dissenting.
*240{¶ 63} How does Danny Aekison fit into asbestos-litigation reform? Do one man’s injuries matter in the midst of a crusade?
Background
{¶ 64} 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 with 2003 Am.Sub.H.B. No. 292, 150 Ohio Laws, Part II, 3970 (“H.B. 292”). In Norfolk S. Ry. Co. v. Bogle, 115 Ohio St.3d 455, 2007-Ohio-5248, 875 N.E.2d 919, ¶ 2, this court set forth the General Assembly’s stated motivation behind the bill:
{¶ 65} “Based on its belief that ‘[t]he current asbestos personal injury litigation system is unfair and inefficient, imposing a severe burden on litigants and taxpayers alike,’ the General Assembly enacted H.B. 292. H.B. 292, Section 3(A)(2), 150 Ohio Laws, Part III, 3970, 3988. By the end of 2000, ‘over six hundred thousand people [had] filed asbestos claims’ nationwide, and Ohio had ‘become a haven for asbestos claims and, as a result, is one of the top five state court venues for asbestos filings.’ Id. at Section 3(A)(3)(a) and (b), 150 Ohio Laws, Part III, 3989. The General Assembly further noted that in Cuyahoga County alone, the asbestos docket increased from approximately 12,800 cases in 1999 to over 39,000 cases by October 2003. Id. at Section 3(A)(3)(e), 150 Ohio Laws, Part III, 3989. Eighty-nine percent of claimants do not allege that they suffer from cancer, and ‘[s]ixty-six to ninety per cent of these non-cancer claimants are not sick.’ Id. at Section 3(A)(5), 150 Ohio Laws, Part III, 3990.”
{¶ 66} That Ohio is in the “top five” of claims filed should not be surprising: Ohio was in the top five most populous states from the start of World War II until the 1970 census (and was seventh in the 2000 census) and has historically been a center for industry. Nonetheless, the General Assembly has declared a crisis, and since the crisis lies in the number of cases pending in Ohio courts, the crisis cannot be lessened unless the number of pending cases is dramatically reduced. The crisis cannot go away unless cases go away, unless people go away. The people who must go away include plaintiffs with cases that were viable before September 4, 2004; H.B. 292 requires it. But this court does not have to let it happen.
{¶ 67} H.B. 292 changes the law so that people who had viable claims before its passage no longer have viable claims afterward. It achieves its end by changing the substance of what constitutes a valid injury, altering the nature of the medical proof necessary to prove a claim, modifying what constitutes causation in an asbestos-exposure claim, and essentially overruling this court in establishing new requirements for the extent of exposure to asbestos that is necessary to prove a claim. There is no way around it: H.B. 292 places new, substantive burdens on people with asbestos-exposure claims.
*241{¶ 68} The General Assembly, at least, offered a lifeline to claimants whose cause of action arose before the date of the passage of H.B. 292. Pursuant to R.C. 2307.93(A)(3), 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.” The majority, however, cuts that lifeline today for all plaintiffs.
The Injury
{¶ 69} The scapegoat of H.B. 292 is the injury generally known as pleural thickening, an alteration to the lining of the lungs that can be asymptomatic. Claimants with this injury are part of the so-called “ ‘[sjixty-six to ninety per cent [of claimants who] are not sick.’ ” (Emphasis added.) Bogle, 115 Ohio St.3d 455, 2007-Ohio-5248, 875 N.E.2d 919, at ¶ 2, quoting H.B. 292, Section 3(A)(5), 150 Ohio Laws, Part III, 3990. Contrary to the General Assembly’s and the majority’s characterization, however, in Ohio, a person who has suffered an alteration to the lining of his lungs is indeed sick. In Cuyahoga County, where 39,000 cases were pending when H.B. 292 was enacted, the Eighth District Court of Appeals court held over a decade ago that “in Ohio the asbestos-related pleural thickening or pleural plaque, which is an alteration to the lining of the lung, constitutes physical harm, and as such satisfies the injury requirement for a cause of action for negligent failure to warn or for a strict products liability claim, even if no other harm is caused by asbestos.” In re Cuyahoga Cty. Asbestos Cases (1998), 127 Ohio App.3d 358, 364, 713 N.E.2d 20. That holding is no trifle — it is the law in the Ohio appellate district where the vast majority of asbestos cases are litigated, it was never appealed to this court, and no Ohio appellate court has ever held differently. The court in In re Cuyahoga Cty. Asbestos Cases also held that plaintiffs’ “knowledge that they possess nondysfunc-tional asbestos-related changes in their lungs places them on sufficient notice to start running the statute of limitations time-clock.” 127 Ohio App.3d at 364-365, 713 N.E.2d 20.
