COURT OF APPEALS, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72388 IN RE: CUYAHOGA COUNTY : JOURNAL ENTRY ASBESTOS CASES : : AND : : OPINION DATE OF ANNOUNCEMENT OF DECISION: APRIL 16, 1998 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court, No. SP-73958. JUDGMENT: Dismissed. DATE OF JOURNALIZATION: APPEARANCES: For Appellant USX Corporation: Patrick R. Baughman, Esq. Christopher R. Calfin, Esq. Baughman & Associates 55 Public Square, Suite 2215 Cleveland, OH 44113 For Appellee County Robert E. Sweeney, Esq. Asbestos Cases: Robert E. Sweeney Co., L.P.A. 1500 Illuminating Building 55 Public Square Cleveland, OH 44113 William J. Kerner, Esq. John J. Duffy & Associates Brendan Place, Suite 270 23823 Lorain Road North Olmsted, OH 44070 For 20th Century Glove Corp. Of Texas: Robert Wilkinson, Esq. Dogan & Wilkinson 726 Delmas Avenue Pascgula, MS 49568 For A&I Co.: Stephen P. Goodwin, Esq. -2- Susan C. Wittenmeier, Esq. Goodwin & Goodwin 1500 One Valley Bank Square Charleston, WV 25301 For A-Best Products Co. Inc.: Ruth A. Antinone, Esq. Willman & Arnold 705 McKnight Park Drive Pittsburgh, PA 15237 For A.P. Green Refractories: Kathleen Pettingell, Esq. Baker & Hostetler 3200 National City Center Cleveland, OH 44114 For Abex Corp.: Raymond J. Marvar, Esq. 1100 Huntington Building 925 Euclid Avenue Cleveland, OH 44115-1475 For Acands, Inc. Mary Ellen Fairfield, Esq. Vorys, Sater, Seymour & Pease 52 East Gay Street P.O. Box 1008 Columbus, OH 44216 For Aetna Insulated Wire Co.: Shawn P. George, Esq. George, Ferguson & Lorensen 950 One Valley Square Charleston, WV 25301 For Allied Glove Corp.: Stephen R. Mlinac, Esq. Dickie, McCamey & Chilcote Two PPG Place, Suite 400 Pittsburgh, PA 15222-5402 -3- For Allied Signal, Inc.: Thomas G. Kovach, Esq. Squire, Sanders & Dempsey 4900 Society Center 127 Public Square Cleveland, OH 44114-1304 Eric H. Mann, Esq. Benos, Cummings, Mann & Valenti 8th Floor, Bulkley Building 1501 Euclid Avenue Cleveland, OH 44115 John A. Valenti, Esq. A Legal Professional Association 1501 Euclid Avenue, No. 800 For Anchor Packing Co.: Matthew C. O'Connell, Esq. Reminger & Reminger 113 St. Clair Avenue Cleveland, OH 44114-1273 For Argo Packing Co.: Otto A. Jack, Sr., Esq. King, Hargrave, Sairti & Jack 200 Sinclair Building P.O. Box 249 Steubenville, OH 43952 For Bondex International, Paul A. Granzier Inc. 2628 Pearl Road Medina, OH 44256 For Borg-Warner Corp. Borg-Warner Corporation C.T. Corporation System 1635 Market Street Philadelphia, PA 45402 For Center For Claims John D. Aldock, Esq. Resolution: Wendy S. White, Esq. Shea & Gardner 1800 Massachusetts Avenue, N.W. Washington, D.C. 20036 For Center For Claims John G. Gaul, Esq. Resolution (Continued): 504 Carnegie Center Second Floor Princeton, NJ 08540 Randall L. Solomon, Esq. Kathleen A. Pettingill, Esq. -4- Baker & Hostetler 3200 National City Center 1900 E. 9th Street Cleveland, OH 44114-3485 For Chevron Corp.: Douglas N. Barr, Esq. Mark N. Rose, Esq. Thompson, Hine & Flory 3900 Key Center 127 Public Square Cleveland, OH 44114-1216 For Clark Industrial Maria A. Kortan, Esq. Insulation Co.: Weston, Hurd, Fallon, Paisley & Howley 2500 Terminal Tower Cleveland, OH 44113-2241 For Cooper Industries, Inc.: David A. Lum, Esq. James D. Vail, Esq. Schneider, Smeltz, Ranney & LaFond 629 Euclid Avenue, No. 1525 Cleveland, OH 44114 For Corhart Refractories Co.: Edward J. Cass, Esq. Gallagher, Sharp, Fulton & Norman 6th Floor, Bulkley Building 1502 Euclid Avenue Cleveland, OH 44115 For Crane Co.: Mary M. O'Day, Esq. Kirkpatrick & Lockhart 1500 Oliver Building Pittsburgh, PA 15222 -5- For Crane Co. (Continued): Jill M. Winans, Esq. Janik & Dunn 8221 Brecksville Road, Bldg. 2 Cleveland, OH 44141 For CSR Limited: Stephen K. Shaw, Esq. Dinsmore & Shohl 1900 Chemed Center 255 East Fifth