© Copyright 2013, Vorys, Sater, Seymour and Pease LLP. All Rights Reserved. Higher standards make better lawyers. ® OHIO H.B. 380: ASBESTOS TRANSPARENCY BILL Rick Schuster Vorys, Sater, Seymour and Pease LLP |

© Copyright 2013, Vorys, Sater, Seymour and Pease LLP. All Rights Reserved. Higher standards make better lawyers. ® 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

© Copyright 2013, Vorys, Sater, Seymour and Pease LLP. All Rights Reserved. Higher standards make better lawyers. ® 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

© Copyright 2013, Vorys, Sater, Seymour and Pease LLP. All Rights Reserved. Higher standards make better lawyers. ® Certification by Plaintiff’s Counsel › R.C. § › 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

© Copyright 2013, Vorys, Sater, Seymour and Pease LLP. All Rights Reserved. Higher standards make better lawyers. ® Defendant’s Motion to Stay Trial to Require Trust Claim Filing › R.C. § › 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

© Copyright 2013, Vorys, Sater, Seymour and Pease LLP. All Rights Reserved. Higher standards make better lawyers. ® Plaintiffs’ Production of New Evidence of Exposure that Supports a Claim › R.C. § (B) › Defendant may file a motion to stay within 7 days of receipt

© Copyright 2013, Vorys, Sater, Seymour and Pease LLP. All Rights Reserved. Higher standards make better lawyers. ® Plaintiffs’ Options › R.C. § (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

© Copyright 2013, Vorys, Sater, Seymour and Pease LLP. All Rights Reserved. Higher standards make better lawyers. ® Court Must Decide › R.C. § (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

© Copyright 2013, Vorys, Sater, Seymour and Pease LLP. All Rights Reserved. Higher standards make better lawyers. ® Court Shall Stay Proceedings › R.C. § (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

© Copyright 2013, Vorys, Sater, Seymour and Pease LLP. All Rights Reserved. Higher standards make better lawyers. ® Multiple Diseases › R.C. § (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

© Copyright 2013, Vorys, Sater, Seymour and Pease LLP. All Rights Reserved. Higher standards make better lawyers. ® Presumptions Created › R.C. § (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

© Copyright 2013, Vorys, Sater, Seymour and Pease LLP. All Rights Reserved. Higher standards make better lawyers. ® Additional Disclosure › R.C. § (C) › Defendant may seek additional disclosures › Defendant may seek information directly from trusts

© Copyright 2013, Vorys, Sater, Seymour and Pease LLP. All Rights Reserved. Higher standards make better lawyers. ® Sanctions › R.C. § (D)(E)(F) › Any sanctions allowed in Ohio are available › Includes vacating a judgment › One year to vacate judgment

© Copyright 2013, Vorys, Sater, Seymour and Pease LLP. All Rights Reserved. Higher standards make better lawyers. ® 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

© Copyright 2013, Vorys, Sater, Seymour and Pease LLP. All Rights Reserved. Higher standards make better lawyers. ® Impact of H.B. 380 › RC § motions resulted in settlements › 84 motions for RC § 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