A $2.6 Million Ohio Asbestos Verdict, and Why the Family Collected Only 6% of It

Published December 5, 2013 · Verdicts & Settlements

Joseph Bohazi graduated from high school in 1951 and went to work at Youngstown Sheet & Tube. Apart from two years in the Marine Corps, he spent his career there as a boilermaker in the open-hearth department, retiring in 1985. In 2009 he was diagnosed with mesothelioma, a cancer caused by asbestos. He died in 2011. In January of this year a Cuyahoga County jury found that an asbestos product used in his department was a substantial factor in his death and awarded his estate $2.6 million. Last week, on November 27, 2013, the Eighth District Court of Appeals affirmed that verdict in Fisher v. Beazer E., Inc., 2013-Ohio-5251.

The judgment his family can actually collect from the defendant is $156,000.

That gap is not a mistake and it is not an appeal gone wrong. It is Ohio's apportionment law working exactly as written, and it is a lesson for every family pursuing a wrongful-death or serious-injury claim against more than one responsible party.

The verdict

According to the court of appeals' opinion, Mr. Bohazi's lawsuit originally named 29 defendants. By the time of trial in January 2013 only one remained: Ferro Engineering, which made asbestos-containing "hot tops" used to line ingot molds in the open-hearth department. Witnesses described Ferro hot tops disintegrating or being crushed and removed by crane, releasing clouds of dust that workers, including Mr. Bohazi, breathed without any respiratory protection. A former Ferro salesman testified that Ferro never provided information about asbestos hazards, and a company witness confirmed that Ferro shipped more than two million pounds of asbestos-containing compound to the plant.

The jury awarded $1.3 million on the survivorship claim, for Mr. Bohazi's own suffering before death, and $1.3 million on the wrongful-death claim, for his family's losses. It found that exposure to Ferro's products was a substantial factor in causing his disease. The appeals court rejected Ferro's argument that the evidence was insufficient and upheld the denial of Ferro's motions for a directed verdict and for judgment notwithstanding the verdict.

The apportionment

Here is what happened next. The verdict form listed fifteen other entities in addition to Ferro, including three of Mr. Bohazi's former employers. The jury was asked to assign a percentage of fault to each. It assigned 6 percent to Ferro and 34 percent to the group of former employers, with the balance spread among other companies. The trial court entered judgment against Ferro for 6 percent of $2.6 million: $156,000.

The estate cross-appealed, arguing that the former employers should not have been on the verdict form at all. Employers who comply with Ohio's workers' compensation law are immune from damage suits by their employees, so the estate could never have recovered from them. Why should their share of fault reduce what the estate collects from a company that could be sued?

The Eighth District's answer was that the statute says so. R.C. 2307.23 requires the jury to determine the percentage of fault attributable to each party the plaintiff is suing and to "each person from whom the plaintiff does not seek recovery." The definition of that phrase includes people who settled, people who were dismissed, and people who were never parties at all, "whether or not that person was or could have been a party." The court found nothing in the statute excluding immune employers. A defendant need only raise the issue as an affirmative defense, present evidence of the other parties' fault, and ask for the appropriate jury interrogatories.

The "empty chair"

Lawyers call this the empty-chair defense. A defendant points at everyone who is not in the courtroom and says, "They did it too." Under R.C. 2307.22, a defendant found 50 percent or less at fault is liable only for its own proportionate share of economic damages. Combine that with the rule that immune and absent parties go on the verdict form, and the result in Fisher follows: a jury can find a company responsible for a man's death, value that death at $2.6 million, and leave the family with $156,000 from that company.

The General Assembly adopted this system as part of tort reform, and Fisher is a clear illustration of how it operates in a case with many potential wrongdoers and one remaining defendant.

What this means for families

The lesson is not that asbestos cases, product cases, or multi-defendant injury cases are not worth bringing. The Bohazi family's verdict stands, and it includes a finding of responsibility that matters. The lesson is about strategy from day one.

Identify every responsible party, early. The $2.4 million difference in Fisher went to parties who were not at the defense table. Some of those 28 other original defendants presumably settled or were dismissed along the way; the opinion does not say for how much. In any multi-defendant case the goal is to hold every solvent, non-immune wrongdoer in the case, or to settle with each at a value that reflects its likely share, before the last one goes to trial alone.

Understand who is immune before you value the case. Employers covered by workers' compensation generally cannot be sued, yet their fault still counts against you at trial. A realistic valuation accounts for that from the beginning. The related rule that the Bureau of Workers' Compensation can assert a lien on a third-party recovery, which we discussed in an earlier post on the BWC lien, is another reason work-related injury claims need careful planning.

Prepare to prove the absent parties' fault is smaller than the defense claims. The empty-chair defense is an affirmative defense; the defendant bears the burden. A plaintiff who shows up ready to minimize the role of absent parties, with evidence rather than argument, can keep the defendant's percentage high.

Economic versus noneconomic damages are treated differently. The proportionate-share rule in R.C. 2307.22 is written in terms of economic loss, and the rules for noneconomic damages and for defendants found more than 50 percent at fault differ. These distinctions are technical, but they change the money, and they must be considered when deciding whom to sue and whom to settle with.

Wrongful death and survivorship

Fisher also illustrates the two claims that arise when a person dies from an injury. The survivorship claim belongs to the estate and compensates the suffering the person endured before death. The wrongful-death claim compensates the surviving family for their own loss. The Cleveland jury valued each at $1.3 million. We explained who can bring a wrongful-death claim and what can be recovered in a prior post, and our wrongful death page describes how these claims are handled.

What this means for you

If you or a family member was seriously hurt or killed by exposure to a dangerous product, by a defective piece of equipment, or in any situation where more than one company or person shares the blame, how the case is structured matters as much as how it is tried. Ohio's apportionment rules reward early investigation and punish the family that sues one defendant and hopes. Bring the case to a lawyer while the records, witnesses, and corporate defendants can still be identified. Our personal injury practice handles multi-party cases throughout the Dayton area.