Street Cincinnati, OH 45202 For Didier Taylor Timothy M. Fox, Esq. Refractories Corp.: Ulmer & Berne 900 Bond Court Building 1300 East Ninth Street For Dresser Industries, Inc: James W. Barnhouse, Esq. Kitchen, Deery & Barnhouse 1100 Illuminating Building 55 Public Square Cleveland, OH 44113-1999 For Durabla Manufacturing Bruce P. Mandel, Esq. Co.: Ulmer & Berne 900 Bond Court Building 1300 East Ninth Street Cleveland, OH 44114 For Edward R. Hart Co.: Stephen C. Merriam, Esq. 126 W. Streetsboro, Suite 4 Hudson, OH 44236 For Ericsson, Inc. Marcia Marsteller, Esq. Baker & Hostetler 3200 National Center Cleveland, OH 44114-3401 For F. B. Wright Co.: Dennis A. Watson, Esq. Grogan, Graffam, McKinley & Lucchino Three Gateway Center, 22nd Floor Pittsburgh, PA 15222 -6- For Frick & Lindsay Co.: Robin L. Canowitz, Esq. John P. Mazza, Esq. Harris, Carter, Mahota & Mazza 500 S. Front Street, No. 1010 Columbus, OH 43215 For General Electric Co.: Reginald Kramer, Esq. Buckingham, Doolittle & Burroughs 50 Main Street P.O. Box 1500 Akron, OH 44309 For General Refractories Co.: James W. Harvey, Esq. Israel & Wood, PC 501 Grant Building Pittsburgh, PA 15219 For George P. Reintjes Co. Regina S. Massetti, Esq. 113 St. Clair Avenue, Suite 530 Cleveland, OH 44114 For Georgia Pacific Corp.: James P. Conroy, Esq. Ezio A. Listati, Esq. Porter, Wright, Morris & Arthur 925 Euclid Avenue, No. 1700 Cleveland, OH 44115 For Hedman Mines: Kenneth S. Robb, Esq. 1080 Long Run Road McKeesport, PA 15132 For Insul Co.: John W. Thomas, Esq. Zimmer Kunz 3300 USX Tower Pittsburgh, PA 15219-2709 For J. H. France Jack Baker, Esq. Refractories: Baker, Dublicker, Beck, Wiley & Griffin 205 Mellet Building 115 Dewalt Avenue, N.W. Canton, OH 44742 6000 Lombardo Center, Suite 520 Seven Hills, OH 44131-2579 For Joy Technology, Inc.: Nora Barry Fischer, Esq. Pietragallo, Boisk & Gordon 38th Floor, One Oxford Center Pittsburgh PA 15219 For Kaiser Aluminum & Mitchel B. Axler, Esq. Chemical Co.: Nancy Chase Miller, Esq. Squire, Sanders & Dempsey 4900 Society Center 127 Public Square Cleveland, OH 44114-1304 For Koch Engineering Co.: Richard D. Schuster, Esq. Vorys, Sater, Seymour & Pease 52 East Gay Street P.O. Box 1008 Columbus, OH 43216-1008 For M. H. Detrick Co.: William A. Viscomi, Esq. Gallagher, Sharp, Fulton & Norman 7th Floor, Bulkley Building 1501 Euclid Avenue Cleveland, OH 44115 For Martin Marietta Corp.: Stephen M. Fowler, Esq. Cleek, Pullin, Knopf & Fowler 1000 Bank One Center 707 Virginia Street, E. Charleston, WV 25301 For Mau-Sherwood Supply: Thomas P. Meaney, Jr., Esq. McDonald, Hopkins, Burke & Haber 2100 Bank One Center 600 Superior Avenue, E. Cleveland, OH 44114-2653 For Metropolitan Life Ins.: Mark R. Chilson, Esq. Young & Alexander P.O. Box 668 Mid City Station 367 W. Second Street Dayton, OH 45402 Douglas O. Metz, Esq. Roetzel & Andress 75 East Market Street Akron, OH 44308-2098 For Nock Refactories Co.: C. Richard McDonald, Esq. Davis & Young 1700 Midland Building 101 Prospect Avenue, W. Cleveland, OH 44115 For O.K.I. Supply Co.: Thomas S. Calder, Esq. Michael A. Dickhaut, Esq. Dinsmore & Shohl 1900 Chemed Center 255 East Fifth Street Cincinnati, OH 45202 For Oglebay Norton Co. Regina S. Massetti, Esq. 113 St. Clair Avenue, Suite 530 Cleveland, OH 44114 For Ohio Valley Insulating W. Andrew Hoffman, III, Esq. Co.: Three Commerce Park Square, No. 720 23200 Chagrin Boulevard Cleveland, OH 44122 For Osram Sylvania, Inc.: Terri W. Teitelbaum, Esq. Pepper, Hamilton & Scheetz 3300 Two Logan Square 18th & Arch Street Philadelphia, PA 19103-2799 For Owens-Corning Fiberglass: Martin J. Murphy, Esq. Dennis R. Fogarty, Esq. Davis & Young 1700 Midland Building 101 Prospect Avenue, W. Cleveland, OH 44115-1027 Roger E. Podesta, Esq. Robert D. Goodman, Esq. Debevoise & Plimpton 875 Third