[Cite as Cross v. A-Best Prods. Co., 124 Ohio St.3d 239, 2010-Ohio-121.]




 CROSS, APPELLEE, ET AL. v. A-BEST PRODUCTS COMPANY ET AL.; AMERICAN
                        OPTICAL CORPORATION, APPELLANT.
   [Cite as Cross v. A-Best Prods. Co., 124 Ohio St.3d 239, 2010-Ohio-121.]
Discretionary appeal accepted and court of appeals’ judgment reversed on the
        authority of Ackison v. Anchor Packing Co.
(No. 2009-1774 — Submitted December 15, 2009 — Decided January 21, 2010.)
       APPEAL from the Court of Appeals for Cuyahoga County, No. 90388,
                                     2009-Ohio-3079.
                                  __________________
        {¶ 1} The discretionary appeal is accepted.
        {¶ 2} The judgment of the court of appeals is reversed on the authority of
Ackison v. Anchor Packing Co., 120 Ohio St.3d 228, 2008-Ohio-5243, 897
N.E.2d 1118.
        MOYER, C.J., and LUNDBERG STRATTON, O’CONNOR, O’DONNELL,
LANZINGER, and CUPP, JJ., concur.
        PFEIFER, J., dissents.
                                  __________________
        PFEIFER, J., dissenting.
        {¶ 3} With 2003 Am.Sub.H.B. No. 292, 150 Ohio Laws, Part II, 3970
(“H.B. 292”), the General Assembly, deciding that a crisis existed in Ohio
regarding the administration of claims for alleged injuries caused by exposure to
asbestos, radically changed the nature of asbestos litigation.             The General
Assembly, however, allowed certain plaintiffs to escape the purview of H.B. 292:
pursuant to R.C. 2307.93(A)(3)(a), the requirements of H.B. 292 do not apply if
they impair the substantive rights of the plaintiff and that impairment is
“otherwise in violation of Section 28 of Article II, Ohio Constitution.” In such
                             SUPREME COURT OF OHIO




instances, the parties proceed under the law as it existed prior to the enactment of
H.B. 292. R.C. 2307.93(A)(3)(b).
       {¶ 4} Pursuant to R.C. 2307.93(A)(3)(a), the trial court below exempted
plaintiff-appellee, Milton B. Cross, from the requirements of H.B. 292 in regard
to what constitutes “competent medical authority” under R.C. 2307.91(Z). Cross
claims to have suffered lung cancer due to his exposure to asbestos, and the trial
court found that applying the dictates of H.B. 292 to what constitutes “competent
medical authority” impaired Cross’s substantive rights and that that impairment
violated Section 28, Article II of the Ohio Constitution. The trial court then
applied the standard of witness competency contained in Evid.R. 702, which
governed asbestos-injury cases prior to the enactment of H.B. 292. The court of
appeals affirmed the trial court’s decision.
       {¶ 5} The majority reverses this case summarily, on the authority of
Ackison v. Anchor Packing Co., 120 Ohio St.3d 228, 2008-Ohio-5243, 897
N.E.2d 1118. The majority opinion in Ackison, however, does not address the
saving clause contained in R.C. 2307.93(A)(3). This case gives this court an
opportunity to determine whether R.C. 2307.93(A)(3) has any vitality, or at the
very least, why it does not apply in this case. I wrote of R.C. 2307.93(A)(3) in
my dissent in Ackison, noting that “[t]he majority * * * effectively cuts that
lifeline today for all plaintiffs.” Ackison at ¶ 68. Did Ackison indeed doom R.C.
2307.93(A)(3), or can that statute still be applied on a case-by-case basis? Parties
and courts need to know whether R.C. 2307.93(A)(3) is useful or whether it is a
vestigial remnant of the General Assembly’s conscience.
       {¶ 6} This case should be briefed and argued. Short of that, I dissent for
the reasons stated in my dissent in Ackison.
                               __________________
       Kelley & Ferraro, L.L.P., Anthony Gallucci, Jaeson L. Taylor, Eric C.
Wiedemer, and Jennifer L. Gardner, for appellee.



                                          2
                             January Term, 2010




       Tucker, Ellis & West, L.L.P., Susan M. Audey, and Jeffrey A. Healy, for
appellant.
                          _____________________




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