{¶ 70} The alleged litigation crisis exists because Ohio has recognized that asbestos-related pleural thickening is an injury and had recognized it as an injury when Ackison was first diagnosed in 2000, when he died in 2003, and when his estate filed its lawsuit in April 2004. But the only way for H.B. 292 to alleviate the asbestos litigation crisis is not only to stop recognizing pleural thickening as an injury, but to declare that it was not an injury after people like Ackison had already sought redress for it. H.B. 292 stepped back in time, requiring certain claimants with matters pending on the effective date of the statute to establish a prima facie showing that the claimant suffered from a newly defined injury. That injury found its basis in tests and procedures that plaintiffs of Danny Ackison’s era had no reason to undergo.
*242{¶ 71} After the enactment of H.B. 292, a plaintiff who seeks compensation for previously recognized nonmalignant injuries from asbestos exposure is required to provide the trial court with very specific and detailed information, above and beyond anything previously required. That information is not designed for those plaintiffs to prove the injury for which they have already sued, but to prove a different injury. Specifically, R.C. 2307.92(B) requires that a prima facie showing shall include all of the following minimum requirements:
{¶ 72} “(3) A diagnosis by a competent medical authority, based on a medical examination and pulmonary function testing of the exposed person, that all of the following apply to the exposed person:
{¶ 73} “(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.
{¶ 74} “(b) Either of the following:
{¶ 75} “(i) The exposed person has asbestosis or diffuse pleural thickening, based at a minimum on radiological or pathological evidence of asbestosis or radiological evidence of diffuse pleural thickening. The asbestosis or diffuse pleural thickening described in this division, rather than solely chronic obstructive pulmonary disease, is a substantial contributing factor to the exposed person’s physical impairment, based at a minimum on a determination that the exposed person has any of the following:
{¶ 76} “(I) A forced vital capacity below the predicted lower limit of normal and a ratio of FEV1 to FVC that is equal to or greater than the predicted lower limit of normal;
{¶ 77} “(II) A total lung capacity, by plethysmography or timed gas dilution, below the predicted lower limit of normal;
{¶ 78} “(III) A chest x-ray showing small, irregular opacities (s, t) graded by a certified B-reader at least 2/1 on the ILO scale.
{¶ 79} “(ii) If the exposed person has a chest x-ray showing small, irregular opacities (s, t) graded by a certified B-reader as only a 1/0 on the ILO scale, then in order to establish that the exposed person has asbestosis, rather than solely chronic obstructive pulmonary disease, that is a substantial contributing factor to the exposed person’s physical impairment the plaintiff must establish that the exposed person has both of the following:
{¶ 80} “(I) A forced vital capacity below the predicted lower limit of normal and a ratio of FEV1 to FVC that is equal to or greater than the predicted lower limit of normal;
{¶ 81} “(II) A total lung capacity, by plethysmography or timed gas dilution, below the predicted lower limit of normal.”
*243{¶ 82} When Ackison’s widow filed her claim, there was no requirement that her husband have “a permanent respiratory impairment rating of at least a class 2 as defined by and evaluated pursuant to AMA guides to the evaluation of permanent impairment.” But under H.B. 292, any claimant with nonmalignant asbestos-related disease whose impairment does not reach the class 2 stage as defined by the AMA guides has his claim administratively dismissed. R.C. 2307.93(A)(3)(c).