Avenue New York, New York 10022 -9- For Owens-Illinois, Inc.: Gary D. Hermann, Esq. Hermann, Cahn & Schneider Galleria & Tower at Erieview 1301 E. 9th Street, No. 500 Cleveland, OH 44114 For Phelps Dodge Copper Joseph W. Pappalardo, Esq. Ind.: Gallagher, Sharp, Fulton & Norman 7th Floor, Bulkley Bulding 1501 Euclid Avenue Cleveland, OH 44115 For Plibrico Co.: William D. Bonezzi, Esq. Jacobson, Maynard, Tuschman & Kalur 1001 Lakeside Avenue, No. 1600 Cleveland, OH 44114-1192 For PPG Industries, Inc.: Donald A. Powell, Esq. Buckingham, Doolittle & Burroughs P.O. Box 1500 50 South Main Street Akron, OH 44309-1500 For Quigley Co.: Randall L. Solomon, Esq. Baker & Hostetler 3200 National City Center 1900 E. 9th Street Cleveland, OH 44114-3485 For R. E. Kramig & Co.: George K. Kulesza, Esq. 323 South Wayne Avenue Cincinnati, OH 45215 Emery J. Leuchtag, Esq. Zapka & Leuchtag 308 Bank One Building 106 East Market Street Warren, OH 44481 For Rapid-American Corp.: David A. Schaefer, Esq. McCarthy, Lebit, Crystal & Haiman 1800 Midland Building 101 Prospect Avenue, W. Cleveland, OH 44115 For Record Industrial Co.: Stanley S. Keller, Esq. Keller & Curtin 330 Hanna Building 1422 Euclid Avenue Cleveland, OH 44115-1901 For Riley Stoker Corp.: Kevin Kadlec, Esq. -10- Jacobson, Maynard, Tuschman & Kalur 1001 Lakeside Avenue, No. 1600 Cleveland, OH 44114-1192 For Rockwell International Donald J. Huffman, Esq. Corp.: Huffman & Thomas 522 Westgate Towers 20525 Center Ridge Road Cleveland, OH 44116 For Rome Cable Corp.: Michael D. Eagen, Esq. Dismore & Shohl 1900 Chemed Center 255 East Fifth Street Cincinnati, OH 45202 For Sager Corp.: Peter A. Santos, Esq. Dickie, McCamey & Chilcote Two PPG Place, Suite 400 Pittsburgh, PA 15222-5402 For Seegott, Inc.: Carl Hudson Shelly, Esq. Gorr, Moser, Dell & Loughney 1300 Frick Building Pittsburgh, PA 15219 For Sepco Corp.: John G. Peto, Esq. Reminger & Reminger 113 St. Clair Avenue, N.E. Cleveland, OH 4411-41273 For Tasco Insulation, Inc.: Charles L. Richards, Esq. Richards & Meola The First Place, No. 300 159 East Market Street Warren, OH 44481-1122 -11- For Thermo Electric Co.: Edmund Olszewski, Esq. Dickie, McCamey & Chilcote Two PPG Place, Suite 400 Pittsburgh, PA 15222 For Triangle, PWC, Inc. Leo G. Day, Esq. Grogan, Graffam, McGinley & Lucchino Three Gateway Center 22nd Floor Pittsburgh, PA 15222 For Union Boiler Co.: John J. Repchick, Esq. 3280 USX Tower 600 Grant Street Pittsburgh, PA 15219 For Uniroyal, Inc.: Eric Larson Zalud, Esq. Benesch, Friedlander, Coplan & Aronoff 2300 BP America Building 200 Public Square Cleveland, OH 44114-2378 For W.R. Grace Co.: Robert J. Fogarty, Esq. Hahn, Loeser & Parks 3300 BP Building 200 Public Square Cleveland, OH 44114-2301 For Zurn Industries, Inc.: Timothy Fisher, Esq. 405 Quaker Square 120 E. Mill Street Akron, OH 44308 TIMOTHY E. McMONAGLE, J.: Defendant-appellant, USX Corporation, appeals the order of the Cuyahoga County Court of Common Pleas entered March 24, 1997 wherein the court granted plaintiffs-appellees' motion for the -12- establishment of a Voluntary Registry for Unimpaired Asbestos Claims thereby establishing such a registry. For the reasons stated below, we dismiss the appeal. The facts giving rise to this appeal are as follows. In 1997 there were approximately 5,400 asbestos personal injury cases pending on the docket of the Cuyahoga County Court of Common Pleas filed against over seventy named-defendants. Plaintiffs in these cases claim asbestos-related injury ranging from mild impairment to extreme disability and death. Some individual plaintiffs represented by Robert E. Sweeney Co., L.P.A. (RESCO) moved the court on December 20, 1996 for the establishment of a Voluntary Registry for the Unimpaired Asbestos Claims in order to give the more seriously impaired claimants