¶ … DiCenzo v. Best Products Company, Inc. (Dicenzo v. A-Best Products Co., Inc., 2008), is actually a compilation of several different personal injury actions filed against approximately 90 different defendants. Such filings are not unusual in the products liability field particularly in cases involving asbestos manufacture, sale and distribution. The wide use of asbestos and its popularity as a fireproofing and insulating material resulted in many firms becoming involved in the asbestos industry but when it was later determined that asbestos was also a serious carcinogen the high number of business involved in the industry also served to complicate the litigation process. The result was that many such cases were consolidated in order to avoid the litigation of the same issues over and over again. The instant case presents a classic example of how and why asbestos cases are so readily consolidated by the courts. The named plaintiff, one of ninety, was employed at a steel plant that used asbestos products supplied, but not manufactured, by a company known as George V. Hamilton, Inc. (Hamilton). The Hamilton Company has been involved in providing insulation and fireproofing supplies to commercial clients for nearly a hundred years and continues to do so. The basis of the plaintiff's claim, filed by the plaintiff's estate as the plaintiff had passed as a result of the injuries caused by his exposure to asbestos, was that Hamilton, as the distributor of asbestos products should be held liable for the plaintiff's injuries. The plaintiff's complaint set forth a number of liability theories including strict liability, defective design, failure to warn, breach of warranty, and conspiracy among many others.

The importance of this case cannot be overstated. Although the case had no legal application outside the State of Ohio it had the potential to have far reaching practical effects outside the state. At issue was the possibility that the Ohio Supreme Court might decide to expand the liability of nonmanufacturing sellers in regard to the distribution of defective products. The plaintiffs in DiCenzo attempted to argue that the Ohio Supreme Court's decision in an earlier case entitled, Temple v. Wean (Temple v. Wean, 1977), which found that nonmanufacturing sellers could be held strictly liable for defective products they supplied, should be applied retroactively. Hamilton and the other defendants named in the case argued that Temple should be applied only prospectively and that the defendant companies should not be held strictly liable for supplying any asbestos products before 1977. The various businesses involved in the asbestos industry, both those named in the suit and those involved in the supply of asbestos viewed the case with interest because if the Ohio Supreme Court decided to apply the Temple ruling prospectively it could mean incredible financial exposure for any business associated with asbestos prior to the Temple date of 1977. The attorneys arguing for the asbestos industry that expanding the application of Temple would cause a huge round of bankrupticies by businesses held liable under such expansion. Under such circumstances, the asbestos industry was determined to contest the arguments presented by the plaintiffs in DiCenzo and they did so all the way to the Ohio Supreme Court.

In a 5-2 decision, the Ohio Supreme Court adopted the position argued by the asbestos industry. Interestingly, the Supreme Court applied the three -- part prospective application test as announced by the United States Supreme Court in Chevron v. Huson (Chevron v. Huson, 1971) and applied the Chevron test to the earlier decision in Temple to determine whether or not the plaintiffs in DiCenzo should prevail. The three prongs of the Chevron test are: 1) whether the decision establishes a new principle of law that was not clearly foreshadowed; 2) whether applying the decision retroactively will promote or hinder the purpose behind the decision; 3) whether applying the decision retroactively will cause an inequitable result. After exhaustively reviewing the history of products liability law in the State of Ohio the Court applied each of the Chevron prongs to the Temple case and determined that Temple marked a large step forward in the development of products liability law when it held that suppliers could be liable for their role in the distribution of defective products. Finding this to be the case, the Ohio Supreme Court ruled that the first prong of the Chevron was satisfied. It further ruled that the second prong was neutral but that the third prong found a definite inequity. The end result of the Court's analysis was that Temple should be applied prospectively only and that the defendant...

This is most unfortunate for those businesses but, as in all civil litigation, there is another side to the issue. Those exposed to asbestos and who suffered physically and, in some cases lost their lives, should not be forced to withstand the results of this exposure on their own. The original holding in Temple was an important step forward in recognizing the rights of victims in asbestos cases but limiting its application to those cases that arose after 1977 is unfair for those exposed to asbestos before that date. Their injuries are no less serious or less attributable to the exposure. An arbitrarily applied date should not foreclose the rights of such litigants. This was part of the argument offered by the plaintiffs in DiCenzo and part of the rational offered by the Ohio Court of Appeals that decided DiCenzo before being overruled by the Supreme Court.
Asbestos cases are unique from most other cases in how the companies involved in such litigation react to the outcome. In the typical products liability case the company found liable is forced to alter its policies or production methods. In such litigation the company has been found to be liable for a design defect, a breach in warranty, or producing an unreasonably dangerous product. Under such circumstances the company must address the problem highlighted by the litigation or face further litigation and potential damages. In asbestos litigation, however, this is not the case. The dangers of asbestos have been universally recognized for a considerable period of time and the number of companies actively involved in the production, sale and distribution of asbestos in the past thirty years in the United States has diminished considerably. The majority of defendants in the instant case, including George V. Hamilton, Inc., have either abandoned participation in the asbestos industry or have had to substantially alter their company policies or production methods. Those decisions were made easier by virtue of the fact that the dangers of asbestos were universally recognized and caused the use and production of asbestos to be limited and subject to strict regulation. The federal government, through several different agencies, following the surge in litigation over asbestos use, initiated extensive regulations that made internal rules and policies for those companies continuing to use asbestos much easier. Despite these regulations, asbestos litigation continued due to the fact that complications from exposure to asbestos may not present themselves for twenty to thirty years. This is one of the reasons why the plaintiffs in DiCenzo argued so strenuously for an expansion of the Temple standard and why defendants did as well. Both sides of the issue were concerned with the same legal principle but for different reasons.

The regulation of the asbestos industry has been largely under the control of the Environmental Protection Agency (EPA) for the past several decades. The volume of litigation that developed over problems with asbestos caused a major furor not only among consumers but also among the various companies involved in the industry. The federal government's response was to have the EPA develop and enforce regulations that set national standards for asbestos use and manufacture. Beyond its authority to establish regulations the EPA was also granted limited sanctioning powers in cases where proscribed standards were not met.

The regulation of the asbestos industry was deemed to be too important for just one agency to handle (Brickman, 1992). Beyond the setting of regulations by the EPA, the U.S. Department of Labor also has a role in ensuring the public's safety and health. Through its agency, the Occupational Safety and Health Admininstration (OSHA), the Department of Labor provides training and education to those in the workforce who may exposure to asbestos in an effort to improve workplace safety and health.

In addition to the two major regulatory authorities, the EPA and the Department of Labor, there are a variety of other federal agencies involved in the regulation of asbestos. Each of these other agencies such as the Consumer Product Safety Commission and the National Institute for Occupational Safety and Health play significant roles in regulating the use of asbestos but such regulation is generally coordinated…