{¶ 83} Prior to H.B. 292, a plaintiff would have to prove that he was exposed to the product, that the product injured him, and that those injuries affected his life. Was that an unreasonable standard? Or is it a standard that we would place on any plaintiff for any injury?
{¶ 84} The majority writes that in Ackison’s case, “[although the legislation caused a hold to be placed on the claim, the hold did not by itself extinguish the claim.” True. But claimants like Danny Ackison will not get a chance to avail themselves of R.C. 2307.93(A)(3)(c)’s “come back when you’re sicker” provision. Danny Ackison will not be getting sicker. And he will never have the opportunity to vindicate his rights that existed on the day he learned that his workplace exposure to asbestos had made him sick. H.B. 292 established that Ackison’s compensable harm was no longer a compensable harm.
Competent Mledical Authority
{¶ 85} The majority claims that the term “competent medical authority” was not defined by either statute or case law before the enactment of R.C. 2307.91. The majority writes that “[b]y choosing to define that term, the legislature did not take away Ackison’s [executor’s] right to pursue her claim. Nor did the definition alter the quantum of proof necessary for a plaintiff to prevail in an asbestos-related claim. Rather, it merely defined the procedural framework by which trial courts are to adjudicate such claims.” That is a bit like saying that the Blitzkrieg was merely Germany’s way to define its border with Poland.
{¶ 86} The definition of “competent medical authority” adds requirements for proof of an injury. The majority does not set forth these specific requirements in its opinion, allowing it to more easily make the statement “The definition of competent medical authority pertains to the witness’s competence to testify and is, in essence, more akin to a rule of evidence.” R.C. 2307.91(Z) provides that a “competent medical authority” must meet the following requirements:
{¶ 87} “(1) The medical doctor is a board-certified internist, pulmonary specialist, oncologist, pathologist, or occupational medicine specialist.
{¶ 88} “(2) The medical doctor is actually treating or has treated the exposed person and has or had a doctor-patient relationship with the person.
*244{¶ 89} “ * * *
{¶ 90} “(4) The medical doctor spends not more than twenty-five percent of the medical doctor’s professional practice time in providing consulting or expert services in connection with actual or potential tort actions, and the medical doctor’s medical group, professional corporation, clinic, or other affiliated group earns not more than twenty percent of its revenues from providing those services.”
{¶ 91} R.C. 2307.91(Z) has nothing to do with the competence of physicians to testify, as a rule of evidence might. No matter the expertise or experience of the doctor, if the doctor is not the claimant’s treating physician, or if he makes too much money consulting with tort victims, he may not testify on behalf of the claimant.
{¶ 92} R.C. 2307.91(Z) is a special rule for asbestos plaintiffs only and is designed to attack the way their cases are brought. It changes the type of evidence necessary to prosecute a claim. It requires Danny Ackison, a dead man, to find an internist, pulmonary specialist, oncologist, pathologist, or occupational medicine specialist to become his treating physician. Without that relationship, there is no claim. No statute or rule of evidence anywhere approaching that kind of evidentiary requirement existed at the time Ackison filed his claim. It adds an element to proving a claim that for Ackison is impossible to achieve. That requirement kills his cause of action by redefining it into oblivion.
Substantial Contributing Factor
{¶ 93} R.C. 2307.92 requires a claimant to provide prima facie evidence that the claimant’s exposure to asbestos was a “substantial contributing factor” to the claimant’s medical condition; R.C. 2307.91(FF) defines “substantial contributing factor” as including both of the following factors:
{¶ 94} “(1) Exposure to asbestos is the predominate cause of the physical impairment alleged in the asbestos claim.
{¶ 95} “(2) A competent medical authority has determined with a reasonable degree of medical certainty that without the asbestos exposures the physical impairment of the exposed person would not have occurred.”