quicker access to the courts while preserving the claims of the less impaired plaintiffs. By its terms, the proposed order defined an unimpaired claim by objective medical criteria, and further specified that the unimpaired plaintiff may voluntarily place his claim on an inactive deferred docket. While on the inactive docket, these cases are exempt from discovery and do not age. The proposed registry provided that plaintiffs may remove their case from the inactive docket to the trial docket if their condition progresses to impairment or they produce additional evidence of impairment which meets the medical criteria. Extensive briefing of the motion and its opposition followed and the trial court set hearing on the matter. On March 24, 1997 the trial court granted the RESCO motion and issued its order establishing the Voluntary Registry for Unimpaired Asbestos -13- Claims for all asbestos personal injury claims registered or to be egistered in the Cuyahoga County Court of Common Pleas. Appellant USX, one of the asbestos defendants, timely challenges the lower court's unimpaired registry order and advances four assignments of error for our review. I. THE TRIAL COURT ERRED BY CREATING A VOLUNTARY REGISTRY FOR UNIMPAIRED CLAIMS THAT VIOLATES USX'r ASBESTOS CONSTITUTIONAL DUE PROCESS, EQUAL PROTECTION, AND JURY TRIAL RIGHTS. II. THE TRIAL COURT ERRED BY CREATING A VOLUNTARY REGISTRY FOR UNIMPAIRED ASBESTOS CLAIMS THAT FRUSTRATES THE EFFECT OF ANY APPLICABLE STATUTES OF LIMITATION. III. THE TRIAL COURT ERRED IN CREATING A VOLUNTARY REGISTRY FOR UNIMPAIRED ASBESTOS CLAIMS FOR CLAIMS OVER WHICH IT HAD NO JURISDICTION. IV. THE TRIAL COURT ERRED IN CREATING A VOLUNTARY REGISTRY FOR UNIMPAIRED ASBESTOS CLAIMS FOR CLAIMS WHICH STATE NO VALID CAUSE OF ACTION UNDER OHIO LAW. Initially, we must determine whether this court has jurisdiction to consider this appeal.1 Article IV, Section 3 (B)(2) of the Ohio Constitution governs the limited subject matter 1In a similar challenge to an order by the Circuit Court of Cook County Illinois which created a deferred docket registry for asbestos related personal injury claims the Illinois Court of Appeals dismissed the appeal finding that the order was a nonappealable, noninjunctive order since it did not affect the relationship of the parties outside the parameters of the litigation. In re Asbestos Cases (Mulligan v. Keene Corp.) (1991), 224 Ill. App.3d 292, 586 N.E.2d 521. -14- jurisdiction of Ohio appellate courts specifically providing in pertinent part: Courts of appeals shall have such jurisdiction as may be provided by law to review and affirm, modify, or reverse judgments or final orders of the courts of record inferior to the court of appeals within the district ***. R.C. 2505.03 specifically provides by law that every final order, judgment, or decree of a court may be appealed. Final orders are defined in R.C. 2505.02 as follows: An order that affects a substantial right in an action which in effect determines the action and prevents a judgment, an order that affects a substantial right made in a special proceeding or upon a summary application in an action after judgment, or an order that vacates or sets aside a judgment or grants a new trial is a final order that may be reviewed, affirmed, modified, or reversed, with or without retrial. *** An order which does not satisfy the jurisdictional requirements of R.C. 2505.02 is not appealable. First, we look to whether this order affects a substantial right in an action which in effect determines the action and prevents a judgment. Appellant asserts that the order creating the unimpaired registry is both final and appealable because there is at least one issue, choice of law, adjudicated by its adoption, and moreover, that this order prevents a judgment because no