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NAW Takes Legal Action in Ohio Asbestos Product Liability Case

Washington, DC (August 30, 2007) … The National Association of Wholesaler-Distributors (NAW) is one of nine organizations that today joined in filing an amicus curiae (“friend of the court”) brief in the Supreme Court of Ohio in a case focused on the retroactive application of the doctrine of strict liability (i.e., liability based on the condition of a manufacturer’s product rather than the conduct of the defendant) in product liability actions brought against non-manufacturer product sellers (e.g., wholesalers, distributors and retailers).

According to NAW President Dirk Van Dongen, the association views DiCenzo as a “major, even seminal case that carries with it profound legal and economic ramifications for wholesaler-distributors in Ohio and across the nation”.

In their brief, amici support appellants’ effort to overturn a State appeals court’s June 28th decision in DiCenzo v. A-Best Products, Co., Inc. et al. (Court of Appeals Case No. CA 06-088583). In DiCenzo the Appeals Court held that strict liability in product seller liability actions, first recognized in Ohio in 1977 in Temple v. Wean United, Inc., may be applied retroactively back to 1966, when the Ohio Supreme Court’s decision in Lonzrick v. Republic Steel Corp. was issued. In Lonzrick, Ohio’s high court first “imposed a type of limited strict liability on manufacturers, but it did not address the liability of sellers”.

The amicus brief contends that the appellate court erred in the application of strict product liability to non-manufacturer suppliers to pre-1977 sales, complaining that the lower court’s decision is inconsistent with Ohio law before 1977 and will have significant negative impacts on smaller and medium size Ohio businesses unless it is overturned.” “In 1966, the Lonzrick Court imposed a form of strict liability on manufacturers … did not go so far as to adopt the Restatement (Second) Sec. 402 A (1965) … The Court was not focused on the liability of non-manufacturer suppliers.” Tracing the development of strict product liability law in Ohio, amici point out “It was not until years later, in Temple, that this Court formally adopted the Restatement (Second) of Torts Sec. 402A. Even after Temple, however, there continued to be confusion … Thus, a supplier would not have been on notice prior to Temple in 1977 that it could be held strictly liable for failing to warn purchasers of the hazards … In fact, it was not until 1985 that this Court explicitly recognized the application of strict liability to product sellers.”

The DiCenzo case revolves around workplace exposure to asbestos. In their brief, NAW and its fellow amici outline the nature and dimension of the asbestos litigation crisis, pointing out that “the net has spread from the asbestos makers to companies far removed from the scene of any putative wrongdoing … Nontraditional defendants now account for over half of asbestos expenditures”.

The brief makes a chilling prediction “(i)f the appellate court’s decision is permitted to stand … non-manufacturer suppliers would be subject to strict liability in many (if not most) of the 35,000 or more asbestos personal injury cases pending in Ohio state courts. It is virtually certain that such massive liability would cause some Ohio businesses to join the growing list of companies that have been forced to seek bankruptcy court protection from asbestos-related liabilities … The devastating consequences of the appellate court’s decision will not be limited to asbestos cases. If the decision is permitted to stand, strict liability claims will be brought against suppliers of any pre-1977 products that may have contributed to a latent injury.”

NAW and its fellow amici conclude, “Countless Ohio businesses would face liability beyond any amount they reasonably could have anticipated prior to 1977. This would be manifestly unjust.”

To view the amicus brief, please click here.