{¶ 96} The majority saves the General Assembly from itself, finding that interpreting the term “predominate cause” in the way the General Assembly obviously intended “would alter the common-law element of proximate causation and render the statute unconstitutionally retroactive in this case.” The General Assembly could not have meant to do that, the majority concludes. Latching on to the idea that the grammatically shaky word “predominate” might or might not mean “predominant,” the majority finds that the word is ambiguous and decides *245to interpret the statute in a manner “consistent with the common law.” To do so, it excises “predominate” from the statute:
{¶ 97} “[W]e observe that the General Assembly, in enacting this comprehensive reform legislation, was careful to make substantive changes prospective only. * * * Thus, it does not appear that the General Assembly intended a substantive change by using the term ‘predominate.’ ”
{¶ 98} So much for the vital skepticism underlying the separation of powers. The majority imputes constitutional motives to the General Assembly even though the General Assembly’s true motives were revealed in the language the majority has seen fit to remove. I would find R.C. 2307.91(FF) unconstitutional.
Substantial Occupational Exposure
{¶ 99} The majority is correct that the term “substantial occupational exposure” in R.C. 2307.91(GG) applies only to lung cancer claims brought either by wrongful-death claimants or by claimants who smoked. Instead of ignoring the definition of “substantial occupational exposure” as irrelevant to this cause of action, however, the majority grants the phrase its imprimatur.
{¶ 100} R.C. 2307.91(GG) sets forth specific requirements for the claimant’s length of exposure to asbestos and the types of exposure necessary to state a claim:
{¶ 101} “(GG) ‘Substantial occupational exposure to asbestos’ means employment for a cumulative period of at least five years in an industry and an occupation in which, for a substantial portion of a normal work year for that occupation, the exposed person did any of the following:
{¶ 102} “(1) Handled raw asbestos fibers;
{¶ 103} “(2) Fabricated asbestos-containing products so that the person was exposed to raw asbestos fibers in the fabrication process;
{¶ 104} “(3) Altered, repaired, or otherwise worked with an asbestos-containing product in a manner that exposed the person on a regular basis to asbestos fibers;
{¶ 105} “(4) Worked in close proximity to other workers engaged in any of the activities described in division (GG)(1), (2), or (3) of this section in a manner that exposed the person on a regular basis to asbestos fibers.”
{¶ 106} This court held in Horton v. Harwick Chem. Corp. (1995), 73 Ohio St.3d 679, 653 N.E.2d 1196, paragraph two of the syllabus, that “[a] plaintiff need not prove that he was exposed to a specific product on a regular basis over some extended period of time in close proximity to where the plaintiff actually worked in order to prove that the product was a substantial factor in causing his injury.” In so holding, we specifically disapproved the test enumerated in Lohrmann v. *246Pittsburgh Corning Corp. (C.A.4, 1986), 782 F.2d 1156. “Under the Lohrmann test, to escape summary judgment a plaintiff must present evidence of ‘exposure to a specific product on a regular basis over some extended period of time in proximity to where the plaintiff actually worked.’ ” Horton, 73 Ohio St.3d at 681, 653 N.E.2d 1196, quoting Lohrmann, 782 F.2d at 1162-1163.
{¶ 107} The majority argues that since the General Assembly did not expressly adopt the Lohrmann test in regard to R.C. 2307.91(GG), the statute did not violate the Constitution. However, the requirements of R.C. 2307.91(GG) are even more stringent than the Lohrmann test.
{¶ 108} The majority writes that since the General Assembly made it known that it intended to adopt the Lohrmann test in R.C. 2307.96 and expressly made it prospective in R.C. 2307.96(C), “we cannot conclude that its simultaneous adoption of R.C. 2307.91(GG) was substantive in nature.” The majority seems to say that R.C. 2307.91(GG) is not substantive because in R.C. 2307.96(C), the General Assembly admitted it was altering a substantive requirement, whereas it did not make such an admission in regard to R.C. 2307.91(GG). In other words, if R.C. 2307.91(GG) were substantive, the General Assembly would surely admit to it.
