Ohio § 2307.86

§ 2307.86.

(A) Physical impairment of the exposed person, to which the person's exposure to mixed

dust is a substantial contributing factor, shall be an essential element of a mixed

dust disease claim in any tort action. (B) No person shall bring or maintain a tort action alleging a mixed dust disease claim

based on a nonmalignant condition in the absence of a prima-facie showing, in the

manner described in division (A) of section 2307.87 of the Revised Code , that the exposed person has a physical impairment, that the physical impairment

is a result of a medical condition, and that the person's exposure to mixed dust is

a substantial contributing factor to the medical condition.  That prima-facie showing shall include all of the following minimum requirements: (1) Evidence verifying that a competent medical authority has taken a detailed occupational

and exposure history of the exposed person from the exposed person or, if that person

is deceased, from the person who is most knowledgeable about the exposures that form

the basis of the mixed dust disease claim for a nonmalignant condition, including

all of the following: (a) All of the exposed person's principal places of employment and exposures to airborne

contaminants; (b) Whether each principal place of employment involved exposures to airborne contaminants,

including, but not limited to, mixed dust, that can cause pulmonary impairment and,

if that type of exposure is involved, the general nature, duration, and general level

of the exposure. (2) Evidence verifying that a competent medical authority has taken a detailed medical

and smoking history of the exposed person, including a thorough review of the exposed

person's past and present medical problems and the most probable causes of those medical

problems; (3) A diagnosis by a competent medical authority, based on a medical examination and

pulmonary function testing of the exposed person, that both of the following apply

to the exposed person: (a) The exposed person has a permanent respiratory impairment rating of at least class

2 as defined by and evaluated pursuant to the AMA guides to the evaluation of permanent

impairment. (b) The exposed person has mixed dust pneumoconiosis, based at a minimum on radiological

or pathological evidence of mixed dust pneumoconiosis. (C) No person shall bring or maintain a tort action alleging that mixed dust caused that

person to contract lung cancer if the exposed person is or was also a smoker, in the

absence of a prima-facie showing, in the manner described in division (A) of section 2307.87 of the Revised Code , that the exposed person has a physical impairment, that the physical impairment

is a result of a medical condition, and that the person's exposure to mixed dust is

a substantial contributing factor to the medical condition.  That prima-facie showing shall include all of the following minimum requirements: (1) A diagnosis by a competent medical authority that the exposed person has primary

lung cancer and that exposure to mixed dust is a substantial contributing factor to

that cancer; (2) Evidence that is sufficient to demonstrate that at least ten years have elapsed from

the date of the exposed person's first exposure to mixed dust until the date of diagnosis

of the exposed person's primary lung cancer.  The ten-year latency period described in this division is a rebuttable presumption,

and the plaintiff has the burden of proof to rebut the presumption. (3) Both of the following: (a) Radiological or pathological evidence of mixed dust pneumoconiosis; (b) Evidence of the exposed person's substantial occupational exposure to mixed dust. (D)(1) No person shall bring or maintain a tort action alleging a mixed dust disease claim

based on wrongful death, as described in section 2125.01 of the Revised Code , of an exposed person, in the absence of a prima-facie showing, in the manner described

in division (A) of section 2307.87 of the Revised Code , that the death of the exposed person was the result of a physical impairment, that

the death and physical impairment were the result of a medical condition, and that

the person's exposure to mixed dust was a substantial contributing factor to the medical

condition.  That prima-facie showing shall include all of the following minimum requirements: (a) A diagnosis by a competent medical authority that exposure to mixed dust was a substantial

contributing factor to the death of the exposed person; (b) Evidence that is sufficient to demonstrate that at least ten years have elapsed from

the date of the exposed person's first exposure to mixed dust until the date of diagnosis

under division (D)(1)(a) of this section or death of the exposed person.  The ten-year latency period described in this division is a rebuttable presumption,

and the plaintiff has the burden of proof to rebut the presumption. (c) Both of the following: (i) Radiological or pathological evidence of mixed dust pneumoconiosis; (ii) Evidence of the exposed person's substantial occupational exposure to mixed dust. (2) If a person files a tort action that alleges a mixed dust disease claim based on

wrongful death, as defined in section 2125.01 of the Revised Code , of an exposed person and further alleges in the action that the death of the exposed

person was the result of living with another person who, if the tort action had been

filed by the other person, would have met the requirements specified in division (D)(1)(c)

of this section and that the exposed person lived with the other person for the period

of time specified in division (DD) of section 2307.84 of the Revised Code , the exposed person is considered as having satisfied the requirements specified

in division (D)(1)(c) of this section. (E) Evidence relating to physical impairment under this section, including pulmonary

function testing and diffusing studies, shall comply with the technical recommendations

for examinations, testing procedures, quality assurance, quality control, and equipment

incorporated in the AMA guides to the evaluation of permanent impairment and reported

as set forth in 20 C.F.R. Pt. 404, Subpt. P, App. 1 , Part A , Sec. 3.00 E. and F., and the interpretive standards set forth in the official statement of

the American thoracic society entitled “lung function testing:  selection of reference

values and interpretive strategies” as published in American review of respiratory

disease, 1991:144:1202-1218. (F) All of the following apply to the court's decision on the prima-facie showing that

meets the requirements of division (B), (C), or (D) of this section: (1) The court's decision does not result in any presumption at trial that the exposed

person has a physical impairment that is caused by a mixed dust-related condition. (2) The court's decision is not conclusive as to the liability of any defendant in the

case. (3) The court's findings and decision are not admissible at trial. (4) If the trier of fact is a jury, the court shall not instruct the jury with respect

to the court's decision on the prima-facie showing, and neither counsel for any party

nor a witness shall inform the jury or potential jurors of that showing.