dispositive motion practice may be maintained. We do not agree. Specifically, appellant argues that the trial court has prejudiced the asbestos defendants by allowing essentially uninjured claimants to impermissibly avail themselves of more -15- favorable laws indefinitely by filing their cases before the advent of tort reform in Ohio in 1996. However, appellant's argument fails because in Ohio the asbestos-related pleural thickening or pleural plaque, which is an alteration to the lining of the lung, constitutes physical harm, and as such satisfies the injury requirement for a cause of action for negligent failure to warn or for a strict products liability claim, even if no other harm is caused by asbestos. Verbryke v. Owens-Corning Fiberglas Corp. (1992), 84 Ohio App.3d 388. The Verbryke court noted that even if Robert Verbryke's disease is asymptomatic it does not necessarily mean he is unharmed in the sense of the traditional negligence action. Verbryke, supra at 395. Therefore, with the knowledge of the current state of the law in Ohio, we see that these plaintiffs justifiably believe that the knowledge that they possess non- dysfunctional asbestos related changes in their lungs places them on sufficient notice to start running the statute of limitations time-clock. Accordingly, we do not see that because the unimpaired plaintiffs have chosen to file their claims prior to the enactment of the tort reform law rather than risk bar by the statute of limitations they have prejudiced these defendants by their choice of law. Next, appellant asserts that this order is final as it prevents a judgment because no dispositive motion practice is permitted against the uninjured claimants while they are on the inactive deferred docket. We do not agree. Judgment in these cases will be deferred for those plaintiffs whose claims are on the -16- inactive docket, but if and when a plaintiff's claim is on the active docket, these defendants are not denied any of the procedures permitted by the Civil Rules. It, therefore, cannot be said that this order prevents a judgment. A careful review of the order before us reveals, then, that the order from which this appeal is taken does not determine the underlying personal injury action of any claimant nor does the order adjudicate any issue in the case. The order does not determine the action nor does it prevent a judgment. Accordingly, the order is not a final and appealable order as defined in the first clause of R.C. 2505.02. Second, we look to whether this order affects a substantial right made in a special proceeding. Appellant urges us to analogize this order to cases wherein other seemingly interlocutory orders have been found appealable to support his assertion that the order at issue here is final and, therefore, appealable. In Guccione v. Hustler Magazine, Inc. (1985), 17 Ohio St.3d 88, the court found the grant of a motion to disqualify otherwise competent counsel to affect a substantial right and be reviewable as a final order; and in Dayton Women's Health Center v. Enix (1990), 52 Ohio St.3d 67, the court found reviewable the determination of whether an action may be maintained as a class action. We find appellant's reliance on these cases to be misplaced. The court in Guccione determined that the order denying permission of out-of-state counsel affects a substantial right utilizing the balancing test of Amato v. Gen. Motors Corp. (1981), -17- 67 Ohio St.2d 253, to determine that such decision of a special proceeding equates with the need for immediate review. In Dayton Women's Health Center, the court determined that the class certifications are final appealable orders in reliance on the reasoning of the Amato court. The Amato court found that class certifications are, in effect, special proceedings when