{¶ 109} But the requirements of R.C. 2307.91(GG) are indeed substantive— they kick certain plaintiffs out of the courthouse. A claimant cannot make a claim for wrongful death or lung cancer without proving five years of exposure to asbestos. Prior to H.B. 292, there was nothing remotely like that requirement in the law. A person with four and a half years of exposure could state a claim prior to the passage of H.B. 292; now that same person would have no claim. In Horton, this court “decline[d] to establish a formulaic approach in an area which defies that kind of analysis.” Id., 73 Ohio St.3d at 687, 653 N.E.2d 1196. Today, the majority finds that the General Assembly’s adoption of a formulaic approach does not constitute a substantive change in the law.
{¶ 110} The majority says that a retroactive adoption of the Lohrmann test would be a substantive change. However, R.C. 2307.91(GG) adopts a more stringent version of the Lohrmann test, and the majority calls that change merely procedural. Why? No reason is given.
The Past and Future of Asbestos Litigation in Ohio
{¶ 111} Appellants submit that there are potentially 200,000 asbestos claimants in Ohio, about a five-fold increase from the time H.B. 292 was passed. Even if this court were to find its retroactive application unconstitutional, H.B. 292 would still be applicable to all of those new cases, and thus the vast majority of all cases. H.B. 292 would not go away.
*247{¶ 112} Further, could it be that the General Assembly’s declaration of an asbestos-litigation crisis is overblown? This court, speaking through its Chief Justice and senior staff, thought so around the time the bill was passed:
{¶ 113} “Ohio Supreme Court Chief Justice Thomas Moyer, in a letter to the bill’s sponsor, Rep. Scott Oelslager, a Canton Republican, said the judicial system was being administered ‘very efficiently.’
{¶ 114} “Doug Stephens, director of the Supreme Court’s judicial services, said asbestos cases are not bogged down.
{¶ 115} “ ‘They do a good job of moving cases through the system,’ Stephens said. We have not received complaints that the asbestos docket is holding anybody up.’ ” Brown, Measure Aims to Halt Asbestos-Exposure Suits; Proof-of-Injury Requirement May Clear Half of Cases, Cleveland Plain Dealer (Dec. 12, 2003) Al.
{¶ 116} The fact is that the judicial system on its own, and especially in Cuyahoga County, has found a way to effectively administer asbestos litigation. Prioritization of claims already occurred long before H.B. 292; In re Cuyahoga Cty. Asbestos Cases, decided a decade ago, characterized the trial court’s method of prioritizing of asbestos claims as a “traditional exercise of the court’s authority to control its docket.” Id., 127 Ohio App.3d at 366, 713 N.E.2d 20. Three visiting judges currently sit in Cuyahoga County to preside over asbestos cases exclusively. There is no reason to believe that the most injured plaintiffs are not getting redress the most swiftly.
{¶ 117} This court’s job in this case is not to fix a crisis declared by the General Assembly; our duty is to determine what is right for Danny Ackison under the Ohio Constitution. Our role in this state is to protect the rights guaranteed by the Constitution, not to guide along what might or might not be a good legislative idea. This court’s complicity with the General Assembly when it violates the Constitution is not judicial restraint; it is doing the work of the legislature from the bench.
Appendix
{¶ 118} R.C. 2307.91(Z) reads as follows:
{¶ 119} “Competent medical authority” means a medical doctor who is providing a diagnosis for purposes of constituting prima-facie evidence of an exposed person’s physical impairment that meets the requirements specified in section 2307.92 of the Revised Code and who meets the following requirements:
{¶ 120} “(1) The medical doctor is a board-certified internist, pulmonary specialist, oncologist, pathologist, or occupational medicine specialist.
