NAW, Allies Win Ohio Asbestos Product Liability Appeal
- October 2008
FOR IMMEDIATE RELEASE
For further information contact:
James A. Anderson, Jr. (202-872-0885)
George Keeley, Esq. (312-782-1829)
Washington, DC (October 23, 2008) … The Ohio Supreme Court ruled on October 22nd in DiCenzo v. A-Best Products, Co, Inc et al, Slip Opinion No. 2008-5327, that non-manufacturer product sellers (e.g., wholesaler-distributors and retailers) are not subject to strict liability (i.e.., liability based on the condition of a manufacturer’s product rather than the conduct of the defendant) under Ohio law for products sold before 1977. The 5 to 2 decision reversing a lower court’s June 28, 2007 decision represents a major courtroom victory for the National Association of Wholesaler-Distributors (NAW) which, along with eight allied organizations, joined in filing an amicus curiae brief in support of appellants’ position in the case.
The high court’s decision found that the appeals court erred in finding that strict liability in product seller liability actions, first recognized in Ohio in 1977 in Temple v. Wean United, Inc. may be applied retroactively to 1966 when the Ohio Supreme Court’s decision in Lonzrick v. Republic Steel Corp. was issued. In Lonzrick, Ohio’s Supreme Court first imposed strict liability on manufacturers.
The DiCenzo case revolved around workplace exposure to asbestos. The Court adopted the position in the amicus brief in which NAW joined, that the retroactive application of strict liability on non-manufacturer product sellers would be inequitable:
“… Temple, which was decided in 1977, marked the first time this court had held that a nonmanufacturing seller of a product could be held liable for injuries caused by a defective product. Thus, nonmanufacturing sellers of asbestos, such as Hamilton, could not have foreseen that these products, distributed from the 1950s to the 1970s, could decades later result in Hamilton’s being liable for injuries caused by that product. 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.”
The Court also observed that retroactive application of strict liability would not advance the cause of safety:
“Products containing asbestos have not been manufactured on sold for approximately 30 years. The time for making these products safer has come and gone. Thus, retroactively applying Temple to nonmanufacturing sellers of asbestos products will not promote the purpose of making those products safer.”
The Ohio Supreme Court’s action was hailed by NAW Vice President Jim Anderson as a “thorough and critical victory in the most important court of a major industrial state on a product liability issue of enormous consequence for wholesaler-distributors with implications for present and future litigation in jurisdictions far beyond Ohio’s borders.”
“I suspect we haven’t seen the last of these cases. NAW will continue to reach out to our members, and work with like-minded business organizations to resist the efforts of the trial bar to unfairly expand the pool of innocent ‘deep-pocket’ defendants in their unending search for contingent fees,” Anderson said.
The National Association of Wholesaler-Distributors is the national voice of the wholesale distribution industry.
Its membership encompasses more than 100 national and regional line-of-trade associations,
and approximately 40,000 wholesale distribution companies.