a FELA plaintiff would be

required to make at trial or in federal court.” Pet. 19.

This self-serving construction of H.B. 292 was not

properly presented to the Ohio Supreme Court.

Moreover, Petitioners’ arguments that §2307.92(B)

burdens federal rights is simply based on a |

misconception of the nature and operation of the

statute.

Finally, review of Part II of the petition is

unavailing for the simple reason that no conflict or

confusion exists among state high courts on the

issues addressed in the Supreme Court of Ohio's

decision.

1. Petitioners Misstate The Legislative

Intent Of H.B. 292.

Petitioners argue repeatedly that the primary

purpose of H.B. 292 is to “reduce total liability paid

by defendants in connection with asbestos claims.”

See, Pet. at 6, 12. Petitioners erroneously represent

the “sole” purpose of H.B. 292 as protection of

companies from bankruptcy and to diminish

corporations liability for asbestos-related actions.

Petitioners are grasping at straws. There is no

basis for Petitioners’ attempt to link a concern about

rising bankruptcies with any substantive impairment

of federal rights. The Ohio General Assembly’s

concern was the waste of corporate assets in

defending the mass filings of plaintiffs who are not

sick and the possibility that the funds will run out

before sick plaintiffs can be compensated; indeed,

more than half of the $54 billion expended in asbestos

suits is absorbed by litigation costs. Pet. App. 69a-

7la. This hardly translates into impairment of

federal rights, when only asbestos-related disease

caused by railroad negligence is compensable under

FELA. Metro-North, 521 U.S. at 427.

Significantly, Petitioners’ omit from discussion the

additional sound public policy reasons behind the

Ohio General Assembly's enactment of H.B. 292

which are expressly in the bill. See, Pet. App. 69a-

74a. The four primary purposes of the statutes are:

(1) to give priority to those claimants who can

demonstrate actual physical harm caused by-

asbestos, (2) to preserve the rights of those who were

exposed for future action, (3) to enhance the state’s

system of supervision and control over asbestos-

related litigation, and (4) to conserve the scarce

resources of the defendants to allow compensation for

cancer victims while also securing a right to similar

compensation for those who suffer harm in the

future. Pet. App. 74a.

The medical criteria and administrative dismissal

process of H.B. 292 are procedural and were enacted

in response to the asbestos litigation crisis in Ohio.

Id. The legislative findings and history demonstrate

that Ohio Revised Code Sections 2307.92(B) and

2307.93(C) are intended to manage the procedural

aspects of asbestos cases by prioritizing these cases

through the use of medical criteria and the

administrative dismissal process. See, Pet. App. 74a.

Since these requirements are procedural and not

substantive, they are applicable to asbestos-related

FELA/LBIA claims filed in state court without

offending the Supremacy Clause. U.S. Const. Art. VI,

Cl. 2.

2. The Decision Below Does Not Con-

flict With Decisions Of This Court.

As this Court has stated repeatedly,

“The requirement that a state court of competent

jurisdiction treat federal law as the law of the

land does not necessarily include within it a

requirement that the state create a _ court

competent to hear the case in which the federal

claim is presented. The general rule, ‘bottomed

deeply in belief in the importance of state control

of state judicial procedure, is that federal law

takes the state courts as it finds them.’ The

states thus have great latitude to establish the

structure and jurisdiction of their own courts.”

Johnson, 520 U.S. at 919, citing, Howlett v. Rose, 496

U.S. 356 (1990), internal quotations omitted. H.B.

292 falls within the State’s purview to establish the

structure of its own courts. The decision below is not

comparable to any of this Court’s decisions which

have struck down statutes that either imposed

substantive law requirements or outcome-determina-

tive procedures that could result in dismissal with

prejudice or a judgment in favor of the defendant.

The Ohio Supreme Court’s decision does not conflict

with Felder v. Casey. Under the Wisconsin statute in

Felder, notice of intent to file a 42 U.S.C. §1983 claim

was to be provided to the defendant-governmental

entity 120 days prior to filing a lawsuit. A civil rights

claimant had to seek satisfaction in the first instance

from the governmental defendant prior to filing suit.

In striking down the Wisconsin statute, this Court

determined that the notice-of-claim statute “con-

ferfed] on governmental defendants an affirmative

defense” that could result in dismissal with prejudice.

See Felder, 487 U.S. at 144. The statute was

outcome-determinative because it could result in a

judgment on the merits for defendants. See, id. The

Court held that the statute effectively changed the

substantive elements of the cause of action. See, id.

In contrast to the Wisconsin statute, H.B. 292 does

not alter the substantive elements of FELA claims or

defenses or otherwise slant the adjudication of the

claim on the merits in favor of the defendant. Failure

to meet the requisite medical criteria under H.B. 292

results in an administrative dismissal without

prejudice. See, Ohio Rev. Code §2307.93(C). A

plaintiffs claim is afforded several protections under

this procedure: the administrative dismissal does not

effect the merits of plaintiff's claim, and the claim is

preserved for purposes of the statute of limitations.

