NAW Takes Action on Liability Case

Distributors may be better protected from strict liability actions if a Supreme Court case in Ohio is overturned.


The National Association of Wholesaler-Distributors is one of nine organizations that filed a friend of the court" brief in the Supreme Court of Ohio in a case focused on the retroactive application of the doctrine of strict liability in product liability actions brought against non-manufacturer product sellers, including wholesalers, distributors and retailers.

Strict liability is based on the condition of a manufacturer's product rather than the conduct of the defendant.

According to NAW President Dirk Van Dongen, the association views DiCenzo as a "major, even seminal case that carries with it profound legal and economic ramifications for wholesaler-distributors in Ohio and across the nation.

In their brief, amici support appellants' effort to overturn a State appeals court's June 28, 2007, decision in DiCenzo v. A-Best Products, Co., Inc. et al. (Court of Appeals Case No. CA 06-088583).

In DiCenzo the Appeals Court held that strict liability in product seller liability actions, first recognized in Ohio in 1977 in Temple v. Wean United, Inc., may be applied retroactively back to 1966, when the Ohio Supreme Court's decision in Lonzrick v. Republic Steel Corp. was issued.

In Lonzrick, Ohio's high court first "imposed a type of limited strict liability on manufacturers, but it did not address the liability of sellers."

The amicus brief contends that the appellate court erred when it applied strict product liability to non-manufacturer suppliers to pre-1977 sales, complaining that the lower court's decision is inconsistent with Ohio law before 1977 and will have significant negative impacts on smaller and medium size Ohio businesses unless it is overturned."

The DiCenzo case revolves around workplace exposure to asbestos. In their brief, NAW and its fellow amici outline the nature and dimension of the asbestos litigation crisis, pointing out that "the net has spread from the asbestos makers to companies far removed from the scene of any putative wrongdoing & hellip; Nontraditional defendants now account for over half of asbestos expenditures."

The brief contends that "(i)f the appellate court's decision is permitted to stand & hellip; non-manufacturer suppliers would be subject to strict liability in many (if not most) of the 35,000 or more asbestos personal injury cases pending in Ohio state courts."

NAW and its fellow amici conclude, "Countless Ohio businesses would face liability beyond any amount they reasonably could have anticipated prior to 1977."