Motley Rice, L.L.C., and John J. McConnell Jr.; Young, Reverman & Mazzei Co., L.P.A., Richard E. Reverman, and Kelly Thye, for appellee. Vorys, Safer, Seymour & Pease, L.L.P., Richard D. Schuster, Nina I. Webb-Lawton, and Michael J. Hendershot, for appellants H.B. Fuller Co., Industrial Holdings Corp., Union Carbide Corp., Amchem Products, Inc. and Certainteed Corp. Bunda, Stutz & DeWitt, P.L.L., and Rebecca C. Sechrist; Schiff Hardin, L.L.P., and Robert H. Riley, for appellant Owens-Illinois, Inc. Gallagher Sharp, Kevin C. Alexandersen, John A. Valenti, Colleen A. Mount-castle, and Holly Olarczuk-Smith, for appellants Beazer East, Inc. and Ingersoll-Rand Co. Blank Rome, L.L.P., Michael L. Cioffi, and William M. Huse, for appellant Honeywell International, Inc.{¶ 121} “(2) The medical doctor is actually treating or has treated the exposed person and has or had a doctor-patient relationship with the person.
{¶ 122} “(3) As the basis for the diagnosis, the medical doctor has not relied, in whole or in part, on any of the following:
{¶ 123} “(a) The reports or opinions of any doctor, clinic, laboratory, or testing company that performed an examination, test, or screening of the claimant’s medical condition in violation of any law, regulation, licensing requirement, or medical code of practice of the state in which that examination, test, or screening was conducted;
{¶ 124} “(b) The reports or opinions of any doctor, clinic, laboratory, or testing company that performed an examination, test, or screening of the claimant’s medical condition that was conducted without clearly establishing a doctor-patient relationship with the claimant or medical personnel involved in the examination, test, or screening process;
{¶ 125} “(c) The reports or opinions of any doctor, clinic, laboratory, or testing company that performed an examination, test, or screening of the claimant’s medical condition that required the claimant to agree to retain the legal services of the law firm sponsoring the examination, test, or screening.
{¶ 126} “(4) The medical doctor spends not more than twenty-five per cent of the medical doctor’s professional practice time in providing consulting or expert services in connection with actual or potential tort actions, and the medical doctor’s medical group, professional corporation, clinic, or other affiliated group earns not more than twenty per cent of its revenues from providing those services.”
David L. Day, L.P.A., and David L. Day, for appellant John Crane, Inc. Tucker, Ellis & West, L.L.P., Henry E. Billingsley II, Carter E. Strang, Rachel McQuade, and Halle M. Herbert, for appellants BOC Group, Inc., f.k.a. Aireo, Inc., Hobart Brothers Co., and Lincoln Electric Co. Oldham & Dowling and Reginald S. Kramer, for appellants General Electric Co. and CBS Corp., a Delaware corporation, f.k.a. Viacom, Inc., successor by merger to CBS Corp., a Pennsylvania corporation, f.k.a. Westinghouse Electric Corp. Ulmer & Berne, L.L.P., Bruce P. Mandel, and Kurt S. Siegfried, for appellant Ohio Valley Insulating Co., Inc. Eagen & Wykoff Co., L.P.A., Thomas L. Eagen Jr., and Christine Carey Steele, for appellant International Minerals and Chemical Corp. (Mallinckrodt). Ulmer & Berne, L.L.P., Timothy M. Fox, Charles R. Janes, James N. Kline, Kurt S. Siegfried, Robert E. Zulandt III, and Sally A. Jamieson, for appellant Georgia-Pacific L.L.C., f.k.a. Georgia-Pacific Corp. Stewart Jaffy & Associates Co., L.P.A., Stewart R. Jaffy, and Marc J. Jaffy, urging affirmance for amicus curiae Ohio AFL-CIO. Brickler & Eckler, L.L.P., Kurtis A. Tunnell, and Anne Marie Sferra, urging reversal for amici curiae Ohio Manufacturers’ Association, National Federation of Independent Business/Ohio, Ohio Chamber of Commerce, Ohio Alliance for Civil Justice, and Ohio Chemistry Technology Council. Shook, Hardy & Bacon, L.L.P., Victor E. Schwartz, Mark A. Behrens, and Christopher E. Appel, urging reversal for amici curiae American Insurance Association, National Federal of Independent Business Legal Foundation, Chamber of Commerce of the United States of America, National Association of Manufacturers, National Association of Mutual Insurance Companies, Property Casualty Insurers Association of America, and American Chemistry Council.