the test used weighs the harm to the prompt and orderly disposition of litigation and the consequent waste of judicial resources, resulting from the allowance of an appeal, with the need for immediate review because appeal after final judgment is not practicable. Amato, supra at 258. However, the Amato decision has been expressly overruled by Polikoff v. Adam (1993), 67 Ohio St.3d 100. Recently, the supreme court in Walters v. The Enrichment Ctr. of Wishing Well, Inc. (1997), 78 Ohio St.3d 118, reasserted that [i]n Polikoff, we held at the syllabus that `[o]rders that are entered in actions that were recognized at common law or in equity and were not specially created by statute are not orders entered in special proceedings pursuant to R.C. 2505.02. (Amato v. Gen. Motors Corp. [citation omitted], overruled.) We, therefore, acknowledge that the test is no longer the same. The supreme court in Walters instructs us that we must examine the underlying action to determine whether an order was entered in a special proceeding, and we are not to look to the order itself which was entered within that action. Walters, supra at 123. -18- Here, the underlying actions are ordinary civil actions in tort for personal injury as recognized at common law and, consequently, cannot be considered a special proceeding. Therefore, the order before us cannot be said to be an order affecting a substantial right made in a special proceeding as defined in the second clause of R.C. 2505.02. Finally, in reliance on General Acc. Ins. Co. v. Ins. Co. of North America (1989), 44 Ohio St.3d 17, appellant argues without analysis that as declaratory judgments have been held reviewable, this registry order is analogous to a declaratory judgment action and, consequently, this order should be found to be reviewable as a special proceeding. We do not agree. The holding of Walters, supra,prevents us from consideration of such analogy. The supreme court in Walters has established a bright line test as we have stated above for the determination of a special proceeding and, in this case, the order challenged by appellant was entered in an ordinary civil personal injury action known at common law and simply was not entered in a special proceeding. We conclude that the order establishing the Voluntary Registry for Unimpaired Asbestos Claims demonstrates a traditional exercise of the court's authority to control its docket. We recognize that registries for unimpaired claimants may serve as appropriate procedural mechanisms for trial courts to manage and control their own dockets. This order may be characterized as administrative in its function, as a means by which the procedural details of litigation are regulated, and *** is a tool whereby the court may -19- prioritize the litigation of cases already filed and an example of the court exercising its inherent authority to control its docket. In re Asbestos Cases (Mulligan v. Keene Corp.) (1991), 224 Ill. App.3d 292, 295; 586 N.E.2d 521, 524. This order does not determine the action nor prevent a judgment, nor was this order rendered in a special proceeding. Therefore, we find that the Voluntary Registry order is not a final order as defined by the R.C. 2505.02 and we are without jurisdiction to consider this appeal. Accordingly, the appeal is dismissed. -20- This appeal is dismissed. It is, therefore, considered that said appellees recover of said appellant their costs herein taxed. It is ordered that a special mandate be sent to the Common Pleas Court directing said court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. O'DONNELL, P.J. and KARPINSKI, J., CONCUR. TIMOTHY E. McMONAGLE JUDGE N.B. This entry is an announcement of the court's decision. See App.R. 22(D) and 26(A); Loc.App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's .