Id. Also, the case can be reinstated on the trial court

docket when the plaintiff complies with §2307.92(B).

Because the Ohio Supreme Court authoritatively

construed H.B. 292 to do “[{njothing more” than

“establish a procedural prioritization of the asbestos-

related cases on the court’s docket,” Pet. App. 7a, it is

also fully distinguishable from this Court's

precedents holding that FELA preempts local

substantive standards governing the burden of proof

and the review of jury verdicts in adjudication on the

merits. See, Brady, 320 U.S. at 479, (requiring

federal standard of sufficiency of evidence to establish

FELA liability); Central Vit. Ry. v. White, 238 U.S.

507, 512 (1915) (state rule regarding burden of proof

of contributory negligence preempted); New Orleans

& N.E.RR. v. Harris, 247 US. 367 (1918)

(Mississippi statute creating a “presumption of

negligence” against the railroad preempted); Dice v.

Akron, D.&Y.R. Co., 342 U.S. 359, 363 (1952)

(preempting state rule that judges and not juries

decide issues of fraud in the execution of a release

because “depriv[ing] railroad workers of the benefit of

a jury trial where there is evidence to support

negligence is to take away a goodly portion of the

relief which congress has afforded to them). H.B. 292

does not alter the adjudication of FELA claims on the

merits, limit jury powers, define burdens of proof, or

set standards for sufficiency of the evidence. H.B.

292 merely provides for the procedural mechanism by

which a plaintiff must certify the evidence supporting

a claim that the defendant’s negligence resulted in

asbestos-related disease. No final determination

relating to any portion of a plaintiffs FELA claim is

made under H.B. 292.

Petitioners’ reliance on Brown v. Western Ry. of

Alabama is similarly misguided. The holding in

Brown is limited to the facts of that case. See, 338

U.S. at 299. In Brown, a federal right was defeated

by Georgia’s local rules. See, id. at 296. The rule of

practice in Brown was severely weighted against the

plaintiff in that a mere technical failure to properly

plead the case resulted in a dismissal with prejudice

of the plaintiffs FELA claim, precluding future

recovery.

H.B. 292 does not result in a dismissal with

prejudice. “A claimant who fails to comply with the

requirements faces administrative dismissal without

prejudice, and the case effectively becomes “inactive”

for purposes of discovery and trial.” Ohio Rev. Code

§2307.93(C), Pet. App. 13a. As noted above, the Ohio

Supreme Court held that the requirements of H.B.

292 do not impose any new substantive burdens on

plaintiffs because under Rule 11 of the Ohio Civil

Rules of Procedure, a party or an attorney is already

required to certify, by signing a complaint, that “good

grounds” exist for the lawsuit. Pet. App. 8a. H.B.

292 simply requires the plaintiff to produce the

documentation that supports the already-required

good grounds for bringing the claim in the first place.

What further distinguishes H.B. 292 from the rule

at issue in Brown is that FELA asbestos actions filed

in state and federal courts are subject to similar

procedures used to facilitate, manage, and organize

asbestos FELA/LBIA cases. Pet. App. 14a. Despite

Petitioners’ arguments to the contrary, preservation

of a claim until proper evidence to support the claim

is produced, is a far cry from “de facto dismissal with

prejudice.” See, Pet. 20. H.B. 292 does not affect the

merits of the asbestos-plaintiffs claim.

H.B. 292’s function is to manage and organize the

docket of Ohio courts by prioritizing asbestos claims.

It allows claimants who can demonstrate impairment

to bring forth their evidence before non-impaired

claimants can do so. At the same time, H.B. 292 fully

preserves the rights of the unimpaired claimants to

pursue their asbestos claims. Such requirements do

not conflict with the decisions of this Court.

3. The Supreme Court Of Ohio Did Not

Err In Relying On This Court’s

Analysis In Bombolis And Mayfield.

Because H.B. 292 is strictly a procedural statute

that does not impair substantive rights, it is fully

within the domain of state laws that apply in FELA

actions in state court. St. Louis Sw. Ry. Co. v.

Dickerson, 470 U.S. 409, 411 (1985). The Ohio

Supreme Court correctly invoked Minneapolis & St.

Louis R.R. Co. v. Bombolis, 241 U.S. 211 (1960),

which upheld an outcome-neutral rule that jury

verdicts need not be unanimous. Petitioners question

the authoritativeness of Bombolis, but it has not been

overruled by this Court and remains good law.

The Ohio Supreme Court also cited to Missouri ex

rel. S. Ry. Co. v. Mayfield, 340 U.S. 1 (1950), to

compare the forum non conveniens doctrine to the

procedural requirements of H.B. 292. As stated by

the Supreme Court of Ohio, states can employ the

doctrine of forum non conveniens so long as the

application does not work to discriminate against

federal claims. “{N]othing in the FELA purport/[s] ‘to

force a duty’ upon the state courts to entertain or

retain Federal Employers’ Liability litigation ‘against

an otherwise valid excuse.” Pet. App. 10a.

If a state court can apply the doctrine of forum non

conveniens to FELA claims to eliminate such a claim

from its dockets, certainly Ohio can apply H.B. 292 to

FELA claims because it does not create such a harsh

result. The provisions of H.B. 292 provide the means

by which Ohio’s courts can prioritize and manage its

dockets. A FELA/LBIA plaintiffs asbestos-related

action is retained by Ohio’s courts and measures of

protection of the claim are provided under the

statutory provisions enacted by H.B. 292.

In questioning the Ohio Supreme Court’s decision,

Petitioners ignore Johnson v. Fankell, upon which

the Ohio court also relied. In Johnson, this Court

upheld a state court procedural rule that differed

from a federal rule.

In Johnson, the defendant filed a motion to dismiss

a §1983 action pending in state court based on a

qualified immunity defense. The trial court denied

the motion and the defendant appealed. The state

court dismissed the appeal.

If the §1983 action had been filed in federal court, a

denial of the motion to dismiss would be immediately

appealable. See, Johnson, 520 U.S. at 915. The

defendant in Johnson argued that because the

plaintiff asserted a federal claim under a federal

statute, and the defendants were asserting a defense

provided by federal law, then the state court must

allow the same interlocutory appeal available in

federal court. The defendant in Johnson argued, like

Petitioners argue, that preemption was necessary to

avoid different outcomes in state and federal courts

in §1983 litigation. See id. at 918. This Court

disagreed, upholding the state court’s interpretation

of its procedural rules relating to the ability to

appeal. This Court reasoned that states have great

latitude to establish the structure and jurisdiction of

their own courts. See, id. at 919, citing, Howlett, 496

U.S. 356.

Contrary to Petitioners’ position, H.B. 292’s

requirements do not burden a FELA/LBIA plaintiffs

substantive federal rights, and thus, the Ohio

Supreme Court did not err in applying these

requirements to Petitioners’ asbestos-related

FELA/LBIA actions filed in Ohio’s courts.

4. Petitioners’ FELA/LBIA Asbestos

Actions Would Be Subject To A

Process Of Prioritizing And Admin-

istrative Dismissal In Federal Court.

Petitioners argue that H.B. 292 creates a disparity

between asbestos-related FELA/LBIA claims filed in

state and federal courts within Ohio. This statement

is incorrect because when a plaintiff files an asbestos-

related FELA/LBIA claim in federal court, the case is

transferred to a special multi-district litigation

docket for handling. If the asbestos action does not

meet the requirements for active processing, it is

administratively dismissed until the plaintiff is able

to satisfy the certain requirements.

For many years, federal courts have utilized a

mechanism for managing and organizing asbestos

cases similar to the framework in H.B. 292. See,

Smith v. Gulf Oil Co., 995 F.2d 638, 639 (6th Cir.

1993) ( In 1987, the Northern District of Ohio created

a special Maritime Asbestos Litigation Docket,

“MARDOC.”) All asbestos-related claims filed in

Ohio’s federal courts are transferred to the Judicial

Panel on Multi-District Litigation at Civil Action No.

MDL 875 (“MDL 875”). See, In re Asbestos Prod.

Liab. Litig., 771 F.Supp. 415, 422-23 (J.P.M.L. 1991).

The case management order that governs MDL 875,

Administrative Order No. 8, sets forth a mechanism

for managing and organizing asbestos cases similar

to the framework in H.B. 292. In re Asbestos Prods.

Liab. Litig., No. MDL 875, 2002 WL 32151574, *1

(E.D. Pa. Jan. 16, 2002).

Administrative Order No. 8 states:

“The Court has’ the_ responsibility to

administratively manage these cases so as to

protect the rights of all parties, yet preserve and

maintain any funds available for compensation

to victims.”

Similar concerns relating to the preservation of

funds for those who are most sick were expressed by

Ohio’s General Assembly. See, Pet. App. 72a-74a.

Administrative Order No. 8 gives priority to

malignant and other serious health cases over

asymptomatic claims. Compare, Pet. App. 74a.

Administrative Order No. 8 acknowledges the

importance of “doctor-patient medical report[s]

setting forth an asbestos related disease.” Similarly,

Ohio Revised Code §2307.91(Z)(2) requires the doctor

diagnosing the alleged asbestos-related disease to be

a “medical doctor [who] is actually treating *** the

exposed person.”

Administrative Order No. 8 expresses concern with

suits instituted as a result of “report[s] to attorney[s]

from a screening company *** because *** a suit is

then commenced without verification. Often times

these suits are brought on behalf of individuals who

are asymptomatic as to an asbestos-related illness

and may not suffer any symptoms in the future.” The

Ohio General Assembly expressed these same

concerns in H.B. 292 (A)(5) and addressed this issue

’

by enacting Ohio Revised Code §2307.91(Z)(3)(c),

which states that a doctor who diagnoses an asbestos

related impairment cannot rely on law firm